Saddam Hussein, Muammar Gaddafi, Mullah Omar and the like should thank Justice Muhammad Munir and the Doctrine of Necessity for their predicament. The connection seems spurious at first sight but traces of proximity are detectable on closer scrutiny.
Munir did not invent this infamous doctrine; Henry le Brackton, a medieval jurist, is its original author. He cast it in simple terms “that which is otherwise not lawful is made lawful by necessity” Justice Munir, its modern proponent, added a further refinement that the legality of an extra-constitutional seizure is established by the fact that it has succeeded. In sum, a new order regardless of the means employed, creates its own legality.
The sheer magnitude of the tragedy of September 11, 2001, which no amount of conspiratorial explanation can condone, did however provide a platform for elongating the doctrine of necessity to the world stage. Afghanistan, Iraq and now Libya are savouring the flavour of international application of Justice Munir’s unique gift to modern jurisprudence.
The Charter of the United Nations comes closest to the concept of a global constitution in that it prescribes in detail the principles, rules and modalities for conducting relations amongst states. Prohibition of use of force, unless specifically and pointedly authorised by the Security Council, constitutes the central force of this regime. In Afghanistan, Iraq and Libya, no such authorisation was ever given.
Between September 11 and October 7, 2001 when military action against Afghanistan was launched, the Security Council adopted two resolutions: 1368 on September 12 and 1373 on September 28. Afghanistan is not even mentioned in either resolution. The first resolution while condemning the attacks of September 11 calls “on all states to work together urgently to bring to justice the perpetrators, organisers and sponsors of these terrorist attacks and stresses that those responsible for aiding, supporting or harbouring the perpetrators, organisers and sponsors of these acts will be held accountable.” The Council further “expresses its readiness to take all necessary measures to respond to the terrorist attacks of September 11.” That response, in the form of military action, was never elaborated by the Council, even to this day.
In resolution 1373, the Security Council prescribed a number of steps for preventing terrorist activity, including suppression of funding for terrorism, exchange of information, early warning, and denial of safe havens, amongst others. The text does not contain even the faintest hint of authorising military action individually or in coalition with other countries, against Afghanistan.
On October 4, 2001, NATO invoked Article 5 of the treaty which considers an attack on one member country as an attack on them all. On October 7, the US and British Ambassadors reported to the Security Council that their governments had commenced the use of force in Afghanistan in self-defence. The communications painstakingly sought to connect the September 11 atrocities to Al-Qaeda and through association, to the Taliban. In a statement the following day, the Secretary General of the United Nations neither approved nor questioned the attack while upholding the right of self-defence of all states.
The right of self-defence is fully recognised by the United Nations (Article 51) and embedded in law since ancient times. However, the conditions under which it can be invoked are not spelt out in the Charter necessitating recourse to customary international law in which the most widely accepted interpretation is as follows: “there has to exist a necessity of self-defence, instant, overwhelming leaving no choice of means and no moment of deliberation and that any action taken must be proportional and must be limited by that necessity and kept clearly within it.” This was conveyed in the form of an official communication by the US Secretary of State to his British counterpart following a skirmish with Canada, still a British colony, in the early years of the new Republic. (Caroline Case)
After ten long years of punitive military action, massive carpet bombings, thousands of casualties in Afghanistan, close to 30000 dead in the terrorist backlash inside Pakistan, half a trillion dollars in the red, is it not time to inquire what kind of self-defence is this?
It is here that Justice Munir re-enters the picture. Self-defence, as its aforementioned definition establishes, is not an open-ended right. Article 51 of the Charter also places clear limitations on its applicability in that self-defence is allowed “until the Security Council has taken necessary measures to maintain international peace and security” The Council was never allowed to assume this responsibility. It did not even once take up the issue of continued presence of 100,000 American and British forces outside of ISAF who purportedly are still acting in self-defence since no other legal cover has been provided. A puppet regime was installed, also in the name of self-defence. A new order was thus created through sheer force which today enjoys universal recognition much in the way the doctrine of necessity has played out in this country.
Iraq and Libya will be discussed next week.
The writer is Pakistan’s former Ambassador to the United Nations and European Union. He can be contacted at [email protected]
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The sad reality is that the world is made up of haves and have nots, with the haves dictating the current world order. Unfortunately your right to self defense depends on which sphere you happen to be a part of.
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