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The Sovereign Rights, Privileges and Immunities of Rogue States and the Invasion of Iraq sample essay

INTRODUCTION
The Concept of the Rogue State and its Historical Dimensions

The international theorists apply the term ‘rogue states’ to those states which threaten peace and security of the nations. According to Christopher Preble, Director of Foreign Policy Studies at the Cato Institute[1], the traditional definition and concept of rogue states finds its basis on the United Nations Charter, specifically Article 2 which provides that ‘all members nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.’ Thus, traditionally, the term was used to refer to violations of the sovereignty of the state. For instance, Saddam was pushed out of Kuwait during the 1990 invasion by virtue of UN sanction and unanimous response by the international community of nations.[2]

Through the years, the concept has developed and has become broader in scope. It no longer refers only to how a state interacts with the other states but also the manner in which the government of the state treats its own people. In a United Nation’s 2004 Report entitled ‘A More Secure World: Our Shared Responsibility,’ the Secretary General’s Panel stated clearly that the Security Council can be authorized to intervene using militia ‘as a last resort, in the event of genocide and other large-scale killing, ethnic cleansing or serious violations of humanitarian law which sovereign Governments have proved powerless or unwilling to prevent.’ [3] U.N. Secretary General Kofi Annan declared that governments are to assume full responsibility in protecting its citizens (UN, 2004).

In the United States, the Reagan administration officials refer to the rogue state as ‘outlaw’ while first President Bush referred to it as ‘renegade’ and during the Clinton presidency, it was called ‘rogue.’[4] The present administration calls it as ‘axis of evil.’ The fundamental principle of a rogue state to President Bush is that which threatens global peace and which he seeks to alter using his foreign policies which are intended to change this behavior and in the event of failure-its elimination for failure to play by the rules.

In his book, ‘Sands of Empire: Missionary Zeal, American Foreign Policy and the Hazards of Global Ambition’[5] Robert W. Merry summarized the Bush doctrine into three basic elements, namely ‘pre-emption, democratization and dominance.’[6] Pre-emption is an imminent attack of an enemy (Merry, 2005, pp. 5-7). Bush administration advocates for a preventive war by bringing war to the enemy before threat materializes so as to disrupt the plans of the enemy before the actual emergence of the threats.[7] Another important element is the democratization. Accordingly, Hussein was removed from power to eliminate a potential threat or nuisance and thereafter, to establish a democratic government for Iraq.

The third element of dominance, largely explains the assumption of the U.S. to an unchallenged position by reason of its arsenal nuclear power irregardless of its political and economic powers.[8] According to the U.S. view, a rogue state is one ruled by authoritarian regimes, possesses weapons of mass destruction and advances terrorism.[9] Thus, it poses a threat to the United States and its allies. Some critics view the concept as one for the purpose of justifying military spending and to send warning to those who serve as a threat to U.S. interests.[10] Critic, Noam Chomsky in an interview[11] defined a rogue state as ‘a state that defies international laws and conventions, does not consider itself bound by the major treaties and conventions, World Court decisions — in fact, anything except the interests of its own leadership, the forces around the leadership that dominate policy.’

According to Chomsky, his definition is a neutral and literal one as against the propaganda version of the United States which refers to any state that is ‘out of control.’ Iraq was supported by the United States and Britain when Hussein gassed its own people—the Kurds. The U.S. provided arms to Turkey culminating until 1997, to carry out the worst ethnic cleansing of the 1990’s. Washington and London aided him in developing his weapons of mass destruction.[12] Another example given was when Kennedy ordered the bombing of South Vietnam because of the support to the resistance. Sudan was bombed and half of its pharmaceutical supplies were destroyed. For Chomsky, the bottom-line was summarized as ‘power countries will shore up their ‘credibility’ to maintain their long-term interests. And it is for the intellectuals to disguise this, in terms of lofty rhetoric and aims.’[13]

The rogue state is more than possession of dangerous weapons or of breaching precepts of international law (Thompson, 2002, pp.2-4).
UNITED NATIONS CHARTER ON USE OF FORCE:

A LEGAL PARADIGM

There are two international law principles on the use of force: jus in bello and jus ad bellum. Jus in bello is a principle which relates to the conduct of war or hostilities, i.e. treatment of prisoners of war; permissible targets for combat; rules of conduct and behaviour during the war or hostilities. On the other hand, jus ad bellum refers to the international legal rules in matters relating to recourse to force.[14] This concerns issues as to whether a certain state actor has the right to use military force, whether other states can respond to an invasion or whether the U.S. can use force in cases of non conformance with the weapons inspection system of the United Nations Security Council.[15]

A cursory reading of the United Nations Charter would reveal a basic postulate against recourse to force. Article 2, paragraph 4 of the Charter specifically provides,

All Members [of the United Nations] shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.[16]

Based on the foregoing provision, there is a fundamental proscription on the use of force against members of the international community. Exceptions to this general prohibition are found in Article 51 and Article 39 of Chapter VII of the Charter.[17]

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.

Thus, clearly recourse to military force is allowed under the principle of self-defence when there is an armed attack and additionally, other states are also permitted to assist and aid in fending off the ‘attacker’ in collective self-defence.

Section 51 of the Charter grants the Security Council the authority to determine the existence of a ‘threat to peace, act of aggression or breach of the peace.’ Once a determination is made, the Security Council is empowered to impose both diplomatic and economic sanctions under Article 41 of the Charter and also, military sanctions under Article 42 of the Charter. To cite an example during the Gulf War[18], the Security Council issued Resolution No. 661 imposing economic and diplomatic sanctions during the invasion of Kuwait in August 1990 and Resolution No. 678 imposing military sanctions to oust Iraq from Kuwait.[19]

III. THE RIGHTS, PRIVILEGES AND IMMUNITIES OF ROGUE STATES IN THE LIGHT OF THE IRAQ INVASION AND THE RESPONSE OF THE SECURITY COUNCIL

It is noteworthy to stress that the Charter was drafted and written in 1945.[20] The definition and concept of armed international attack, was squarely applicable to armed attacks during that era, i.e. incidents in Japan, Germany and Italy. However, international incidents involving armed conflict which transpired thereafter do not seem to be covered by the Charter’s definition.

The three challenges posed to the Charter by the rogue states are identified as, (1) the armed attack or force employed by the rogue states does not fall squarely under the Charter concept of ‘armed attack;’ (2) the rogue states commit acts against its domestic inhabitants/people which are considered gross violation of international human rights law but these acts are not considered constituting international aggression; and (3) possession of weapons of mass destruction does not fall under the definition of armed attack but such possession threatens peace among the international community of nations (Arend, 2002, pp. 741-746).[21]

The Iraq invasion was prompted by Saddam Hussein’s stubborn defiance and violation of seventeen (17) United Nations Security Council Resolutions

(UNSCRs)[22] which had been issued for compliance by Iraq so that it would not pose a threat to international peace and security.[23] Aside from being required to withdraw from Kuwait, Hussein continued to fail to honor and fulfill many obligations such as ‘to allow international weapons inspectors to witness the destruction of weapons of mass destruction; to cease from developing new weapons; to destroy ballistic missiles with range farther than 150 kilometers; to cease from supporting terrorist groups and prevent them from operating within Iraq; accept financial costs for the damage from the Gulf War; to account for missing Kuwaitis and stolen Kuwait properties; and end his gross violations of the human rights of his people.’[24] For almost a decade, Hussein tried to circumvent the economic sanctions imposed by the United Nations.[25]

In the light of the events which transpired involving the Iraq invasion, it is evident that its sovereign rights, privileges and immunities of Iraq as a rogue state were accorded and respected by the international community of nations by following the precepts and principles of the UN Charter. This is evident from the series of Security Council Resolutions calling for compliance and obedience. The strict observance of the UN of the legal framework and guidelines starting from the imposition of economic sanctions and until its last call for final opportunity to comply was struck down as a long stand off. Be that as it may, such conduct was construed as giving respect to its rights. The UN Security Council issued Resolution No. 1441 which was the final demand for compliance for ‘material breach’ by Iraq of its obligations and without adhering to armed invasion to exact compliance.

In February 2003, the US presented evidence that Iraq was actively producing chemical and biological weapons and therefore proposed a resolution for use of force in Iraq but NATO allies Canada, Germany and France together with Russia urged diplomacy. [26] By reason of this, US withdrew the proposed resolution and with UK, it proceeded to invade Iraq without the Security Council authorization. Under international law, such decision without authorization had questionable legality.

The objective according to the US was to ‘disarm Iraq of weapons of mass destruction, to end Hussein’s support for terrorism and free the Iraqi people.’[27] This decision was unpopular worldwide and encouraged protestors to denounce such decision. The Iraq invasion signifies the need for observance of the rights, privileges and immunities of a rogue state by those who invaded and attacked it. The claim of US that Iraq possesses weapons of mass destruction and its link to Al Qaeda were proved to be false and for which the US Secretary of State Powell retracted his statements. [28]

As members of the international community of nations, the US and those others that invaded Iraq without authorization should abide by the rules and precepts of the United Nations otherwise, they too are considered transgressors and threats to international peace. As members, obligations and covenants are set in place and must be upheld to be the common will of the international community. This community is considered as ‘decent hierarchical people’ ruled by principles of justice.[29]

The Bush doctrine of pre-emptive war appears to be based on the assumption that rogue states do not have moral and legal standing which the other members of the international community of nations are accorded with. This assumption holds the view that the rogue states are outlaws and pariahs; as such they are legitimate targets of attack and hostilities.[30] From the moral point of view, this assumption is also deemed to be contentious.[31] Under the just war theory, just as it recognizes hostility and war, it also depends on the idea that war is not perpetual. The states are supposed to exercise restraint and seek ways to peaceably settle conflicts.[32]

The just war theory also holds that states should not treat each other as outlaws and pariahs. Labeling a state as rogue and therefore criminal, gives rise to difficulties because of the absence of established criteria for arriving at such label. It is unacceptable to have criteria defined by those who desire to serve their own interests by said accusations. The ambiguity of the term ‘state’ gives rise to problems of reference to rogue as the acts and behaviour of its leaders and government officials and not generally to the citizens of the political state. A military attack on the state is an attack on its people and not only the central government institutions or its leaders. The attack disrupts the lives of the people, invades their territory, and threatens their lives and means of livelihood.[33]

The US sought to justify invasion on grounds of intervention due to gross human rights violations and disarmament. With respect to the use of force to prevent massive human rights violations, the Charter contains a restrictionist policy whereby the use of force by an intervening state to prevent human rights violations is allowed only when authorized by the Security Council. Counter-restrictionists argue that even in the absence of this authorization, state intervention can be lawfully made because the promotion of human rights is repeatedly emphasized in the Charter;[34] humanitarian intervention is necessary since the U.N. Security Council is ineffective in preventing human abuses; and, that use of force in the Charter refers to ‘territorial or political independence’ as such force can be used to protect human rights. There seems to be no precedents on humanitarian intervention except with the NATO in relation to the Kosovo crisis.[35]

With respect to weapons of mass destruction, customary international law allows anticipatory self-defence using the Caroline test of 1837[36] which requires necessity and proportionality–a state using force in anticipatory self-defence would have to demonstrate that “the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment of deliberation.”[37] The problem arises however, that this test was established in the 1800s and therefore related to conventional warfare. In the age of weapons of mass destruction, the requirement of necessity can no longer make sense considering that before one state can prove it, what is sought to be prevented may have transpired already. Iraq is a party to the Nuclear Non-Proliferation Treaty and thus, mere possession of these weapons would not be considered an imminent threat.[38]

Based on the foregoing discussion, it is opined that the rights, immunities and privileges of rogue states should be respected. Corollary to this, it is clear and imperative that reform be made on the identified provisions of the UN Charter. Clear and identifiable thresholds and parameters have to establish in defining a rogue state so that its determination is not solely based on the state that makes such accusation which most often is made to

BIBLIOGRAPHY

Articles/Book/Reports

Arend, Anthony Clark International Law and Rogue State: The Failure of the Charter Framework, (2002) The New England School of Law: Law Review, vol. 36:4.

Blum, William, Rogue State: A Guide to the World’s Only Superpower, (3rd. edition, 2000) Zed Books Ltd. ISBN 1842778277.

Chomsky, Naom interview by Christopher Gunness on May 2001 ‘Rogue States Draw the Usual Line’ Retrieved from on April 20, 2007.

Glennon, Michael J. ‘The Fog of Law: Self-Defense, Inherence and Incoherence in Article 51 of the United Nations Charter’, Harvard Journal of Law, vol. 25 (2002).

House of Commons, Hansard Debates for 18 Mar 2003.

Litwak, Robert L., ‘A Look At. . . .Rogue States’, Washington Post, 20 Feb., 2000. Retrieved from < www.washingtonpost.com/wp-srv/Wplate/2000-02/20/0761-022000-idx.html > on April 19, 2007.

Merry, Robert W., Sands of Empire: Missionary Zeal, American Foreign Policy, and the Hazards of Global Ambition (Simon & Schuster, 2005).

Moore, J.B. ‘Destruction of the Caroline’, (1906), A Digest of International Law, Vol. 2, (Washington, DC, Government Printing Office).

Pincus, Walter, and R. Jeffrey Smith. ‘Official’s Key Report on Iraq is Faulted,’ The Washington Post, 09 February 2007.

Preble, Christopher, ‘ Focus on Rogue States: The Bush Doctrine and the Rogue States’ (2005) Foreign Service Journal, 05 October 2005 Issue.

Rawls, John, The Law of Peoples: with “The Idea of Public Reason Revisited, (1999) Cambridge, Massachusetts: Harvard University Press.

Schachter, Oscar, ‘United Nations Law in the Gulf Conflict,’ American Journal of International Law, (1991), vol. 85,. 452-463.

Simma, Bruno, ed. The Charter of the United Nations: A Commentary, (Oxford, New York: Oxford University Press, 1994).

Tesón, Fernando R. Humanitarian Intervention: An Inquiry into Law and Morality, (1988) Dobbs Ferry, NY: Transnational Publishers.

Thomson, Jana, ‘Is There Such a Thing as a Rogue State?’ Centre for Applied Philosophy and Public Ethics Working Paper Series 2002/8.

United Nations, ‘A More Secure World: Our Shared Responsibility, Report of High Level Panel on Threats, Challenges and Change’ (2004) Retrieved from http://www.un.org/secureworld/report3.pdf on April 18, 2007.

U.S. Office of Press Secretary, ‘President Discusses Beginning of Operation Iraqi Freedom’ Press Release 22 March 2003.

U.S. White House, ‘A Decade of Deception and Defiance’, Background Paper, Washington DC, 08 December 2002.

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