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   Lawlessness in Iraq and the Failure of Unilateralism

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Lawlessness in Iraq and the Failure of Unilateralism

By Professor Ali Kahn

It is unclear whether the US claimed an "imperative military necessity" waiver of The 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict, thereby allowing the looting and smashing of Iraqi cultural property. It is odd, though, that the Iraqi oil fields have been successfully safeguarded right from the beginning of the war, but little was done to protect the "greatest trove of antiquities and monuments in the Middle East."
Almost everything seems to be going awry in Iraq.

American and British soldiers are being killed day after day, city by city, causing a surge of grief among their families left behind, who were led to believe that the war was over and that the hated regime had been neutralized. Iraqi families, in addition to mourning over their own dead, yearn for water and electricity in the atrocious summer heat, deriding the promise of liberation that the Bush administration had made with great eloquence.

....An eerie lawlessness has overtaken the entire situation. The Iraq war itself originated on the fringes of law, as the doctrine of preemptive strike replaced the conventional right of self-defense. The unilateral American decision to go to war undermined the UN Security Council's lawful authority to maintain international peace and security. Congress's constitutional power to declare war was slighted, if not subverted outright.....

The thieves and saboteurs of Baghdad are no longer accountable to any authority, for none exists. But the coalition forces are obligated under international law to protect the cultural heritage of the occupied lands. The 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict and its Protocols, though riddled with exceptions, impose an affirmative obligation on invading states to respect monuments of architecture, archeological sites, works of art, books and historic buildings. Unfortunately, the Convention allows the waiver of this obligation under the doctrine of "imperative military necessity." It is unclear whether the United States claimed any such waiver to let Iraqi cultural property be looted and smashed. It is odd, though, that the Iraqi oil fields have been successfully safeguarded right from the beginning of the war, but little was done to protect the "greatest trove of antiquities and monuments in the Middle East."

....The lawlessness surrounding the origin and aftermath of the Iraqi war reaffirms the simple thesis that hegemony is impractical—that a single superpower cannot effectively manageworld affairs. And make no mistake: although the United States was able to construct a coalition of supportive states, the invasion of Iraq was and was broadly perceived as a solo act—an unprecedented repudiation of world opinion openly disparaging the idea of multilateralism embodied in the United Nations Charter.

The United Nations Charter, signed at San Francisco in 1945, is a universal treaty founded on the principle of state cooperation for making a better world. The Charter opens with the words "We the peoples of the United Nations." This universal We was formulated to emphasize a cooperative enterprise of law and action, and more specifically to save the succeeding generations from "the scourge of war, which . . . has brought untold sorrow to mankind."

....Discarding the universal We of the United Nations Charter, the masterminds of the Iraqi war relied instead on self-righteousness. They talked themselves into believing that in going it alone they were doing good, and that in opposing them the rest of the world was not as smart or courageous as they were. This way of thinking is nothing new in the annals of history, for Absolute Power often sees itself as the most courageous deity of sheer goodness. The very idea of the United Nations is designed to correct such daring and dangerous fantasies.

....[T]he people of Iraq do not see the Anglo-American armies as the torch-bearers of liberty. How could they? British colonialism is still fresh in their memory, and the Bush administration has barely begun to rescue the oppressed in the Middle East from domestic tyranny and occupation. Going it alone has also failed for the brave foot soldiers, coming in droves from the working class families of America, who are now being killed by the very people they had come to liberate.....


Ali Khan is a professor at Washburn University School of Law in Kansas, and is the author of A Theory of Universal Democracy: Beyond the End of History (Kluwer, 2003).

These excerpts are republished from the entire article, which was published in Jurist on July 7, 2003. See: jurist.law.pitt.edu/forum/forumnew119.php




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This story was published on July 14, 2003.
  
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