2003 Iraq War; The "New World Order" in Practice, (bad link), local transcript:

[ Also see: ]

The "New World Order" in Practice
The Afghan War, the "War" on Terrorism, the War on Iraq

[Note: Last Update to this page: 08.30 GMT 18 March 2003]

Introduction - Misuse of Language Results in Confusion

In an endeavour to react to the tragedy of the twin towers, a lot of imprecise language has been used by people in both the Bush Administration and the Blair Government.

This language has served to inject unnecessary confusion into an already confusing situation.  A degree of loose talk may be acceptable in a political context.  Politicians do talk about a "war on drug traffickers" or a "war on child pornographers" when what they really mean is a concerted effort by law enforcement agencies to stamp out a particular criminal practice.

Such expressions should be understood for what they are:  political hyperbole to impress on electors their commitment to the funding and encouragement of the law enforcement effort, just as to call an official a "Drugs Czar" may mean that the person is invested with a lot of power but not the powers of an autocrat.

By talking of a "war" in relation to terrorists, one introduces into the debate all sorts of unnecessary connotations and issues which really ought to be of no relevance.

In the legal sense, one cannot go to war against a gang of criminals, but only against a sovereign state.

Thus, the Geneva Conventions are irrelevant in the case of persons who are arrested on suspicion having committed criminal acts, but equally a legally misconceived "declaration of war" against a non-sovereign entity is not grounds for emasculating the legal protections afforded to suspected criminals in a civilised society.

A law enforcement agency which overreacts to criminal conduct by throwing away the rule book itself becomes criminal.  The same is true at all levels of the executive in a country under the rule of law.  When a gang of policemen decide to become at one and the same time arresting officers, juries, judges and executioners in order to tackle a crime wave, they themselves become murderers.

When serious violations of the rights of a suspected criminal are sanctioned by the state itself, that state puts itself beyond the bounds of civilised behaviour and such state-sanctioned misbehaviour attracts penalties - for example, right thinking states will in such circumstances refuse extradition of suspects.

Likewise, upon examination a "coalition of the willing" can be seen to be no more than a gang of nation state thugs bypassing the protections established by international law to prevent nations using force against other nations and international law will in such circumtances permit the prosecution of the high officials who direct or implement such unlawful conduct.

When is a War Not a War

In ascertaining what lawyers mean by "war", as good a place to start as any is with the web site of the Constitution Society [ ] which has on line a copy of Vattel's Law of Nations edited by Chitty and commented by Ingraham as published in the United States in 1883 by T & JW Johnson & Co of Philadelphia.




§ 1. Definition of war.(136)

WAR is that state in which we prosecute our right by force. We also understand, by this term, the act itself, or the manner of prosecuting our right by force: but it is more conformable to general usage, and more proper in a treatise on the law of war, to understand this term in the sense we have annexed to it.

§ 2. Public war.(136)

Public war is that which takes place between nations or sovereigns, and which is carried on in the name of the public power, and by its order. This is the war we are here to consider:  --  private war, or that which is carried on between private individuals, belongs to the law of nature properly so called.

§ 3. Right of making war.(136)

In treating of the right to security (Book II. Chap. IV.), we have shown that nature gives men a right to employ force, when it is necessary for their defence, and for the preservation of their rights. This principle is generally acknowledged: reason demonstrates it; and nature herself has engraved it on the heart of man. Some fanatics indeed, taking in a literal sense the moderation recommended in the gospel, have adopted the strange fancy of suffering themselves to be massacred or plundered, rather than oppose force to violence. But we need not fear that this error will make any great progress. The generality of mankind will, of themselves, guard against its contagion  --  happy, if they as well knew how to keep within the just bounds which nature has set to a right that is granted only through necessity! To mark those just bounds,  --  and, by the rules of justice, equity, and humanity, to moderate the exercise of that harsh, though too often necessary right  --  is the intention of this third book.

§ 4. It belongs only to the sovereign power.(137)

As nature has given men no right to employ force, unless when it becomes necessary for self defence and the preservation of their rights (Book II. § 49, &c.), the inference is manifest, that, since the establishment of political societies, a right, so dangerous in its exercise, no longer remains with private persons except in those encounters where society cannot protect or defend them. In the bosom of society, the public authority decides all the disputes of the citizens, represses violence, and checks every attempt to do ourselves justice with our own hands. If a private person intends to prosecute his right against the subject of a foreign power, he may apply to the sovereign of his adversary, or to the magistrates invested with the public authority: and if he is denied justice by them, he must have recourse to his own sovereign, who is obliged to protect him. It would be too dangerous to allow every citizen the liberty of doing himself justice against foreigners; as, in that case, there would not be a single member of the state who might not involve it in war. And how could peace be preserved between nations, if it were in the power of every private individual to disturb it? A right of so momentous a nature,  -- the right of judging whether the nation has real grounds of complaint, whether she is authorized to employ force, and justifiable in taking up arms, whether prudence will admit of such a step, and whether the welfare of the state requires it,  --  that right, I say, can belong only to the body of the nation, or to the sovereign, her representative. It is doubtless one of those rights, without which there can be no salutary government, and which are therefore called rights of majesty (Book I. § 45).

Thus the sovereign power alone is possessed of authority to make war. But, as the different rights which constitute this power, originally resident in the body of the nation, may be separated or limited according to the will of the nation (Book I. § 31 and 45), it is from the particular constitution of each state, that we are to learn where the power resides, that is authorized to make war in the name of the society at large. The kings of England, whose power is in other respects so limited, have the right of making war and peace.  Those of Sweden have lost it. The brilliant but ruinous exploits of Charles XII. sufficiently warranted the states of that kingdom to reserve to themselves a right of such importance to their safety.

(link to text [ ]) © 1999 The Constitution Society

From this one gets the principle that a state of war may only exist between sovereign states.  Thus, a state of war could have existed between the United States of America and its allies and the sovereign state of Afghanistan.  No state of war in the legal sense is capable of existing between the United State of America and terrorists because terrorists do not possess any sovereignty.

Wars are supposed to be declared.  In the latter half of the 19th Century much diplomatic effort was expended on codifying "laws of war" with the aim of mitigating so far as possible the barbarity of war.  The Avalon Project at Yale University has a collection of the relevant conventions and treaties [ ]. The Hague Convention of 1807 (in force as of 1910) on the Opening of Hostilities provided:-

Article 1

The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.

Article 2

The existence of a state of war must be notified to the neutral Powers without delay, and shall not take effect in regard to them until after the receipt of a notification, which may, however, be given by telegraph.

Neutral Powers, nevertheless, cannot rely on the absence of notification if it is clearly established that they were in fact aware of the existence of a state of war.

Article 3

Article 1 of the present Convention shall take effect in case of war between two or more of the Contracting Powers.

Article 2 is binding as between a belligerent Power which is a party to the Convention and neutral Powers which are also parties to the Convention.

(link to text [ ])

This text merely codifies between the contracting parties what was by then the universal custom of states.  However, formal ultimata and conditional declarations of war, or declarations of war have now gone very much out of fashion.  Perhaps the last examples were those relating to World War II.  For example, the United Kingdom gave an ultimatum to Germany delivered on 3rd September 1939 and, it having expired without satisfactory response, a note was handed to the German Chargé d'Affaires in London at 11.15 am on 4th September 1939 declaring that a state of war existed.

In the United States the power to declare war is vested in the Congress and the World War II Declarations are reproduced by the Avalon Project US Declarations of War page [ ].

Formal declarations of war have become unfashionable largely because the signatories of the United Nations Charter are not supposed to go around declaring war on other states, but to bring their disputes before the Security Council which may in an appropriate case authorise the use of force. - see Chapters VI and VII of the Charter of the United Nations. [ ]

In fact, because of the provisions of the UN Charter, there has been no formal declaration of war by any major power for more than 50 years.

Nowadays, there is much use of euphemism to avoid calling a spade a spade.  The "Korean War" was a Chapter VII Action under United Nations auspices.  The "Vietnam War" was technically military assistance to the friendly foreign government of South Vietnam, etc.  The US bombings of Laos and Cambodia, or its mining of the ports of Nicaragua were (as we shall see) purely and simply unlawful as a matter of international law (as was the British, French and Israeli invasion of Suez in 1956).

In relation to Suez (which is a good precedent for Iraq) it is worth recalling the position of the then US Administration which had the good fortune to be headed by the late President Dwight D. Eisenhower.  When in 1956, France, Israel and the United Kingdom sent troops to the Suez Canal without the authority of the United Nations, President Eisenhower addressed the American people.  He said this:-

President Dwight D. Eisenhower

Extract from an Address to the American People

31st October 1956

On Sunday [October 29] the Israeli Government ordered total mobilization. On Monday, their armed forces penetrated deeply into Egypt and to the vicinity of the Suez Canal, nearly one hundred miles away. And on Tuesday, the British and French Governments delivered a 12-hour ultimatum to Israel and Egypt -- now followed up by armed attack against Egypt.  The United States was not consulted in any way about any phase of these actions. Nor were we informed of them in advance.

As it is the manifest right of any of these nations to take such decisions and actions, it is likewise our right -- if our judgment so dictates -- to dissent. We believe these actions to have been taken in error. For we do not accept the use of force as a wise or proper instrument for the settlement of international disputes.

To say this -- in this particular instance -- is in no way to minimize our friendship with these nations -- nor our determination to maintain those friendships.  And we are fully aware of the grave anxieties of Israel, of Britain and of France. We know that they have been subjected to grave and repeated provocations.

The present fact, nonetheless, seems clear: the action taken can scarcely be reconciled with the principles and purposes of the United Nations to which we have all subscribed. And, beyond this, we are forced to doubt that resort to force and war will for long serve the permanent interest of the attacking nations.

Now -- we must look to the future.

In the circumstances I have described, there will be no United States involvement in these present hostilities. I therefore have no plan to call the Congress in Special Session. Of course, we shall continue to keep in contact with Congressional leaders of both parties.

I assure you, your government will remain alert to every possibility of this situation, and keep in close contact and coordination with the Legislative Branch of this government.

At the same time it is -- and it will remain -- the dedicated purpose of your government to do all in its power to localize the fighting and to end the conflict.

We took our first measure in this action yesterday. We went to the United Nations with a request that the forces of Israel return to their own land and that hostilities in the area be brought to a close. This proposal was not adopted  -- because it was vetoed by Great Britain and by France.

The processes of the United Nations, however, are not exhausted. It is our hope and intent that this matter will be brought before the United Nations General Assembly. There -- with no veto operating -- the opinion of the world can be brought to bear in our quest for a just end to this tormenting problem. In the past the United Nations has proved able to find a way to end bloodshed. We believe it can and that it will do so again.

My fellow citizens, as I review the march of world events in recent years, I am ever more deeply convinced that the processes of the United Nations represents the soundest hope for peace in the world. For this very reason, I believe that the processes of the United Nations need further to be developed and strengthened. I speak particularly of increasing its ability to secure justice under international law,

In all the recent troubles in the Middle East, there have indeed been injustices suffered by all nations involved. But I do not believe that another instrument of injustice -- war -- is the remedy for these wrongs.

There can be no peace -- without law. And there can be no law -- if we were to invoke one code of international conduct for those who oppose us -- and another for our friends.

(link to full text [ ])

We would say that those were wise words from a political leader who, as a Supreme Commander of Allied Forces in World War II and as NATO's SACEUR in the immediate post-war period, had good reason to know the potential consequences of ill-advised war making.

Regrettably, the commitment of the Bush Administration and "Poodle" Blair's Government to the Charter of the United Nations is now in serious doubt.

The United Nations Charter

The fundamental basis on which the United Nations is organised is that national states are sovereign within their own borders.  One state must not interfere by military force within the territory of another state for a matter falling within the sovereign competence of that state.

It is unquestionable that this national sovereignty principle leaves open the possibility of horrendous human rights abuses within the borders of nation states without there being any remedy.  No one in their right mind would seek to argue that the United Nations is the perfect vehicle for resolution of such issues.

The United Nations was the product of World War II and UN history since World War II is littered with examples of evil despotic regimes which have been tolerated by the UN.

The doctrine of non-interference in the internal affairs of nation states is difficult to stomach when one considers the human rights abuses which have taken place inside some states, both during the cold war and since the cold war ended.  One can point to the abuses of Stalin in Russia, of Mao in China, of Saddam Hussein in Iraq, of Milosevic in former Yugoslavia.

There have been other perpetrators of human rights abuses albeit on a lesser scale.  None of the former colonial powers has been entirely free of blame for human rights abuses committed during the decolonisation process.  One could also point to the activities of the 20th Century's principal neo-colonial power - the USA - in Cambodia, Laos, Chile, Honduras and Nicaragua as well as of the USA's puppet, Israel, in the occupied Palestinian territories.

In fact, since the end of the cold war, the ability of the United Nations to deal with problems affecting world peace has much improved.  As Richard Butler points out in an article on the issue since the end of the Cold War the UN Security Council has met more frequently and achieved much more. Only seven vetoes were cast in the post-Cold War period, versus 240 in the first 45 years of UN life. Twenty peacekeeping operations were mandated, more than the total for all the preceding years.

Bewitched, Bothered, and Bewildered [ bewitched-bothered-and-bewildered-repairing-the-security-council.html ], an article by Richard Butler published in the September/October 1999 Foreign Affairs magazine gives a good analysis of the problem and makes sensible suggestions for improvement.

However, the principle on which the United Nations operates, is that sovereign states cannot be invaded to achieve regime change unless they pose a threat to world peace - and even then only with the authority of the Security Council and under the direction of the Security Council.

Under the UN Charter, all Members of the United Nations agree to accept and carry out the decisions of the Security Council.  The UN Security Council has 15 members-- five permanent members and 10 elected by the General Assembly for two-year terms. Each Council member has one vote. Decisions on procedural matters are made by an affirmative vote of at least nine of the 15 members. Decisions on substantive matters require nine votes, including the concurring (or at least abstaining) votes of each of the five permanent members. This is the rule of "great Power unanimity", often referred to as the "veto" power.

While other organs of the United Nations may make recommendations to Governments, the Security Council alone has the power to take decisions which Member States are obliged under the Charter to carry out.

In order to appreciate the legal position, it is necessary to consider Chapter VII of the Charter of the United Nations. [ ]

Article 42 of Chapter VII of the Charter authorises the Security Council to decide to use force to secure compliance with its will.

Article 46 provides that plans for the use of force are to be drawn up by the Security Council with the assistance of its Military Staff.

In the discussions which preceded the passing of the latest Iraq Security Council Resolution, France, Russia and others argued that the Charter of the United Nations vests these very important powers in the Security Council and contains no provision for the Security Council to delegate the exercise of these powers.  However, before considering further the Iraq position, it may be helpful to look at the legal position of the Al-Quaida terrorists and at the legality of the US Intervention in Afghanistan.

It is thus the case that Resolution 1441 does not of itself authorise the use of force by any state against Iraq.  That requires a resolution by the Security Council pursuant to Article 42 and plans pursuant to Article 46.

Terrorist Acts of 11th September 2001 an Act of War ?

President Bush was in legal error when he proclaimed the events of 11th September 2001 as "an act of war".  Of course, in the loose language of politicians, he can be excused, given the horror of the event.

But the law requires precise definitions and the US Criminal Code at 18 USC 2331(4) carefully delimits an "act of war" so as to distinguish it from terrorism as:-

Any act occurring in the course of:

a.  a declared war;

b.  armed conflict, whether or not war has been declared, between two or more nations; or

c.  armed conflict between military forces of any origin.

This is useful, because it clearly defines the proper characterisations of the Al-Quai'da terrorists who launched the attacks of 11th September 2001.  They are not belligerants of a sovereign state.  They are common criminals, as are those who have aided and abetted them before or after the event.

As a matter both of the domestic law of the United States, of the United Kingdom and of public international law there cannot be a "war on terrorism".  War can only be against a sovereign state.

Therefore, Al Quai'da terrorists, or persons suspected of being terrorists, do not in our view properly benefit from any of the protections which might avail armed combatants of a sovereign state, regular or irregular, whether in US domestic law, or the domestic laws of any other country, or or as a matter of public or private international law.

The Crimes of War Project [ ] - This website has some useful material on the subjects discussed on this page -in particular some useful expert contributions

Legality of US Intervention in Afghanistan

Was the United States military intervention in Afghanistan lawful as a matter of international law ?  Professor Robert Turner, who is apparently "Associate Director of the Center for National Security Law at the University of Virginia School of Law, former Charles H. Stockton Professor of International Law at the Naval War College and and former three-term chairman of the ABA Standing Committee on Law and National Security" asserted on the Jurist Web Site [ ] that it was:-


Professor Robert F. Turner - 8th October 2001

Did the terrorist attacks against the World Trade Center and the Pentagon constitute ``acts of War'' permitting the United States to use lethal force beyond its borders? The wording is archaic, as formalities of ``War'' largely lapsed more than half-a-century ago when the initiation of the kind of aggressive hostilities traditionally associated with declarations of War were outlawed. No country has clearly ``declared War'' in more than fifty years, and more sophisticated scholars today speak of the ``Law of Armed Conflict'' rather than the ``Law of War.''

Nevertheless, the underlying issue remains: May the United States resort to the use of lethal force beyond its borders in response to these horrific attacks; and, if so, how much force and against what targets? The clear answer to the first question is a resounding YES, but the second requires some elaboration.

International law outlaws the threat or use of lethal force by one sovereign state against another, with two clear exceptions. The UN Security Council may authorize states to use force, and states have an inherent right to defend themselves against unlawful uses of force and to aid other victims of aggression seeking help in collective self-defense. Such uses of lethal force must be necessary in the sense that effective peaceful alternatives are not available; and they must be proportional in the sense that force greatly excessive to that necessary to protect the state's lawful defensive interests is not permitted. Beyond that, international law also imposes constraints upon weapons and targets (thus, biological weapons are unlawful and hospitals may not be targeted unless used for military purposes, such as to house an anti-aircraft gun).

If the evidence shows that any country intentionally aided or abetted the terrorists, the United States and its allies may use necessary and proportional lethal force against those states to bring an end to such aid. Pirates and other non-state actors who engage in terrorism have minimal protection under international law (for example, they may not be tortured), and bin Laden is already a lawful target because of his past acts of terrorism and his public threats to attack Americans at every opportunity. I would add that the use of lethal force against bin Laden as a measure of self-defense would not be ``murder,'' and thus, by definition, could not be ``assassination.''

If (as has been claimed by the US and UK governments) bin Laden masterminded the attacks on New York and Washington, Afghanistan is in breach of its state responsibility to take reasonable measures to prevent its territory from being used to launch attacks against other states. The United States and its allies thus have a legal right to violate Afghanistan's territorial integrity to destroy bin Laden and related terrorist targets. If the Taliban elects to join forces with bin Laden, it, too, becomes a lawful target. In that event, the Security Council may eventually wish to consider the option of authorizing the establishment of a UN trusteeship for Afghanistan to promote relief efforts to avoid massive starvation and to set the stage for the transfer of power to an elected government willing to live in peace with the world.

(link to text [ ])

Unfortunately, this was just a brief comment on a web site and the learned Professor did not cite any precedents in support of his assertions, so one may have to look elsewhere for an answer.  In the first place the first two paragraphs appear to elide several issues.

One can begin by considering what what the United States of America was seeking to do with the use of force within the territory of a foreign sovereign state.

Insofar as the United States was engaged in hostilities against the state of Afghanistan for the purpose of overthrowing its de jure or de facto government, the United States of America was conducting a war in that it was a sovereign state conducting armed hostilities against another state.  It matters not for international law purposes that no war against Afghanistan was declared by Congress.

As a matter of public international law, the United States is bound by the United Nations Charter.  It may not accordingly commence hostilities against another sovereign state.  It may only engage in offensive military action against the state if mandated to do so by authorising resolutions of the Security Council under Articles 42-48 of the Charter.  That was not the case here.

Thus, the US war against the state of Afghanistan without UN authority was unlawful unless justified under Article 51 of the United Nations Charter.

Article 51 proclaims the "right of self-defence":  "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security."

Note that the right is one of "...defence if an armed attack occurs, until the Security Council has taken measures.." and for that purpose the defending state has to report the exercise of the right to the Security Council immediately.

The definitive clarification of the scope of Article 51 is provided by the Judgmement of the International Court of Justice in Case No 70 of 28th June 1986 - Nicaragua -v- United States of America [ ] [PDF format 137 pages].  This is a case with which several present officials of the Bush Administration should be thoroughly familiar, given their involvement in the subject matter of the case.  In its Judgment the Court held:-

"Whether self-defence be individual or collective, it can only be exercised in response to an 'armed attack'. In view of the court, this is to be understood as meaning not merely action by regular armed forces across an international frontier but also the sending by a state of armed bands on to the territory of another state if such an operation, because of its scale and extent, would have been classified as an armed attack had it been carried out by regular armed forces."

There is absolutely no evidence that the Government of Afghanistan sent the hijackers to the United States.  Nor do we think that any Court would hold that a criminal act of armed hijacking and murder conducted by a small number of terrorists (however horrific the consequences) could in law be equated to an armed attack by regular armed forces.  The events of 11th September 2001 do not therefore constitute an "armed attack" by Afghanistan for the purposes of Article 51.

Two other important findings were made by the International Court of Justice which are relevant.

"263.  The finding of the United States Congress also expressed the view that the Nicaraguan Government had taken "significant steps towards establishing a totalitarian Communist dictatorship".  However the regime in Nicaragua be defined, adhrence by a State to any particular doctrine does not constitute a violation of customary international law; to hold otherwise would make nonsense of the fundamental principle of State sovereignty, on which the whole of international law rests, and the freedom of choice of the political, social, economic and cultural system of a State.  Consequently, Nicaragua's domestic policy options, even assuming that they correspond to the description of them by the Congress finding, cannot justify on the legal plane the various actions of the Respondent complained of.  The Court cannot contemplate the creation of a new rule opening up a right of intervention by one State against another on the ground that the latter has opted for some particular ideology or political system".

Seeking regime change on the basis that you do not like the ideology of another state is not justifiable in international law.  The Court also considered allegations that Nicaragua was violating human rights and held:-

"268.  In any event, while the United States might form its own appraisal of the situation as to respect for human rights in Nicaragua, the use of force could not be the appropriate method to monitor or ensure such respect.  With regard to the steps actually taken, the protection of human rights, a strictly humanitarian objective, cannot be compatible with the mining of ports, the destruction of oil installations, or again with the training, arming and equipping of the contras.  The Court concludes that the argument derived from the preservation of human rights in Nicaragua cannot afford a legal justification for the conduct of the United States, and cannot in any event be reconciled with the legal strategy of the respondent State, which is based on the right of collective self-defence."

One can at once see parallels between the Nicaragua -v- United States of America situation and that of the intervention in Afghanistan.  Dislike of the form of the Taliban government, or its alleged violations of the human rights of the Afghan people did not constitute legal justification for military intervention in Afghanistan under Article 51.

States Harbouring Terrorists

Insofar as the United States was seeking to enter Afghanistan to capture and suppress bands of armed terrorists who had carried out criminal acts, that action could have been a limited international police action which could have been lawful with Security Council authority, but which authority the United States failed to seek.

There is a principle in public international law that states have obligations to other states in relation to criminals accused of serious crimes.  It is the principle "aut dedere aut punire" - the state where the criminal is must either extradite the criminal or itself prosecute.  This is the principle underlying extradition conventions in which states agree categories of crime which are sufficiently serious to justify extradition and the terms on which they will do so.

In the case of United States -v- Iran [ ( now a dead link ) ] 24th May 1980 the International Court of Justice held that Iran was under an obligation to ensure the US Embasssy hostages were freed and to either prosecute those responsible or to extradite the perpetrators to the United States.

There is also a principle that certain crimes are so odious that they are crimes "of universal jurisdiction" for which every court everywhere in the world may take jurisdiction if its national law permits.  An early example was "piracy jure gentium" under which the English common law assumed jurisdiction over pirates no matter where the act of piracy as committed.  See also the discussion in relation to war crimes and torture in Regina -v- Bartle and the Commissioner of the Metropolitan Police Ex Parte Pinochet and Others [ ] - (UK House of Lords).

The hijacking of an aircraft and use of it as a missile is murder and air piracy.

But does the failure of a state to take measures to repress or surrender terrorists justify military intervention without express UN authority as a matter of international law ?  "Self-Help" - or taking military action inside the territory of another state to counter a breach of law has also been considered by the International Court of Justice.

United Kingdom -v- Albania [ ( now a dead link ) ] 15th December 1949 was an International Court of Justice case concerning the laying of mines in Albanian territorial waters to prevent the right of innocent passage.  It was not proved who had laid the mines, but the Court held that Albania had not complied with its international obligations in respect thereof.

However the Court then went on to examine the actions of the United Kingdom in going into Albanian territorial waters to cut and remove the mines and said this:-

"As regards the operation on November 12th/13th, it was executed contrary to the clearly expressed wish of the Albanian Government; it did not have the consent of the international mine clearance organizations; it could not be justified as the exercise of the right of innocent passage.

The United Kingdom has stated that its object was to secure the mines as quickly as possible for fear lest they should be taken away by the authors of the mine laying or by the Albanian authorities: this was presented either as a new and special application of the theory of intervention, by means of which the intervening State was acting to facilitate the task of the international tribunal, or as a method of self-protection or self-help.

The Court cannot accept these lines of defence.  It can only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law.

As regards the notion of self-help, the Court is also unable to accept it: between independent States the respect for territorial sovereignty is an essential foundation for international relations. Certainly, the Court recognises the Albanian Government's complete failure to carry out its duties after the explosions and the dilatory nature of its diplomatic Notes as extenuating circumstances for the action of the United Kingdom. But, to ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted a violation of Albanian sovereignty. This declaration is in accordance with the request made by Albania through her counsel and is in itself appropriate satisfaction."

In other words, even when a state is in breach of its international law obligations, another state cannot violate sovereignty and resort to "self-help".  Something more is needed, although the misconduct and failure of the state in breach may constitute extenuating circumstances.

Thus the announcement by President Bush that any country which "harboured" terrorists would suffer the fate of the terrorists themselves did not constitute in international law a legal basis for war or military intervention.

It could certainly be argued that the action or inaction of the Government of Afghanistan as regards Al-Quai'da was in breach of international law insofar as it must have been aware of the aims, objectives and preparations of Al-Qua'ida (perhaps not as regards the specific crimes of 11th September 2001) but certainly as to acts of terrorism in general (also becuause of the catalogue of previous incidents -see our Terrorism page [ ( now a dead link, instead go to Bush War on Terrorism ) ]) yet it took no action to warn, investigate or repress.

In the wake of the events of 11th September 2002, the United Nations Security Council adopted two Resolutions, No 1368 and No 1373.  Both are to be found on the Avalon Project September 11 Page [ ].

UN Security Council Resolution 1368 (2001)

September 12, 2001

The Security Council,

Reaffirming the principles and purposes of the Charter of the United Nations,

Determined to combat by all means threats to international peace and security caused by terrorist acts,

Recognizing the inherent right of individual or collective self-defence in accordance with the Charter,

1. Unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington (D.C.) and Pennsylvania and regards such acts, like any act of international terrorism, as a threat to international peace and security;

2. Expresses its deepest sympathy and condolences to the victims and their families and to the People and Government of the United States of America;

3. Calls on all States to work together urgently to bring to justice the perpetrators, organizers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organizers and sponsors of these acts will be held accountable;

4. Calls also on the international community to redouble their efforts to prevent and suppress terrorist acts including by increased cooperation and full implementation of the relevant international anti-terrorist conventions and Security Council resolutions, in particular resolution 1269 of 19 October 1999;

5. Expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001, and to combat all forms of terrorism, in accordance with its responsibilities under the Charter of the United Nations;

6. Decides to remain seized of the matter.

This resolution certainly puts beyond doubt the terrorist nature of the offences and the obligation in public international law upon Afghanistan to bring the perpetrators and the aiders and abettors to justice.  It also expresses the willingness of the Security Council to take further steps.

Although it refers in its preambles to Article 51, the resolution did not authorise the United States (or anyone else) to intervene militarily in Afghanistan.  Security Council resolutions 1373 and 1390 provide for sanctions but neither resolution authorised the United States of America (or anyone else) to intervene militarily in Afghanistan.

As a matter of domestic law, Congress passed a resolution authorising the President to use force not only against Al-Quai'da terrorists, but also against those harbouring Al-Quai'da.  It would therefore be a very brave US judge indeed who would hold that the US actions in Afghanistan were unlawful as a matter of US domestic law and when it comes to considering the situation of persons in US custody, the public international law position may not be the consideration which most influences a court.

Insofar as the primary injured party of the unlawful US action is the State of Afghanistan, it is hardly likely that the interim Government installed at the behest of the United States will now take the United States to the International Court of Justice to claim reparations for ulawful warmaking (particularly since it is more than likely that the United States would simply "do a Nicaragua" and refuse to appear) and there is no international court before which individuals harmed by US actions can implead the United States.

As to whether innocent individuals could implead the United States before the domestic courts and claim in respect of loss and damage suffered, for example as a result of deaths, injuries or material damage caused by bombing, is a matter for US lawyers, and whether the fact that the intervention was unlawful as a matter of public international law (as opposed to US domestic law) would make any difference is a matter for the opinion of US lawyers - whose opinions on the subject would be welcome.

Why Was Further Authority Not Sought ?

Given the willingness of the Security Council expressed in Resolution 1368 to take further steps to enforce its will, why did the United States not go back to the United Nations for a resolution for military intervention in Afghanistan ?

Perhaps the principal reason is the unwillingness of the United States to support steps by international institutions which might be seen as limiting its freedom to act as and when it sees fit.  The United States has developed a propensity to act contrary to international law when it wishes, as it did in Grenada, as it did in Nicaragua, as it did in Cambodia.

The Bush Administration clearly did not wish to recognise the principle of international law that only the Security Council can authorise the use of military force.  As the Iraq pages [ ( now a dead link, instead go to ) ] demonstrate, the US neoconservatives in the Bush Administration were already planning to invade Iraq "with or without UN authority" and asking for a UN Mandate for intervention in Afghanistan would have prejudiced that position.

There is also the problem that Chapter VII of the UN Charter puts the UN in command of military operations, as was the case in Korea. The US has long been unwilling to place its troops under UN command.

Asking for a UN Mandate might also have involved the establishment of an international tribunal for the terrorists.  Given the US general opposition to international tribunals (see our UN Courts page [ ( now a dead link, instead go to and also the page ) ]), that was also probably an unattractive proposition to the Bush Administration.

Unilateralism - The "New World Order"

One of the recurring themes which runs through all that has been said and written about US policy since 11th September 2001 is that of "US unilateralism".

Reduced to its essentials, this is the argument that since the advent of the Bush Administration, the United States of America has decided to abide by international law and treaties, such as the United Nations Charter, or the UN Torture Convention, only when it suits US policy objectives to do so.  When it does not, the United States is prepared to ignore international law secure in the knowledge that there is not much anyone can do to restrain the world's only hyper-power from acting as it sees fit.

One of the leading proponents of the unilateralist position is Professor Philip Bobbitt (Princeton, Yale, Oxford) who holds a chair in law at the University of Texas.  Bobbit is the advocate of the "market state" theory.

Prof. Philip Bobbitt - "Satan's Theologian":  The Bobbitt Theory: Globalisation has brought the end of the territorial nation state and the advent of 'market-states', i.e, nation-states whose power extends beyond territorial boundaries. These powerful states have responsibility for the maintenance of order among backward 'pre-modern' states, for the enforcing of human rights, and for ensuring that such states do not spawn bellicose dictators or provide safe havens for terrorist and pirates - A New World Order enforced by the Powerful.

Bobbitt considers Al-Quaid'a to be a "virtual state" equipped with international political goals, income and followers. In his theory the Al Quai'da threat and that of "rogue states" requires the "right thinking" states to form "coalitions of the willing" to enforce their values - within the United Nations framework if possible, but outside it if necessary.

Bobbitt is a member of the American Law Institute, The Council on Foreign Relations, the Pacific Council on International Policy, and the International Institute for Strategic Studies. He has served as Associate Counsel to the President, the Counselor on International Law at the State Department, Legal Counsel to the Senate Iran-Contra Committee, and Director for Intelligence, Senior Director for Critical Infrastructure and Senior Director for Strategic Planning at the National Security Council (under Clinton). He is a former trustee of Princeton University; and a former member of the Oxford University Modern History Faculty and the War Studies Department of Kings College, London.

He has published six influential books: Constitutional Interpretation (1991), Democracy and Deterrence (1987), U.S. Nuclear Strategy (with Freedman and Treverton) (1989), Constitutional Fate (1982), Tragic Choices (with Calabresi) (1978) and most recently The Shield of Achilles: War, Peace and the Course of History (Knopf, 2002).

Bobbitt's latest work has been hailed on both sides of the Atlantic as enormously important.  Oxford Professor, Michael Howard, described it as "one of the most important works on public [ie international] relations to be published in the last 50 years".

It has to be said that "The Shield of Achilles" is readable - and because it is so readable, it is all the more a very dangerous work.  It is the sort of academic treatise which declares what the author would like the law to be.

Bobbitt argues that:-

globalisation has meant the end of the territorial nation state and the advent of 'market-states' by which he means nation-states whose power extends beyond territorial boundaries;

powerful such 'market-states' have responsibility for the maintenance of order among backward 'pre-modern' states, for the enforcing of such human rights as he is prepared to acknowledge and for ensuring that such states do not spawn bellicose dictators or provide safe havens for terrorists and pirates.

Of course, according to Bobbitt, it follows that it is the powerful 'market-states' which are to decide which are the backward 'pre-modern' states, which states are to considered as having 'bellicose dictators' and which are to be considered as providing 'safe havens' for terroists and pirates.  Bobbit argues for a New World Order enforced by his powerful "market-states" and for "pre-emptive action" against those backward 'pre-modern states' who do not comply with the wishes of the powerful 'market states'.

In an interview with Tim Sebastian on the BBC's Hard Talk programme, Bobbitt argued that military intervention against Iraq was "necessary" (and therefore justified) "to prevent weapons of mass destruction going to groups the US cannot deter".

It is easy to see why the Bobbitt Theory proved attractive in the USA after 11th September 2001 since it provides plausible justification for the Bush "war" on terrorism, for intervention in Afghanistan without UN authority and for invasion of Iraq, likewise if necessary without UN Authority.

The Bobbitt "New World Order" necessarily undermines the authority of the United Nations - of what value is that institution if a gang of powerful states (decribed in Bobbitt 1984-speak as "a coalition of the willing") can arrogate to themselves the power of decision as to which countries and governments are to survive and which to be overthrown.  The international behaviour which Bobbitt advocates for the United States of America is precisely the behaviour which the United Nations was established to prevent.  Of course, that was when the perils of fascism were fresh in everybody's mind.

Kofi Annan's U.N. Power Grab [ ( now a dead link ) ] a November 1999 article in William Kristol's Standard by John Bolton, now Undersecretary for Arms Control in the State Department, challenged the proposition that international military intervention must be authorised by the UN Security Council and argued that the US must be able to act unilaterally if action is vetoed in the Security Council.  Not, you will note , on the basis that Kofi Annan was incorrectly stating international law, but on the basis that regardless of international law the US had to be free to act in its national interest.  Hitler could of course have argued that it was in Germany's national interest to annex Austria, invade Poland. etc.

It is plain that Professor Bobbit's theory is not compatible with international law as enunciated in the Charter of the United Nations and in the judgments of the International Court of Justice - sole body entitled to give a definitive ruling on the meaning of the Charter.

The Bush Doctrine - Unilateralism

At a Graduation Ceremony at the US Military Academy at West Point on 1st June 2002, President George W. Bush delivered a speech which may well one day be recognised as the most infamous statement of defence policy in the history of the human race.  The "Bush Doctrine", as it has come to be known, espouses the Bobbitt Theory wholesale.

Bush at West Point Graduation Ceremony.

Extract from Bush Remarks to West Point Graduands

1st June 2002

In this speech, Bush announced that the US was abandoning its "no first strike policy" and would in future act pre-emptively against perceived threats.  The fact that he was applauded says much about the US military.  To be fair, the minds of the graduands were probably on other things and the pernicious new "Bush doctrine" was wrapped up in a lot of patriotic rhetoric.

The gravest danger to freedom lies at the perilous crossroads of radicalism and technology. When the spread of chemical and biological and nuclear weapons, along with ballistic missile technology -- when that occurs, even weak states and small groups could attain a catastrophic power to strike great nations. Our enemies have declared this very intention, and have been caught seeking these terrible weapons. They want the capability to blackmail us, or to harm us, or to harm our friends -- and we will oppose them with all our power.

For much of the last century, America's defense relied on the Cold War doctrines of deterrence and containment. In some cases, those strategies still apply. But new threats also require new thinking. Deterrence -- the promise of massive retaliation against nations -- means nothing against shadowy terrorist networks with no nation or citizens to defend. Containment is not possible when unbalanced dictators with weapons of mass destruction can deliver those weapons on missiles or secretly provide them to terrorist allies.

We cannot defend America and our friends by hoping for the best. We cannot put our faith in the word of tyrants, who solemnly sign non-proliferation treaties, and then systemically break them. If we wait for threats to fully materialize, we will have waited too long.

Homeland defense and missile defense are part of stronger security, and they're essential priorities for America. Yet the war on terror will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge.

In the world we have entered, the only path to safety is the path of action. And this nation will act.

(link to full text [ ])

The dangers of the neoconservative position on nuclear weapons strategy has not gone unnoticed - see the article below by William D. Hartung who is the president's fellow at the World Policy Institute at New School University and a military affairs adviser to Foreign Policy in Focus.

See the other docments below from the Global Securityı web site which particularise the US Nuclear Weapons posture of the Bush Administration.

Bush's Nuclear Doctrine: From MAD to NUTS?

William D. Hartung, World Policy Institute

The Bush foreign policy team is quietly contemplating radical changes in U.S. strategy that could set off a global nuclear arms race that will make the U.S.-Soviet competition of the cold war period look tame by comparison.

In his only significant public pronouncement on the subject, delivered last spring, Bush put forward a schizophrenic view of the nuclear conundrum. On the positive side, he spoke of making unilateral cuts in U.S. nuclear forces and taking those forces off of hair-trigger alert. He even implied that the cold war doctrine of Mutually Assured Destruction (MAD was a ``dead relic'' of a bygone era. On the negative side of the ledger, Bush endorsed the deployment of a massive missile defense program on the scale of Ronald Reagan's ``Star Wars'' plan, complete with interceptor missiles based on land, at sea, in the air, and in outer space.

The seeming contradiction in the Bush view -- taking reassuring steps by reducing the size of the U.S. arsenal and taking forces off of alert on the one hand, while provoking other nuclear powers with a massive Star Wars program on the other -- disappears if you look at the common thread uniting these proposals: nuclear unilateralism.

Spurred on by the ideological rantings of conservative think tanks like the Heritage Foundation and Frank Gaffney's Center for Security Policy, a powerful bloc within the Republican Party has increasingly come to treat negotiated arms control arrangements -- like the Anti-Ballistic Missile Treaty of 1972, the Strategic Arms Reduction Treaties (START I and II), and the proposed Comprehensive Test Ban treaty -- as obstacles to U.S. supremacy rather than guarantors of a fragile but critical level of stability in the nuclear age.

The right-wing rallying cry is ``peace through strength, not peace through paper.'' If that means shredding two decades of international arms control agreements (most of which were negotiated by Republican presidents), so be it.

This unilateralist approach to nuclear strategy is a disaster waiting to happen. Bush advisers like Stephen Hadley have suggested that the U.S. can significantly reduce the numbers of nuclear weapons in its current arsenal of 8,000 to 10,000 strategic warheads. Simultaneously, the U.S. would need to modernize the force by developing low-yield nuclear weapons that could be used for missions like destroying hardened underground command centers or hidden weapons facilities.

The barely concealed premise of this emerging nuclear doctrine is a desire to make U.S. nuclear weapons more usable. This dubious proposition is grounded in the notion that a low-yield weapon could more readily be used as a threat, or actually dropped on a target, without sparking nuclear retaliation by another nuclear power. Some conservative analysts have even suggested that low-yield nukes are a ``humanitarian'' weapon, claiming that they can be used to take out underground biological warfare laboratories, for example, with less loss of life than would result from other approaches to destroying such facilities!

Of course, in the unfortunate event of a nuclear exchange prompted by a U.S. threat to use ``mini-nukes,'' the Bush doctrine would trust in our spiffy new Star Wars system to protect us. The fact that such a system is far from reality and may never successfully be built does not seem to cool the passions of the new generation of nuclear use theorists (or NUTs, as some critics have called them).

At least one sector of American society will benefit from this dangerous new doctrine. The big four weapons contractors -- Lockheed Martin, Boeing, Raytheon, and TRW -- will reap billions in taxpayer funds to build the Bush version of Star Wars, which could cost as much as $240 billion over a ten- to fifteen-year period.

It's not like we haven't been through this before. Ronald Reagan came into office in 1981 with guns blazing, pushing for a new generation of nuclear weapons and a Star Wars system. By the end of his second term, however, he had put Star Wars on the shelf and signed on to two major nuclear arms reduction treaties, the Intermediate Nuclear Forces (INF) treaty, and the Strategic Arms Reduction Treaty (START). Reagan's historic reversal came as a direct result of pressure brought to bear by the nuclear freeze campaign, the European Nuclear Disarmament movement (END), and pressures from European allies and our erstwhile adversaries in Moscow, led by Mikhail Gorbachev, who wouldn't take no for an answer.

It will take a similar international outcry to stop Bush's reckless nuclear doctrine. The sooner we get started, the safer we'll be.

(link to full text [ ])


U.S. military forces themselves, including nuclear forces, will now be used to "dissuade adversaries from undertaking military programs or operations that could threaten U.S. interests or those of allies and friends." (p. 9)

Nuclear Posture Review - Department of Defense to Congress January 2002 [ ]


"Weapons of mass destruction (WMD) -- nuclear, biological, and chemical -- in the possession of hostile states and terrorists represent one of the greatest security challenges facing the United States. (...) An effective strategy for countering WMD, including their use and further proliferation, is an integral component of the National Security Strategy of the United States of America. As with the war on terrorism, our strategy for homeland security, and our new concept of deterrence, the U.S. approach to combat WMD represents a fundamental change from the past.(*)  To succeed, we must take full advantage of today's opportunities, including the application of new technologies, increased emphasis on intelligence collection and analysis, the strengthening of alliance relationships, and the establishment of new partnerships with former adversaries."

National Strategy to Combat Weapons of Mass Destruction [ ] - PDF format (9) pages

*  The "fundamental changes" are "pre-emptive-strikes" and abandonment of the "no first use of nuclear weapons" policy.    The Global Security Web Site [ ] provides systematic and scientific analysis of defence materials world wide and is much relied on by the news media as a source of accurate information.

Before one considers the Bush Doctrine further, one has to consider its precise implications in practice:-

The Bush Administration considers it essential that the USA be able to enforce its will on land, in the air, at sea and in space;

The Bush Administration considers itself entitled to enforce its will against sovereign states if it considers necessary by the use of lethal force including nuclear weapons, without the sanction of any world body;

The Bush Administration considers itself entitled without the sanction of any world body, or even without the warrant of any US Court, to use lethal force against individuals inside or outside the United States if the President in his absolute discretion deems that person to be an "unlawful combatant"; and

The Bush Administration considers itself entitled, without the sanction of any world body or even without the warrant of any US Court to be entitled to detain any person indefinitely without trial and in the case of a foreign national to send him or her to a state where the person will be at risk of torture or execution without the sanction of any court.

If these doctrines are accepted or acquiesed in by the international community, what they mean is the abrogation of international law as we know it and its substitution by an unreviewable discretion vested in the President of the United States.  There is a single word which adequately describes this kind of "new world order" - Fascism.

Unilateral Intervention in Iraq - Illegal

See our Iraq War - Legality page. [ ( now a dead link, instead go to or to ) ]

"Poodle" Blair espouses the New World Order

The supporters of the Bobbitt Theory, or of the Bush Doctrine, point to the past failures of the United Nations.  As discussed above, no-one in their right mind would suggest that the UN as presently configured is a perfect vehicle for resolving conflict, and particularly for dealing with human rights abuses.

Yes, the UN Security Council was paralysed over Bosnia/Kosovo by the threat of Russian veto.  But hard cases make bad law.  In particular, if the Security Council can be paralysed by the Great Power veto, that is an argument for reforming the Great Power veto, not for throwing the baby out with the bathwater and leaving the policing of the world to the whim of a hyperpower, particularly when that hyperpower has the human rights and civil liberties record of the Bush Administration.

Many of the US neoconservatives who have espoused the Bobbitt theory are former marxists and trotskyites who have gone from one political extreme to the other.  With the enthusiasm of the convert, they have sought to become "more catholic than the Pope" and have passed from the extreme left to the neofascist far right.  The same phenomenon is to be observed at the heart of the Blair Government and in particular among the Blair/Straw/Blunkett Troika who have the conduct of UK policy on the Iraq crisis and the war on terrorism.

It is worth recalling that Jack Straw was considered by the UK security services to be a "Communist sympathiser" and he was certainly on the radical left as President of the NUS between 1969 and 1971.  Many older readers will recall that David Blunkett was regarded as being on the "loonie left" of the Labour Party in 1985 when as leader of Sheffield Council he was said to run the "Socialist Republic of South Yorkshire".  It appears that the BSB Troika have all been infected with the neoconservative virus and have moved from the left to the far right.

When the British Prime Minister said in the House of Commons on 15th January 2003 that the Government had to reserve the right to support US unilateral action if someone in the United Nations interposed "an unreasonable veto", everyone understood him to mean that he was prepared to sacrifice British troops on the altar of his supposed ``special relationship'' with George W. Bush even if Canada, France, Germany and other NATO allies were not.  On 21st January 2003, Blair told Chairmen of Committees of the House of Commons that he reserved the right to join in military action, even if a UN Security Council member vetoed such a move.  He said that if UN weapons inspectors concluded that the Iraqi leader was in breach of Security Council resolutions and "somebody puts down an unreasonable veto", action should still follow.

There are only 5 states with the Security Council veto power:  China, France, Russia the United Kingdom and the United States of America.  Which state does the Prime Minister think is going to be "unreasonable" ?  And how far should his proposition be taken ?  Suppose a resolution for the enforcement of peace in the Israel-Palestine conflict should shortly come before the Security Council (as well it might) and be vetoed as usual by the United States (which, incidentally has vetoed more resolutions than any other Security Council Member, generally to protect its puppet Israel) - does Mr Blair then think that it would be legitimate for a "coalition of the willing" (say Algeria, Egypt, Lebanon, Pakistan, Russia and Syria) to proceed to enforce peace in the Occupied Territories without UN authority ?

Even though 80% of British voters think a UN Resolution autorising action is an essential prerequisite of military action against Iraq, the British BSB Troika showed themselves prepared to defy public opinion and put British servicemen in harm's way without UN authority.  Small wonder that the British and world public opinion now thoroughly distrusts the judgment of both the Bush Administration and the BSB Troika on the issue of making war on Iraq.

Undermining the UN

Europeans Demonstrate Against an Iraq War

United Kingdom        Italy         Spain         Turkey        Greece

If the world's largest superpower is permitted to treat the UN Security Council and international law on the use of force as if it matters not, then there are hard times ahead for the international community.  If Americans do not understand this yet, Europeans certainly do.  There are huge popular majorities agianst war in all the countries in Europe and there have been some of the biggest demonstrations seen since 1945 in all major European capitals.

It is perhaps salutary to recall that four countries in particular have known life under US-supported fascist military dictatorships, Greece, Portugal, Spain and Turkey.  Some leaders would do well to remember the quite recent past in their own countries and understand the reasoning behind the popular opposition to the US acting as the world's policeman outside the scope of the UN.

(In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.)

A version of the present article suitable for email can be downloaded here:  new_world_order.txt

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Copyleft © 2003 Leif Erlingsson or author.

Updated 27 October 2003