The Legality of War in Iraq: A Necessary Fiction for the Maintenance of International Law?

Author:Marianne Bogue
Position:Senior Sophister Law, Trinity College, Dublin
Pages:197-214
THE
LEGALITY
OF
WAR
IN
IRAQ:
A
NECESSARY
FICTION
FOR
THE MAINTENANCE
OF
INTERNATIONAL
LAW?
MARIANNE
BOGUE*
[It]
didn't
exist.
He
was
positive
of
that
-
but
it
made
no
difference.
What
did
matter
was
that
everyone
thought
it
existed,
and
that
was
much
worse,
for
there
was
no
object
or
text
to
ridicule
or
refute,
to
criticise,
attack, amend, hate,
revile,
spit
at,
tear
to
shreds,
trample
upon
or
burn
up.
-Joseph
Heller,
Catch
22
At
its core, the aim
of
international
law
is
to
maintain peaceable
relationships between
states.
Controlling
the
use
of
force
is
the
principal
method
for
attaining
this aim.
The
international
regulation
of
force
encompasses both
ius
ad
bellum
(the
rules
of
war
that
determine
when
resort
can
be
had
to
the
use
of
force) and
ius
in
bello
(the rules
of
warfare
itself
which
extend
to
the
treatment
of
civilians
and
prisoners
of
war).'
In
order
to
consider
the
evolving
nature
of
the
principle
of
self-defence,
this
article
is
principally
concerned with
ius
ad
bellum.
As the
arbiter
of
questions
of
international
law,
the
International
Court
of
Justice
(hereinafter
ICJ)
founds
its
decisions
and
opinions
on
the
United
Nations Charter, multilateral
treaties,
de
facto
state
practice
and
academic
opinion
in
the
area.
The
United
Nations
is
primarily
concerned
Senior
Sophister
Law,
Trinity College, Dublin.
See,
the
1929
Geneva
Convention
Relative
to the Treatment
of
Prisoners
of
War.
See
also,
Greenwood,
"The
Relationship Between
lus
adBellum
and
lus
in
Belo"
RIS
(1983)
221-234.
2
Article
38(1)
of
the
Statute
of
the
International
Court
of
Justice
dictates
that
the
ICJ
is
the
final
arbiter
of
what
is
International
Law:
The
Court, whose
function
it
is
to
decide
in
accordance
with
international
law
such
disputes
as
are
submitted
to it,
shall
apply:
(a)
international
conventions, whether
general
or
particular,
establishing
rules
expressly
recognised
by
the
contesting
States;
(b)
international custom, as evidence
of
a
general
practice
accepted
as law;
(c)
the
general
principles
of
law
recognised
by
civilised Nations;
C
2004
Marianne Bogue and
Dublin University
Law
Society
Trinity
College
Law Review
with
the
preservation
and,
where
necessary, the
restoration
of
world
peace
and
security.
This requires
the
regulation
of
state
conduct
so
as
to
make
the
resort
to
the
use
of
force
a
rare
and extraordinary
event.
Current
events
in Iraq,
in
the
context
of
a
world
so
often
governed
by
the will
of
powerful
states
rather
than
regulated
by
the UN
Charter,
have
presented
a
significant
test
of
the
legitimacy
and
validity
of
international
law.
We
are
faced with
a
deeply
uncomfortable
dilemma:
either
international
law,
as
system
governing world order,
no
longer
exists,
or
the
greatest
proponents
of
the
international
legal
system
have
become
"rogue
states.
3
With both
the
United Nations
Monitoring,
Verification
and
Inspection
Commission
(hereinafter
UNMOVIC)
4
and
the
United
States
Survey
Group
5
returning
empty-handed
from
their
search
for
weapons
of
mass
destruction
(hereinafter
WMDs)
in Iraq
the
question must
be
asked:
Has
the
flexibility
inherent
in
international law,
once
considered
the
secret
of
its
enduring
effectiveness,
resulted
in
its
untimely
death?
Has
international
law
been
formulated
with such
flexibility
so as
to
legitimise
an
unjustifiable
war?
Or
have
its
standards
been disregarded
by
the
states
which
have
traditionally
safeguarded
its
ideals?
The
Regulation
of States
by
International
Law
Proscribing
the
use
of
force
is
a
cornerstone
of
the
United
Nations
Charter.
Any disputes
arising
between
states
are
to
be
forwarded
to an
arbitrational
forum
or
the
ICJ.
6
The
traditional7
conception
of
a
state's
sovereign
right
to
(d)
subject
to
the
provisions
of
Article
59,
judicial
decisions and
the
teachings
of
the
most highly qualified
publicists
of
various
nations,
as
subsidiary
means for
the
determination
of
rules
of
law.
All
United
Nations
Member
States are
bound
to
the
Statute
by
Article
93
of
the
United
Nations
Charter.
3
Chomsky defines the
term
"Rogue
State"
as
having
two uses:
"a
propagandistic
use, applied
to
assorted enemies,
and
a
literal
use that
applies
to
states that no not
regard themselves
as
bound
by
international norms". See
Chomsky,
Rogue
States:
The
Rule
of Force
in
World
Affairs
(Pluto
Press,
2000),
at
1.
For
the purposes
of
examining
the
principle
of
self-defence,
the
latter
sense
is
to
be
employed.
4
The
United
Nations
Weapons Inspections
Team,
see
<http://www.unmovic.org>.
5
Dr. David
Kay's
resignation
was
announced
21
January 2004.
See
Maddox,
"Kay's
Real
Target
Is
Intelligence
Chiefs,
not
Bush"
Times
Newspapers,
London,
22
January 2004.
For
the
Interim
Progress
Report
on
Iraq,
published
2
November
2003,
see
<http://www.cia.gov/cia/public-affairs/speches/2003/david-kay-10022003.html>
(visited
7
February
2004).
6
Article 2(3),
UN
Charter:
"[all]
member
states
shall
settle their
international
disputes
by
peaceful
means
in
such
a
manner
that
international peace
and
security
and
justice
shall
not
be
[Vol.
7

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