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War

This War Is Illegal
by Robin Miller
March 23, 2003

A nation that prides itself on its adherence to the "rule of law" has violated that commitment in launching a patently illegal war.[1]

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.[2]

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?[3]

The answer is unequivocally no.

We know that last November's Resolution 1441 [4] 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, "material breach," 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 [5]--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,[6] 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."

Notes

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:

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