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LAWLESSNESS IN IRAQ AND THE FAILURE OF UNILATERALISM
Professor Ali Khan
Washburn University School of Law
JURIST Contributing Editor

Almost everything seems to be going awry in Iraq.

American and British soldiers are being killed day after day, city by city, causing a surge of grief among their families left behind, who were led to believe that the war was over and that the hated regime had been neutralized. Iraqi families, in addition to mourning over their own dead, yearn for water and electricity in the atrocious summer heat, deriding the promise of liberation that the Bush administration had made with great eloquence. The Iraqi military, which mysteriously disappeared with their weapons amidst the war, has resurfaced in civilian clothes to demand jobs and back salaries, threatening suicide attacks if these grievances are not addressed. Former Chief UN Weapons Inspector Hans Blix is now openly accusing "some elements" in the Pentagon of launching a smear campaign against him, saying he "remains agnostic" that Iraqis had weapons of mass destruction. Even the United States Congress and British Parliament have begun to challenge the quality and truthfulness of the dossier of intelligence employed to "justify" the war.

An eerie lawlessness has overtaken the entire situation. The Iraq war itself originated on the fringes of law, as the doctrine of preemptive strike replaced the conventional right of self-defense. The unilateral American decision to go to war undermined the UN Security Council's lawful authority to maintain international peace and security. Congress's constitutional power to declare war was slighted if not subverted outright.

The looting of Iraq's cultural property -- "the Babylonian, Sumerian and Assyrian collections that chronicled some 7,000 years of civilization in ancient Mesopotamia" -- was a veritable orgy of lawlessness. Pre-Islamic artifacts were taken and smashed. Baghdad's National Library, holding one of the oldest copies of the Quran, was set on fire. The thieves and saboteurs of Baghdad are no longer accountable to any authority, for none exists. But the coalition forces are obligated under international law to protect the cultural heritage of the occupied lands. The 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict and its Protocols, though riddled with exceptions, impose an affirmative obligation on invading states to respect monuments of architecture, archeological sites, works of art, books and historic buildings. Unfortunately, the Convention allows the waiver of this obligation under the doctrine of "imperative military necessity." It is unclear whether the United States claimed any such waiver to let Iraqi cultural property be looted and smashed. It is odd, though, that the Iraqi oil fields have been successfully safeguarded right from the beginning of the war, but little was done to protect the "greatest trove of antiquities and monuments in the Middle East." [Editors' note: click here for another article by Professor Khan on the Coalition's obligation to protect cultural property].

The lawlessness surrounding the origin and aftermath of the Iraqi war reaffirms the simple thesis that hegemony is impractical - that a single superpower cannot effectively manage world affairs. And make no mistake: although the United States was able to construct a coalition of supportive states, the invasion of Iraq was and was broadly perceived as a solo act -- an unprecedented repudiation of world opinion openly disparaging the idea of multilateralism embodied in the United Nations Charter.

The United Nations Charter, signed at San Francisco in 1945, is a universal treaty founded on the principle of state cooperation for making a better world. The Charter opens with the words "We the peoples of the United Nations." This universal We was formulated to emphasize a cooperative enterprise of law and action, and more specifically to save the succeeding generations from "the scourge of war, which . . . has brought untold sorrow to mankind." Relying upon the ethic of cooperation, the Charter promises to establish conditions under which respect for international law is maintained, and aspires to build an institutional framework so that "armed force shall not be used, save in the common interest."

Discarding the universal We of the United Nations Charter, the masterminds of the Iraqi war relied instead on self-righteousness. They talked themselves into believing that in going it alone they were doing good, and that in opposing them the rest of the world was not as smart or courageous as they were. This way of thinking is nothing new in the annals of history, for Absolute Power often sees itself as the most courageous deity of sheer goodness. The very idea of the United Nations is designed to correct such daring and dangerous fantasies. Discounting the value of efficacious dissent in international decision-making, National Security Adviser Condoleezza Rice denounces the vision of a multipolar world as "a theory of rivalry."

Despite their condemnation of multipolarity and despite a spectacular victory in the armed combat, the champions of the idea of a single superpower running the world have begun to realize that the Iraqi experiment of "going it alone" has failed. For one thing, the people of Iraq do not see the Anglo-American armies as the torch-bearers of liberty. How could they? British colonialism is still fresh in their memory, and the Bush administration has barely begun to rescue the oppressed in the Middle East from domestic tyranny and occupation.

Going it alone has also failed for the brave foot soldiers, coming in droves from the working class families of America, who are now being killed by the very people they had come to liberate. Amidst confusion and lawlessness, even the slogans that prompted these soldiers to fight hard have lost meaning and context. Liberation, for example, has been renamed as occupation. In May, the UN Security Council adopted Resolution 1483, formally acknowledging the USA and the UK as the occupying powers. Of course, those who argued that the goal of going it alone was seizing Iraq's oil, and not Iraq's liberation, find ample proof in the substance of that Resolution, which has lifted the economic sanctions, opened international trade with Iraq, and handed over the administration of oil resources to the occupiers.

Nonetheless, the irony of going it alone amazes the world when the advocates of unilateralism cry "Help! Help!" As casualties mount and anarchy in Iraqi towns and cities becomes increasingly unmanageable, the "coalition of the willing" is seen vigourously prodding the unwilling nations to contribute troops for the establishment of a multilateral stabilization force. In addition, Security Council Resolution 1483, proposed by the United States, formally calls upon all member states to "help meet the humanitarian and other needs of the Iraqi people by providing food, medical supplies, and resources necessary for reconstruction and rehabilitation of Iraq's economic infrastructure."

Is this how unilateralism ends, not with a bang, but with a wimper?


Ali Khan is a professor at Washburn University School of Law in Kansas, and is the author of A Theory of Universal Democracy: Beyond the End of History (Kluwer, 2003).

July 7, 2003

CONTRIBUTING EDITOR

JURIST Contributing Editor Ali Khan is Professor of Law at Washburn University School of Law in Topeka, Kansas. A law graduate of Punjab University in Lahore, Pakistan, he also holds LL.M. and S.J.D. degrees from New York University, where he was the Robert Marshall Fellow in Civil Liberties and the Judge Jacob D. Fuchsberg Fellow in Criminal Law. At Washburn he teaches international law and human rights. He has published numerous articles on international law. His latest book, A Theory of Universal Democracy: Beyond the End of History has just been published by Kluwer.

Professor Khan is a member of the New York Bar.