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International Law, the United Nations, and the War in Iraq
On Feb. 5, 2003 U.S. Secretary of State Colin Powell came before the United Nations Security Council and laid out the Bush administration's case against Iraq. As a hushed chamber listened intently, Secretary Powell detailed a web of evidence against Saddam Hussein's regime.
Powell's argument could be divided into two main tracks. The first centered on the premise that Iraq had to face the penalties for having flouted numerous Security Council resolutions. "Last Nov. 8, this council passed Resolution 1441 by a unanimous vote," the secretary said. "The purpose of that resolution was to disarm Iraq of its weapons of mass destruction. Iraq had already been found guilty of material breach of its obligations, stretching back over 16 previous resolutions and 12 years."
After asserting that Iraq still maintained a banned weapons program and had not complied with inspectors as required, Powell noted: "Iraq has now placed itself in danger of the serious consequences called for in U.N. Resolution 1441. And this body places itself in danger of irrelevance if it allows Iraq to continue to defy its will without responding effectively and immediately."
Powell's second argument concerned the risk Saddam Hussein's government posed to the United States and its allies. Alleging that Iraq's "weapons can be connected to terrorist organizations that have no compunction about using such devices against innocent people around the world," Powell asserted that Al-Qaeda "could turn to Iraq for help in acquiring expertise on weapons of mass destruction." This potential has put the United States in grave danger, he suggested. "Given Saddam Hussein's history of aggression, given what we know of his grandiose plans, given what we know of his terrorist associations, and given his determination to exact revenge on those who oppose him, should we take the risk that he will not some day use these weapons at a time and the place and in the manner of his choosing at a time when the world is in a much weaker position to respond?" he asked.
INTERNATIONAL LAW ON THE USE OF FORCE
Powell's mission—like that of his colleagues over the past months—was to fit the Bush administration's case against Saddam Hussein into the U.N. structures governing the use of force as laid out in the U.N. Charter. Whether the United States chooses to continue to pursue this path or not has serious implications for the future of international law and the United Nations.
The international legal rules governing the use of force take as their starting point Article 2(4) of the U.N. Charter, which prohibits any nation from using force against another. The charter allows for only two exceptions to this rule: when force is required in self-defense (Article 51) or when the Security Council authorizes the use of force to protect international peace and security (Chapter VII).
ARTICLE 51 AND THE ARGUMENT FOR PRE-EMPTIVE SELF-DEFENSE
The first exception, self-defense, has long been discussed and debated among international legal scholars. Although the text of Article 51 explicitly provides only for "the inherent right of individual or collective self-defense if an armed attack occurs," over the years, scholars have expanded the required trigger for self-defense to include both when an armed attack occurs and when an armed attack is imminent. The legal definition of "imminent" has grown out of an 1837 incident in which British troops attacked the ship Caroline, which U.S. citizens were using to take supplies to Canadian rebels fighting British rule. In his much-quoted analysis of the confrontation years later, then-Secretary of State Daniel Webster argued that the use of force in self-defense is justified when the need for action is "instant, overwhelming, and leaving no choice of means, and no moment for deliberation." Webster's criteria subsequently became the standard in international law.
But such circumstances—in which an armed attack occurs or is imminent—do not aptly describe the current Iraqi crisis. And so President George W. Bush, over the past several months, has introduced a new category of self-defense—pre-emptive self-defense—that he claims is legally justified in the new post-Sept. 11 world.
Bush first planted the roots of the argument for pre-emptive self-defense in his address to the United Nations General Assembly on Sept. 12, 2002, when he said, "The first time we may be completely certain [Saddam Hussein] has a nuclear weapon is when, God forbid, he uses one. We owe it to all our citizens to do everything in our power to prevent that day from coming."
Five days later, he spelled out the case for pre-emptive self-defense more fully and forcefully in his National Security Strategy, now known as the "Bush Doctrine," in which he vowed to defend:
The United States, the American people, and our interests at home and abroad by identifying and destroying the threat before it reaches our borders. While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting pre-emptively against such terrorists, to prevent them from doing harm against our people and our country….Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today's threats, and the magnitude of potential harm that could be caused by our adversaries' choice of weapons, do not permit that option. We cannot let our enemies strike first….For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat—most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries….The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.
Bush pursued this line of argument again in his Jan. 28, 2003, State of the Union address, saying, "Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late. Trusting in the sanity and restraint of Saddam Hussein is not a strategy, and it is not an option."
But critics of Bush's argument point out that the notion of pre-emptive self-defense is not mentioned in Article 51 of the U.N. Charter and is therefore illegal under international law. Moreover, some have noted, Article 51 allows for self-defense "until the Security Council has taken measures necessary to maintain international peace and security." This suggests that the right to self-defense exists only when there is no time to take the issue before the Security Council, and that if there is time for deliberation, the use of force is not justified. In the case at hand, the threat posed by Iraq has neither occurred nor is imminent, and time clearly exists to take the case to the Security Council. Thus, many claim, there is currently no legal justification for using force against Iraq in self-defense.
SECURITY COUNCIL AUTHORIZATION FOR THE USE OF ALL NECESSARY MEANS
But there is another exception allowing for the use of force, and the United States has simultaneously been pursuing this track in arguing that an attack on Iraq would be justified. This exception is found in Chapter VII of the U.N. Charter and applies to situations in which the Security Council authorizes the use of force to protect international peace and security. Accordingly, members of the Bush administration have pointed to a series of Security Council resolutions to argue that force against Iraq has been authorized.
While the Security Council has passed a series of resolutions concerning Iraq over the past 12 years, only one explicitly authorized the use of force. Resolution 678, passed on Nov. 29, 1990, authorized member states 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." (Resolution 660, passed on Aug. 2, 1990, demanded that Iraq withdraw from Kuwait.)
Some Bush administration officials have argued that because Iraq has not complied with the cease-fire terms of Resolution 687 (a subsequent relevant resolution), which required it to disarm and cooperate with weapons inspectors, among other things, member states still have sufficient legal authority to use force ("all necessary means") against Iraq.
But critics have found flaws in this theory as well. According to most members of the Security Council, it is up to the council itself, and not individual members, to determine how the body's resolutions are to be enforced. This was made clear in a Security Council meeting on Dec. 16, 1998. That day, U.S. and British warplanes launched air strikes against Iraq after learning that Iraq was continuing to impede the work of UNSCOM, the weapons inspectors sent to Iraq at the close of the Gulf War, and thus was not in compliance with Resolution 687. When the Security Council met that night to discuss whether individual member states could resort to force without renewed Security Council consent, it was clear that the Security Council members did not all agree on the legality of the U.S. and British resort to force.
According to the press release from that meeting, the U.S. representative claimed his country's actions were authorized by previous council resolutions (as many in the Bush administration are arguing again today). The British delegate similarly argued that because Iraq had not complied with the terms of Resolution 687, military force was justified.
But others saw things differently, arguing that it was the job of the Security Council as a whole—and not individual member states—to determine when a resolution had been breached and how to enforce it. The Russian representative insisted that no one had the right to act independently on the United Nations' behalf. Costa Rica's ambassador agreed, arguing that force could be authorized only by the Security Council as a whole. According to the press release, the Brazilian delegate believed that "the council remained the sole body with legal authority to mandate actions aimed at reinforcing compliance with its own resolutions."
The argument that the council alone is authorized to decide how to deal with a violation of Resolution 687 is bolstered by the text of the resolution itself. Paragraph 34 says: "The Security Council decides to remain seized of the matter and to take such further steps as may be required." This language indicates that the decision to use "all necessary means" is left to the Security Council—not to individual states.
But, so far at least, the Bush administration has not been dissuaded. And, as Secretary Powell made clear in his speech to the Security Council, it believes the case for using force against Iraq is further bolstered by Resolution 1441, passed on Nov. 8, 2002.
Resolution 1441 was the result of seven weeks of intense diplomacy. Initially, the United States insisted that any new resolution include an automatic trigger for military action; that is, although it insisted it already had the legal authority to use force against Iraq (under the doctrine of self-defense and on the basis of previous Security Council resolutions), it wanted the resolution to explicitly authorize U.N. member states to use "all necessary means" if Iraq refused to comply with the resolution's demands. But France, a veto-wielding permanent member of the Security Council, insisted that any response to Iraqi noncompliance be determined in a second round of council debates and spelled out in a second resolution.
Resolution 1441 ultimately passed—by a vote of 15-0—because its ambiguous wording was able to placate all parties. Recognizing the continued threat Iraq poses to international peace and security, recalling that Resolution 678 authorized member states to use all necessary means to implement relevant subsequent resolutions, and noting that Resolution 687 imposed conditions on Iraq—with which it has not complied—the council made clear that Iraq "has been and remains in material breach of its obligations under relevant resolutions." It is significant that the council explicitly noted that it was acting under Chapter VII of the U.N. Charter.
Resolution 1441 then mandates the creation of an enhanced inspection regime and lays out the process to be implemented if Iraq fails to comply. Paragraph 4 of the resolution makes clear that false statements, omissions, and failures to cooperate with the requirements of the resolution will be considered a material breach of Iraq's obligations and will be reported to the council for assessment in accordance with paragraphs 11 and 12. Paragraph 11 directs Hans Blix, the executive chairman of UNMOVIC (the U.N. Monitoring, Verification and Inspection Commission) and Mohamed ElBaradei, the director general of the IAEA (the International Atomic Energy Agency) to report any Iraqi noncompliance to the Security Council. Paragraph 12 directs the Security Council to convene immediately upon receipt of a report under either Paragraph 4 or Paragraph 11 to determine how to respond.
The resolution makes clear that Iraq will face "serious consequences" if it does not comply with the resolution's demands.
Resolution 1441 is ambiguous in two important ways. The first deals with who can determine the existence of a material breach. The second concerns whether another resolution, explicitly authorizing force, is needed before military action against Iraq may be taken.
On the first issue, a senior Bush administration official has said: "Neither Blix nor ElBaradei, nor we, determine a material breach. The facts determine that [there] is a material breach…. Violations with respect to the declarations, falsifying the declarations or failure to cooperate [with] the inspectors, that fact in itself, the way [paragraph] 4 is worded, constitutes a material breach, which then gets reported to the council, either by Blix or ElBaradei, or…[by] any member—not just at the Security Council—any member of the United Nations." British Foreign Secretary Jack Straw has explained a similar—though not identical—process by which, "If there is a false statement or omission in the Iraqi Declaration, together with a failure to comply with the resolutions or to cooperate with the inspectors, this can be reported to the Security Council as a further material breach either by a Security Council member or by the inspectors. The council will in any case undoubtedly require the opinion of the inspectors."
But the French, who had lobbied hard to change the phrase "will be reported to the Council for assessment in accordance with paragraphs 11 or 12" to "will be reported to the Council for assessment in accordance with paragraphs 11 and 12" disagreed—arguing that only Blix or ElBaradei could determine there had been a material breach. The Chinese, too, believed that "only upon receipt of a report by UNMOVIC and the IAEA on Iraq's noncompliance and failure to cooperate fully in the implementation of the resolution, will the Security Council consider the situation and take a position."
Resolution 1441's second ambiguity is even more significant. While the resolution makes clear that the Security Council must reconvene to discuss how to deal with Iraqi noncompliance, it does not make clear whether the council must pass another resolution at such a meeting, authorizing the use of force, or whether member states may simply act on their own.
This difference of opinion came into focus during the discussion following the adoption of Resolution 1441. At that time, U.S. Ambassador to the U.N. John Negroponte said: "This resolution contains no 'hidden triggers' and no 'automaticity' with respect to the use of force. If there is a further Iraqi breach, reported to the council by UNMOVIC, the IAEA, or a Member State, the matter will return to the council for discussion….[But] if the Security Council fails to act decisively in the event of further Iraqi violations, this resolution does not constrain any member state from acting to defend itself against the threat posed by Iraq or to enforce the relevant United Nations resolutions and protect world peace and security." The British ambassador, Sir Jeremy Greenstock, agreed.
But others saw things differently. The French ambassador expressed relief that "a two-stage approach" would ensure "that the Security Council would maintain control of the process at each stage." The Russian representative made clear that "the resolution just adopted contains no provisions for the automatic use of force" and warned against "yielding to the temptation of unilateral interpretation of the resolution's provisions." The Chinese delegate similarly said: "China supports the two-stage approach." Several nonpermanent Security Council members agreed. The Irish delegate noted: "As far as Ireland is concerned, it is for the Council to decide on any ensuing action." The Mexican ambassador stressed that "the use of force is valid only as a last resort, with prior explicit authorization required from the Security Council." The Bulgarian delegate said: "This resolution is not a pretext for automatic recourse to the use of force." The Colombian representative noted: "This resolution is not, nor could it be at this time, a resolution to authorize the use of force." Similarly, the ambassador from Cameroon expressed relief that the resolution "does not contain traps or automaticity." And the Syrian ambassador said: "The resolution should not be interpreted, through certain paragraphs, as authorizing any State to use force. It reaffirms the central role of the Security Council in addressing all phases of the Iraqi issue."
When President Bush pressed his case at the U.N. on Sept. 12, 2002, he made clear that the organization's continuing relevance was being put to the test. "Are Security Council resolutions to be honored and enforced, or cast aside without consequence? Will the United Nations serve the purpose of its founding, or will it be irrelevant?" he asked.
The answer depends as much on Bush himself as on the U.N. Whether the Security Council will work to enforce its resolutions-and whether the United States and its allies will give it a chance to do so-remain to be seen. The continued viability of the post-World War II international legal system hangs in the balance.
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