The law doesn’t stop powerful men like Bush

But England’s Attorney General Lord Goldsmith has recently opined (March 14, 2003) that although Resolution 1441 itself may not authorise the use of force, non-fulfilment of its conditions attracts an earlier Security Council Resolution No. 678 passed by the Security Council which ‘‘revives’’. But Resolution 678 is of ancient vintage — it had authorised the use of force ten years ago when Iraq first unilaterally invaded Kuwait. It has long since worked itself out after force was in fact lawfully used against Iraq in the early 1990s to eject it from Kuwait.

The alternative justification for the unilateral use of force against Iraq is traced to customary international law and to Article 51 of the UN Charter. The UN Charter 1945 is the foundation of modern public international law — it specifically prohibits member states from threatening or using force against the territorial integrity or political independence of any state (Article 2(4)); and it provides that the Security Council alone must decide whether and how much force is to be used against a member state.

But Article 51 expressly preserves the right of individual or collective ‘‘self-defence’’ against armed attack — a right which the Charter recognises as ‘‘inherent’’. It is based on customary international law which continues to exist alongside the law established by the Charter. But is anticipatory and pre-emptive self-defence permitted under international law? The answer is not unless justified by necessity — that is, only where there is an imminent and direct threat of an anticipated attack. Self-defence is a lawful response where the opposing side has committed an armed attack or threatened it in ‘‘a irrevocably ostensible way’’. Iraq did not attack Britain or the USA or threaten it in an ‘‘irrevocably ostensible way’’.

There is also a conscious reluctance on the part of the international community to accept the unilateral use of force by a state on the basis of anticipatory self-defence. Thus, when British forces had bombed Harib Fort in Yemen in 1964 claiming to be acting in self-defence, the Security Council adopted a resolution condemning the British action (Security Council Resolution 188: April 9, 1964). And Israel was condemned by the Security Council for its pre-emptive destruction of nuclear installations in Iraq in June 1981 while Iraq was held entitled to appropriate redressal for the destruction it had suffered (Security Council Resolution 487).

The conclusion, therefore, is:

• There is no evidence of any new principle of customary international law justifying a state to take pre-emptive military action against another state where the doctrine of necessity would not so warrant under international law;

• A state’s claim of self-defence does not justify unilateral military action against another state that has not, in the collective opinion of the Security Council, attempted or threatened an attack on it.

The only trouble about international law, however, is that it is not ‘‘law’’ in any conventional sense, and the tendency of some 21st century statesmen is to ignore the law when the law is against them and argue the facts — like all good lawyers do!

As to what will be fate of the UN Charter, it is difficult to predict. But I am reminded of what a Law Secretary in the regime of Bakshi Gulam Mohamed told me in Kashmir many, many years ago. There was a laundry operating under a valid municipal license in a part of Srinagar, next to it were the businesses and residences of prominent relatives of the Chief Minister who complained to him about the nuisance caused by the laundry. The Law Secretary was called in, he humbly pleaded that all municipal regulations were observed and municipal licences were duly granted. But the Chief Minister wanted to know ‘‘under what law’’. Trembling, the Law Secretary took the Municipal Act to the Great Man who looked at the relevant page of the book, the section authorising the grant of licences, tore it out and threw it in the wastepaper basket. ‘‘So much for your law,’’ he said, ‘‘now go and stop that laundry from functioning.’’ Great and powerful men behave that way. The Law will not stop them. Bakshi Sahib was a great and powerful man. So is President George Bush.

(The writer is an eminent jurist and Rajya Sabha MP)