This War Is Illegal
March 21, 2003 (revised March 24, 7:15 pm)
A nation that prides itself on its adherence to the rule of law has violated that commitment in launching a patently illegal war.
Under fundamental international law, military force is permissible only in self-defense or when authorized by the U.N. Security Council.
The administration does not attempt to argue that self-defense applies. Iraq poses no imminent threat.
The Bush team's new doctrine of "preventive war" simply has no legitimacy under international law. Nazi leaders offered the same defense at the Nuremberg Tribunal.
Rejecting the claim, the Tribunal found the Nazis guilty of the crime of aggression. As the Tribunal said, "To initiate a war of aggression, however, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
Has the use of force to unseat Saddam Hussein been authorized by the Security Council?
The answer is unequivocally no.
We know that last November's Resolution 1441  did not confer this authority.
First of all, 1441 lays out the process to be followed. Any alleged Iraqi violations are to be reported to the Security Council, which will then "convene immediately ... in order to consider the situation." Only the Council can then decide what to do next.
Secondly, 1441 does not authorize the use of "all necessary means"--the only language recognized as authorizing force. The U.S. and U.K. tried to get this phrase into the resolution, but other Security Council members rejected it. The replacement language, "serious consequences," is not, and was not intended to be, synonymous.
Third, after 1441 was adopted, every Security Council member--including the U.S. and U.K.--affirmed that it did not provide for "automaticity"--the automatic resort to force. It was this very issue over which the Council struggled for weeks. It's simply fraudulent to now claim that 1441 incorporated automaticity.
As U.S. ambassador John Negroponte said at the time, 1441 contained "no hidden triggers and no automaticity with the use of force. The procedure to be followed was laid out in the resolution."
Fourth, any Security Council authorization for the use of force must be unambiguous, to avoid exactly the present disagreement. Clearly, 1441 is not.
Fifth, only the Security Council itself can authorize the use of force under Article 42 of the Charter. The Council cannot cede that decision to individual member states.
And sixth, an authorization for the use of force always specifies the intended objective of that force. U.N. resolutions do not empower nations to use force for whatever reasons they wish. Even if 1441 did authorize the use of force to enter Iraq and detect and destroy Iraq's alleged weapons of mass destruction, that would not authorize the stated--and quite different--purpose of this invasion: the removal of the present government from power.
In fact, Security Council resolutions cannot authorize "regime change." The U.N. Charter gives the Council no such power, and even the Council may act only within the limitations of the Charter.
Resolution 1441 explicitly recognizes this by "reaffirming the commitment of all Member States to the sovereignty and territorial integrity of Iraq."
The argument that the Security Council's 1990 resolution 678 --authorizing the use of force to expel Iraq from Kuwait--somehow now permits a U.S./U.K. invasion of Iraq to oust Saddam Hussein from power is preposterous.
The authorization of force in an old resolution, limited to a particular purpose, and formally ended by the subsequent resolution 687, cannot be extended 13 years later, by two Council members acting against evident Security Council rejection, to a wholly different objective that itself violates the U.N. Charter.
Although it's hard to tell from the administration's constantly-shifting rationales, two other legal arguments may be discerned.
In stressing the so-called "moral case" for Saddam's removal, the U.S. may be attempting to invoke the disputed premise of humanitarian intervention.
But this theory, rejected by a large majority of the world's nations, has not acquired a place in customary international law.
It's easy to see why. Such a principle would give powerful nations carte blanche to declare a "humanitarian emergency" and impose their will on weaker countries.
In any event, current circumstances do not bring this doctrine into play. Saddam's reported mass killings took place over a dozen years ago.
Finally, while the U.S. seems to suggest that it possesses some kind of roving power to "enforce" U.N. resolutions, the Charter grants no such authority to any individual country.
With all possible legal bases for the invasion of Iraq shown to be unjustified--if not wholly fraudulent--there can be only one conclusion: The leaders of the Bush and Blair administrations are war criminals, guilty of the Nuremberg Tribunal's "supreme international crime."
1. See also my Links to Opinions on Legality of the War. Return to text
2. The record of the Nuremberg Tribunal is available online at Yale University's Avalon Project. Return to text
3. The Security Council acts under the authority of the Charter of the United Nations. Return to text
4. On Resolution 1441, see:
5. See Resolution 678. Return to text
- The United Nation's November 8, 2002, press release.
For the council members' statements, scroll down to the "Statements" section at the end. U.S. ambassador John Negroponte's statement is described as follows: "The resolution contained, he said, no 'hidden triggers' and no 'automaticity' with the use of force. The procedure to be followed was laid out in the resolution." The description of U.K. ambassador Jeremy Greenstock's statement is similar: "He said there was no 'automaticity' in the resolution. If there was a further Iraqi breach of its disarmament obligations, the matter would return to the Council for discussion."
The statements are given in the third person because the text contains accounts of the statements given, rather than the statements themselves.
- Peter Willetts, Index Page for Selected Documents and Speeches on the Crisis over Iraq, City University, London.
- "Joint Statement by China, France and Russia Interpreting UN Security Council Resolution 1441 (2002)," November 8, 2002. This joint statement is also available here. Return to text
6. See Resolution 687. Return to text
A friend has asked me about the 678/687/1441 argument, so here is more of my thinking on this:
First, the best the U.S. can muster is a barely plausible argument that the authorization of force in 678 is still alive and provides a legal basis for the current U.S. assault on Iraq. Now, since the fundamental purpose of the U.N. is to bring about peace in the world, and since going to war is an extraordinary action, I think it's clear that an authorization to use force must be explicit. A contrary position undermines the central purpose of the U.N. Therefore, an argument that is plausible at best is still insufficient to justify the use of force.
But, beyond that, I think it's clear that 678/687/1441 does not authorize force, so that the U.S. argument is not simply insufficient; it is affirmatively disproven.
The basics: Enacted on November 29, 1990, Resolution 678, in its Operative Paragraph 2, authorized the use of force to eject Iraq from Kuwait. The resolution "Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;"
Enacted on April 3, 1991, Resolution 687, in its Operative Paragraph 6, terminated this authorization, contingent only upon Iraq's compliance with Resolution 686. The resolution "Notes that as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit, the conditions will be established for the Member States cooperating with Kuwait in accordance with resolution 678 (1990) to bring their military presence in Iraq to an end consistent with resolution 686 (1991);"
Resolution 687 also introduced multiple disarmament demands on Iraq, but, regardless of whether Iraq is in violation of those (or subsequent) demands, the termination of force in OP6 is not made conditional on Iraq's compliance with those separate conditions. It is conditional only upon compliance with Resolution 686, which required Iraq to reimburse Kuwait for its losses, release prisoners of war, remove its war material from Kuwait, and in general complete the process of ending its war with Kuwait. Resolution 686 was not a disarmament resolution; the first such resolution was 687.
The argument of the British attorney general, and I imagine of the U.S. as well, is that: "Resolution 687 suspended but did not terminate the authority to use force under resolution 678. A material breach of resolution 687 revives the authority to use force under resolution 678."
As I've shown, this simply isn't true.
Even if it were, the U.S. and U.K. would still have to show that the various disarmament resolutions (687, 1441, and those in between) come within the expression "resolution 660 (1990) and all subsequent relevant resolutions" in Resolution 678, as those are the resolutions whose compliance 678 authorizes force to enforce. Resolution 660--enacted on August 2, 1990, the day of Iraq's invasion of Kuwait--is not a disarmament resolution; it is a get-out-of-Kuwait resolution. What, then, does the expression "all subsequent relevant resolutions" mean?
There are two components to this expression: "subsequent" and "relevant." First, does "subsequent" mean "subsequent to 660 and prior to 678," i.e., all resolutions, begining with 660, in existence at the time that 678 was enacted, or does it mean all resolutions for all time, including those enacted after 678, and therefore apply to 687, 1441, and those in between?
It has to have the former meaning; the Security Council did not mean to create a free-standing authorization for the use of force that would sit around, waiting to be activated, forever. That would be like leaving your nuclear weapons on the sidewalk. You just don't do that.
And, even beyond this, "relevant" must mean "relevant to Iraq's invasion of Kuwait," as that's all that was under consideration in Resolution 660 through 678. It cannot mean "having to do in any way with Iraq."
Finally, even if 678/687 did authorize force today to disarm Iraq, they would not, and could not, authorize force to overthrow the government of Iraq. Return to text
7. In fact, we know that Bush doesn't even believe in humanitarian intervention. During his 2000 presidential campaign, Bush expressly rejected the use of U.S. troops in Rwanda, even "to stop ethnic cleansing and genocide." See Gerald Caplan, "How Dare Bush Invoke Rwanda to Justify His War," The Globe and Mail [Toronto], March 12, 2003. Also available on Common Dreams. Return to text