This would appear to be a new Kellogg-Briand Pact with at least an initial attempt at the creation of an enforcement body. And so it is. But the U.N. Charter contains two exceptions to its ban on warfare. The first is self- defense. Here is part of Article 51:
"Nothing in the present Charter shall impair the inherent right of individual or collective self-defence (sic) 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."
So, the U.N. Charter contains the same traditional right and small loophole that the U.S. Senate attached to the Kellogg-Briand Pact. It also adds another. The Charter makes clear that the U.N. Security Council can choose to authorize the use of force. This further weakens the understanding that war is illegal, by making some wars legal. Other wars are then, predictably, justified by claims of legality. The architects of the 2003 attack on Iraq claimed it was authorized by the United Nations, even though the United Nations disagreed.
It seems reasonable, of course, to make exceptions for wars of self-defense. You can't tell people they're forbidden to fight back when attacked. And what if they were attacked years or decades earlier and have been occupied by a foreign or colonial force against their will, albeit without recent violence? Many consider wars of national liberation to be a legal extension of the right to defense. The people of Iraq or Afghanistan don't lose their right to fight back when enough years go by, do they? But a nation at peace cannot legally dredge up centuries- or millennia-old ethnic grievances as grounds for war. The dozens of nations in which U.S. troops are now based cannot legally bomb Washington. Apartheid and Jim Crow were not grounds for war. Nonviolence is not just more effective in remedying many injustices; it is also the only legal choice. People cannot "defend" themselves with war any time they wish.
What people can do is fight back when attacked or occupied. Given that possibility, why wouldn't you also make an exception -- as in the U.N. Charter -- for the defense of other, smaller countries that are unable to defend themselves? After all, the United States liberated itself from England a long time ago, and the only way it can use this rationale as an excuse for war is if it "liberates" other countries by overthrowing their rulers and occupying them. The idea of defending others seems very sensible, but -- exactly as Kellogg predicted -- loopholes lead to confusion and confusion allows larger and larger exceptions to the rule until a point is reached at which the very idea that the rule exists at all seems ludicrous.
And yet it does exist. The rule is that war is a crime. There are two narrow exceptions in the U.N. Charter, and it is easy enough to show that any particular war does not meet either of the exceptions.
Libya has not attacked the United States.
The United Nations has not authorized bombing Libya.
On August 31, 2010, when President Barack Obama was scheduled to give a speech about the War on Iraq, blogger Juan Cole composed a speech he thought the president might like to, but of course did not, give:
"Fellow Americans, and Iraqis who are watching this speech, I have come here this evening not to declare a victory or to mourn a defeat on the battlefield, but to apologize from the bottom of my heart for a series of illegal actions and grossly incompetent policies pursued by the government of the United States of America, in defiance of domestic US law, international treaty obligations, and both American and Iraqi public opinion.
"The United Nations was established in 1945 in the wake of a series of aggressive wars of conquest and the response to them, in which over 60 million people perished. Its purpose was to forbid such unjustified attacks, and its charter specified that in future wars could only be launched on two grounds. One is clear self-defense, when a country has been attacked. The other is with the authorization of the United Nations Security Council.
"It was because the French, British, and Israeli attack on Egypt in 1956 contravened these provisions of the United Nations Charter that President Dwight D. Eisenhower condemned that war and forced the belligerents to withdraw. When Israel looked as though it might try to hang on to its ill-gotten spoils, the Sinai Peninsula, President Eisenhower went on television on February 21, 1957, and addressed the nation. These words have largely been suppressed and forgotten in the United States of today, but they should ring through the decades and centuries:
"'If the United Nations once admits that international dispute can be settled by using force, then we will have destroyed the very foundation of the organization, and our best hope of establishing a real world order. That would be a disaster for us all". [Referring to Israeli demands that certain conditions be met before it relinquished the Sinai, the president said that he] "would be untrue to the standards of the high office to which you have chosen me if I were to lend the influence of the United States to the proposition that a nation which invades another should be permitted to exact conditions for withdrawal".'
"'If it [the United Nations Security Council] does nothing, if it accepts the ignoring of its repeated resolutions calling for the withdrawal of the invading forces, then it will have admitted failure. That failure would be a blow to the authority and influence of the United Nations in the world and to the hopes which humanity has placed in the United Nations as the means of achieving peace with justice.'"
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