Is Iraq war legal? And the things that the U.N should do – (2)

This is the Part 2 section of the article: Is the Iraq war legal? And the things that the U.N should do. See here for Part 1 if you haven’t read it.

Previous View of the World view 

I have been talking about the U.S’s purpose in these wars and how the U.N and international law should change. Is there anyone who purposes the change of the world view before? Yes, there is one, former U.S president Obama and his team. During Obama Administration, its policy is that “the Monroe doctrine, which represents the U.S’s objection to Europe’s expansion of colonialism into America, that any further actions to control sovereign countries in America is a threat to the U.S’s security, and that in return the U.S will not meddle in the internal affairs of European countries, is over”^[1]https://thediplomat.com/2013/11/the-us-renounces-the-monroe-doctrine/ . If you read one of my earlier articles, you would know that while the initial purpose of the Monroe doctrine was to stop Europe colonialism in America since the U.S thought Europe colonialism would endanger U.S independence, as times went by, the Monroe doctrine was applied in counter-communism, because communism is not in accordance with the U.S’s ideology of capitalism ^[2]https://en.wikipedia.org/wiki/Monroe_Doctrine . Since the Monroe doctrine is about U.S security and applied in counter-communism, the statement “the Monroe Doctrine is over” is particularly important to be noted: The U.S is about to change its view of the world by shifting its core value and policy. 
In the speech made by former Secretary of State, John Kerry, he stated, “The era of the Monroe Doctrine is over…. The relationship that we seek and that we have worked hard to foster is not about a United States declaration about how and when it will intervene in the affairs of other American states. It’s about all of our countries viewing one another as equals, sharing responsibilities, cooperating on security issues, and adhering… to the decisions that we make as partners to advance the values and the interests that we share” ^[3]https://thediplomat.com/2013/11/the-us-renounces-the-monroe-doctrine/ . So he stated something similar to my statement by saying countries should “cooperate on security issues and adhere to the decisions that we make”. However, his statement is solely about “the Monroe Doctrine is over” and the U.S won’t follow the Monroe doctrine anymore, nothing more. In either his speech or the U.S policies during Obama Administration (or policies after that), the U.S have not appealed for “allowing regime change by an external force”. In the Russia-Ukraine war, we can see that the U.S’s policy is still based on whether or not a country under attack is a strategic interest to the U.S and whether or not the U.S has made a commitment to providing force, so the word “the Monroe Doctrine is over” is not close to my suggestion. In John Kerry’s speech, he said, “In a few short decades, democratic representation has, for the most part, displaced the repression of dictators. But the real challenge of the 21^stcentury in the Americas will be how we use our democratic governments to deliver development, overcome poverty, and improve social inclusion”. Notice he said that the U.S would focus on other things instead of confronting dictators, so put it more clearly, “the Monroe Doctrine is over” and the core value of Obama’s policy means the U.S may not help countries with its force even if a country is a strategic interest in the U.S (e.g: Cuba). Let me quote another of John’s words. Explaining what the U.S would do based on Obama’s policy, John Kerry said, “But one exception, of course, remains: Cuba. Since President Obama took office, the Administration has started to search for a new beginning with Cuba……Our governments are finding some cooperation on common interests at this point in time. Each year, hundreds of thousands of Americans visit Havana, and hundreds of millions of dollars in trade and remittances flow from the United States to Cuba. We are committed to this human interchange, and in the United States, we believe that our people are actually our best ambassadors. They are ambassadors of our ideals, of our values, of our beliefs”, so Obama’s policy is to simply commend trades and interactions of humans between the two countries while removing the Monroe doctrine from the U.S’s policy to Cuba.  Furthermore, John Kerry said, “these changes should absolutely not blind us to the authoritarian reality of life for ordinary Cubans…..In a hemisphere where people can criticize their leaders without fear of arrest or violence, Cubans still cannot. And if more does not change soon, it is clear that the 21^st century will continue, unfortunately, to leave the Cuban people behind…….We look forward to the day – and we hope it will come soon”^[4]https://2009-2017.state.gov/secretary/remarks/2013/11/217680.htm . What John Kerry said sounds good to hear because he said the U.S sympathize with what happened to Cuba people, however, it actually means that the U.S has put effort into cooperating on common interests with dictator governments, and the U.S will just look forward to Cuba’s dictator change himself or local Cuba people succeed in throwing out their government without modern weapons and external force’s help. As I explained above, you should know the latter part has little close to zero chance of success. ( It is similar to the way the U.S has dealt with China – Taiwan issue. Former U.S President Nixon, in a speech during the visit to Bejing University in China, answered a challenging question from a student “The U.S constantly has sold many advanced weapons to Taiwan. That’s threatening China. If China sends warships to Hawaii and sign defense treaty with Hawaii, will you and the U.S people agree that?”. He answered, “Our country recognized China and embraced the One China policy 20 years ago… We also reached an agreement that the unification would occur by peaceful means. Our policy is that any weapon sales to  Taiwan therefore must be for defense purposes only. China must not believe we are in any way trying to undermine our own One-China policy. ” He also answered another student’s question: “Do the U.S really want to contain China? ” by saying – “The answer is no. I believe that will be far better for the people in the United States, to have an equal, respectful term in the 21st century than to spend enormous time and money trying to contain China because we disagree with what’s going on beyond our border (China’s communism). I don’t want that. I want a partnership….. because I think it’s good for the American people.” ^[5]https://www.youtube.com/watch?v=n3vDJ5GZB_Y  That also sounds reasonable and good to hear. Instead of spending time and money on issues, not on the U.S border, the president is doing something good for the American people.  However, that’s also the case that the U.S chooses its national interest over justice and (Taiwanese’s) innocent people’s right to freedom and democracy, though Taiwan itself wasn’t far better around that time. The Taiwan government itself gave very little freedom to the Taiwanese in that era, too.  Again, sounds reasonable, but the U.S chooses its national interest over innocent people’s right of freedom.) 

Therefore, the policy isn’t close to my suggestions: allow and recognize regime change by external forces through modifying international laws.  Obama simply tried to recognize trades and interactions with a dictatorship government while leaving Cuba’s people to deal with their dictatorship themselves. This is a flaw of the view of “the U.S is a benign hegemony”. The U.S may help you, but it doesn’t have to do that, just like every country. In Cuba’s case, it’s certain that making a trade is a win-win action. Cuba will get money from trade. But don’t forget, the west is also making a huge profit from trade with other countries. In fact, that’s what every country is doing. For instance, Europe has also traded with China while ignoring Taiwan’s application to the U.N and WHO. Every country has focused on its own national interests instead of local people’s rights. (Certainly, in recent times the situation has been a bit relieved after the reports of Xingjiang human rights issues. The West has made some economic sanctions. There are some efforts made in making Taiwan join WHO, too.)  Yet, just as I already explained, it’s unlikely that Cuba people can overthrow their government without modern weapons, military training, and external force, and the benign-hegemony thought doesn’t always work out, so I suggest the U.N consider my suggestion: allow and recognize regime change by external forces through modifying international laws. ( By the way, I also suggest countries stop trading with Cuba. Since the dictatorship government is still there, why lift the embargo? The government isn’t doing good to its people, why give the government money? Those profits from cigars won’t drop into its people’s pockets. ) 

( Side note: Just give some other examples, for example, in Taiwan’s case, in fact, during the coercion era of Taiwan, the Taiwanese never succeed in the protests against the Taiwan government’s coercion. The reason why Taiwan can enjoy freedom and democracy today is that the president Chiang Ching-kuo who inherited his presidency by blood figured out on his own, and lift the martial law ^[6]https://en.wikipedia.org/wiki/Martial_law_in_Taiwan . Taiwanese never succeed ( By the way, just because there is a history of opposing a government in Taiwan doesn’t mean Taiwanese knows why Russians don’t oppose Putin. Just like anyone in the world, many Taiwanese has become silent when seeing a comment about “It’s part of Russians’ fault. In another example which is China’s case, after the R.O.C government moved to Taiwan and the Communist Party of China started to lead China, a protest against Communist Party’s behaviors outbroke. Protestors advocated democracy. China government sent tanks and troops to the square where the protestors gathered. Many innocent protestors died, and the protest failed. Until now, China people still don’t have democracy, and many China people in the current era have been brainwashed by the government. )  

My clarification of some concerns

Many experts might have some concerns regarding my suggestions. Their concerns will probably be similar to concerns regarding the U.S’s anticipatory self-defense claims, and some of you may cite their concerns to retort me. So let me use their concerns of anticipatory self-defense to answer the potential concerns to my suggestions here. 

1.  In 2016, the deputy prime minister at the time of the invasion, John Prescott, wrote: “In 2004, the UN Secretary-General Kofi Annan said that as regime change was the prime aim of the Iraq War, it was illegal. With great sadness and anger, I now believe him to be right.” ^[7]https://en.wikipedia.org/wiki/Legality_of_the_Iraq_War 

Ans: 
You want to say, “See? The deputy prime minister said regime change is illegal”?
Yes, it’s illegal at the moment. That’s why I propose allowing regime change in international law: This means making regime change legal. The reasons are as above.

2. Professor Burns Weston fears that other countries might use the American decision to wage war illegally to justify their own unlawful wars. “It is a very bad precedent for other countries that might seek, in their own lack of wisdom, to emulate the United States,” he said. ^[8]http://www.robincmiller.com/art-iraq/b58.htm 

Ans: 
As I stated earlier in my passage: “the U.N should make regime change by external forces legal as long as a new local government is selected by its local people and the U.N with the U.N’s help to stabilize the new government (even though it’s not legal in the current time)”, my aim is to make local people have a democratic government instead of dictatorship, not to allow all of the injustice wars(e.g: Russia-Ukraine war). In my condition: a new local government is selected by its local people with the U.N’s help, and people who are ruled by dictatorship can have a chance to enjoy democracy. My condition is just a draft. If the U.N agree with moving forward with my suggestions, the U.N can work on adding more details to avoid abuse or ambiguities like self-defense in the U.N charter.

In an argument by Professor Vaughan Lowe from Oxford University to criticize the U.S’s invasion to Iraq, he stated, “The new resolution provides a firm legal basis for the coalition occupation of Iraq. It gives the UN a role that is prominent on paper but which, in fact, is not at all powerful on the ground. The coalition practically has a free hand in ‘promoting’ reform and the formation of an interim administration … The key question is how far the coalition may proceed with economic and political restructuring in Iraq before the election of a government by the Iraqi people. The resolution does not spell that out; nor does it fix any timetable for the return of power to the Iraqi people. Nor does it stipulate how the massive reconstruction costs of the program – and the benefits, in terms of commercial contracts – will be distributed.” I suggest not looking at the illegitimacy of the U.S’s action, but looking at how we can improve. I suggest using Professor Vaughan Lowe’s criticism to implement more details about how we can ensure justice and democracy happen and sustain after regime change by an external force. Let me add that, so far regime changes and building local government has mostly been done by the U.S(though it’s because the U.S’s security got threatened as I stated earlier). The U.N should intervene and help, and the first step is to allow regime change and add more details and conditions. Professor Lowe’s word is one good reference to add more details to avoid abuse. Just as I said, the U.N can work on adding more details to avoid abuse or ambiguities like self-defense in the U.N charter. 

3. Afghanistan’s case tells us that helping establish a local government won’t work. So we should stay out of way, otherwise, it will be just like Afghanistan’s case, spend a lot of money and waste a lot of soldier’s death, turns out the local government was broken over one night. The Afghanistan president fleed away. 

Ans:  
No. There are many factors that played roles in Afghanistan’s army and the government’s failure. For example, Afghanistan’s army’s corruption and government’s weak leadership all played a role in its own failures^[9]https://www.aa.com.tr/en/world/why-the-us-trained-afghan-army-failed-to-fend-off-taliban/2337959 . Most importantly, what most people don’t know from the news is that the key advantage to winning over the Taliban which Afghanistan army had owned is the U.S’s air support ^[10]https://www.aa.com.tr/en/world/why-the-us-trained-afghan-army-failed-to-fend-off-taliban/2337959 . Some problems occurred in air force training that the U.S had given to Afghanistan. The problems can be corrected if given enough time. However, former President Trump signed a peace agreement with the Taliban in 14 months, without taking Afghanistan’s air force into consideration ^[11]https://www.airuniversity.af.edu/JIPA/Display/Article/2891279/what-happened-to-the-afghan-air-force/ . I suspect this is another one of his problems other than COVID19 which he didn’t listen to experts’ advices (See how many messes Trump has created). The air force is something you should notice about why Afghanistan’s army. What’s more, Trump even agreed to release the war criminals. Time wrote, “The deal looks worse than a simple withdrawal. America can leave all on its own without also agreeing to seek the release of Taliban prisoners. It can leave all on its own without promising to ease sanctions. So why agree to the additional concessions?”  I couldn’t agree more, that these criminals would go back to help the Taliban to attack the Afghanistan army should be an easily-predictable outcome, but Trump agreed to release them. If you are a supporter of Trump, you should see what a president you choose. He brought so much pain to Afghanistan’s people and make the U.S’s 20 years of efforts be in vain.If you still remember what I said about Taiwan’s case, along with Afghanistan’s case: Nixon, Carter, Trump…., you may just learn how much a president in another country’s decision can impact another country. 

Ok. Back to the topic. Anyway, Afghanistan’s case should be treated independently. What we should consider is what we can learn from this Afghanistan failure to improve ourselves and make us not fail again. The idea of helping establish a local government won’t work isn’t the lesson we should learn. Let me cite another example, Hong Kong. Hong Kong has a local government that has put huge efforts into striking corruption, and it has many highly-educated people who have been active in many fields and also have spoken against China’s coercion. I don’t think Hong Kong will have a weak leader who fleed away in one night. These former government officials and highly-educated people definitely will have abilities to help Hong Kong people go through a period of political turmoil if such regime change happens. The lacking factor is weapons, air force, and troops with adequate military training (Still I don’t know if they are willing to conduct such fights, this is simply my proposal that offers to them and the world. They can consider regime change.)   

4. Any other way other scholar have suggested? 

Ans: 
Yes. Professor Pierson in his thesis proposes utilizing regional organizations to do self-defense if necessary. suggestion. He says, “in an expansion of the law,…..to include an imminent shift in the balance of power occasioned by a rogue state’s imminent acquisition of the capacity to attack.  Faced with a Security Council deadlocked by the veto, regional organizations like the OAS are a good substitute for the Charter system of collective security.”However, if the anticipatory self-defense reason isn’t legitimate given the restrictionalists’ explanation of the U.N charter and the international law, will the invasion initiated by a regional institution become legitimate in any sense? To be fair, though it wasn’t clearly spoken in the thesis, what Professor Pierson meant should be that when “faced with a Security Council deadlocked by the veto”, the power of decision-making should come to the accordingly regional institution. So the regional institution will have the power to veto whether or not to conduct an invasion or a regime change. I don’t think this is a good way. In my opinion, regional organizations will face the same problem as the U.N does, thinking about which one is better? Restrictionalists or Counter-restrictionalists? It’s better to just clear the ambiguity and consolidate the new concept in every country. Plus, this suggestion will simply make the world more reliant on regional organizations and become more focused on regional security to solve armed conflicts, while relying on regional organizations is already our current solution and it’s actually not very effective, in my opinion. It’s risky to solely focus on regional security. In Putin’s case, think about what if he can take down Ukraine and the whole of Europe after then? If he can take down the whole of Europe, why not the U.S? Why not some African countries which have some raw ingredients that the world needs? Therefore, since anticipatory self-defense and regime change have reasonable purposes to exist as I explained earlier, I would still suggest the U.N modify its charter and the international law. Regional organizations will still play a vital role under my proposal. When the U.N decides to initiate an invasion or a regime change, the accordingly regional organization can become the first assignee to conduct the U.N’s order. That’s my view of how a regional organization should also operate in the future.   

Conclusion

In conclusion, from a legal perspective, the Iraq war is illegal by a literal standard, but the standard is controversial. From a moral and practical perspective, the war is justified because of reasons including the U.S’s anticipatory self-defense and the rescue of local Iraq people from their dictatorship. 
Hence, since the modern weapons are too destructive for us to receive “the first attack” and there are many people are suffering from dictatorship in the world, in my view, the U.N should modify its charter and the international law for the following: 

1. Allow self-defense including “anticipatory attack” 
Reason:
(1) The consequence can be what you can hardly imagine, so don’t escape from this topic anymore. In the thesis of Professor Pierson, he said, “in an age of weapons of mass destruction, a state which waits for an “armed attack” before defending itself may be ensuring its own annihilation. ” 

(2) To meet the objective of why the UN was established in the past and of the U.N Charter. In Professor Pierson’s thesis, he raised two arguments from other professors:

– Professor Robert F. Turner: “one of the purposes of the United Nations is to prevent threats before they mature.”  ^[12]See Turner, supra note 17, at 168; U.N. CHARTER art. 1, para. I (purpose of United Nations is “prevention and removal of threats to the peace) (emphasis added). ^[13]https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1447&context=djilp 
Note: I also wrote a similar argument regarding the U.N ‘s purpose in Proposals for the Russia-Ukraine war. 

– Professor McDougal: “The customary right of defense, as limited by the requirements of necessity and proportionality, can scarcely be regarded as inconsistent with the purposes of the United Nations.” ^[14]McDougal, See MCDOUGAL & FELICIANO, supra note 33, at 600. ^[15]https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1447&context=djilp  

Furthermore, Professor Pierson also pointed out the inability of the current U.N in his thesis. He says, “The veto has largely disabled it from fulfilling its intended role in keeping the peace. ^[16]See Abram Chayes, Law and the Quarantineof Cuba, 41 FOR’N AFF. 550, 556 (1963). See also McDougal, supra note 33, at 599 (assessing the “continuing ineffectiveness of the general … Continue reading The 291 interstate conflicts fought since the United 38 Nations’ founding attest to the Council’s ineffectiveness.” Citing Professor Lous Ren Beres’s words, Professor Pierson says, “The Charter rules prohibiting force, chiefly Articles 2(4) and 51, were premised upon an effective Security Council. In a world in which the Security Council fulfilled its role of preserving peace there would be no need for anticipatory self-defense. But if the Security Council cannot-or will not- maintain peace, it is senseless to demand that states strictly adhere to Articles 2(4) and 51.1. ^[17]Professor Louis Ren6 Beres notes: “The argument against the restrictive view of self-defense is reinforced by the apparent inability of the Security Council to provide collective security … Continue reading” This should be an equally good reason to modify our international law. 

To allow anticipatory attack while preventing abuses, I recommend the U.N start from what Judge Sofaer suggests and consider what can be added or modified: Judge Sofaer suggests that the factors relevant to determining the necessity for exercising preemptive self-defense are^[18]https://digitalcommons.du.edu/cgi/viewcontent.cgi?article=1447&context=djilp  ^[19]Id:
(1) the nature and magnitude of the threat
(2) the likelihood of the threat being realized
(3) exhaustion of alternatives
(4) whether under the circumstances preemption would be consistent with the Purposes of the United Nations Charter.   

2. Allow regime change by external force if necessary.
Reason:
Although in Professor Pierson’s thesis, he did not talk about regime change, from my point, regime change by external force sometimes is necessary. My reasons are explained in the above paragraph. 
In short, (1) It will be difficult for local people to topple the regime by themselves. (2) So far the regimes which were toppled by the U.S were simply because those regimes become a national threat to the U.S; the U.S simply acts in its national interest. If we don’t help out armless people under dictatorship to change the regime, they will remain suffering from the dictator’s cruel reign forever. See the example of Hong Kong.  

3. Provide necessary “heavy” weapons (not only self-defense weapons) to local civilians along with military training which the West has already done to overthrow their dictatorship government.
Reason: 
To defeat dictatorships and make every people in the world enjoy their right to freedom.  

In Chinese, we have a phrase: “If you believe everything you read, better not read.” (though many Chinese and Taiwanese never practice this phrase while they know this phrase since they were kids. They are just like you, believe everything you read). I think the current debate is a good case for practicing this phrase. In my view, Restrionalists’ view comes from their own thought that “the law is right and we must follow the law”. Many people have such thoughts, no matter whether they are highly-educated experts or not. Nevertheless, I want to remind you that the law is made by humans. Why a law which is made by one human is definitely right? Why that human must be better than you? The laws are rights for reasons given that the laws were defined based on so many considerations, but the laws aren’t always right. Since it is made by humans, we as humans can change that, too. I suggest that we change this law.

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Chrissy Slora

The articles published in this website are all written by Chrissy Slora. Chrissy Slora aims to make people learn about how the world can be better and provide her intelligent and wise insight by writing about various topics from technology to issues happening in the world. Follow her on social media: Facebook | Twitter | Linkedin