Bombing Iraq May Unleash a Toxic Threat – Letter to the Editor NY Times – with Jules Lobel

1998 Iraq Letter to the Editor NY Times

To the Editor:

Re ”U.S. Citing Its Authority in 1991 Congress Measure” (news article, Feb. 4) and ”U.N. Resolutions Allow Attack on the Likes of Iraq” (news article, Feb. 5):

As two of the lawyers who litigated Dellums v. Bush, the case that forced the President to obtain Congressional approval before the 1991 war against Iraq, we disagree with your articles’ conclusions that a January 1991 law and various United Nations resolutions grant the President sufficient authority to attack Iraq.

As to the January 1991 law, you say it requires adherence to ”subsequent relevant resolutions.” The law never uses the word ”subsequent,” and limits the use of force to particular resolutions. This 1991 law cannot be stretched to cover a United Nations resolution concerning inspections passed months later.

Nor do any United Nations resolutions give the President, or Congress, for that matter, authority to use force to enforce Resolution 687 regarding inspections. The clear intent of the Security Council was only to provide authority to oust Iraq from Kuwait.




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STANDOFF WITH IRAQ: THE LAW; U.S. Citing Its Authority In 1991 Congress Measure


The United States intends to cite a resolution passed by Congress on the eve of the 1991 Persian Gulf war to justify any new series of American air strikes on Iraq meant to cripple its ability to manufacture or stockpile poison gas, Clinton Administration officials said today.

The officials said the January 1991 law, which permitted unilateral American action against Iraq to force its compliance with resolutions of the United Nations Security Council, provides President Clinton with more than enough legal justification to order an attack seven years after the law was adopted.

International law specialists generally agreed with the Administration’s analysis and said a new nonbinding resolution proposed by Senate leaders last week urging Mr. Clinton to ”take all necessary and appropriate actions” against Iraq would strengthen the Administration’s hand under international law. Congressional officials said the resolution could be introduced as early as Wednesday.

”It would be the icing on the cake,” said Lori Fisler Damrosch, a professor of international law at Columbia University. ”If the President decides to go forward with a military operation, you could count me among the lawyers who are prepared to say that there’s sufficient authority already there, without a new resolution.”

The State Department has said in recent days that while it would welcome a new Security Council resolution condemning Iraq for its failure to comply with international weapons inspections — if only as a demonstration of international resolve against the Government of President Saddam Hussein — such a resolution was not required before the United States used force.

”Were there to be a resolution that used those words, it might have a good effect on Saddam Hussein to persuade him yet again of his obligations,” Secretary of State Madeleine K. Albright said in a television interview last weekend. ”Obviously, the more the Security Council can restate it, fine. But we do not believe that we need authority for the use of force.”

The January 1991 law, which was adopted by Congress after a long debate over whether American troops should go to war in the Persian Gulf, put no time limit on the use of American force if Iraq failed to live up to conditions imposed under a series of resolutions passed by the Security Council after Iraq’s invasion of Kuwait in 1990.

The law said the Iraqis would be required to adhere not just to Security Council resolutions passed before the war, but also to ”all subsequent relevant resolutions,” which legal experts said would include Resolution 687, which was passed in April 1991 and imposed cease-fire terms on the Iraqis.

It required Iraq to open to inspection all sites considered to be possible factories or storage areas for chemical or biological weapons, something the Iraqis have repeatedly refused to do.


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STANDOFF WITH IRAQ: THE LAW; U.N. Resolutions Allow Attack on the Likes of Iraq


The Clinton Administration’s assertion that it has the right to attack Iraq to force Saddam Hussein to open sites to weapons inspectors is based on a succession of Security Council resolutions and statements and on the United Nations Charter itself.

But officials have been reluctant to discuss specifics. ”Depending upon the factual situation, there could be various legal justifications under international law for military action against Iraq,” James P. Rubin, the State Department spokesman, said last week.

The Security Council has relied on Chapter 7 of the United Nations Charter, which deals with ”threats to the peace, breaches of the peace and acts of aggression,” to justify military action from the Korean War in 1950 to the Persian Gulf War in 1991.

Article 41, which was used to impose sanctions against Iraq in August 1990, says: ”The Security Council may decide what measures not involving the use of force are to be employed to give effect to its decisions, and it may call upon the members of the United Nations to apply such measures.”

If the Security Council finds this inadequate, Article 42 adds, it ”may take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security.”

Mr. Rubin noted at a news briefing last week that other resolutions reflected Chapter 7.

Resolution 678, which authorized the attack against Iraq in January 1991, referred to using ”all necessary means” to get Iraq out of Kuwait and ”to restore international peace and security in the area.” A Congressional resolution last month supporting the use of force in the Persian Gulf also cited this resolution.

Another key resolution, No. 687, of April 3, 1991, made the cease-fire in the gulf war contingent on Iraq’s ”unconditional” agreement to the destruction or elimination of chemical, biological and missile capabilities and ”immediate on-site inspection” by the United Nations.

Since last October, the Security Council has passed a resolution and approved four statements condemning or criticizing Iraq for its ”unacceptable” failure to comply with the terms it had accepted to end the gulf war.

American and other diplomats pressing for a new Security Council resolution declaring Iraq in ”material breach” of its commitments have also looked to the Vienna Convention on the Law of Treaties, which says, ”A material breach of a treaty consists in the violation of a provision essential to the accomplishment of the object of purpose of the treaty.”

The Russian representative to the United Nations, Sergey Lavrov, who opposes military action against Iraq, said today that Iraq’s refusal to let inspectors into all sites did not constitute a material breach. ”A material breach of the cease-fire resolution would mean that Iraq invaded Kuwait again,” he said.

Mr. Lavrov also said he knew of nothing in the resolutions that allowed the United States to take armed action without the Security Council’s approval.

But Ruth Wedgwood, who teaches international law at Yale University, said Washington was on solid ground. Iraq’s failure to provide access violated the terms of the cease-fire, she said, because Resolution 687 made the cease-fire conditional upon inspection. Iraq’s refusal to cooperate would allow the United States to infer that the gulf war is not over, she said.

”It’s plausible, and to me it’s persuasive,” said Professor Wedgwood, who is also a senior fellow at the Council on Foreign Relations.