Positive law, natural law and just war

The main concern of the United Nations (UN) is the maintenance of international peace and security. As such the UN places limits upon the use of force in the international arena. According to the UN Charter there exist two exceptions to the use of force: Security Council resolutions and the inherent right of self-defence^[1]. However, in recent decades two further unwritten exceptions have developed: “a right to intervene militarily to promote or restore democracies and a right to intervene to prevent serious human rights abuses and violations of international humanitarian laws” (Byers 2005: 85).

Such arguments for the use of force have been subsumed under what has become known as the Responsibility to Protect – a doctrine that puts forward moral and political justifications to act outside the realm of international positive law. The insertion of morality into arguments when calling for the use of force is consistent with a natural law type thinking, which resurgent since the 1970s has gathered further momentum since September 11, 2001 (Bellamy 2006: 113).

The philosophy of natural law originated in Ancient Greece, born out as a reaction against what was seen as the unjust actions of the ancestral authority of the time. Not only a philosophical critique of the powers that were, it also aimed to uproot these claims through arguments of justice, as such the philosophy of natural law is considered a moral doctrine (Douzinas 2000: 37). Because of this, natural law was seen as occupying a higher moral plane than the written, man-made laws (or positive laws) of the traditional authority that it went against. Note that natural and positive law are not mutually exclusive with natural law providing the basis for many present day codified laws.

Natural law has been a central component to debates concerning whether the use of force may be considered legitimate. These debates originated over two-thousand years ago, similar to the philosophy of Natural Law, in Ancient Greece. Following an Athenian attack on the island of Melos, in which all of the islands inhabitants were killed for refusing to join the Athenian war against Sparta, it was Plato – one of the precursory thinkers to the philosophy of natural law – who although not formulating a complete just war theory laid one of its most important corner stones – that war should only be waged for the sake of peace (Bellamy 2006: 16-17).

The Iraq War: The three reasons

On January 29, 2002 in his State of the Union address, later dubbed the ‘axis of evil’ speech, George W. Bush drew upon the central tenants of natural law regarding the use of force, proclaiming that, “We seek a just and peaceful world beyond the war on terror”. The reasons given for going to war against Iraq, part of the ‘axis of evil’, were all grounded in the notions of addressing injustice and establishing peace; at times claiming to be in the name of upholding international positive law, at times superseding these laws by virtue of arguments based in natural law.

By linking the Iraqi regime to al-Qaeda, the US hoped to implicate the Iraqi regime in the attacks of September 11, 2001, therefore claiming that an invasion of Iraq would be in self-defence in reaction to an already committed attack – permitted under international law as laid out in the United Nations Charter.

However, with any link between Iraq and al-Qaeda dismissed before the war a second reason was given. That Saddam Hussein was in possession of Weapons of Mass Destruction (WMDs). While the mere presence of WMDs in Iraq would have meant a material breach of UN resolutions, it would not have allowed for the use of non-UN sanctioned force that the leaders of the US and UK governments were looking for. It was the allegation of Saddam Hussein’s willingness to use these weapons against the West and that they could be delivered within 45-minutes that allowed the Coalition of the Willing to argue that they were acting in pre-emption of an imminent threat – permissible under international law as anticipatory self-defence. Notwithstanding the failure to find any WMDs, Raymond and Kegley (2008: 105) note that this reason for going to war was in fact a conflation of the internationally accepted legal precedent of pre-emption for the prohibited notion of prevention.

Nevertheless, a third reason for going to war was given, one, which unlike the first two, possessed a totally natural law-based argument for the use of force that allowed for the established legal order to be overridden. While in the interests of international peace and security, the invasion of Iraq was now claimed to be as much for the good of the Iraqi people in providing their liberation from an undeniably brutal dictatorship trough the policy of regime change.

Natural law as arrogance

The Global War on Terror since its inception has been presented as a universal battle between the forces of good and evil underscored by the adage “either with us or you are with the terrorists”, spearheaded by the leaders of the free world in the hope that the spreading of values viewed as inherent to them will make the world a safer place. However, for Dembour (2001: 57) arguments that pretend to universality are consistent with the core characteristics of the natural law philosophy in that; “they rely on an absolute source; they posit immutable and eternally valid principles; and they conceive of natural law taking precedence over positive law”. Yet, positing the existence of such absolute and immutable principles can too easily engender arrogance, defined by Dembour (2001: 58) as “the undue assumption of knowledge, resulting from and in the exclusion of the other”. Thus, little room is left for an alternative discourse.

In preparing their mission to save the Iraqi people from an undeniably brutal dictatorship, the US and UK neglected to consider the hardships and injustices that they themselves had brought upon the Iraqi people, most notably; civilian deaths incurred during their various military operations in Iraq over the years, including an increase in infant mortality and birth defects attributed to the use of munitions containing depleted uranium during the first Gulf War; the decade long sanctions program, which rather than weakening the Iraqi regime actually resulted in the collapse of the country’s economy, negatively impacting the health and standard of living of the weakest sections of the Iraqi population (Tripp 2007 : 250 – 254); Western collusion with the Iraqi regime of Saddam Hussein during times in which he was seen as a friend of the West, while simultaneously abusing his own people, which if had been taken into account would have altered the ultimately arrogant self-perception of the US and UK as the saviours and liberators of the Iraqi people.

As it happened the US and UK were not seen as just liberators by a significant part of the Iraqi people and as a result post-war Iraqi politics became open to forces beyond the control of the occupying forces. When operations to remove Saddam Hussein from power were over the US was immediately put on the back foot in a task that they have since admitted to being ill-prepared for. Nevertheless, the US persisted in their efforts of constructing an Iraq according to their vision of justice, which as will be detailed in part two had disastrous and deadly consequences.

 

Footnotes

1. ^{^} Charter of the United Nations

CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION

Article 51:

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.

Bibliography

Bellamy, A.J., 2006. Just Wars: From Cicero to Iraq. Cambridge: Polity Press.

Byers, M., 2005 War Law, New York: Grove Press.

Dembour, M., 2001. Following the movement of a pendulum: between universalism and relativism. In: Cowen, J., Dembour, M., et al (eds). Culture and Rights: Anthropological Perspectives. Cambridge: Cambridge University Press. 56-79.

Douzinas, C., 2000. The End of Human Rights. Oxford: Hart Publishing.

Raymond, G.A. Kegley, C.W., 2008. Preemption and Preventive War In: Hensel, HM., ed. The Legitimate Use of Military Force: The Just War Tradition and the Customary Law of Armed Conflict. Farnham: Ashgate Publishing Limited, 99-117.

Tripp, C., 2007. A History of Iraq. Cambridge, UK: Cambridge University Press.