As I am writing this, I do not know what action the United Nations Security Council will take with regard to the U.S. push for authority to attack Iraq. It appears unlikely that the Council will give the unambiguous authority for military action that the United States needs in order to comply with the United Nations Charter. Short of receiving that authority from the U.N., the use of force by the United States against Iraq, even with the recent congressional approval given for that war, would be flatly illegal under international law.
Obtaining authority for war from the Security Council is not merely a legal nicety; it is a legal requirement. If the U.S. engages in a war against Iraq without such approval, it is an international crime, a crime against peace–the waging of a war of aggression. The Nazis were tried for this very crime at Nuremberg. The Bush Administration, led by a clique of officials including Cheney, Rumsfeld, Wolfowitz and Powell, are bent on solving problems with war and not peaceful means. By ignoring international organizations and international law, they put the world in jeopardy. Congress, by providing them with such authority to attack, and failing to condition that authorization on support from the Security Council, will be complicit in an international crime if war ensues without UN authority.
A country can unilaterally use force against another country only in self-defense or with UN Security Council approval. Article 2 (4) and Article 51 of the Charter prohibit one nation from attacking another except in self-defense. None of the reasons given by the Bush Administration for attacking Iraq–getting rid of claimed weapons of mass destruction or overthrowing Saddam Hussein-constitutes self-defense under the UN Charter. Self-defense under the Charter can be employed only in response to the occurrence of an armed attack (“if an armed attack occurs”) or, as a number of authorities have said, in response to an imminent attack—conditions which nobody asserts exists in this situation.
Nor does the language of the authorization given by Congress meet the self-defense test: employment of force to “defend the national security of the United States against the continuing threat posed by Iraq” is not a description of an armed or imminent attack on the U.S. The other basis for the congressional authorization, to “enforce all relevant United Nations resolutions regarding Iraq,” is not the approval required by the UN. Iraqi violations of past UN Resolutions do not give the U.S. the legal authority to attack Iraq even with congressional approval. It is for the Security Council and not individual countries to determine whether Iraq has breached its agreements and what is to be done about those breaches.
Unfortunately, the Bush administration, and now a sheep-like, chicken-hearted Congress, Democrats and Republicans alike, have decided to openly challenge the prohibitions on the use of force contained in the UN Charter. In a speech to the graduating class at West Point in summer 2002, Bush set forth a doctrine that repudiated the critical legal principle that force could only be used in self-defense. He built on this in his State of the Union address where he warned the “axis of evil” nations that the United States would not wait “while dangers gather,” and articulated a doctrine of preemptive strikes. This radically new approach proclaims that the United States believes it can use military force against any state it perceives to be hostile.
This new U.S. position, obviously aimed at justifying an attack on Iraq, is a public renunciation of the UN Charter’s norm that force not be used except in response to an attack by another nation. While during the 40-year cold war both the Soviet Union and the United States violated the Charter’s prohibition on the use of force in defense of perceived national interest—the Soviet invasions of Hungary, Czechoslovakia, and Afghanistan, and the U.S. military incursions against Cuba, the Dominican Republic, Nicaragua, Grenada, Libya, and Panama—both superpowers maintained at least a formal fealty to the Charter’s proscription on the use of force except in self-defense. The United States avoided sweeping justifications for its attacks on other countries that would have eviscerated the Charter’s norms. Instead, past administrations sought to expand the self-defense exception, stretching its parameters to the breaking point to justify what seemed clearly illegal, but not obliterating its core.
Preemptive strikes should be distinguished from an earlier doctrine that was labeled “anticipatory self-defense” under which the United States and some other countries argued that they had the right under the UN Charter to attack a country that was planning an attack. This latter doctrine at least gave lip service to the restrictions on the use of force embodied in the charter—that force could only be used in self-defense or as authorized by the Security Council under Article 51. The doctrine of preemptive strikes moves beyond the restrictions of the Charter by stating that force will be used even if there is no immediate threat. It may well take the world back to a period prior to the Charter (1948) when the employment of force had no legal restraints; countries could use force when and where they wanted. Pre-Charter law certainly did not make the world safer.
Past administrations publicly viewed preemptive strikes on other nations as illegal, as evidenced by the Reagan administration’s vote in the Security Council that unanimously condemned Israel’s preemptive strike on Iraq’s nuclear facility in 1981. Only after the cold war’s demise did the Clinton administration come close to breaking with the Charter’s norms when NATO attacked Yugoslavia in response to the Kosovo crisis, although even there the U.S. declined to put forth a new doctrine of humanitarian military interventions, choosing to characterize Kosovo as an exceptional emergency.
The administration and now the Congress have abandoned the UN Charter’s core legal restraints in favor of a system in which the United States unilaterally decides which regimes warrant replacement by force. The consequences of this new doctrine are frightening. It is the exercise of unabashed imperial power and will lead to more terror against the peoples of the world and the people of the U.S. War with Iraq without UN authorization would represent a tragic day in our nation’s history, and could prove to be disastrous to world peace and security which the UN Charter was designed to preserve.