The Myth of Legal and Illegal Wars
Editor, This Week in Geopolitics
The Chilcot report, the product of a British inquiry into the Iraq war, was published last week. It harshly criticized Tony Blair and, by extension, George W. Bush and the United States. Many reading the report—and others before the report was published—concluded that the invasion of Iraq was illegal under international law.
I don’t intend to discuss Iraq here. Everyone knows now that we should either have not gone to war or gone with greater force. Most people today agree that the execution of the Iraq war was deeply flawed—even those who forgot to say so or endorsed it at the time.
All wars are subject to withering scrutiny after the fact, and there is little I can add on that subject.
What the UN Charter Says about War
Rather than rehashing Iraq, I think it is more important to consider the notion of legal and illegal wars. The question of legality is based on the United Nations Charter, which all member nations have agreed to by treaty. That treaty is legally binding.
|From the UN Charter: |
Article 39 states: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken… to maintain or restore international peace and security.”
Article 42 states: “Should the Security Council consider that measures provided for in Article 41 (sanctions) would be inadequate or prove to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action will include demonstrations, blockade, and other operations by air, sea, or land forces of members of the United Nations.”
Article 46 states: “Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff Committee.”
Article 51 states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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.”
Articles 39, 42, 46, and 51 explain the way in which the Security Council decides whether war is legal or illegal. These clauses are important. (See sidebar.)
According to the charter, all war-making power (except the immediate defense of a country under attack) is in the hands of the UN Security Council. It must oversee pre-war negotiations, impose sanctions, or take military action, with the assistance of the Military Staff Committee.
This committee is made up of the chiefs of staff of the council’s permanent members: the US, the UK, France, Russia, and China.
From the US point of view, the constitution makes the president Commander in Chief of the armed forces. All constitutions make clear which office has control of military forces.
Under the UN Charter, since only the UN can authorize war, the US president’s constitutional power is subordinate to the Security Council and its Military Advisory Committee.
I will assume that this is constitutionally permissible since the US Supreme Court has not ruled otherwise. And I assume other countries are equally comfortable with the transfer of authority to the Security Council.
The permanent members of the Security Council are not answerable to the United Nations. They are the representatives of nation-states, and their obligation is to pursue their national interests through the Security Council.
They have two responsibilities. First, to uphold the Charter of the United Nations. Second, to pursue their national interests, and use UN mechanisms to protect those interests.
But What Does That Mean in Reality?
The national interests of the US, Russia, China, France, and Britain inevitably diverge. Since the founding of the UN, each nation has waged war, or supported other nations or non-state actors in waging war.
In most cases, the actions of the belligerent—directly or indirectly—were aimed at a permanent member of the Security Council. Since each permanent member has the right to veto any resolution, any one of these actors can block a resolution.
The creators of the UN assumed that the Security Council would be a collaborative body with common interests. It is not clear why this assumption was made. For example, the interests of the Soviet Union in 1945 worked directly against those of the other four members.
Armed with the veto, each Council nation could block any motion to take military action or to condemn its own military actions. It is hard to imagine that those who drafted the UN Charter didn’t understand this fully.
The UN was created after the League of Nations failed to prevent World War II. Franklin D. Roosevelt was particularly committed to creating a body that would function as a type of world congress, whose members were representatives of member states.
The right to wage war would be transferred to the Security Council members who would act jointly to authorize war. The only exception to this would be a country that was attacked. That country would have a right to defend itself pending action by the UN.
The UN itself cannot take direct action, however, because it has no military force. Article 43 obligates all UN members to provide forces if the UN requires. These forces would be under the operational command of the National Command Authority. Overall command would be in the hands of the Security Council and the Military Advisory Committee.
Lessons of WWII
How did FDR agree to this insanity?
I think the horrors of World War II convinced all participants that the primary national interest is to avoid war. He believed that this desire would override conventional concepts of national interest.
I don’t know whether he had nuclear weapons in mind, but when you add them to what World War II unleashed, it wasn’t an unreasonable concept. But war is not the greatest horror. Occupation by an enemy is.
For the Soviets and the French, the takeaway was not the horror of war, but the horror of occupation by the Germans. When the war ended, the Soviets feared the Americans would replicate what the Germans had done. The Americans and Europeans were afraid that the Soviets would move westward with the massive force they used to win the war.
When these nations met in the Security Council, it was not as collaborators. They met as potential foes—each less afraid of war than of the other’s victory. This fear is frequently dismissed with a now cliché slogan: don’t give in to your fears, because if you do, the enemy has already won.
It is one of the more absurd bromides of our time. Had France given in, rather than smugly brushing aside its fears, it might have averted six years of Nazi occupation. Fear of war competes with the fear of defeat, and each side emerged from World War II fearing defeat more than war. And that was FDR’s miscalculation.
A Fear That Led to Irrelevance
The fear of defeat also gave birth to the veto. All the Security Council members chose to adopt the League of Nations’ veto structure. None of them wanted to give up control.
As a result, while there are some rare times when the UN sanctions military actions, they are usually against minor nations with few major friends and are undertaken with insufficient forces.
The Korean War is one example of this. It broke out while the Soviet representative was boycotting the UN Security Council and missed the veto. Another was Desert Storm. The Soviets had backed Saddam Hussein, but they were too busy dealing with internal collapse and were not concerned.
In this context, whether or not a war is legal under the UN Charter is irrelevant. The organ created to define the circumstances of war doesn’t function. The lack of UN approval to go to war is a given.
The five permanent members of the Security Council contrived from the start to render this section of the charter meaningless. The Security Council cannot declare a war legal or illegal. The countries that can start the wars also sit on the Security Council and will veto as their national interests dictate.
So, the question of the US Commander in Chief transferring his authority to the UN is therefore moot. The UN couldn’t accept this power even if he wanted to give it to them.