by Christian Tomuschat
Saturday, Feb. 08, 2003 at 5:22 PM mbatko@lycos.com mbatko@lycos.com
Iraq was not condemned to be without rights or outlawed for all time. An authorization for the use of force cannot be read from resolution 1441. A right to preventive self-defense may exist in an extreme situation when enemy missiles are ready for launch..
The End of World Order
Government advisor Christian Tomuschat on a possible Iraq war, the errors of foreign minister Joschka Fischer and the dangerous attitude of the US
[This interview is translated from the German in: Spiegel 4/2003. Christian Tomuschat, 66, professor in Berlin, is regarded as one of the most important government experts in questions of international law.]
Spiegel: Professor Tomuschat, may the US strike Iraq without a new UN resolution?
Tomuschat: No, that is impossible. The basic rule is still valid that use of force against a state is only authorized in two cases: for self-defense or when the Security Council issues an authorization.
Spiegel: To American hardliners, resolution 1441 of November 2002 threatening Iraq with “serious consequences” for new violations is enough.
Tomuschat: The resolution obviously threatens consequences for non-compliance. The Security Council must first pass a resolution.
Spiegel: The resolution refers to earlier resolutions that justified a military action against Iraq.
Tomuschat: These were designed for the Iraqi occupation of Kuwait. This is past since 1991. Iraq was not condemned to be outlawed or without rights for all time. An authorization for the use of force cannot be read from resolution 1441.
Spiegel: Foreign minister Joschka Fischer recently said that the resolution leaves open whether a new authorization is necessary or whether the Americans can act without a new authorization.
Tomuschat: I cannot agree with this legal interpretation. The resolution says nothing on this point. There is no exception here to the general rule of prohibition of force.
Spiegel: Did you tell this to the minister?
Tomuschat: Not personally. However the question was discussed at a hearing of the international law advisory board.
Spiegel: Are there no international law scholars on whom the foreign minister can rely?
Tomuschat: There are only a few isolated supporters.
Spiegel: President George Bush insists on a right to preventive self-defense.
Tomuschat: A right to preventive self-defense may exist in an extreme situation when enemy missiles are ready to be launched. Even if Iraq has hidden weapons, a concrete danger is not manifest.
Spiegel: What if the US simply ignores these misgivings?
Tomuschat: One of the basic pillars of the modern order of international law would then be pulled down. I think the US is interested in the long-term that every state cannot simply do what it wants.
Spiegel: What if it is not proven that Iraq has destroyed all weapons of mass destruction?
Tomuschat: The burden of proof is on those who say a war should be waged, the US. If the US has exclusive, secret service information, they must make this public.
Spiegel: The US regarded Iraq’ s latest incomplete weapons report as a violation.
Tomuschat: The fact that Iraq neglected to make careful and exact disclosures cannot justify a war.
Spiegel: The chancellor in the election campaign described a war in Iraq as an “adventure”. Now Germany sits on the Security Council and must vote.
Tomuschat: Statements from the election campaign should not be overrated. All Security Council members must examine the evidentiary material without prejudice. Every country is obligated to reject such a resolution if nothing concrete is put on the table. However Germany can hardly exclude itself if 14 other countries deem a military strike as necessary.
Spiegel: If the US attacks Iraq without a new resolution, must Germany refuse its bases and the deployment of German occupation forces?
Tomuschat: This is a very serious problem. According to the constitution, the prohibition of force underlies obligations from international treaties. Germany may not help the US in a war against international law. In this case, Germany must make clear that granting fly-over rights and the like are not prohibited assistance.
Spiegel: Foreign minister Fischer says this was “yesterday’s debate”.
Tomuschat: I fear this is “tomorrow’s debate”.
Spiegel: One motive of the Bush administration is rescuing the enormous oil reserves of Iraq from Saddam Hussein’s arbitrariness. Can interest in stable oil prices justify a war?
Tomuschat: Never in a lifetime.
Spiegel: The Iraq conflict seems like a classic example for the new security strategy of the US.
Tomuschat: In fact, the US before the UN now claims the right to act preventively and militarily when its security interests are threatened. US security interests also include economic security. We Germans owe much to the US. However if this new military doctrine is enforced, this would be the end of the present world order. Only the right of the stronger would be in effect. No one really wants to live in such a world.