Is a war against Iraq legal?
By Eli J. Lake
UPI State Department Correspondent
From the
International Desk
Published 3/13/2003 8:58 PM
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WASHINGTON, March 13 (UPI) -- Will the United States find
itself in violation of international law in an effort to enforce it? This
is the question for Secretary of State Colin Powell as his country moves
closer to a war that is opposed by three of the five veto-wielding
permanent members of the U.N. Security Council.
Powell is largely credited with convincing the President George W. Bush
in September to seek a U.N. resolution giving Iraq a final opportunity to
disarm. All 15 members of the council voted in favor of Resolution 1441
which promised "serious consequences" if Iraq does not come
into compliance with the 16 prior resolutions compelling the country to
forgo its weapons of mass destruction and many of the means to deliver
them.
But now that President Bush has decided it is time to invoke those
"serious consequences," it is looking less likely the United
States can muster a majority of the council to support a resolution that
states what Resolution 1441 already says: Iraq "has been and remains
in material breach of its obligations under relevant resolutions."
The vote is crucial to the Security Council hawks because the crux of the
American case for war relies on the fact Iraq has failed to meet the
terms of the initial cease-fire that ended the 1991 Gulf War. If France
and Russia veto a resolution that says Iraq remains out of compliance
with its disarmament obligations, the American case for war becomes
murkier than it is now.
In the face of unexpected resistance, on Thursday Powell raised the
possibility before the House Appropriations Committee, that the United
States may not seek a new resolution at all. And British and American
diplomats Thursday told the Security Council they would not call a vote
Friday, despite President Bush's insistence last week there will be a
vote. Nonetheless, White House spokesman Ari Fleischer said clearly again
Thursday that America has the authority under international law for the
pending war.
The White House argument stems from the belief that the Security Council
has in effect already said that Iraq is failing to disarm, most recently
on Nov. 8, when the council voted unanimously that Iraq was still in
material breach of the 16 resolutions before it. Technically, a war with
Iraq would be in compliance with the United Nations charter on Nov. 9,
indeed any time after the initial period of disarmament following the
1991 ceasefire that ended the Gulf War.
The dilemma for the United States and the United Kingdom is that the
Security Council at this moment does not agree that Iraq has failed to
disarm. France, Germany, Syria, Russia and China have all argued to one
degree or another that Iraq may not have disarmed entirely, but it has
begun to disarm, or is in the process of disarming. "What have the
inspectors told us?," French Foreign Minister Dominique De Villepin
asked the Security Council on March 7. "That for a month, Iraq has
been actively cooperating with them."
The Secretary-General himself has said with a council divided on the
question of whether Iraq is disarming, the United States would be in
violation of the U.N. Charter if it were to invade Iraq with the aim of
removing its government. When he asked a similar question in 1998 on
ABC's This Week, with regard to the United States using force in Kosovo,
Annan did not say the United States was in violation. But on March 11,
one day before the opening session of the International Criminal Court in
The Hague, he said, "If the U.S. and others were to go outside the
Council and take military action it would not be in conformity with the
Charter."
Article 2 of the charter forbids member states "from the threat or
use of force against the territorial integrity or political independence
of any state." Furthermore, the Charter states that force may only
be used in imminent self-defense or in the case of specific approval from
the Security Council. "The U.N. charter prohibits the transnational
use of force," Sean Murphy, an international law professor at George
Washington University said in an interview Wednesday. "Either you
are acting in self defense or you are acting under authorization of the
UN Security Council."
Even legal scholars who defend the legality of a pending war in Iraq
believe Powell's tactics have weakened the American case. Ruth Wedgwood,
a professor of International Law at Johns Hopkins University said in an
interview Wednesday, "Resolution 1441 muddied the waters. You don't
ask the question if you are not going to like the answer."
On the facts of the case, it is hard to argue that Iraq has given up its
weapons of mass destruction. Despite Iraq's decision to explode several
al-Samoud II missiles, despite Iraq's willingness to allow some
scientists meet in private with U.N. weapons inspectors, and despite
Iraq's proposal to test soil where the inspectors believe Iraq
manufactured VX nerve agent--Iraq has yet to dispose of those weapons
proscribed in the 1991 cease fires ending the hostilities of the first
Gulf War. Indeed, the most recent report of the United Nations Weapons
Inspectors found that Iraq had developed unmanned drones aimed at
delivering biological and chemical weapons in the battlefield suggest
Iraq is not disarming but rearming.
With this kind of evidence, Far from being an international outlaw, the
United States would be a the defender of the entire institution of
international should it lead a war to disarm Iraq. Wedgwood argues that
the United States has the authority to oust Saddam Hussein from power by
virtue of the original U.N. Resolution in 1990 authorizing the use of
force to oust Iraq's army from Kuwait and to enforce all subsequent
resolutions. When Iraq entered a ceasefire in 1991, requiring it to forgo
all of its weapons of mass destruction, that agreement was "in every
real way a cease fire agreement with the allies." In this respect,
Wedgwood argues that those allies can make determinations on Iraq's
decision to disarm independently of the Security Council.
The question of who decides, or who can decide, whether Iraq has
disarmed, is the vital issue for the United States now. As it stands the
U.N. Security Council has deliberated on the issue of Iraq's disarmament
and come out divided. Michael Glennon, an International Law Professor at
Tufts University, said he believed the United States had cut the legs out
from under its own argument. "After going to the Security Council,
they are leaving with the impression that the will of the Security
Council is against the use of force," he says.
It may end up that Bush's concession to the United Nations in September
may be the undoing of the international case the United States would like
to make for war. The United States and countless other states have
violated the U.N.'s prohibition on the use of force in the past, but this
time it is different. The United States in effect has sought and failed
to gain the U.N.'s approval for the use of force in Iraq. While President
Bush has always said he reserves the right to act outside the United
Nations, he has clearly made an effort to gain its approval. Why else
would he call the Angolan or Guinean President?
Now that the U.N.'s blessing appears doubtful, perhaps the biggest
question is for the United Nations itself. As Glennon says, "The
real question is not whether the charter would be violated, but whether
the charter still represents international law."
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