International Rule of Law
and the United Nations

by Dr. Hans Köchler

Dr. Hans Köchler of Austria is president of the International Progress Organization. He presented this paper to an EIR-sponsored seminar in Berlin, Germany, on Jan. 12, 2005. Subheads have been added.

I would like to highlight some aspects which are within the field of my research interests, namely the theory of international law and in particular the relationship between power and law in international relations, and I shall illustrate the problems by reference to the international conflict over Iraq.

The Collapse of the Bipolar System

As a result of the events that have followed the collapse of the bipolar (post-World War II) system, the international order, as a system of mutually accepted norms governing the relations between states on the basis of sovereign equality, is not just being eroded at the present time, but more or less disappearing. The developments following the collapse of the Soviet bloc have brought about a situation in which the United Nations Organization is rapidly losing ground, and is definitely not able any more to act as guarantor of what the UN itself used to call "the international rule of law."[1]

The system of collective security, as it has been incorporated in the United Nations Charter and was practiced (albeit with problems and shortcomings) in the era of bipolarity until 1989-90, has now been effectively ended. That system was based on a kind of directorate of five powers which was tantamount to the establishment of the rule of the victors of the Second World War over the rest of the world, within the framework of the United Nations Organization. Undoubtedly, granting the veto privilege to only five countries (the "permanent members") was neither a just nor balanced measure in terms of power relations. In a certain sense, however, it stabilized international relations and guaranteed the viability of the post-war system of collective security, in a way that no country had authority to use force against another country, except in the case of self-defense (according to Article 51 of the UN Charter), or in the case of a collective use of force—after the Security Council has determined that there exists a threat to the peace or a violation of the peace.

As far as the great powers' actions were concerned, this system has only worked in an imperfect, and often contradictory, manner. Furthermore, the ban on the use of force, enshrined in the UN Charter, could only be upheld—or "enforced"—as long as there existed a bipolar power structure. As soon as one of the two major players of the Cold War era had disintegrated, and a unipolar structure had replaced the bipolar order, the checks and balances which were built into the United Nations Charter did not, or could not, work any more. The most drastic example of this new state of affairs, which is, in fact, the absence of an international power balance, was the assertion by the United States of America of a right of "preventive self-defense."[2] Thus, the U.S. has "taken the law into its own hands," and, by using force against and eventually invading Iraq, without authorization by the United Nations Security Council, has set a dangerous precedent, a fait accompli from which the international system may not recover for a long time.

The Case of Iraq

There is one particularly regrettable fact, which I would like to mention in this context of (super)power politics: Although the use of force against Iraq occurred by the U.S. and the "Coalition of the Willing" alone, and was not in any way endorsed by the UN Security Council, this very Council reconvened a few months after the war had been launched, and, by "recognizing" the responsibilities of the occupying powers (the so-called Coalition Provisional Authority), more or less endorsed the actual state of affairs on the territory of Iraq. Without going into any further details, the United States, having created new "facts on the ground," having invaded Iraq and established an albeit "imperfect" occupation regime, finally had succeeded in imposing its will on the world organization, thus obtaining international "legitimacy," if not for the invasion itself, then for the subsequent occupation (in fact, re-colonization) of Iraq.[3]

Let me again draw your attention to the basic facts, as far as issues of constitutional legality and international legitimacy are concerned: A single member state of the United Nations, the most powerful one for that matter, in collusion with a group of "willing" allies, has committed an act of aggression for which there is no effective remedy in the present international system. One of the most fundamental principles of the Charter of the United Nations, namely the ban on the use of force (Art. 2 [4]) has been violated—and the aggressor state, a founding member and one of the original sponsors of the Charter, "got away with it."

The resolutions which have subsequently been adopted by the Security Council, acknowledging the occupying powers as the "Authority" (Coalition Provisional Authority), have been described by the occupying powers as the international "legal" basis for a series of administrative measures aiming, inter alia, at the preparation of so-called "parliamentary elections" in Iraq. However, in my analysis, those resolutions (in particular resolution 1483 of 22 May 2003) have not given legitimacy to the war of aggression against Iraq.[4] As far as I see it, the presence of foreign troops on the territory of Iraq has by no means been made legal by ex post facto resolutions of the UN, concerning administrative matters of occupation, which is in and of itself an illegal act. Ex injuria jus non oritur.

The basic problem faced by the "international community" in Iraq lies in the United Nations Organization having been side-lined, even "subjugated" for the purposes of a unilateral agenda that is in no way compatible with the organization's multilateral mission. In that regard, the principal cause of the organization's predicament is related to the fact that even the veto power of the other four permanent members of the Security Council is not any more an adequate guarantee that the most powerful player does not violate the rules.[5] If one country alone possesses such power that it can afford to ignore the decisions, or attitudes and interests, of the permanent members of the Security Council (not to speak of all the other member states) without fear of repercussions, we have a situation of international anarchy. In the absence of a balance of power, "anything goes" as far as the global hegemon is concerned.

Impact on the Arab World

Regrettably, the Arab world has been one of the first victims of this new global constellation. Shortly after the Second Gulf War,[6] in the Spring of 1991, I diagnosed that the project of re-colonization of the Arab world had been set in motion.[7] In the post-colonial period, and particularly in the course of the '70s—since the events following the "October War" of '73—the Arab countries had obtained some leverage in international affairs; as far as the issues of Palestine and Jerusalem were concerned, they have been able, to a certain extent, to assert their interests, and to mobilize support of United Nations member states, particularly from the ranks of the Non-Aligned Movement. Iraq, at the time, was one of the major players in the Arab region; there was some sense of belonging to one "Arab nation," an attachment to national identity that was nurtured and consistently emphasized by the leadership of Iraq and other Arab states (such as Syria, Yemen, Libya, originally, in the time of the United Arab Republic, also Egypt) in their pan-Arab discourse. (For those Arabs who were conscious of their regional as well as international role in the post-colonial period, the American terminology, speaking about "Arab nations" in plural form, did not make sense. For them, there existed only one Arab nation in the form of more than 20 different states.) All of this awareness and commitment to a common Arab destiny has been lost in the course of events that culminated in the invasion and occupation of Iraq in 2003.

In the framework of a bipolar world order, or more precisely, as long as there existed "a Soviet Union," the Arabs had weight in international affairs, in so far as they were able to maneuver between the two power blocs. Arab politics lost its relative strength and independence as suddenly as the Communist bloc had disintegrated and the Soviet Union had collapsed. In the absence of a balance of power, the international role of the Arabs simply vanished; and this development towards marginalization has now even been accelerated.

I agree with Mr. LaRouche in that the main motivation for the United States to undertake the invasion of Iraq was to effectively ruin the political order of that country. The U.S. strategy has been to "neutralize" Iraq as a factor of Arab politics, and take the Arab world out of the regional and international power equation—so as to facilitate the implementation of an essentially non-Arab and non-Muslim agenda for the greater Middle East.

Apart from the legal facts and the realities of power politics I have referred to above, and in addition to the state of international anarchy resulting from the system of self-help now having been re-established in international relations, I would like to emphasize one more aspect as far as the future, particularly of our European continent, is concerned: We have been dragged into a confrontation, which we, as Europeans, feel is not our conflict. This confrontation between the West and the Arab and Muslim world has rapidly acquired the dimension of the long-feared "clash of civilizations."[8] Whether we like it or not, the conflict in and around Iraq has gained a global dimension: the violent occupation and ongoing war on the territory of Iraq have increasingly alienated the West not only from the Arabs, but from the wider Muslim world. This development has nurtured hostile emotions on both sides which it will be difficult to contain, and it has reinforced age-old enemy stereotypes.[9] In spite of all the lofty declarations about dialogue and a "new era" in the Middle East, there will be no easy way out of this confrontation.

As far as the "facts on the ground" in Iraq are concerned, I do not see how the occupying power, in cooperation with the United Kingdom and a few "lesser" and less motivated allies, will be able to restore order and security on the territory of Iraq. I do not envisage how they will be able to guarantee elections under orderly conditions—so that they might be qualified as "free and fair." In view of this incapacity of restoring order, political stability and the rule of law in occupied Iraq, it may be almost impossible for the United States of America to find a face-saving way out of the self-inflicted quagmire. The illegal use of force against Iraq has destroyed the political stability of the country, and resulted in a state of anarchy from which the invading country may not easily be able to distance itself—neither morally nor legally or politically, not to speak of the heavy burden on the occupier's economy. Unfortunately, the entire world has now been drawn into that confrontation, and the United Nations Organization is being used as a tool of legitimization.

As explained earlier, because of the course of events on the global level, the Arabs have become victims—and to a certain extent, this is a predicament of their own making—of an imperial policy of divide et impera. According to my rather pessimistic assessment, it may take a rather long time until they will be able to overcome the state of re-colonization under which they now have to exist.

Another Victim: Europe

But there is another, unexpected victim of that policy of divide and rule, and that is Europe: As far as the war against Iraq is concerned, we Europeans—and that relates to the member states of the European Union—were not able to speak with a unified voice. Some of the major members of the European Union have sided with the United States of America and have joined the "Coalition of the Willing," undermining all efforts towards a joint European foreign and defense policy. For that reason, I am personally not very optimistic about the prospects of a cohesive foreign policy of the enlarged European Union, which is now being envisaged within the framework of the very ambitious project of the European Constitution. It may take a rather long time until we here in Europe will recover from that set-back.

Irrespective of this rather bleak assessment of international relations at the present stage, I do share the values which have been pronounced in this meeting, in regard to peaceful co-existence between states on the basis of sovereign equality and mutual respect among all nations. The International Progress Organization, which I represent here, has rather similarly spoken of the idea of progress in its founding declaration of October 1972. We understand progress not merely in the sense of material advancement, but as being based on enlightenment through the broadening of one's intellectual and spiritual horizon, which will in turn pave the ground for genuine open-mindedness towards other civilizations, cultures and religions.[10] We have understood this kind of intellectual advancement, in terms of an awareness of common human values, as the basis of progress also in the fields of economy and politics.

I thank you for your attention.

[1] For details see Hans Köchler, Democracy and the New World Order (Vienna: International Progress Organization, 1993).

[2] See The National Security Strategy of the United States of America, September 2002 (Washington, D.C.: The White House, 2002), and National Strategy to Combat Weapons of Mass Destruction, December 2002 (Washington, D.C.: The White House, 2002).

[3] For details see "Memorandum by the President of the International Progress Organization ... on the legal implications of the 2003 war against and subsequent occupation of Iraq and requirements for the establishment of a legitimate constitutional system in Iraq, including measures of criminal justice," in: Hans Köchler, ed., The Iraq Crisis and the United Nations. Power Politics vs. the International Rule of Law (Vienna: International Progress Organization, 2004), pp. 65-71.

[4] For a complete documentation of Security Council resolutions on Iraq, see the documentation of the IPO: The Iraq Crisis and the United Nations, pp. 79ff.

[5] See Hans Köchler, The Voting Procedure in the United Nations Security Council (Vienna: International Progress Organization, 1991).

[6] According to my account, the Iran-Iraq war of the '80s was the First Gulf War.

[7] "Die Chancen einer liberal konzipierten Neuordnung der arabischen Welt." Lecture delivered at the Liberal Club, Vienna, 10 April 1991. See "'Rekolonisierung' der arabischen Welt?" Die Presse, Vienna, April 12, 1991.

[8] See Hans Köchler and Gudrun Grabher, eds., Civilizations: Conflict or Dialogue? (Vienna: International Progress Organization, 1999).

[9] For a historical overview and analysis see the author's essay: Muslim-Christian Ties in Europe. Past, Present & Future (Penang/Malaysia: Citizens International, 2004).

[10] Cf. the definition of "progress" the Founding Declaration of the IPO (Innsbruck, Oct. 30, 1972): "Progress means striving to perfect human nature in such a manner that man would be enabled: a) to attain the greatest possible insight (reflexion); b) to meet his fellowmen with tolerance in the realms of the theoretical (ideology) as well as the practical (politics). This tolerance would have to be born out of the theoretical knowledge and perception that should be achieved to the greatest possible degree; c) on the basis of this knowledge man should be enabled to form his physical surrounding in such a manner that the biological assets may be safeguarded not only for the survival of mankind but would be equally apt to form our world in such a way that would give happiness to the individual as well."