At the time of the US/UK invasion of Iraq in 2003 there was intense international debate over the legal basis for that action. Now in 2011 we have a debate about proposals for military involvement in the violent chaos that is presently gripping the nation of Libya. It is clear that the same legal issues remain complex and problematic. If the present revolutionary upheavals in North Africa and the Middle East continue, there is a definite possibility that the world will be confronted with other conflicts like that in Libya in the near term future. This diary provides a survey of the historical issues that configure this debate.
World War I was the most extensive and disruptive armed conflict in world history up to that time. It was billed as the war to end all wars. The League of Nations was Woodrow Wilson's pet project and was established at the Congress of Versailles. It was like most everything else that came out of that congress an abysmal failure. It's mandate to prevent international conflict was impossible given its legal impotence. Most of the situations that the League confronted involved the aggression of one nation against another. The world of the 1930s stood by helplessly watching Germany, Japan and Italy devour the territory of other nations.
During World War II which erupted from these developments the allied nations of the US, UK and USSR formed and agreement to create a new and stronger international organization. Initial planning was begun at the Dumbarton Oaks conference in 1944 and the formal charter was drawn up and signed at the United Nations Conference in San Francisco in the spring of 1945 as the war was drawing to a close.
The United Nations Security Council was created as the executive body of the organization with powers under Chapter VII of the charter giving it authority under international law to deal with international conflict. Like all bodies created by a political process it is a result of political compromises which have later turned out to be confusing and problematic. It established five permanent members of the council with the power to veto resolutions of the council assuring the great powers ultimate control.
Immediately prior to the San Francisco Conference the Organization of American States held an important organizational conference in Mexico City. This conference took the important step of adopting the Act of Chapultepec establishing an inter-American collective security and mutual defense pact. It gave the OAS power to intervene in armed conflict between member states. This act became a major issue of debate in San Francisco over the global powers of the UN vs the powers of such regional organizations. The eventual compromise was Article 51 of the UN Charter.
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
This is a fairly clear acknowledgment of the right of an individual member nation to defend itself. However, it is extremely vague about the powers of other nations who have alliances with a threatened nation. Article 51 has been held to empower regional collective security actions in the absence of action by the UNSC.
The tensions which led to the cold war were already erupting during the San Francisco conference. As the cold war got under way it led to the establishment of two major regional security pacts, the Warsaw Pact composed of the USSR and its associated states in Eastern Europe and NATO, an alliance of North American and Western European nations. The checkmate character of the cold war meant that neither of these bodies ever took major actions. The Warsaw Pact was used a a basis for suppressing uprisings in Hungary and Czechoslovakia. With the collapse of the USSR the Warsaw Pact went out of existence. NATO did not. It has expanded its membership into Eastern Europe and taken on military interventions beyond its area of membership.
In 1991 when Iraq invaded Kuwait the cold war had just been declared to be at an end. In this new atmosphere the UNSC approved a resolution authorizing military intervention to end the aggression. The US military with strong international support made short work of the forces of Saddam Hussein. However, when there were US suggestions of continuing on to Baghdad, the international support quickly evaporated. There followed a 12 year balancing act of UNSC imposed sanctions against Iraq that had many problems with their enforcement.
During the 1900s the world was confronted with the Balkan wars which resulted from the demise of the autocratic power of the former nation of Yugoslavia and the eruption of ethnic conflicts which it had suppressed. Russia and China vetoed proposed UNSC resolutions for military intervention. NATO was used as an organizational cover to establish peace keeping forces. None of the fragments of the former Yugoslavia were NATO members, so this action was a new departure from its charter responsibilities of a mutual defense organization. It also became involved in the intervention in Afghanistan. This was justified as mutual defense in light of the events of 9/11.
In 2002 George Bush and Tony Blair began to use the threat of terror created by the events of 9/11 and the alleged existence of Iraqi WMDs to beat the drums of war. They made prolonged negotiations in the UNSC for a resolution authorizing a military invasion of Iraq. They explored NATO support as well. When it became apparent that neither international organization was willing to provide cover, they launched the invasion under the auspices of a hastily convened coalition. It didn't work out particularly well. Much of the rest of the world was and remains highly critical of this bald act of aggression. The US remains militarily penned down with expensive occupations in Iraq and Afghanistan.
There is now growing concern and pressure about the situation in Libya. The situation seems to have reached the point of something that looks like a fighting stalemate with considerable violence and loss of life. The governments of the UK and France are actively proposing the establishment of a no fly zone over the country. So far the Obama adminstration is proceeding a bit more cautiously and showing concern over the image of the US as oil hungry imperial power.
So far Russia and China are unwilling to support an UNSC resolution authorizing any form of military intervention in Libya. The western powers who are pushing it are casting about for alternative cover. The Washington Post reports on the possibilities.
Officials, saying international support could come from regional blocs, noted that NATO's air attacks on Serbia in 1999 came without U.N. backing.
"If you have [support from] the Arab League, the African Union, NATO and potentially the European Union, you have every country within 5,000 miles of Libya," a NATO official said. "That gives you a certain level of legitimacy."
The United Nations Security Council has the power to provide clear legal authority for military intervention under generally recognized international law. Lacking that is a "certain level of legitimacy" sufficient? So far there is not much indication that either the Arab League or the African Union is interested in signing on for the project. The AU has been involved in some peace keeping efforts in cooperation with the UN with rather mixed results. So far there are members of NATO that are strongly reluctant.
So here is the world once more facing a recurring quandary. The US as the world's sole military super power can basically get away with doing what it wants to do. Nobody else has the power or the will to bring it to account. There are always Americans who think that such unopposable power carries with it the responsibility to do what the American public thinks should be done to impose proper order on the world.