Polarity vs. Legality

Polarity vs. Legality

international_law_385x261_637169121Although there are many qualified opinions according to which the invasion of Iraq in 2003 was illegal because it was based on the desire to change the Iraqi regime and because it started in the absence of a clear UN Security Council (UNSC) resolution authorizing it, the UN, the only international organization that could decide what represents an infringement of its Charter and the measures required in reaction to that infringement, did not declare the war illegal.

On the contrary, through UNSC resolution 1483 (adopted on May 22, 2003) the UN encouraged other member states to contribute personnel, equipment and other resources to the stability operations conducted under the authority of the occupation forces in Iraq and expressed support for the creation of an interim Iraqi government that would replace the former government changed through external military intervention. And through resolution 1500 (adopted on August 14, 2003), the UNSC welcomed the creation of the Iraq Governing Council as a step forward towards the establishment of a representative and internationally recognized Iraqi government. It has to be pointed out that the Iraqi Governing Council was created by the occupation forces in Iraq and worked under their authority, being thus a stage in the regime change process.

In other words, the outcome of the war whose goal had been regime change in Iraq was recognized as legitimate by the UN, and so were the political changes implemented by the occupation forces in Iraq, something that would not have happened had this been an illegal war since the political consequences of illegal wars are not recognized and are declared null. A good example in this sense is the UNSC reaction to Iraq’s invasion of Kuwait in 1990. Resolution 660 condemned the Iraqi invasion and asked for the withdrawal of the occupation forces. Afterwards, resolution 661 pointed out that Iraq “usurped the authority of the legitimate Government of Kuwait” and decided to take a series of measures meant to “restore the authority of the legitimate Government of Kuwait.” Moreover, it called on all states “not to recognize any regime set up by the occupying power.”

Apart from adopting the aforementioned resolutions, the Security Council then offered its mandate to multinational forces in Iraq, legitimizing their presence through resolution 1546 (2004), and extending it through resolutions 1637 (2005), 1723 (2006) and 1790 (2007).

Although the argument used by those insisting that the war was illegal in order to explain the lack of a UN resolution to declare it as such consists of the fact that the US has the right of veto in the UNSC and so any initiative to table a resolution that would have declared the war illegal would have been futile, an argument that is correct since many resolutions are not tabled precisely because it is clear they would be subjected to a veto (this also being the explanation for the absence of a UNSC resolution explicitly authorizing the war, the UK and US giving up the attempt to table it after France clearly pointed out that it would use her veto against it), this argument does not explain the series of legitimizing resolutions that were subsequently adopted. Resolutions that could have been in turn subjected to the veto of the other permanent members of the UNSC had they considered the war illegal. Particularly to the veto of the powers that strongly opposed the start of the war in the first place. In other words, if a US veto would have made it impossible to declare the war illegal, a Russian or French veto would have made the resolutions that clearly legitimized the invasion impossible too.

Apart from that, the argument mentioned above also loses sight of the fact that the war could have been declared illegal outside the UNSC too. This would not have been the first war waged by a veto-wielding UNSC member state that would nevertheless have been declared illegal through resolutions adopted outside the Security Council but within the UN.

Thus, the most relevant example is the USSR’s invasion of Afghanistan in the 1980s. Although the war waged by the USSR could not be condemned by the Security Council because the USSR was a permanent member, the UN General Assembly (UNGA) adopted numerous resolutions that clearly emphasized the fact that the war violated the principles of the Charter and international norms, the resolutions asking for the withdrawal of Soviet occupation forces. Despite the fact that UNGA resolutions lack the legal weight of UNSC resolutions, the large number of UNGA resolutions and the categorical way in which they were voted sent a clear message in what concerned the diplomatic isolation of a superpower that had started a war considered illegal by the vast majority of members of the international community even though the Council did not issue a resolution. Thus, the UNGA adopted 10 resolutions that labeled the war in Afghanistan as being illegal and asking for the withdrawal of the occupation forces (resolution 35/37 in 1980, 36/34 in 1981; 37/37 in 1982; 38/29 in 1983; 39/13 in 1984; 40/112 in 1985; 41/33 in 1986; 42/15 in 1987; 43/20 in 1988 and 44/15 in 1989).

Moreover, to call a war illegal automatically means to legitimize the forces that oppose the state(s) that started the war and the occupation forces. Thus, during the war in Afghanistan the Afghan resistance was recognized by several states and international organizations.

For example, in June 1982 the European Parliament condemned the invasion of Afghanistan and recognized the Afghan resistance as a legitimate national liberation movement that should be given all the assistance needed. In May 1986 the US President stated that the US supports the insurgents in Afghanistan and asked for the rapid withdrawal of Soviet troops. In 1986 the Organization of the Islamic Conference recognized the Afghan resistance fighters and asked its member states to strengthen their ties with them. In March 1987 the US President asked the international community to continue its support for the Afghan resistance.

This support went beyond the declarative and diplomatic spheres. Thus, in January 1980 the US imposed sanctions on the USSR. In August 1986 the US began supplying Stinger missiles to the Afghan resistance.

This did not happen in the case of the Iraq invasion in 2003, the Iraqi insurgents not being the recipients of international recognition, nor of diplomatic or military support of this extent.

So what is the explanation for the discrepancies? Since there is no “international police force”, the enforcement of international law depends on the states’ power to punish those breaking it.  As a logical consequence, since the distribution of capabilities within the international system determines the number of great powers, the structure of the international system has a crucial influence on the way international law is applied.

The USSR’s invasion of Afghanistan took place during the Cold War, when the international system was bipolar.  In a bipolar system any event that involves one of the two superpowers will activate the other superpower’s interest and prompt reaction.The US had the capabilities and the will to counteract the Soviet invasion both diplomatically and militarily. So although it was impossible to condemn the invasion within the UNSC, the UNGA was used to underline the USSR’s diplomatic isolation on this issue. Moreover, the US went on and resorted to an indirect military intervention, training and arming the Afghan insurgents that were resisting the Afghan government installed by the USSR following the invasion and the Soviet occupation forces backing it.

In contrast, the invasion of Iraq in 2003 came at a time when the international system was unipolar. Structural changes modify the behavior of units within the system and the results of their interactions.  In a unipolar system great powers are unable to and/or unwilling to incur the risks and high costs of counterbalancing the dominant superpower. Opposition to the US intention to invade Iraq did not go beyond blocking the UNSC from adopting a resolution clearly authorizing the move. Once the invasion took place no other state challenged it. Not legally and not militarily.

Hence, the invasion of Iraq was after all legal in full not necessarily because the US was one of the permanent members of the UNSC, but because it was the superpower in a unipolar system. The “weakness” of international law does not stem from the fact that the UNSC reflects the power structure of 1945 like many of its critics contend, but from the fact that it will always reflect the way power capabilities are distributed in the international system. “Reforming” the UNSC will not change facts on the ground. Polarity will always trump legality.

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