Is War *On* Iraq Legal?

[This BBC report echoes my argument from earlier this week: by seeking an
explicit authorization of force on Iraq from the UN Security Council, the
US implicitly admits that the existing resolution, UNSCR 1441, isn't
sufficient (a point that isn't seriously disputed outside Washington). 

One flaw in my earlier argument concerns some confusing terminology. In
international law, the preemptive use of force *is* legal, that is, it is
or can be an instance of legitimate self-defense. The right to wage
preemptive war means that, for example, if a country has massed troops at
your border, giving every indication that it will invade, you don't
actually have to wait for them to invade before you repel them. In other
words, you can use force in response to the threat, intention, or
likelihood of *imminent attack*. In the present situation, Iraq clearly
has the legal right to attack US troops in the region, under the
universally recognized right to preemptive attack.

But this is not what I said Bush and the US is claiming, nor is it what
they are actually claiming. Bush claims the right to wage *preventitive*
war, which is a different kind of thing. A preventitive war is one in
which you use force against another state because it *could* or *might*
use force against you, conceivably, at some future time. Preventitive wars
-- and this is the crucial bit -- are plainly illegal and may constitute
the crime against humanity known as "aggression"; in other words, a
preventitive war is what we hung Nazis at Nuremburg for, among other
things.

Bush hasn't offered any evidence that Iraq is *poised* to attack the US
(even by means of terrorist proxies, which is a complicating matter) or
that it intends to attack the US. He has argued, as have Powell, Rumsfeld,
Wolfowitz, Cheney, Rice, and Perle, that Iraq *could* attack the US (or
Israel). That's a very different basis for using force internationally,
and one which is generally considered illegal.

Think about it this way: if Mexico invaded the US via Harlingen and the
Texas Valley, the US would, among other responses, lodge a formal
complaint at the UN. And Mexico, following the example Bush is
establishing vis-a-vis Iraq, could simply respond thus: "We attacked the
US because, with its massive and undeniable weapons of mass destruction,
including thousands of nuclear weapons, it *could* some day attack Mexico,
and Mexico reserves the unilateral right to destroy all possible threats
before they are actualized."

Along that path lies madness...-- Kendall Clark]

Is war with Iraq legal?

By Barnaby Mason
BBC diplomatic correspondent

The question of whether a war on Iraq is legal under international law
will become more pressing if the United States and Britain fail to get a
new Security Council resolution.

They say the use of force would be legal but the UN Secretary General Kofi
Annan says unilateral action taken outside the Security Council would not
conform to the UN charter.

The UN charter allows military action in self-defence and that can include
a pre-emptive strike - but only if there is an imminent threat.

Few accept that Iraq poses such a threat.

So the question comes back to authorisation by the Security Council.

Even the draft resolution now being debated is not clear-cut on this
point; if it fails to pass, the key text is last November's resolution
1441.

'Final opportunity'

That gave President Saddam Hussein a final opportunity to give up weapons
of mass destruction.

But as for what would happen if he did not do so, 1441 merely reminded him
of the serious consequences threatened in previous resolutions.

It did not authorise member states to use all necessary means to enforce
it - the key phrase in Security Council resolution 678 that gave authority
for the expulsion of Iraqi forces from Kuwait in 1991.

The reason 1441 was ambiguous is that France and Russia would not agree to
such clarity.

Many experts in international law say the absence of explicit wording
means that 1441 does not authorise force.

But some agree with the UK Government that it may reply on previous
resolutions that did.

To sum up the argument: the Security Council authorised war to end the
occupation of Kuwait; the ceasefire in 1991 was conditional on Iraqi
disarmament; so Iraq's failure to disarm revives the authorisation to use
force.

This is controversial stuff - and certainly no Security Council resolution
authorises toppling Saddam Hussein.

Story from BBC NEWS:
http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/middle_east/2850043.stm

Published: 2003/03/14 13:49:28