U.S. Has No Legal Right to Bomb Iraq – Legal Times – PDF

300px-desert_fox_missile1998 US Has No Legal Right to Bomb Iraq

Once again the United States is planning to go to war against Iraq. Over the last few weeks the president and other U.S. officials have stated that unless Iraq fully opens itself to international weapons inspection it will face a military attack. The planned military attack will not be, in Secretary of State Madeleine Albright’s words, “a minor pinprick.” It will instead be what Defense Secretary William Cohen called a “significant” military campaign and “far more than what has been experienced” by Iraq since the Persian Gulf War.

Only this time, unlike the 1991 war against Iraq, the United States will not obtain a United Nations Security Council Resolution authorizing such use of force. Nor, despite great efforts by Albright and others, will many other countries ally with us: France, Russia, Turkey, and China have refused and the majority of Arab countries are not supportive. Apparently, this time the United States is willing to go it alone, or almost alone. (Great Britain and a few other allied nations are willing to lend minimal support.)

U.S. willingness to bypass the United Nations and engage in a massive military attack on Iraq without the support of its allies raises serious policy and legal concerns. This article is concerned primarily with the legality of a military attack by the United States on Iraq, and will discuss the policy questions only briefly. U.S. officials insist on the legality of the contemplated attack, although they have been unwilling to give specifics. James Rubin, a State Department spokesman, claimed that there could be “various legal justifications under international law” and cited U.N. resolutions passed pursuant to Article 7 of the U.N. Charter. The Russian representative to the United Nations and spokesmen from other countries think otherwise, and believe that the resolutions to date do not authorize U.S. armed action without further Security Council approval. Apparently, even the British government believed a new resolution was legally necessary, until it realized the strength of the opposition to such a move.

Three Lines of Argument

There are three potential lines of argument deriving from the U.N. Charter and Security Council resolutions that the U.S. may employ in defending the legality of an attack on Iraq. None of them provide any legal authority for the contemplated United States attack on Iraq. Rather, such an attack would be flatly illegal, contrary to the U.N. Charter, and would undermine important legal structures meant to keep the peace.

It is important to recognize that the United Nations was founded to end war and promote peace. The Charter is a charter of peace. The United Nation’s primary and central purpose to end war is stated in the Charter’s stirring preamble: “to save succeeding generations from the scourge of war.” A pre-eminent purpose of the Charter set forth in Article I is “to bring about by peaceful means…settlement of international disputes…which might lead to a breach of the peace.” This fundamental tenet—that disputes are to be settled by “peaceful means”—should guide all interpretations of the U.N. resolutions.

On their face, existing U.N. resolutions clearly belie the U.S. claim to have legal authority to bomb Iraq. If, however, any ambiguity does exist, the paramount peaceful purposes of the United Nations require that ambiguity in these resolutions be resolved against the use of force, not in favor of war. The Charter’s presumption of “peaceful means” requires that Security Council authorization for the use of force must be clear and explicit, and not based on strained constructions of arguably vague phrases in seven-year-old resolutions. To allow such an ambiguous and overbroad authorization of force would eviscerate the Charter’s purpose of ensuring peaceful settlement of disputes.

  • Argument 1: Security Council Resolution 687. The first likely argument is that Iraq’s claimed failure to abide by Security Council Resolution 687 (April 3, 1991) gives the United States the authority to launch a military attack against Iraq. Resolution 687 is the cease-fire resolution that ended the Persian Gulf War. It provides, among other things, that Iraq permit on-site inspections of its biological, chemical and missile capabilities.

Nowhere does this resolution state that force can be employed by U.N. member states to enforce its mandates. In fact it provides otherwise: the “Security Council decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.” In contrast, Resolution 678 (Nov. 29. 1990), which gave the authority for the Persian Gulf War, authorizes member states “to use all necessary means to uphold and implement” earlier Security Council resolutions mandating that Iraq withdraw from Kuwait.

Thus, even if the United States is correct that Iraq has violated Resolution 687 by not permitting certain inspections, that fact alone gives it no unilateral authority to attack Iraq. It is the Security Council and not the United States that remains “seized” of the matter. The determination of whether Iraq has violated Resolution 687 and whether force should be authorized to compel Iraq to accede to particular inspections may be made only by Security Council; to date it has made no such decision.

Article 42 of Chapter VII of the U.N. Charter, which gives the Security Council the power to authorize the use of force, is specific on this point. The Security Council must “consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate…to maintain international peace and security.” Only after the Security Council determines that the Article 41 inspections have proven inadequate to maintain “peace and security” can it decide to use force against Iraq. (Although Resolution 687 does not state the article under which it was promulgated, the only authority for it is Article 41.) That decision is not left to the whims of individual member states of the United Nations.

  • Argument 2: Security Council Resolution 678. The second claimed source of authority for the contemplated attack is Resolution 678, which authorized the use of force to evict Iraq from Kuwait. Although this resolution was adopted prior to Resolution 687 (the cease-fire resolution that ordered the inspections), the United States apparently claims that Resolution 678 still suffices as authority for a renewed attack. The key phrase relied upon in Resolution 678 states that the member states cooperating with the government of Kuwait “can use all necessary means to uphold and implement Resolution 660 [which calls for the withdrawal of Iraq from Kuwait] and all sub-sequent relevant resolutions and to restore international peace and security in the area.”

Two possible arguments flow from this language: First, that Resolution 687 regarding inspections is a “relevant subsequent resolution”; and second, that “restoring international peace and security” includes insuring through inspections that Iraq has no biological or chemical weapons, a guarantee that can be coerced with force. Neither claim has merit.

The “subsequent resolution” language in 678 does not refer to resolutions passed after 678, but to resolutions passed after Resolution 660 and before 678. This is plain from a reading of the entire resolution, which, after specifying the particular resolutions to be enforced, uses the term “above mentioned subsequent relevant revolutions.” Resolution 678 did not and probably could not give member states authority to use force to compel conduct required by a resolution not yet contemplated.

Nor is the United States helped by the general language “to restore international pear” and security?’ The clear intent of the Security Council was to provide authority to oust Iraq from Kuwait, not to grant an open-ended, blanket license for any member state to attack Iraq for what that state deems a violation of “peace and security?’ The use of the term “restore” provides further textual evidence of this intent; restoration means returning to the status quo prior to the Iraqi invasion of Kuwait.

Both claims of authority to attack Iraq on the basis of Resolution 678 are further undercut by the clear language of Resolution 687, quoted earlier, which leaves further steps regarding implementation of the ceasefire and inspections to the Security Council. However, as we have discussed earlier, even were there some ambiguity in 678, such ambiguity must be resolved in favor of “peaceful means” and not in favor of taking unilateral military action.

Nor does the U.S. and British argument that Iraq “materially breached” the cease- fire agreement by refusing unconditional access to inspectors provide Security Council authorization to use force. Even were a material breach to negate the cease fire and thereby reactivate Resolution 678, as explained above, 678 does not authorize nations to use force to enforce inspections not even contemplated at the time. Resolution 678 was to authorize force to thwart the Iraqi invasion of Kuwait, and that invasion has already been reversed. Thus, the only “material breach of the cease-fire” that would effectively revive Resolution 678’s authorization of force is a renewed Iraqi invasion of Kuwait In any event, the United States is not empowered to unilaterally determine if a material breach has occurred or what the remedy for that breach should be; only the Security Council has that authority.

  • Argument 3: Article 51 of the Charter. In the past, the United States has asserted the Charter’s Article 51 right to self-defense to justify military actions against Iraq even where the Security Council had not specifically ratified the use of force. But whatever authority the self-defense rubric has provided in the past is unavailing today, because Iraq is not currently attacking another country. Even if it is developing biological weapons, international law does not permit another country to launch anticipatorily a military strike to remove the potential threat.

Given the language and intent of the resolutions and the presumption that ambiguities are to read in favor of peaceful means, there is clearly no legal authority for an attack on Iraq. Not only is there no valid legal support for the proposed attack, but also it raises serious policy concerns. Perhaps other countries will not join the United States because they believe a military attack will not achieve much and be counter-productive. Even U.S. officials have admitted that bombing cannot eliminate all of Iraq’s supposed weapons of mass destruction, nor will it guarantee access by U.N. inspectors. An attack will probably strengthen Saddam Hussein at home and draw condemnation from Arab countries and their citizens. An attack will certainly exacerbate the effects of the embargo already responsible for the deaths of hundreds of thousands of children under the age of five. U.S. officials know all this and yet insist an attack is their only option.

The United States is unwilling to end the embargo in exchange for inspections because its aim is not really the chimeric effort to destroy Iraq’s alleged biological and chemical weapon’s capacity. Rather, its aims concern the strategic power goals of the United States—maintaining a balance of power in the Persian Gulf by keeping Iraq weak but not fractured, reinforcing Saudi Arabia and the other conservative monarchies of the region, and ensuring that Iraq’s oil supplies are not available to competing nations. Ending or lessening the embargo will not achieve these goals; it will defeat them.

Original Intent

The framers of the U.S. Constitution sought to chain the dogs of war by requiring that only the explicit authorization of a large legislative body—Congress—and not one person could put the country at war. The drafters of the U.N. charter similarly sought to ban “the scourge of war” by requiring that a world council, and not one or two nations could initiate warfare. The position of the United States government that it can attack Iraq without the explicit authority of the Security Council is without merit.

Just as 20th century American presidents have interpreted constitutional and statutory provisions in an open-ended manner to expand their unilateral war-making power, the United States now seeks to broadly and recklessly interpret Security Council resolutions to expand its unilateral authority to engage in war. Such an effort poses a grave danger to world peace and stability and undercuts fundamental principles of the UN Charter.

Jules Lobel is is a professor at the University of Pittsburgh Law School, and Michael Ratner is an international human rights lawyer. Both are board members of the Center for Constitutional Rights, and were co-counsel in Dellums v. Bush, 725 F Supp. 1141 (D.D.C. 1990), a lawsuit demanding that President George Bush obtain congressional approval for the 1991 war against Iraq.