Distinguished Professor Emeritus, International Law and Political Science
University of Southern California, Los Angeles, California
Was the war resulting from the attack on Iraq on March 19, 2003 “legal” or “illegal”? Was it “legitimate” or “illegitimate”? How did it fit into American “foreign policy”? How did it fit into the UN Charter? Has the UN Secretary-General advanced the goal of world order and justice? Was “international peace and security” helped or hindered by the action of the American led coalition that embarked on the use of force which continues to this time?
The wars in Afghanistan and Iraq have produced a war of words relating to both legal terminology and also moral, legal, and political issues and more particularly concerning the words appearing above. Our lives are much affected by these words and the manner in which they are construed. William Shakespeare through Holofernes in “Love’s Labour’s Lost” says “The word is well cull’d, sweet, and apt, I do assure you, sir, I do assure.” Oliver Wendell Holmes noted “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” (1) Towne v, Eisner, 245 U. S. 418, 425 (1918).) Students of American constitutional law have come to know that key words of the Constitution are constantly being reviewed and construed so that they will be used in ways conducive to the current aspirations and divisions of their lives.
Many statesmen and political and legal scholars have addressed and provided assessments and meanings of the foregoing issues and the importance of such words as they relate to each other. A recent inquiry focusing on the legitimacy of American power is that of two American experts, Robert W. Tucker and David C. Hendrickson. (2). “The Sources of American Legitimacy,” 83 Foreign Affairs, No. 6, 18, November- December 2004). Their “four pillars” for American legitimacy are: United States power must be pledged to international law; United States power must be committed to “consensual modes of decision-making;” (3) Id. at 21) the United States must preserve a reputation for “moderation in policy;” (4) Id. at 22), and America must be successful “in preserving peace and prosperity within the community of advanced industrial democracies.” (5) (Id. at 23.)
Their concerns respecting law and the condition of legitimacy are held in all quarters of the globe. In the United States the 2004 meetings of the American Society of International Law and of the American Branch of the International Law Association gave attention to these subjects. All have taken into account the Bush administration’s contention that Saddam Hussein headed an evil empire engaged in the past in the production and potential use of WMD, including the possession of ballistic missile launching facilities, that the use of force was a response to the presence of terrorists in Iraq, including the belief that Saddam Hussein had links with Al Qaeda members, that Iraq had practiced genocide against the Iraqi Kurds, that American forces would be treated as liberators of the Iraq people so that a more democratic regime would emerge and, that with such a new regime, tensions would be eased in that part of the world notably between Israel and the Palestinian government.
Against this background, which was subsequently modified, and always subject to criticism, when it became clear in 2003 that Iraq did not possess an arsenal of WMD, by the 2004 assertion that Iraq had only had the “potential” to acquire and use them, with the recognition that terrorism consisted after the fall of the Baathist power principally in the activities of guerillas and insurgents,( (6) Just as the Afghanistan and Iraq wars have called for an understanding of law and legitimacy, these wars have also raised the appropriateness of such terms as insurgents, guerillas, rebels, resistance members, terrorists, detainees, prisoners of war, lawful combatants, unlawful combatants, military commissions, competent tribunals, as well as others expressions.) a critical need has arisen for the clarification of the concepts of law and legitimacy. This has rivaled in importance the contention that the attack on Iraq constituted an illegal war in violation of international law.
The most notable assertion that the Iraq war was illegal has come from Kofi Annan, the U. N. Secretary-General. It has been shared by a very large number of students of international law, both in the United States and abroad.
Among those holding this view are A.-M. Slaughter, who, first basing her opinion on the action of the Security Council in 2002, argued that the sending of troops into Iraq by the United States and the United Kingdom “was illegal under international law but potentially legitimate in the eyes of the international community,” (7) A.-M. Slaughter, “The Use of Force in Iraq: Illegal and Illegitimate, “ASIL Proceedings, 2004, 262 .) later concluded that “the invasion was both illegal and illegitimate.” (8) Ibid.) Richard Falk stated in 2004 that “the illegality of recourse to war against Iraq in 2003 was clear. It was also clear before and after the war that there was no reasonable basis for invoking the ‘illegal but legitimate’ formula used by the Independent International Commission for Kosovo to deal with an exceptional circumstance of humanitarian emergency.” (9) Richard Falk, “The Iraq War and the Future of International Law,” ASIL Proceedings, 2004, 265.) Other scholars, notably British faculty members, in a letter to the editor of the Guardian (Manchester) dated March 7, 2003, wrote “on the basis of information publicly available, there is no justification under international law for the use of military force against Iraq.”
These outlooks stemmed from an interpretation of the U. N. Charter, and undoubtedly were influenced by fears resulting from American hegemony, and from numerous American policies flowing from unilateralism with its heavy focus on American security, with the assumption that if America were to be secure this would materially advance world security, although from the perspective of some countries such world security would correspond to and be subject only to American interests and values and, from their point of view, necessarily adverse to theirs. Concerns over such an outcome have been leveled at many of the key foreign policies of the George W. Bush administration.
With regard to America’s recent policy regarding Iraq, which has been a briar patch of sharp dissent, there has been added, as noted above relating to the attack on Kosovo, the term “legitimacy.” Problems arise when law and legitimacy intersect, particularly where conduct which has been identified as unlawful is also held to be legitimate and conversely where conduct is held to be lawful but which carries with it the opprobrium of illegitimacy
Turning to the relationship between law and legitimacy reference can be made to the American Collegiate Dictionary for usages. The meaning given to “legitimate” is “according to law; lawful.” Another is “to show or declare to be legitimate or proper.” Another is “to authorize; justify.” The Shorter Oxford English Dictionary describes “legitimacy” in the sense of “conformity to law, rule, or principle: lawfulness, conforming to sound reasoning, logicality.”
An understanding of the relationship between law and legitimacy calls for acceptance of the proposition there may be both legitimate and illegitimate laws. Such a dichotomy in a democracy would seem to be impossible, particularly where there is a tradition that appropriately enacted statutes by a duly constituted public body, subject to judicial review, will cleanse away any condition or concern of illegitimacy and that there will be an informed understanding and broadly based public support, measured in public opinion, thereby producing also a legitimate law.
This approach, with its need to substantiate or to demonstrate that law is justified or approved is based on the view that laws result from accepted practices and seek to serve socially desirable goals. Illegitimate laws, on the other hand, could be the product of dictatorial regimes in totalitarian countries where socially desirable values may be of little consequence. Public support in a dictatorship would have little meaning to the Head of State. Illegitimate laws may also result, as has been claimed, when they depend on personal moral values of influential leaders, even in a democracy.
From a democratic perspective such dictatorial law would fail the justification or approval test. However, the concept of law in democratic countries has a deeper meaning. Posed is the question of which is the more fundamental: law or legitimacy? Those who consider the concept of legitimacy as a limitation or restriction on the concept of law make several arguments.
In assessing this relationship Tucker and Hendrickson invoke the concept of “dominant opinion” which they consider to be the lifeline to international legitimacy. They summarize with the statement that “ultimately, however, legitimacy is rooted in opinion and thus actions that are unlawful [in the sense, first, that “action issues from rightful authority”and, second, “that it does not violate a legal or moral norm”] …may, in principle, still be deemed legitimate.” (10. Supra, note 1 at 18). Further, in providing support to the counrties of the free world during the world wars of the 20th Century there was “the belief that the U. S. power was both necessary and rightful—was in short legitimate.” (11) Supra, note 2 at 23). But, they also observe that “judgments of legitimacy are rooted in law but do sometimes transcend its commands” saying also that “in some hard cases it seems impossible to accord legitimacy to activities otherwise illegal.” (12. Id. at 28). In their summation they conclude that legitimacy depends on world public opinion and that the concept possesses “utility.” (13. Id. at 32.) Coupling utility with moral purpose and legitimacy based on public opinion they conclude that legitimacy in its final aspect is a “good in itself.” (14. Ibid.) Such opinion in their view is to be measured not only in individual outlooks but also by the behavior of international organizations, such as NATO. Even so, reservations may exist depending on the extent of skepticism and to current approval ratings which may accord to the concept of legitimacy an “elusive quality.” ( 15). Id. at 18.)
Nevertheless the concept of legitimacy has an important role to play in assessing the meaning of existing law. The question is one of priority. How much weight can be given to perceptions of legitimacy, taking into account the fact that law must also comport with public opinion if it is to be useful, and effective, while commanding and maintaining the respect of those who are governed under it? Thus in the context of a hierarchy of norms it becomes necessary to ascribe dominance to one of these concepts. In trying to arrive at a decision it is worth noting that world public opinion has become a more measurable condition, even though procedures are sometimes regarded with caution and measurements may vary over time.
If public opinion is to be regarded as a critical element of legitimacy, the same is true for law. Laws in democratic societies are arrived at through clearly identified legislative, executive, and administrative processes, including authoritative judicial opinions interpreting constitutions, statutes, rules and regulations, and treaties.Law or lawfulness appertains to the mandate set forth in the official actions and conduct of duly constituted authority. Such law serves important social and community values. It is enforced by the monopoly of public power vested in governmental entities. To international lawyers the contrast between law and legitimacy may bring to mind the differences between customary international law and treaty-based law. The latter, just as the former, relies on public opinion, but in the case of formal law there has been the exercise of official authority. Such an approach, based on its official status, must be considered “far more appropriate than the personal moral approach.” (16). M. E. O’Connell, “The End of Legitimacy,” ASIL Proceedings, 2004, 268.) Legitimacy or illegitimacy, by contrast, is not founded in such authority but rather must rely on what has been identified as opinion, especially “dominant opinion” sometimes individual, and other times worldwide in its composition. Law calls for lawful acts. The status of law would be eroded if unlawful acts were to be attempted to be justified on the ground they were dominant only because of the presence of supportive public opinion.
The role of such opinion conditions the adoption, construction, and implementation of law. But the same provides a basis for understanding the force and effect of the concept of legitimacy. However, law and legitimacy play out differently depending on whether the country conforms to democratic principles or is a totalitarian entity. In the former much respect is accorded to popular participation in controversial matters with varying degrees of support in public opinion. In totalitarian States, also possessing formal methods for the promulgation of laws, there is little or no need to refer to public opinion. A power structure prevails over contending values. Thus, in examining the hierarchy of law and legitimacy in the United States it is reasonable to conclude that law occupies the higher norm and that public opinion does not subordinate law to legitimacy.
A similar distinction can be drawn between law and policy. Since policy may not have received more support than that given to the concept of legitimacy, it is reasonable to conclude that policy also is inferior to the status of formally established law.
In examining these relations it is important to contrast the approach to law taken in “common law” countries as opposed to that employed in countries following in the “civil law” system. The values in each system are much the same. However the former is heavily focused on serving social and community purposes while freely making changes to meet changing conditions. By contrast the civil law system places much emphasis on the literal construction of existing legal terms. It is characterized by rejecting the significance of changing conditions unless and until there have been formal statutory changes in existing legislation.
The foregoing has relevance to the meaning to be assigned to Article 51 of the UN Charter and to the legality of the war in Iraq. Those scholars trained in the civil law system almost unanimously hold that the 1945 language of Article 51, namely, “armed attack” must be read literally, i. e., there must have been physical harm suffered by the affected State before there can be a lawful military response to the attacking entity. In opposition the common law lawyers have urged that the nature of weaponry developed since 1945 and the means of delivery have been so highly perfected that a targeted State may lawfully engage in preemptive or anticipatory military action in order to maintain its national security as well as the more general condition of international peace and security. In supporting this position they refer to the expression that the Charter is “not to be characterized as a suicide pact.”
Difficulties exist concerning the meaning to be accorded to Article 51 today. Preemptive or anticipatory action presupposes the existence of sufficient and reliable facts on the part of the State claiming the right to engage in preemptive action. Ancient views, restated in Secretary of State Daniel Webster’s opinion concerning The Caroline Case in 1837 referred, as he did, to the right to take preemptive action if the threat of an
imminent and impending attack exists and further subject to the requirement that the State claiming the right of preemptive action must take only such measures as are
reasonable and proportionate under the circumstances. .
In measuring the imminence element of the Caroline test it is important to note that the accuracy and effectiveness of weapons in 1837 have been vastly exceeded in recent times. Moreover, where a country has demonstrated that it has a policy of high military readiness, especially on the part of States with past records of aggressive conduct, larger concerns are appropriate concerning the time frame within which they might launch an attack. With such a “collapse of time” condition an up-to-date view of reality can call for a shorter period when examining and construing the factors of imminence and impending action. Following this approach Articled 51 can be interpreted as not requiring that an armed attack has actually occurred before the threat can be immobilized. It does mean, however, that the country taking such a view must get its facts straight. If these facts bear out an imminent prospect of attack, Article 51 would have to be interpreted as allowing for taking protective and preemptive action. In these circumstances such conduct could not be viewed as constituting an “illegal war.”
The foregoing has application to the recent history of Iraq. As early as 1990 Saddam Hussein engaged in aggressive action against Kuwait. Following his defeat and
during the next ten years ten Security Council Resolutions condemned his conduct, including non-compliance with those Resolutions. These situations, plus the other grievances mentioned at the outset, resulted in the unanimous adoption by the members of the Security Council of Resolution 1441 on November 8, 2002. This Resolution stated that the Security Council had “repeatedly” warned Iraq “that it will face serious consequences as a result of its continued violations of its obligations” resulting from “material breaches” and “non-compliance” with all “relevant” prior resolutions. It was subject to the expectation that the Blix Inspection Team would be able to supplement preliminary findings.
Following the adoption of this Resolution the United States indicated there was no need for extended future investigations in order to provide additional proof of the military status of Iraq and that additional fact finding efforts would delay an attack by coalition countries, while at the same time allowing Iraq more time to prepare its military position. While Resolution 1441 would have allowed for more time to ascertain the military posture of Iraq, there was also the doctrine of anticipatory or preemptive self-defense put forward by the United States and its coalition partners. Thus, a conclusion that the attack was illegal can be questioned because of the overall conduct of Iraq under Saddam Hussein as detailed in the extended and cumulative Security Council Resolutions set forth in Resolution 1441. Although the Security Council did not authorize the Coalition States to enforce its Resolutions their attack on March 19, 2003 might, nevertheless, be upheld under the rationale of The Caroline Case. The best case for the action of the Coalition States can be based on the supposed immediate need to deal with an imminent and impending strike using today’s WMD. The worst case for preemptive action, aside from the prospect of alleged harm, is based on the need to maintain the integrity of the Charter, by according only a literal meaning of its terms, and to sustain the importance of wide-ranging collective decisions thereby allowing the diplomacy of accommodation to prove itself.
Justification for the use of armed force against Iraq has also been advanced by proponents of the concept of “humanitarian intervention.” This has in recent years evolved into a claim that there is a “duty to engage in humanitarian intervention” especially where extended violations of basic Human Rights have existed. This contention was not directly involved prior to the attack on Baghdad but it could have been and may suggest that such an option may be deemed relevant in the future. By its nature it will be concerned with the protection against violations of Human Rights and not seek the wider target of regime change. To be lawful it would have to meet the tests of The Caroline Case. It would have to be grounded in morality and utility as reflected in world opinion so that it would meet the tests of both legality and legitimacy. It would have to be the product of and supported by the collective decisions of the major States composing the United Nations.
Against this background it is necessary to consider the findings and recommendations of the UN High Level Panel for Threats, Challenges, and Change appointed by Secretary-General Kofi Annan in September 2003. It concluded its work late in November, 2004. Its membership was composed of individuals whose countries are permanent voting members of the Security Council with representation from Africa, Asia, Australia, and South America, including citizens of India and Japan. The Panel dealt with the legitimacy of preemptive or preventive self-defense, humanitarian intervention, terrorism, and options for changes in the composition and functions of the Security Council.
The Report of the Panel emphasized the need for the Security Council to take a measured, fact-finding approach when it dealt with the use of armed force. The Report adopted the view that the Security Council must possess authority to engage in preemptive military measures if they were to constitute the last and best resort to the crisis facing it.
The Security Council in examining the condition of an endangered State would be obliged to determine that the threat against it was serious and imminent, that every non-military option had been explored, that the prospect for the duration and extent of military activity had been carefully weighed, and that the use of such force would not produce conditions counterproductive to the announced goals. Thus, recourse to diplomacy with its quality of accommodation was an essential element of the Report. The fact that reference was made to the need to take imminent action emphasized the need to establish a time table governing the taking of decisions.
The Report also considered a situation in which it had been established that a terrorist group was engaged in the acquisition and potential use of weapons of mass destruction. In such circumstances it was considered that a preemptive strike could be employed to neutralize the potential even though it had not been demonstrated that the activities of the terrorists were imminent and impending.
The Report, while not calling for changes in the language of Article 51, concluded if a projected attack were found to be imminent it could be negated by a preemptive attack. This measure would also be available against terrorists even when the conditions of imminence and urgency did not exist. When such measurers are approved by the Security Council it can be concluded that the Security Council actions are both lawful and legitimate.
About the author: His book INTERNATIONAL LAW AND U. S. FOREIGN POLICY was published in September. His recent article “Responding to Torture” will be published in the 2005 issue of The Australian Journal of International Law.