Ersa Sulthana – 016201700015 – IR Japanese 6 – Batch 2017

Does International Law Exist After the Occurrence of Iraq War?

Introduction
The war between the United States and Iraq is a very serious problem in the eyes of the world. The
US occupied Iraq on 20th March 2003i. Before the United States invaded Iraq, president of US,
George W. Bush announced the ultimatum in advance to Saddam Hussein that he and his family
had to leave Iraq within 48 hours. Their rejection of this order would result in a military conflict
started at a time of our choosingii. The United States launched its first full offensive against Iraq
on March 19th, 2003 and forcibly occupied the territory of Iraq with over 150.000 troops. It raises
several reasons why the US want to invade Iraq based on national interest and national security.
First, United States believe that Iraq has a weapon of mass destruction (WMD) which would
threaten the life of the world. Second, US government wanted to counter terrorism and indicated
that Saddam Hussein was involved in the 11th September incident. Third, US sees regime Saddam
Hussein as a dictator president in Iraq and initiate to intervene regime Saddam to overthrow him
and promote democracy. This movement known in the United States as Operation Iraqi Freedomiii.
Assaulted on Iraq by the United States strengthened by the UN Charter chapter 7 on threats of
peace and security of mankind. But, Prof. Romli Atmasasmita asserted that the United States
should respect the United Nations as the agency authorized to make an agreement. This war should
not have been possible because of the absence of the consent of the United Nations Security
Council as a whole. But in fact, the United States ignored the statement of the United Nations and
ultimately the war remained in place. In this case, the United States and its coalition did not follow
the prevailing mechanism and it can be argued that the United States violated international lawiv.

Where is international law at that time? Why credible organization such United Nations does not
apply strictly to what the United States has done to Iraq? Does international law exist? This paper
attempts to analyze the invasion by the United States against Iraq and whether international law
remains in effect since the occurrence of the war of Iraq through the perspective of realism.
Ersa Sulthana – 016201700015 – IR Japanese 6 – Batch 2017

How Realist See the US Invasion of Iraq

Realism has the view that human nature is evil. Hans Morgenthau said that the main actor in
international relations is a state. The main purpose of the study of international relations is about
power. He wrote a book entitled ‘Politic Among Nations’ and in his book, he asserts that there are
two most important things in international relations, interest, and powerv. According to realist, in
international relations, does not rule out the possibility of conflict caused by the existence of
different interest and they believe that the only way to resolve the conflict is through war.
Therefore, the priority of a realist view within a state is national security and military forces for
the sake of creating within a country. Realist sees the US invasion of Iraq as a form of defending
country’s sovereignty and national security as a result of terrorist attacks on WTC in order to
implement their national security. The United States indicated that Saddam Hussein was involved
in that occurrence. And also, according to National Security Strategy 2002 document, it is clear
that United States take action to anticipate threats by planning a pre-emptive strategy through the
utilization of the US military’s dominant force in order to achieve its goals, including global
hegemony in the face of any threat to securityvi. Moreover, the United States sees Iraq as a strategic
place to set up a military base which will help US to expand its hegemony in the Middle East and
also Iraq has considerable oil reserves which can benefit US companies operating there to widen
national interestvii.

Why did International Law Fail in an Effort to Prevent the United States Invasion of Iraq?

The United States has violated several United Nations provisions as well as UN Charter, for
example, Article 2 paragraph (4), 42, 39 and 51 for having unilaterally invaded Iraq by the US and
British army. It is a problem for the authority and integrity of the United Nations as an International
Organization whose aim to reconcile the world has failed. Michael J. Glennon, an expert in the
issue of international relations stated that resolution 1441 might represent a victory for US
diplomacy, but it is the defeat for international lawviii. The US diplomat claims that the Council
has completed it appropriately. But, in term of the language resolution itself, it is precisely be said
to provide support to both claims. It is not the hallmark good of laws. The first task of any legislator
is to communicate clearly and also to give clear rules in words that everyone can understand and
that has the same meaning for everyone. Therefore, they have the right to expect the council to
Ersa Sulthana – 016201700015 – IR Japanese 6 – Batch 2017

make a clear decision. From the statement above, it can be argued that international law exists, but
in the implementation in the field has not been realized. The UN should be more assertive in
carrying out its regulations.

Introduction of International Constitutionalism Theory

International Constitutionalism or Global Constitutionalism is a form of weakness in international

law in which international law itself cannot be implemented in a comprehensive, inefficient and
ineffective mannerix. Therefore, the international law seeks to borrow the law of constitutionalism
in domestic law. In the era of Europe, the issue of international constitutionalism is very rare
because many opinions that consider the global constitution is related to the European nation which
at the time was known as the oocupier. Due to League Of Nations, the spirit of the creation of the
international constitution re-arise. And the establishment of United Nations (UN) is the
culmination of the current global constitution which is the supreme law and is now regarded as the
constitution of the international community.

Comparing Similiar Up To Date Case: Attack on Mavi Marmara Vessel in High Sea of
Meditreranean

This attack occurred in the year 2010 ago. Mavi Marmara is the name of a ship belonging to the
Freedom Flotilla entourage. Assault occurred when the entourage of Freedom Flotilla including
Mavi Marmara was sailing in the high seas of Mediterranean from Turkey to Gaza, Palestinex.
According to the Israeli spokesman, Regev Mark argued that Israeli soldiers shot dead about 16
volunteers, is one form of self-defense over assault committed by the volunteers when trying to
drive Mavi Marmara vessel. This incident eventually heard by the Secretary-General of United
Nations, Ban Ki Mun, he immediately ordered a full investigation of the incident. When this news
reached to the president of Turkey, Endorgan, he was very upset to hear this news. Then he
immediately accused Israel of violating the United Nations on the Law of The Sea (UNCLOS) and
ignoring the norm pacta sunt servanda which an agreement must be respected. United Nations
affirms that in the convention on the water of the open sea, everyone can sail on the high seas and
it is an absolute freedom that must be protected under article 87A (UNCLOS). Turkey said that
the ambush took place on the high seas, so it can be argued that Israel is the perpetrator and must
Ersa Sulthana – 016201700015 – IR Japanese 6 – Batch 2017

be prosecuted in the International Criminal Court. Until now, the case that hit the ship Mavi
Marmara is not completed even from the UN they did not follow up this case. And again,
international law does not work properly as a container dealing with international cases and even
seemingly objective in looking at international cases.

Conclusion

From the analysis case above, we can conclude that from international law was exist when United
Nations established. But the problem is the organization that handle the law could not implement
in a comprehensive way. And also international law could not hold the nation in pursuit their
national interest. When US attempted to invasion against Iraq, UN should be more assertive to
hold what a state is going to do. It is mean that domestic law of United States is upper than
international law. Because of United States does not comply with the mechanism established by
the United Nations Security Council, it will lead to structural changes in UN. In addition, it would
also lead to an opinion that the integrity of the UN could be questioned again. Consequently, it
will pose a danger because justification can be made against any country.
Ersa Sulthana – 016201700015 – IR Japanese 6 – Batch 2017

i
Britannica.com, 2017. Iraq War. Britannica.com, 6 December.

ii
Bush, G. W., 2004. The White House. [Online]
Available at: https://georgewbush-whitehouse.archives.gov/news/releases/2003/03/20030317-
7.html
[Accessed 26 February 2018].

iii
Wulandari, D. A., 2015. Agresi Amerika Serikat Terhadap Irak Periode 2003-2010. Journal of
International Relations Universitas Dipenogoro, Volume 1, pp. 132-133.

iv
Esq, J. H. K., 2005. The Crime of Agression Against Iraq. p. 1
v
Mearshemer, J. J., 2015. Open Democracy. [Online]
Available at: https://www.opendemocracy.net/democracy-americanpower/morgenthau_2522.jsp
[Accessed 26 February 2018].

vi
America, T. N. S. S. U. S. o., 2011. National Security Strategy United States of America.
[Online]
Available at: https://www.state.gov/documents/organization/63562.pdf
[Accessed 27 February 2018].

vii
Jawahir, T., 2005. Legalitas Perang Irak dan Pertanggungjawabannya Dalam Hukum
Internasional. Jurnal Fakultas Hukum UII, 12(30), pp. 155-163.

viii
Glennon, M. J., 2003. Why The Security Council Failed. Foreign Affairs, 82(3).
ix
Lapitulhayat, A., 2016. Konstitusionalisme Global. Jurnal Ilmu Hukum Padjadjaran, 3(1), pp.
1-3.

x
Hasyim, I., 2017. Dakwatuna. [Online]
Available at: https://www.dakwatuna.com/2017/12/15/89763/pelanggaran-israel-dan-hukum-
internasional/#axzz58F8Hig5u
[Accessed 27 February 2018].