|Table of Contents
Personal and Professional
Honors and Memberships
ReOrient: Global Economy in the Asian Age
Essays on NATO and Kosovo, 1999
Andre Gunder Frank
The United Nations and International Law
|Colleague Janke poses and answers a number of important questions.
- The second one - in his first paragraph - asks whether it is legitimate for a [member of the UN] state to seek and form alliances? Of course it is, and I doubt that anyone has ever challenged that. [It is revealing however that the US refers to a coalition and not an alliance!]
- However, colleague Janke's affirmative answer to his opening question [that is really derivative from his second question and answer] is a non-sequitur that in no wise follows or is even related to the one above. If a coalition [and also an alliance] is legitimate, then are it actions also legitimate. His answer is YES. But the legitimacy of a coalition does not thereby legitimate any and all of its actions, as Mr Janke will surely also admit. He could himself, as we can also, think of any number of actions that continue to be ILegitimate no matter by what coalition or alliance, or for that matter by a single state or individual. I hope that colleague will admit that terrorism is one of these.
- So are the actions of the US and its coalitions partners among those that ARE illegal under international, and even much national, law ?
Yes they decidedly are under several articles of the UN Charter and a according to whole series of other international laws and conventions. I am prepared to cite them chapter and verse but am reluctant to do so here, because I have already done so regarding the NATO violation of the same in its war against Yugoslavia, commonly and erroneously termed [only] "" Kosovo."" Moreover 5 of the articles of the UN charter were already violated in the 1991 War against Iraq, which was erroneously and deliberately been presented to the public as ''sanctioned by a UN resolution.'' Nonetheless, the very UN resolution was illegal under 5 articles of the UN Charter. Suffice it to quote the then UN Secretary General Perez de Cuellar that '' this is a UW war, not a UN war."
The NATO War against Yugoslavia violated at least 7 articles of the UN Charter, as well as - and the Iraq War also - many sections of the Geneva Convention [they were written and passed in 1949 in the shadow of WW II and ratified soon thereafter by most signatory countries, but by the US not until and by the Clinton administration]. Among these were prohibitions of targeting non-combatant civilian populations and the infrastructure -- eg water and sewage, power supplies, bridges and transport where not primarily of military use - all of which were deleiberately targeted and hit in each of the thhre above named wars. While the use of depleted uranium [which has caused continued cancer and birth defects, not to mention the so called ''Gulf War syndrom'' and of cluster bombs were not specifically prohibited by the Geneva Conventions since they did not then exist, they clearly fall under its prohibitions against targeting civilian populations and even of combatant ones, which these conventions were written to protect against the use of gas.
The present War aginst Afghanistan is again definitely in violation of the UN Charter and the same - and it may turn out to be more -of this international law, which as I pointed out in my original note US ratification of the same has made it in violation of US law as well. Regarding the two previous wars, I cited relevant articles of the UN Charter and of Geneva conventions and other international law in analyses of the these two wars at the time of their occurance, and my - as well as those of many professors and pracitioners of international law - are available for inspection in Section 7 on the NATO War of my weg-page -- csf.colorado.edu/agfrank/ -- that also includes my analysis of the earlier Gulf War against Iraq.
- Colleague Janke's third question is in [first] part -to procure support- a repetition of the first [his second] question above, and there is universal agreementfor that-
- the second part of this question is, however another non-sequitur. Again the legitimacy of sequring support and forming a coalition does NOT legitimate any and all action by one or more coalition partners [as per also the questins and answers above. Many actions remain ILlegitimate, that is otside the law, and the class of actions to which Mr. Janke refers are commonly called VIGILANTE actions that are themselves beyond the law, no matter how criminal the actions of those against whom they are directed. Indeed, we make and have law precisely to prohibit what outside or beyond it becomes UNlawful vigilante action.
- Mr. Janke's following statement that seeking UN permission is not necessary for an action such as going to war against Afgnhanistan if that action is itself legal. In this case, both the premise and the conclusion are wrong, and the latter is another non-sequitur from the former. First of all, as per the above, the action is NOT legal; and one of the articles of law and of the UN Charter that make it ILlegal is the failure to as the per mission of the UN Security Council. But not only does the Charter require a petition to the UN SC, it also requires that the UN SC say YES. Morevover, the UN SC must vote YES by UNANIMITY of its members [the absention of China regarding the Gulf/Iraq War in itself made the resolution without effect under Article 27 of the UN Charter. Then, military action against a member state was undertaken WITHOUT any recourse to the UN whatsoever. However Articles 41 and 42 of the Charter require that all possible means be employed to PREVENT war BEFORE recurring to war. Moreover, Article 43 provides UN authorization for war ONLY to UN military forces, and NOT to those of any member states or coalition thereof. What the Charter does authorize the UN SC to do is to charge one or several member states to LEND their armed forces to the UN, but only temporarily until a UN force can be created, and then ONLY UNDER UN COMMAND and not under trhat of any member state/s. All of these wars were therefore illegal in being in violation of each of these 4, but also other, articles of the UN Charter.And any other intervention or UN ''cover''would not be only a ''fig leaf'' as Mr. Janke calls its request, but a gross violation of international law.
- However, Mr. Janke's mistaken suppositions raise an additional ticklish question: Even if all of the above conditions were met - and as we see none of them were or are - is it legitimate to intervene in the internal affairs of another state. The UN Charter does NOT contemplate that. Nor does is permit external capture and trial of a citzen of such a state.
International law has however recently begun to change by so far only timid steps of precedents, except in the establiment of a couple of international tribunals. The latter however provide for the prosecution only of INDIVIDUALS accudes of war crimes and crimes against humanity. The Nuremberg Court and trial provided as the first significant precedent. The SPECIAL UN courts for Yugoslavia and Rwanda followed this precedent and by having been set up by the UN SC themselves became international precedent law [Milosevic and other Yugoslavs only are being prosecuted under that Law and Court, although the jurisdiction of the Court specifically applies,not only to crimes BY Yugoslavs, but also to war crimes IN Yugoslavia, for which prosecution so far been extended to no one outside Yugoslavia who could also be so indicted and brought before that Court. The Spanish - and many other countries' -cases against the Chilean dictator who was responsible for probably 30,000 deaths set another new precedent. The Capture of the Panamanian President Noriega may also have set a precedent, but of course not a legal one in that he was captures through a US invasion, which not incidentally cost 6,000 lives in a single night. The most important new international legislation in this regard is the establishment by the UN of the International Criminal Court [ICC], for which human rights organizationshave lobbied for a long time. Significantly however, it was the USA thatasked the law to be watered down to virtual ineffectiveness as a condition for US signature -- after which th US refused to sign anyway. President Clinton then signed in the last hours of his presidency in full knowledge that the US Congress would NEVER RATIFY this treaty on the grounds that NO American but yes any other country's citizen shouldbe subject to trial by any international court. Also not coincidentally, when the regular [not to be confused with Yugoslavia] International Court in the Hague found the USA guilty of vilating international law when the US mined the civilian harbor in Nicaragua during its also illegal the Contra action, the US claimed to be OUTSIDE the jurisdiction of the the International Court of ''Justice''.
However, Mr Janke also raises still another important question in his very same question, and that question has not yet been answered or resolved in terms of international or UN law: Is outside intervention legitimate against a government that probably violates the human rights under the UN Human rights convention [written and passed after WW I in Paris through the dedication and work of Mrs. Roosevelt]? That is, is UN - but NOT just anybody's - armed] intervention in the INTERNAL Affairs of a member or indeed a non-member state legitimate? Under the UN Charter and INTER national [that is inter-state] law the answer is an unequivocal NO. However there has recently been a move towards international precedent law condoning if not authorizing such intervention in view of widespread violation and worse by many states of the Charter of Human Rights and others [ which incidentally in law also include violations by economic and social means, e.g. by the Dept Trap, especiallly including those of the IMF, for which not even the most timid steps at prosecution have so far been taken]. It may be [ and in the case of the Taliban government surely is] the case that a government is not legitimate under these terms but military intervention to topple and replace it is not thereby automatically legitimated.
I may further remind Mr. Janke that literally countless governments elsewhere in the world - and many allies of the US among them like Saudi Arabia, and Turkey [against the Kurds] and not Russia against the Chechens who are and even members of this coaltions against Afghanistand are equally or more illegitimate in Mr. Janke's own terms. Furthermore, the Taliban government was first welcomed by both the US and most of the Afghani population because they liberated them from the terrible yoke of those who now compose the Northern [now euphomised United] Alliance who wantonly killed 50,000 Afghanis during their thankfully only short rule, who have continued to kill,torture and mutilate thousands both in their rule in the North and now with the help of the US and UK and Russia in their southward march, and who promise to do so still in the near future. Another footnote - not to justify or legitimate its rule - the Taliban government collaborated with and pleased the US in prohibiting and erradicatng the production of opium and thereby earning the gratitude of the US government as late as August 2001 to the tune of $ 46 million. Be all that as it may, legal sanction for foreign intervention in the domestic affairs of a sovereign state is however still cloudy to say the least, and Mr. Janke may have SOME point in this regard.
It must be self-evidently obvious however that recourse to large scale military force that brings wanton suffering to a people by international force in order to protect or free that same people from the wanton suffering by its own government is a contradiction that can in no wise be acceptable under international law or even plain common sense. It smacks of the now INfamous Vietnam War pretext ''that we must destroy them to save them." by extension and itself multiplication, self-evident and even more absurd and unacceptable is the proposition and pretext that to save civilization we must DESTROY CIVILIZATION. Absurdity to the absurd power furthermore is the proposition that to bring one single individual or even also his coterie to justice we must bring wanton destruction and suffering to a whole people. Not only is that proposition absurd. It cannot possibly achieve its alleged ends of bringing justice to such an individual if the means themselves violate alllegal and other cannons of justice as codified in law, which provides legal procedures to excersise that justice. Violation of such law and canons of justice, no matter what the ends that do not justify the means, canNOT itself be just or bring justice nor contribute to the preservation of civilization.
Destroy civilization Mr Janke and others may ask? That is, of course, exactly what Vigilante action and ''justice'' does if the sherriff and judge condone, never mind practice, it. That is all the moreso the case if any state or group of states take it upon themselves to defend the law by breaking it. INTERNATIONAL LAW is one of the most important gifts and manifestations of CIVILIZATION designed and available to prevent and save us from Hobbesian ''war of all against all,'' and even moreso of might is right by the strongest power in the world against one of the weakest. Not for nothing that at the end of WW II the civilized victors put the powers AND GOVERNING INDIVIDUALS on trial for their most heineous crimes against humanity and its civilization in Nuremberg and Tokyo, which albeit ex post facto - declared their war crimes to be the WORST CRIMES against humanity and its civilization.
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||ReOrient: Global Economy in the Asian Age
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