The following article was published in the May 2022 special issue of the International Review of Contemporary Law, the journal of the IADL, focusing on the 75-76 anniversary of the United Nations Charter.
In 1945, the United Nations Charter was created “to save succeeding generations from the scourge of war.” The League of Nations, which the United States refused to join, had failed to prevent the rise of fascism and the Second World War. The objective of the victorious powers of World War II in creating the UN system was to ensure they would continue to control post-war international relations. But 75 years after the creation of the UN Charter, armed conflict – particularly wars initiated by the United States – continues to plague the world.
The Charter requires that all states settle their disputes peacefully and refrain from the use of armed force except when acting in self-defense after an armed attack by another state, or when the Security Council authorizes it. Self-defense is defined by the leading Caroline Case of 1837, which says the “necessity for self-defense must be instant, overwhelming, leaving no choice of means and no moment for deliberation.”
U.S. Presidents Continue to Violate the Charter
Yet the five most recent U.S. presidents have violated the Charter’s prohibition on the use of force. In October 2001, George W. Bush invaded Afghanistan, even though Afghanistan had not attacked the United States. On September 11, 2001, 19 men (15 of whom were from Saudi Arabia) committed crimes against humanity in the United States. But that did not constitute an armed attack to trigger the article 51 self-defense provision of the Charter. Bush’s invasion of Afghanistan did not constitute lawful self-defense and the Security Council never approved the use of force. Two years later, before he invaded Iraq and changed its regime, Bush tried to obtain the imprimatur of the Security Council, but it refused to authorize “Operation Iraqi Freedom.” Bush then cobbled together prior Security Council resolutions from the first Gulf War – which no longer applied in 2001 – in an attempt to legitimize his illegitimate war. Bush’s war on Iraq has resulted in hundreds of thousands of deaths, led to the rise of ISIS, and dangerously destabilized the region. Both of Bush’s wars – in Afghanistan and Iraq – violated the UN Charter.
John Bolton, then Bush’s temporary ambassador to the United Nations, admitted that the U.S. government considered the UN to be a tool of its foreign policy. Bolton declared, “There is no United Nations. There is an international community that occasionally can be led by the only real power left in the world, and that is the United States, when it suits our interest, and when we can get others to go along.” Bolton added, “When the United States leads, the United Nations will follow. When it suits our interest to do so, we will do so.”
Bush’s predecessor could have helped prevent the genocide in Rwanda. But instead, Bill Clinton precluded the United Nations from acting to halt the killing of 800,000 people. Madeline Albright, Clinton’s secretary of state, called the UN “a tool of American foreign policy.” It was Albright who oversaw the U.S.-led NATO bombing of Yugoslavia in 1999, which also violated the UN Charter. Retroactive Security Council approval does not comply with the Charter.
Barack Obama and his counterparts in France and Britain secured a resolution from the Council that approved a no-fly-zone over Libya in 2011. But the three countries engaged in forcible regime change and ousted Libyan president Muammar Qaddafi. This went far beyond what the resolution authorized. That action also contributed to the current instability in the region. The Libya resolution mentioned the doctrine of “Responsibility to Protect.” This doctrine is contained in the General Assembly’s Outcome Document of the 2005 World Summit. But it is not enshrined in an international treaty nor has it attained the status of customary international law. Paragraph 138 of that document says individual states have the responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. Paragraph 139 states that the international community, through the UN, also has “the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the UN Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” It is not surprising that the United States and its allies have not utilized the Responsibility to Protect doctrine to protect the people of Gaza from massacres by Israel, most recently in 2021.
Declaring the whole world to be his battlefield, Obama launched drone strikes in Yemen, Pakistan, Libya, Afghanistan and Somalia, Iraq and Syria. “We will hunt down terrorists who threaten our country, wherever they are . . . if you threaten America, you will find no safe haven,” Obama declared. But none of those 7 states had mounted an armed attack against the U.S. or any other UN member country. And the Obama administration provided no evidence that the people it targeted were about to launch an imminent attack on the United States. Moreover, even if the U.S. Congress had authorized Obama’s wars, that still would not have complied with the UN Charter.
Donald Trump followed suit by bombing Syria and Iraq and threatening to attack North Korea. In 2017, Trump sent 59 Tomahawk cruise missiles – each armed with over 1,000 pounds of explosives – to attack Syria, ostensibly in response to Syria’s alleged use of chemical weapons. Syria had not attacked the United States or any other country before Trump’s missile strike. The use of chemical weapons by Syria did not constitute an armed attack on the United States. And the Security Council had not approved Trump’s use of force. It therefore violated the UN Charter. In fact, under the Charter, Syrian President Bashar al-Assad would have had a valid self-defense claim since the U.S. had initiated an armed attack on Syria. Moreover, after a rocket attack in Kirkuk resulted in the death of a U.S. mercenary, the United States retaliated by launching several airstrikes in Iraq and Syria that killed 24 members of the Iranian-backed Iraqi militia Kataib Hezbollah. But the attacks on a U.S. military base in Iraq allegedly by Iraqi-based militias who were Iraqi non-state actors did not constitute an armed attack on the United States by Iran. On January 2, 2020, Trump ordered the illegal drone assassination of Iranian Maj. Gen. Qassim Suleimani while he was in Iraq. Neither Iran nor Iraq had attacked the United States or a UN member country and the Council did not authorize Trump’s drone attack.
Article 2 of the Charter states that all members “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.” Trump’s threat to “totally destroy North Korea” violated the Charter’s mandate. The preemptive use of force violates the Charter.
One month after Joe Biden was inaugurated as U.S. president, he followed in the footsteps of his predecessors by violating the UN Charter. On February 25, 2021, Biden conducted airstrikes in Syria on buildings allegedly belonging to Iran-backed militias who were allegedly responsible for attacks against U.S. and allied personnel in Iraq. Syria, however, had not mounted an armed attack on the U.S. or another country, and the Security Council had not approved the attack.
From the time of its creation, the United States has manipulated the UN System.
The U.S. Manipulated the Formation of the UN System
The United States arranged for the founding conference of the UN to be held on U.S. soil, and indeed, it took place in San Francisco. In order to make sure that the U.S. choreographed the meeting, the FBI spied on foreign emissaries and even on the U.S. delegates themselves. Stephen Schlesinger noted, “The US apparently used its surveillance reports to set the agenda of the UN, to control the debate, to pressure nations to agree to its positions and to write the UN Charter mostly according to its own blueprint.”
George Kennan, architect of the U.S. containment strategy against the Soviet Union, made a striking admission. “We have 50% of the world’s wealth, but only 6.3% of its population … Our real task in the coming period is to devise a pattern of relationships which will allow us to maintain this position of disparity,” Kennan noted. “We should cease to talk about the raising of the living standards and democratization. The day is not far off when we are going to have to deal in straight power concepts.”
If they had not been given the power to veto Security Council decisions, the U.S. and the USSR would not have joined the UN. One of the major sticking points during the conference was the scope of the veto power. Australian foreign minister Gareth Evans described the motivation behind giving the permanent members the power to veto decisions of the Security Council. He said, “to convince the permanent members that they should adhere to the Charter and the collective security framework embodied therein, a deliberate decision was taken to establish a collective security system which could not be applied to the permanent members themselves.”
The Security Council has 15 members — 5 permanent members (U.S., UK, France, Russia, and China) and 10 rotating non-permanent members. The Soviet Union wanted the permanent members to have veto power over all decisions of the Security Council, which would have allowed them to prevent discussion about the peaceful settlement of disputes in which they were involved. A compromise was reached that gives the permanent members a veto over “substantive” matters. But the peaceful settlement of disputes is considered a “procedural” matter.
Some feared the veto would permit the big powers to use their military might against the small nations with no accountability. A group of prominent Protestant ministers called it “a mere camouflage for the continuation of imperialistic policies and the exercise of arbitrary power for the domination of other nations.” Chile, Costa Rica, Cuba, Switzerland, Italy and the Vatican thought the proposed voting structure was inconsistent with the sovereign equality of states and would place the permanent members above the law. The word “veto” does not appear in the UN Charter. Article 27 says that decisions on procedural matters “shall be made by an affirmative vote of nine members including the concurring votes of the permanent members.” One permanent member could therefore exercise veto power by withholding a concurring vote.
The U.S., UK, China and the Soviet Union – the sponsoring powers of the conference – issued formal invitations. Fifty countries, primarily from the industrialized North, were represented at San Francisco. They made up less than one-quarter of the countries of the world. About 35 were allied with the U.S., 5 were aligned with the Soviet Union, and 10 were non-aligned. At the time, most of the developing countries were under colonial or semi-colonial rule.
During the conference, conflicts erupted between the big powers and countries of the South. The Latin American contingent was comprised of 19 countries that had been non-belligerents during the War. However, since they had declared war on the Axis countries by the deadline, they were allowed to join the United Nations. President Franklin D. Roosevelt had a warm relationship with Latin America, stemming from his Good Neighbor Policy in the 1930’s, which provided for non-intervention and non-interference in the domestic affairs of the countries of Latin America. In return, the United States expected favorable trade agreements and the reassertion of U.S. influence in the region.
But Roosevelt died 13 days before the San Francisco conference, leaving Harry Truman to represent the United States in negotiations over the UN Charter. Although the Latin American countries sought to include Brazil as the sixth permanent Security Council member, the United States prevented its inclusion. The Latin bloc sought to establish its own regional security system apart from the UN.
The Act of Chapultepec, developed at a prior Inter-American conference in Mexico City, specified that an attack on one state in the region was an attack on all, which would result in immediate collective consultation and possible military action. Objecting to a provision in the UN Charter that would give the permanent members the power to veto any action by a regional organization, the Latin countries advocated the principles of Chapultepec. The final draft of article 51 of the UN Charter protects “the inherent right of individual or collective self-defense.” In deference to the Latin bloc, “collective” is a reference to Chapultepec.
Article 2 of the Charter provides, “Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state.” The original proposal stated that international law would determine what is “solely within the domestic jurisdiction” of a state. When the U.S. Congress demanded that the words “international law” be removed, they were deleted. Since then, not surprisingly, the United States has repeatedly violated international law by the use of armed force in violation of the Charter.
The Charter established the International Court of Justice (ICJ) as the judicial arm of the UN system. Would states be compelled to submit to its jurisdiction? U.S. Secretary of State Edward Stettinius convinced Truman that the U.S. Senate would never ratify an ICJ statute with that provision. The court therefore has contentious jurisdiction only over states that consent to its jurisdiction. Indeed, when the ICJ ruled in 1986 that the United States had violated international law by mining Nicaragua’s harbors and supporting the Contras in their insurrection against the Nicaraguan government, the U.S. refused to be bound by the ruling.
For 45 years during the Cold War, the veto power paralyzed the Security Council. But after the dissolution of the USSR in 1991, the veto ironically turned the Security Council into a countervailing power to the U.S., as the Council is the only international body that can legitimately authorize the use of military force. In some instances, the United Nations has succeeded in slowing down an immediate resort to military force, although it has failed to broker a solution to the Israeli-Palestinian conflict, or develop a treaty to outlaw nuclear weapons. The U.S. government has sought to obtain the Security Council’s blessing for its military interventions. But as the United States nevertheless continues to use armed force in violation of the UN Charter, it is apparent to the countries of the world that the U.S. is a notorious lawbreaker.
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.