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THE LAW(?) OF REGIME CHANGE
Julie Mertus
American University
School of International Service
JURIST Guest Columnist

Something has been missing from the debate over the use of U.S. military action for regime change in Iraq: Coercive regime change violates basic tenets of international law.

Arguments against a U.S. military intervention in Iraq tend to focus on the absence of United Nations Security Council authorization for an enforcement action. Another common line of argument points out that even when mandated by the Security Council, armed interventions are limited by the principles of necessity (preemptive strikes are out) and proportionality (all-out war for minor breaches of weapon inspections are impermissible). These are valuable arguments which may be applied to analyze many types of armed interventions, but there is something particularly wrong with interventions for regime change - and these arguments have yet to be made.

What is so new and egregious about regime change interventions?

At first glance, the plans for Iraq appear similar to other recent U.S. military deployments. Take the case of Kosovo. The Bush administration today, like the Clinton administration in 1999, is using human rights and humanitarian claims as part of the legitimizing set of factors for intervention. With Kosovo, President Clinton pointed to abuses committed by Serbs against Albanians; with Iraq, President Bush rarely finishes a speech without reminding people that "this is a regime that gasses its own people," a reference to Iraqi abuses against the Kurds.

The cases of Kosovo and Iraq have also both involved leaders once supported by the U.S. and now much despised. And it is no secret that the by the time of the NATO bombing, the U.S. was eager not only for a leadership change, but for a regime change in Belgrade. But here is how the two cases differ. Instead of relying upon military force for political change in Yugoslavia, the U.S. government supported local pro-democracy citizens and waited for them to push for change. There is no talk of doing the same in Iraq.

In the case of Yugoslavia, the U.S. advocated for the establishment of a war crimes tribunal to try accused war criminals according to the highest international standards of due process. A strong argument can be made that states have an obligation to investigate and prosecute alleged war criminals and violators of human rights. In the case of Iraq, the perceived need for expedient regime change has come before any talk of justice.

The U.S. bent over backward in Yugoslavia to argue that none of its actions - not the bombing, the extensive sponsorship of civil society, or the war crimes investigations and trials - amounted to support for regime change.

Forcible regime change violates the deeply enshrined principle that people should be allowed to choose their own government. The cornerstone human rights document, the Universal Declaration of Human Rights, provides that the only legitimate government is one based on the "will of the people." The International Covenant on Civil and Political Rights, a convention ratified by the U.S., recognizes "self-determination" as a human right and specifies that "[b]y virtue of that right" all peoples have the right to "freely determine their political status and freely pursue their economic, social and cultural development."

Armed interventions for regime change also run contrary to Article 2(4) of the United Nations Charter, which prohibits the threat or use of force "against... [t]he political independence" of another state "or in any other manner inconsistent with the Purposes of the United Nations." This includes the need to respect and to observe human rights and to promote self-determination. The definition of aggression adopted by the United Nations General Assembly in 1974 also provides that it if "the duty of States not to use armed force to deprive peoples of their right to self-determination." Violations of this duty may constitute an international crime.

The use of military force for regime change is in fact radically different than other kinds of U.S. intervention in recent years. Before taking that route, the U.S. should think hard about the precedent it will establish and the possible consequences.


Julie Mertus is a professor of peace and conflict resolution at American University's School of International Service. She welcomes comments at mertus@american.edu

February 20, 2003

GUEST COLUMNIST

JURIST Guest Columnist Julie Mertus is a professor in American University's School of International Service. Professor Mertus's teaching and research interests are in the areas of ethnic conflict, human rights, refugee and humanitarian law and policy, gender and conflict, transnational civil society and post-conflict transition. She is author or editor of over two dozen academic articles and six books including, most recently: Kosovo: How Myths and Truths Started a War (U. Cal. Press, 1999) and War's Offensive Against Women: The Humanitarian Challenge in Bosnia, Kosovo and Afghanistan (Kumarian, 2000). She was formerly a fellow in human rights at Harvard Law School, a MacArthur Foundation Fellow, a Fulbright Fellow (Romania), and Counsel to Human Rights Watch. During the 2000-2001 year, she is also a Senior Fellow at the U.S. Institute of Peace.