Is a war against Iraq legal?

By ELI J. LAKE, UPI State Department Correspondent

WASHINGTON, March 13 (UPI) -- Will the United States find itself in violation of international law in an effort to enforce it? This is the question for Secretary of State Colin Powell as his country moves closer to a war that is opposed by three of the five veto-wielding permanent members of the U.N. Security Council.

Powell is largely credited with convincing the President George W. Bush in September to seek a U.N. resolution giving Iraq a final opportunity to disarm. All 15 members of the council voted in favor of Resolution 1441 which promised "serious consequences" if Iraq does not come into compliance with the 16 prior resolutions compelling the country to forgo its weapons of mass destruction and many of the means to deliver them.


But now that President Bush has decided it is time to invoke those "serious consequences," it is looking less likely the United States can muster a majority of the council to support a resolution that states what Resolution 1441 already says: Iraq "has been and remains in material breach of its obligations under relevant resolutions." The vote is crucial to the Security Council hawks because the crux of the American case for war relies on the fact Iraq has failed to meet the terms of the initial cease-fire that ended the 1991 Gulf War. If France and Russia veto a resolution that says Iraq remains out of compliance with its disarmament obligations, the American case for war becomes murkier than it is now.


In the face of unexpected resistance, on Thursday Powell raised the possibility before the House Appropriations Committee, that the United States may not seek a new resolution at all. And British and American diplomats Thursday told the Security Council they would not call a vote Friday, despite President Bush's insistence last week there will be a vote. Nonetheless, White House spokesman Ari Fleischer said clearly again Thursday that America has the authority under international law for the pending war.

The White House argument stems from the belief that the Security Council has in effect already said that Iraq is failing to disarm, most recently on Nov. 8, when the council voted unanimously that Iraq was still in material breach of the 16 resolutions before it. Technically, a war with Iraq would be in compliance with the United Nations charter on Nov. 9, indeed any time after the initial period of disarmament following the 1991 ceasefire that ended the Gulf War.

The dilemma for the United States and the United Kingdom is that the Security Council at this moment does not agree that Iraq has failed to disarm. France, Germany, Syria, Russia and China have all argued to one degree or another that Iraq may not have disarmed entirely, but it has begun to disarm, or is in the process of disarming. "What have the inspectors told us?," French Foreign Minister Dominique De Villepin asked the Security Council on March 7. "That for a month, Iraq has been actively cooperating with them."


The Secretary-General himself has said with a council divided on the question of whether Iraq is disarming, the United States would be in violation of the U.N. Charter if it were to invade Iraq with the aim of removing its government. When he asked a similar question in 1998 on ABC's This Week, with regard to the United States using force in Kosovo, Annan did not say the United States was in violation. But on March 11, one day before the opening session of the International Criminal Court in The Hague, he said, "If the U.S. and others were to go outside the Council and take military action it would not be in conformity with the Charter."

Article 2 of the charter forbids member states "from the threat or use of force against the territorial integrity or political independence of any state." Furthermore, the Charter states that force may only be used in imminent self-defense or in the case of specific approval from the Security Council. "The U.N. charter prohibits the transnational use of force," Sean Murphy, an international law professor at George Washington University said in an interview Wednesday. "Either you are acting in self defense or you are acting under authorization of the UN Security Council."


Even legal scholars who defend the legality of a pending war in Iraq believe Powell's tactics have weakened the American case. Ruth Wedgwood, a professor of International Law at Johns Hopkins University said in an interview Wednesday, "Resolution 1441 muddied the waters. You don't ask the question if you are not going to like the answer."

On the facts of the case, it is hard to argue that Iraq has given up its weapons of mass destruction. Despite Iraq's decision to explode several al-Samoud II missiles, despite Iraq's willingness to allow some scientists meet in private with U.N. weapons inspectors, and despite Iraq's proposal to test soil where the inspectors believe Iraq manufactured VX nerve agent--Iraq has yet to dispose of those weapons proscribed in the 1991 cease fires ending the hostilities of the first Gulf War. Indeed, the most recent report of the United Nations Weapons Inspectors found that Iraq had developed unmanned drones aimed at delivering biological and chemical weapons in the battlefield suggest Iraq is not disarming but rearming.

With this kind of evidence, Far from being an international outlaw, the United States would be a the defender of the entire institution of international should it lead a war to disarm Iraq. Wedgwood argues that the United States has the authority to oust Saddam Hussein from power by virtue of the original U.N. Resolution in 1990 authorizing the use of force to oust Iraq's army from Kuwait and to enforce all subsequent resolutions. When Iraq entered a ceasefire in 1991, requiring it to forgo all of its weapons of mass destruction, that agreement was "in every real way a cease fire agreement with the allies." In this respect, Wedgwood argues that those allies can make determinations on Iraq's decision to disarm independently of the Security Council.


The question of who decides, or who can decide, whether Iraq has disarmed, is the vital issue for the United States now. As it stands the U.N. Security Council has deliberated on the issue of Iraq's disarmament and come out divided. Michael Glennon, an International Law Professor at Tufts University, said he believed the United States had cut the legs out from under its own argument. "After going to the Security Council, they are leaving with the impression that the will of the Security Council is against the use of force," he says.

It may end up that Bush's concession to the United Nations in September may be the undoing of the international case the United States would like to make for war. The United States and countless other states have violated the U.N.'s prohibition on the use of force in the past, but this time it is different. The United States in effect has sought and failed to gain the U.N.'s approval for the use of force in Iraq. While President Bush has always said he reserves the right to act outside the United Nations, he has clearly made an effort to gain its approval. Why else would he call the Angolan or Guinean President?


Now that the U.N.'s blessing appears doubtful, perhaps the biggest question is for the United Nations itself. As Glennon says, "The real question is not whether the charter would be violated, but whether the charter still represents international law."

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