War illegality made plain?

Folks,

The US can legally use force internationally against another state in one of
two (not mutually exclusive) ways: first, in an act of self-defense; second,
in an act authorized by a UN Security Council resolution.

Bush is apparently going to do what other recent US presidents haven't been
willing to do: try to break the UN publicly by going to war after *losing* a
UNSC vote explicitly authorizing the use of force. The goal, his press
conference comments notwithstanding, is to break the UN, particularly since
the US isn't able to get what it wants from it just now. 

But this may be a tactical mistake because it will make the illegality of a
US invasion of Iraq undeniable. Simply put, if UNSCR 1441 authorizes an
invasion, why ask for *another* resolution? And if it doesn't authorize
invasion (as France, China, and other states seem to think), and the US
needs another resolution, and invades despite not getting one, the US will
clearly be in violation of its obligations under customary international law
and the UN Charter, which is very clear on this point.

The only exception is to use force under the right of self-defense; despite
all of Bush's lies and deceptions, the US is not under imminent threat from
Iraq. (Even if ties between Iraq and al-Qaeda could be proven demonstrably,
it's not clear that those ties *alone* constitute an imminent threat of
attack *from Iraq*, though such ties would make getting a UNSCR much more
likely.) Iraqi troops are not massing at US borders or at the borders of any
US allies. In short, the (almost certainly illegal) US doctrine of
preemptive attack is very different than the legal and universally
recognized right of self-defense against imminent attack. 

Further, though this is perhaps a minor point in comparison, it's illegal,
under the UN Charter and customary international law, to *threaten* the use
of force, in the absence of a UNSCR or an event which justifies invoking the
US right to self-defense. Given the massive, systematic US provocations --
the war threats from the Bush Admin and moving 200,000+ troops to stations
at *Iraq's* borders -- Iraq's restraint is worth considering. (Yes, it's
tactical, not principled restraint, but isn't that point of a containment
policy to begin with?)

One wrinkle from my point of view is that, however illegal and dangerous to
innocent Iraqis a US invasion will be, it may be (on strictly utilitarian
grounds) preferable to another 10 or 12 years of murderous US sanctions --
which basically constitute a form of siege warfare -- at the cost of another
untold, largely invisible genocide. UN and other aid agency estimates put
avoidable Iraqi deaths, largely children, as a result of sanctions at as
many as 500,000. It seems an illegal US invasion is the only realistic way
of ending the US's murderous regime of sanctions; I'm not sure that
constitutes a good reason to support an illegal invasion, but it could be an
unintended good consequence nonetheless.

Given that Iraq retains the right to use force in self-defense, the Gulf War
armistice agreements and UNSCR's notwithstanding, how would the US condemn
an attack by the Iraqis on US forces massing at its borders? Surely the US
presents a more real, imminent threat to the security of Iraq than Iraq does
to the US?

Most US presidents in recent memory have chosen not to ask the UNSC for an
uncertain resolution in order to justify the use of force (Grenada, Panama,
El Salvador, Nicaragua, Vietnam, Laos, Cambodia, and so on). Bush's
arrogance knows no bounds: not only is he gambling by invading Iraq, he aims
to break the UN in the process. But that exposes him to risks, too,
primarily by making very plain the illegality of his invasion. Of course,
that's a *civilized* risk, not the sort the leader of the world's chief
rogue nation (i.e., "superpower") is likely to respect.

Kendall Clark
-- 
Jazz is only what you are. -- Louis Armstrong