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[casi] No legal justification


No legal justification

Despite Anglo-American assertions to the contrary, under international law
the UN Security Council cannot authorise a pre-emptive attack on Iraq, explains
Ahmed N Roushdy*

In his recent speech to the UN General Assembly, US President George W Bush
finally put his unilateralism on hold, took the long-awaited step of consulting
with his European allies and presented his case against Iraq. This speech has been
described in various ways, whether as a forceful presentation to the court of
world opinion, hasty-war talk, or, as was spelled out by Jim Hoagland, veteran
columnist of the Washington Post, a life-or-death challenge -- to the United

However, President Bush did not offer any real options to the UN delegates.
Rather, he used a language reminiscent of that used in the warning given to all
nations after 11 September 2001 -- either you are with us, or you are against us.
By doing so, the president put both himself and the UN delegates in a difficult
position, the speech amounting to a declaration of war on any nation that
disagrees with Washington. Indeed, the president and his hawkish aids have
polarised the situation to such a degree that the president has been left with no
way out.

What the US president wants the UN Security Council to do, as is shown by the
draft joint Anglo-American resolution, falls into two parts. First, he wants the
Security Council to condemn Iraq for its continuing violations of a host of
Security Council resolutions regarding inspection for weapons of mass destruction.
Under the new resolution, the UN inspectors, accompanied by an armed security
force, will be given free, unrestricted and immediate access to the inspection
sites, together with the right to inspect any other sites and buildings they may
wish, including Saddam Hussein's presidential palaces. This resolution falls
within the Council's jurisdiction, and it may legally be adopted if the Council
suspects Iraqi violations and considers that the security forces accompanying the
inspectors do not infringe Iraqi sovereignty.

However, the draft Anglo-American resolution also calls for the use of "all
necessary means to restore international peace and security" if Iraq fails to
comply with the demands for inspection. This is a diplomatic formula often
included in UN resolutions, and in this case it is intended to allow the use of
force against Iraq. This second Anglo-American demand goes beyond the Security
Council's jurisdiction, and it should not be approved. However, the US president
has threatened to act alone should this demand not be accommodated, thus putting
the US doctrine of preemptive attack into effect and making the UN irrelevant.

US Secretary of Defence Donald H Rumsfeld, a staunch supporter and
undoubtedly part drafter of this doctrine, wrote in the US journal Foreign Affairs
for May-June 2002 that defending the United States requires both prevention and,
sometimes, preemption. Thus, through his speech at the UN Bush has tried to add a
legal flavour to the American plan to stage a preemptive attack on Iraq, while at
the same time arguing that there was no need for a new UN Security Council
resolution on weapons inspectors, since the 1990 resolution that authorised the
use of force against Iraq and the setting up of a system of weapons inspections
was still in force, and Iraq was in violation of the terms and conditions of its
surrender by refusing to allow the return of UN inspectors.

At the same time, James Baker, President Bush senior's former secretary of
state, has argued in the New York Times that if the vote in the Security Council
goes against the use of force, then the United States could still appeal to
Article 51 of the United Nations Charter, which gives a country the right of

This is an unfortunate interpretation of both the Security Council
resolutions and of the UN Charter. Historians and legal experts alike agree that
the recourse to war as an instrument of national policy and for the solution of
international conflicts is itself an act of aggression, condemned by customary
international law long before the creation of the United Nations and before the
signing of the 1928 Kellogg-Briand Pact that codified this prohibition in a treaty
ratified or adhered to by countries including the United States, Britain, France,
the then USSR and China, which are now the permanent members of the UN Security
Council. Indeed, Henry Kissinger, not known to be a defender of the equal
sovereignty of states, rightly argued in an article in the Washington Post that
the Bush plan to attack Iraq and topple Saddam Hussein was also contrary to the
1648 Treaty of Westphalia, which prohibited the intervention of one country in the
affairs of another. This early treaty is considered the starting point of modern
international law.

The UN Charter, of which the United States was a major drafter, was keen to
establish peace, security and justice in a world torn and shattered by two world
wars. In Article 1.1, the Charter set forth the purposes of the United Nations as
being "to maintain international peace and security, and to that end, to take
effective collective measures for the prevention and removal of threats to the
peace, and for the suppression of acts of aggression or other breaches of the
peace, and to bring about by peaceful means, and in conformity with the principles
of justice and international law, adjustment or settlement of international
disputes or situations which might lead to a breach of the peace".

It is clear that this Article treats "threats to peace" and "acts of
aggression" differently. Threats are to be "prevented and removed", but not
"suppressed", as is the case for acts of aggression. Suppression involves the use
of force, and the Charter does not consider a threat to warrant the use of force.
This is underlined by Article 2.4 of the Charter, which requires all member states
to "refrain from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent with the
purposes of the United Nations".

International lawyers agree that the prohibition of the use of force
constitutes a general rule, and that the only case in which force can be used is
in cases of self-defence. Article 51 of the UN Charter states that "nothing in the
present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations".
This article makes clear that a state has the right to defend itself against an
"armed attack" by another country, such an attack being considered an act of
aggression that warrants the suppression referred to in Article 1.1 of the
Charter. Furthermore, not only is the right of self-defence given to a state
subject to an armed attack, but other members of the United Nations also have the
right to intervene collectively to defend that state. The article requires that
measures taken by member states in the exercise of their right of self-defence
should be reported to the Security Council, which shall maintain the right to take
whatever steps it deems necessary to maintain international peace and security.
There is no reference to a threat as serving to justify the use of force in

The result is that the requirement to respond to armed attack is
distinguished from a threat. This is exactly the difference between the formation
of an international coalition under Security Council Resolution 678 of 29 November
1990 to liberate Kuwait (there was no reference in this resolution to changing the
Iraqi regime), and President Bush's new preemptive or preventive attack doctrine
used to strike Iraq and topple Saddam Hussein because his alleged weapons of mass
destruction allegedly present a threat to America, Israel and neighbouring

This being so, I do not see how the UN Security Council can authorise the use
of force against the "threat" posed by Saddam Hussein's regime in Iraq. It cannot
authorise a US-led military strike against Iraq for the reasons presented by the
United States and Britain, not can the US go to war against Iraq under the cover
of a UN Security Council resolution. This would be an act contrary to
international law and to the United Nations Charter, as well as to the principles
that have directed past administrations in the United States.

The US cannot rely, either, on the 1990 Security Council resolution
authorising the use of force against Iraq following its invasion of Kuwait. On
this occasion, the UN Security Council adopted Resolution 660 condemning Iraqi
aggression and demanding that Iraq immediately and unconditionally withdraw from
Kuwait. This Resolution was based on Articles 39 and 40 of the UN Charter, Article
39 setting out the Council's role in cases of threats to the peace or acts of
aggression. Under this article, the Council may issue recommendations or make
decisions on what can be done according to the limits set out in Articles 41 and
42 of the Charter. Article 40 of the Charter gives the Council the option of first
inviting the parties concerned to comply with such measures as it deems necessary
or desirable, such as resort to an intermediary or to arbitration.

Article 41 of the Charter speaks about measures, not involving the use of
armed force, that the Council can employ to give effect to is decisions, such as
complete or partial interruptions of economic relations and of rail, sea, air,
postal, telegraphic, radio and other means of communications, and the severance of
diplomatic relations. In case the Council finds these measures insufficient, it
can invoke Article 42 of the Charter that authorises the Council to take such
action "by air, sea, or land forces as may be necessary to maintain or restore
international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of Members of the
United Nations." It should be noticed that both articles do not mention the use of
armed force, while mentioning other means, such as blockades. Only in Article 51
of the Charter is use of force permitted in cases of self-defence against attack.

Thus, when Iraq invaded Kuwait in 1990 the Security Council did not rush to
authorise the use of force against Iraq, instead demanding immediate and
unconditional Iraqi withdrawal from Kuwait. When Iraq did not comply with this
resolution, the Council, in Resolution 661 of August 1990, imposed an economic
embargo against Iraq.

In a host of subsequent resolutions, the Council confirmed Resolution 660
demanding the liberation of Kuwait. But not until 29 November 1990 did the Council
adopt Resolution 678 calling on members states to use all means necessary to
compel Iraq to withdraw from Kuwait. While the use of force was not explicitly
mentioned, it remained an option, and, based on this resolution, the United States
and its allies attacked Iraq in order to liberate Kuwait. The only inference that
can be drawn from these successive resolutions is that the Council did not want to
use armed forces to liberate Kuwait until it had exhausted other non-destructive
means of coercion.

The UN weapons-inspection system was established by UN Security Council
Resolution 687 of April 1991 after the Iraqi withdrawal from Kuwait and the ending
of the military operations. Although the resolution subjected Iraq to a system of
inspections, it called on all nations to respect the territorial integrity,
sovereignty and political independence of both Kuwait and Iraq. The Council was
aware that the purpose of the military operations against Iraq, the liberation of
Kuwait, had been achieved, and that, in accordance with the UN Charter, there was
now no legal justification for violating Iraqi sovereignty through the
weapons-inspection system.

Nothing in Resolution 687, or in subsequent ones, can be read to mean that
Council intended force to be used in enforcing the weapons- inspections system.
The Council, or any state, cannot use force against Iraq for violating Council
resolutions regarding weapons inspection, or for any other reason, except if Iraq
attacks another state.

There is nothing in international law that can justify a preemptive attack by
the United States against Iraq. Indeed, it was precisely because of the illegality
of acts of aggression of this sort that the United States led members of the UN
Security Council in condemning the "preemptive" tripartite aggression carried out
by England, France and Israel against Egypt in the 1956 Suez War, demanding their
immediate withdrawal. The United States also voted with the other members of the
Security Council to condemn Israel for its preemptive attack on Iraq in 1981,
during which Israeli planes destroyed an Iraqi nuclear reactor.

This being so, why is President Bush now so confident of the legality of
present plans to attack Iraq?

* The writer is a New York-based Egyptian attorney.

 Copyright Al-Ahram Weekly. All rights reserved

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