Difference between Legal and Illegal War
Even someone who would have preferred the inspections to continue – and again, there were arguments in favour of this approach – should not call the war illegal. Resolution 1441 did not allow Saddam several other chances and several other episodes of imperfect compliance with UN requirements. When he was embarrassed and veiled again, it became clear that he was not willingly and obviously disarming – and the clear implication of 1441 was that this was unacceptable. Whether it automatically justified war was, of course, controversial and hotly debated at the time. But a legal case could certainly be raised for this justification. Under IHL, occupation is a form of international armed conflict. An occupation occurs when the territory of a State is effectively placed under the authority of an enemy army. Occupation extends only to the territory over which such authority has been established and can be exercised. If a state accepts the presence of foreign troops, there is no occupation.
In addition to the general protection afforded to the civilian population, civilians living in the occupied territories are entitled to special protection to prevent ill-treatment by the occupying Power. These guarantees are set out in section III of the Fourth Geneva Convention and the Hague Regulations of 1907, as well as in the provisions of customary law. In general, the right of occupation strikes a balance between the security needs of the occupying Power, on the one hand, and the interests of the repressed Power and the local population, on the other. The tasks of the occupying Power include issues such as the management of public property, the operation of educational institutions, ensuring the existence and functioning of medical services, facilitating relief operations and enabling impartial humanitarian organizations such as the ICRC to carry out their activities. In return, the occupying Power also has certain rights, which may take the form of measures to restrict the local population, if necessary. The war took place for legally ambiguous reasons. It is also right to recognize, even among those of us who have accepted the logic of war risk, in order to ensure the verifiable disarmament of Iraq, that its fundamental desirability and usefulness can be discussed. In fact, although this is not my view, it can reasonably be argued that the war was a strategic mistake because it was more anti-American. could be promoted.
Terrorism and risks leaving Iraq in chaos. One of the reasons, I suppose, for the lack of pressure was a stubborn belief in American exceptionalism. If the president does, to quote Richard Nixon, “it means it`s not illegal.” If our nation does, it must be legal. Since the enemies in our wars are the bad guys, we must enforce the law, or at least maintain good justice in some way on an ad hoc basis. In the 1980s, Nicaragua appealed to the International Court of Justice (ICJ). That court ruled that the United States had organized the militant rebel group, the Contras, and mined Nicaragua`s ports. It noted that these actions constituted international aggression. The United States blocked the execution of the judgment by the United Nations, preventing Nicaragua from receiving compensation. The United States then withdrew from the ICJ`s binding jurisdiction in the hope of ensuring that U.S. actions would never again be subject to the decision of an impartial body that could objectively decide their legality or criminality. This chapter describes the most important legal developments of the period 1920-45, the content of which establishes the fundamental norm of the illegality of violent self-help in modern law.
The accumulation of treaties containing obligations for the peaceful settlement of disputes provides the necessary context for the developments dealt with in this chapter. The final form of the draft mutual assistance treaty will be communicated. The draft protocol had the same objective as the Mutual Assistance Treaty. The treaties concluded at the Locarno Conference are important for their impact on the development of arbitration and conciliation in State practice. In addition, the resolutions of the Assembly of the League in 1925 and 1927 and the resolution of the Sixth International Conference of American States were presented. The role of the General Treaty on the Renunciation of War, signed in August 1928, in State practice is demonstrated. It also reviews the Anti-War Treaty on Non-Aggression and Reconciliation, the Seventh International Conference of American States and the Inter-American Conference on Peacekeeping. In addition, an assessment of state practice from the period 1920-45 is presented. States did not only have the right to wage war to redress perceived injustice. They could also threaten to wage war for the same purpose. It would be absurd to demand that States actually go to war if they could obtain justice by simply threatening them. Thus, in 1773, King Stanisław August Poniatowski and the Polish legislature (known as the Diet) agreed to cede 30% of Polish territory and half of its population to Austria, Prussia and Russia when these states threatened war.
As Polish historian Norman Davies described this macabre act of self-harm: “The victim not only gave consent to the operation; he was persuaded to wield the knife himself. Of course, it would have been preferable if a second resolution explicitly authorizing the war had been adopted. In fact, even if it had been blocked by a French or Russian veto, it would have been politically (but not legally) advantageous to have a second resolution with the clear support of a majority on the UN Security Council. In the Indian subcontinent, the Mahabharata describes a discussion among leading brothers about what constitutes acceptable behavior on a battlefield, an early example of the rule of proportionality: Grotius accepted this traditional conception of war, but he drew a surprising conclusion: if states had the right to wage war to correct legal injustice, then they necessarily also had the right to conquest. Any State that claimed to have been injured by another State and whose claims for reparations had been ignored could take revenge by force and take territory as compensation. The conquering state thus became the new ruler of the conquered territory: it owned all public property and had the legal authority to rule over its subjects. Grotius was not only interested in theoretical reflection. He described state practice. After all, today almost every border in the world testifies to such a battle in the past. Nor was he a selfless observer. As an advocate of the Dutch East India Company, he developed rules that favored an expanding world empire. They are at the heart of some of the most beneficial transformations of the past 70 years, from the global decline of interstate conflict and the fight against the dead to the growing prosperity and health that peace has made possible.
With these rules under threat, the international community is facing a crisis of extraordinary proportions. But few people know how serious and imminent the crisis is. Even fewer understand where these rules come from: a now almost forgotten agreement known as the Paris Peace Pact of 1928, which was eventually signed by all the nations of the world and had the immodest goal of banning war.