Assessing
the United Nations
after the Lebanon War 2006
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TFF
PressInfo # 241
August 15,
2006
Richard
Falk
Professor
emeritus
Princeton University, TFF Associate
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Of course, we all breathe a bit
easier with the news of a ceasefire in Lebanon even if
its prospects for stemming the violence altogether are
not favorable at this time. And after dithering for 34
days while the bombs dripped and the rockets flew we need
to acknowledge that the United Nations, for all of its
weaknesses, plays indispensable roles in a wide array of
international conflict situations. It is notable in this
instance that despite Israel's discomfort with UN
authority, and the reluctance of the United States to
accept any UN interference with its foreign policy
priorities, as in Iraq, both countries were forced to
turn to the UN when Israel's war against Lebanon ran up
against the unexpectedly strong Hezbollah resistance.
At the same time this is certainly
not a moment to celebrate the UN for fulfilling its
intended role as dedicated to war-prevention and the
defense of states victimized by aggression. Perhaps,
it is an occasion to take stock of what to expect from
the UN in the early part of the twenty-first century,
concluding that the Organization can be regarded neither
as a failure nor as a success, but something inbetween
that is complicated and puzzling.
The
origins and the hopes
After World War II a mood of relief
that the war was over was mingled with satisfaction (that
the German and Italian fascism and Japanese militarism
were defeated) and worry (that a future major war might
well be fought with nuclear weapons, and even if not,
that military technology was making wars more and more
devastating for civilian society). One hopeful response
was the establishment of the United Nations on the basis
of a core agreement that recourse to force by a state,
except in cases of strict self-defense was
unconditionally prohibited. This norm was supposed to be
supplemented by machinery for collective security
intended to protect victims of aggression, but this
undertaking although written into the UN Charter has
never been implemented.
The victorious countries in World
War II plus China were designated as Permanent Members of
the UN Security Council and given the right to veto any
decision. The intention here was to acknowledge that the
UN could not hope to ensure compliance with international
law by these dominant states, and to avoid raising
expectations too high it was better to acknowledge this
deference of 'law' to 'power' restricted the role of the
UN.
But what was not anticipated in
1945, and has now again damaged the reputation of the UN,
was the realization that the Organization could serve as
an instrument for geopolitics in such a way as to
override the most basic restraints on war making built
into the UN Charter, but this is exactly what happened in
the context of Israel's war on Lebanon.
"Indicative
of just how low the expectations to the UNSC have
fallen..."
The UNSC stood by in silence in the
face of Israel's decision to use the pretext of the July
12th border incitement by Hezbollah, involving only a
small number of Israeli military personnel, to launch all
out war on an essentially defenseless Lebanon. A month of
merciless Israeli air attacks on Lebanese villages and
cities has taken place, while the UN refused even to
demand an immediate and total ceasefire to the obvious
dismay of the UN Secretary General, Kofi Annan. And even
this benchmark is indicative of just how low expectations
have fallen with respect to UNSC action when there exists
any serious friction between the UN Charter and the
policy priorities of the United States as the controlling
member of the Organization.
It should be recalled that the it
was the US Government that declared the UN 'irrelevant'
in 2003 when the Security Council at least stood firm,
and refused to authorize an unlawful invasion of Iraq.
With Iraq, too, the experience, more than anything else,
underscored the fallen expectations associated with the
UNSC. It was then applauded for not mandating aggression
against Iraq, but when the invasion went ahead anyway in
March 2003, the UNSC was complicit with aggression by way
of silence, and later went even further later on, acting
as a junior partner in the American-led occupation of
Iraq.
The point being stressed is that
the UN is unable to prevent its Permanent Members from
violating the Charter, but worse, it collaborates with
such violations in support of its most powerful member.
The UN has become in these
situations, sadly, more of a geopolitical instrument than
an instrument for the enforcement of international law.
This regression betrays the vision that the guided the
architects of the UN back in 1945, chief among whom were
American diplomats.
The
Nuremberg Promise has long since been
forgotten
It should be also recalled that
when German and Japanese surviving leaders were
criminally punished after World War II for waging
aggressive war at the Nuremberg and Tokyo trials the
prosecutors promised that the principles of law applied
to judge the defendants associated with the defeated
countries would in the future we applicable to assess the
behavior of the victorious power then sitting in
judgment. This Nuremberg Promise has been long since
forgotten by governments, but it should not be ignored by
public opinion and citizens of conscience
everywhere.
Resolurion
1701 undermines the UN's own authority
Nothing illustrates this fallen
condition of the UN better than the one-sided UNSC Res.
1701 ceasefire resolution finally approved by unanimous
vote on Aug. 11th. This resolution, although in some
respects a compromise that reflects the inconclusive
battlefield outcome, is tilted in many of its particulars
to favor the country that both wrongfully escalated the
border incident and carried out massive combat operations
against civilian targets in flagrant violation of the law
of war: Res. 1701 blames Hezbollah for starting the
conflict; it refrains from making any critical comment on
Israeli bombing and artillery campaign directed at the
entire country of Lebanon; it imposes an obligation to
disarm Hezbollah without placing any restrictions on
Israeli military capabilities or policies; it places
peacekeeping forces only on Lebanese territory, and is
vague about requiring the withdrawal of Israeli armed
forces; it still fails to censure Israel for expanding
the scope of its ground presence in Lebanon by 300% to
beat the ceasefire deadline, and it calls for the
prohibition of 'all' attacks by Hezbollah while requiring
Israel only to stop 'offensive military operations,'
leaving the definition of what is offensive in the hands
of policymakers in Tel Aviv and Washington.
We learn some important things
about the United Nations from this experience. First, it
is incapable of protecting any state, whatever the
circumstances, that is the victim of an aggressive war
initiated by the United States or its close allies.
This incapacity extends even to proposing resolutions of
censure.
Secondly, the UNSC, while not
actually supporting such claims of aggressive war, will
collaborate with the aggressor in the post-conflict
situation to ratify the effects of the aggression. This
combination means effectively that the Charter
prohibition directed at non-defensive wars applies only
to enemies of the United States. Any legal order that
achieves respect treats equals equally. The UN is
guilty of treating equals unequally, and thus constantly
undermines its own authority.
'Punitive
self-defence'? Israel's illegitimate use of retaliating
force
There is another disturbing element
that concerns the manner in which states aligned with the
United States are using force against non-state actors.
Such states, of which Israel is a leading example, engage
in what a law commentator, Ali Khan, has called 'punitive
self-defense.' UN Charter Article 51 deliberately tried
to restrict this option to claim self-defense by
requiring 'a prior armed attack,' which was definitely
understood, as being of a much more sustained and severe
initiation of violent conflict than an incident of
violence due to an isolated attack or a border skirmish.
More concretely, the events on the borders of Gaza and
Lebanon that gave rise to sustained Israeli war making
did not give Israel the legal right to act in
self-defense, although it did authorize Israel to defend
itself by retaliating in a proportionate manner. This
distinction is crucial to the Charter conception of
legitimate uses of international force.
What punitive self-defense means is
a deliberate policy of over-reaction such that there is
created a gross disproportion between the violence
inflicted by the non-state actor, in the Lebanese
instance, Hezbollah, and the response of the state actor
Israel.
It also means, contrary to the
UN Charter and international law, that every violent
provocation by a non-state actor can be treated as an
occasion for claiming a right to wage a full war based on
'self-defense.'
This punitive approach to
non-state adversaries completely negates a cardinal
principle of both international law and the just war
tradition by validating disproportionate uses of
retaliatory force.
We
must not become cynical about the role of the
UN
This discouraging interpretation of
what to expect from the United Nations in war/peace
situations should not lead to a cynical dismissal of the
Organization. We need the UN to step in, as in Lebanon,
when the arbiters of geopolitics give the signal, and
help with the post-conflict process of recovery and
reconstruction.
But we should be under no
illusions that this role adequately carries out the
vision of the UN contained in its own Charter or upholds
the most basic norms of international law.
How
can this situation be improved?
There are three areas of effort
that are worthy of attention:
•
Perhaps, most important, is the recognition by major
states that war is almost always a dysfunctional means of
pursuing their security interests, especially with
respected to addressing challenges posed by non-state
actors.
In this regard, odd as it may seem,
adherence to the limits imposed by international law may
serve national interests better than relying on military
superiority to override the restrictions on force
associated with the UN Charter; note that the United
States would have avoided the worst foreign policy
disasters in its history if it had not ignored these
restrictions in the Vietnam War and the Iraq War; in
their essence, limiting war to true instances of
self-defense is a practical restriction on state
sovereignty agreed upon by experienced political
leaders;
•
Of secondary importance is
for the members of the United Nations to take more
seriously their own obligations to uphold the Charter; it
may be appropriate in this spirit to revive attention to
the so-called Uniting for Peace Resolution 337A that
confers a residual responsibility on the General Assembly
to act when the Security Council fails to do
so.
This 1950 resolution was drafted in
the setting of the Cold War, with an intention to
circumvent a Soviet veto, but its use was suspended by
the West in the wake of decolonization, which was
perceived as making the General Assembly less supportive
of Western interests than had been the case in the early
years of the UN.
In present circumstances, the
General Assembly could be reempowered to supplement the
efforts of the Security Council where an urgent crisis
involving peace and security is not being addressed in a
manner consistent with the UN Charter; along similar
lines, would be an increased reliance on seeking legal
guidance from the International Court of Justice when
issues of the sort raised by the Israeli escalation
occurred. [Please see TFF's
Open Letter to the President of the General
Assembly concerning the
Uniting for Peace resolution that the author has
supported].
•
And finally, given these
disappointments associated with the preeminence of
geopolitics within the UN, it is important for
individuals and citizen organizations to act with
vigilance.
The World Tribunal on Iraq, taking
place in Istanbul in June 2005, passed 'legal' judgment
on the Iraq War and those responsible for its initiation
and conduct. It made the sort of legal case that the UN
was unable to make because of geopolitical
considerations. It provided a comprehensive examination
of the policies and their effects, and issues a judgment
with recommendations drafted by a jury of conscience
presided over by the renowned Indian writer and activist,
Arundhati Roy.
Such pronouncements by
representatives of civil society cannot obviously stop
the Iraq War, but they do have two positive effects:
first, they provide media and public with a comprehensive
analysis of the relevance of international law and the UN
Charter to a controversial ongoing war; secondly, by
doing so, they highlight the shortcomings of official
institutions, including the United Nations in protecting
the wellbeing of the peoples of the world.
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