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[casi] Dorf article on legality of war with Iraq

Useful article.


Is the War on Iraq Lawful?
Wednesday, Mar. 19, 2003

 As of this writing, American and British forces are poised to attack
Iraq. Questions of military strategy, geopolitics and morality loom
large, but so do questions of law.

 Is the war to disarm and dislodge Saddam Hussein justified under
international law? Has it been adequately authorized under U.S. law,
with proper Congressional approval?

 It is doubtful that any court will ever address either question, but
that may provide all the more reason to consider these issues in the
court of public opinion.

The International Law Issue: Three Possible Grounds for War

 Under international law, force is authorized in essentially two or, at
most, three circumstances.

 First, Articles 39 and 42 of the U.N. Charter permit the Security
Council to "determine the existence of any threat to the peace, breach
of the peace, or act of aggression" and to authorize the use of force
"to maintain or restore international peace and security."

 Second, Article 51 of the U.N. Charter recognizes "the inherent right
of individual or collective self-defence" against "an armed attack."

 Third, an international norm may be emerging that would permit nations
to use military force to prevent genocide or other humanitarian
catastrophes. However, while Saddam Hussein has, in the past, committed
horrific acts against his own people, the U.S. has not argued that
intervention is necessary to address ongoing crimes against humanity.

 Do either of the first two grounds - based on U.N. Charter provisions
- justify war?

U.N. Security Council Authorization: The First Possible Ground For War

 In his March 17 speech, President Bush claimed that prior U.N.
resolutions have already provided the necessary legal authority for
attacking Iraq. Speaking for the Blair Administration, British Attorney
General Lord Goldsmith made the same point. Are they correct? The
answer is no.

 In November 1990, the U.N. Security Council adopted Resolution 678,
authorizing nations "co-operating with the Government of Kuwait . . .
to use all necessary means" of dislodging Saddam Hussein's troops from

 This resolution authorized force only for the purpose of driving the
Iraqi military out of Kuwait, an objective which was fully accomplished
by 1991. It would be arguably relevant now only if Saddam reinvaded

 Then, at the conclusion of the Gulf War, the Security Council adopted
Resolution 687. It called for, among other things, Iraq's destruction
and renunciation of various weapons, including biological, chemical and
nuclear arms. And it stated the Security Council's intention "to take
as appropriate all necessary measures" to guarantee the inviolability
of the Iraq-Kuwait border. Although that language is broad, it does not
refer to the disarmament provisions. Resolution 687 makes clear that
its disarmament provisions are governed by the Security Council's
resolve "to remain seized of the matter and to take such further steps
as may be required for the implementation of the present resolution and
to secure peace and security in the area."

 That last statement hardly reads as a blank check to any Security
Council member or other state to act on its own to require Iraq's
disarmament. Instead, it suggests, quite to the contrary, that the
Security Council itself, acting via additional resolutions, could take
"further steps."

 Last November, the Security Council passed Resolution 1441. It warned
that Iraq would "face serious consequences" if it were to remain in
"material breach" of its disarmament obligations. Employing the
Resolution's language, the Bush Administration has argued that Iraq is
in "material breach" and that war is thus justified.

 However, as I explained in an earlier column, Resolution 1441 implies
that the Security Council itself will decide if a material breach has
occurred, and expressly states that the Security Council itself, in the
event of such a breach, will "consider the situation and the need for
full compliance with all of the relevant Council resolutions in order
to secure international peace and security."

 We know that the Security Council does not think that a serious breach
warranting all-out war has occurred. Perhaps the Security Council,
under veto threat from France (and possibly Russia as well), has
behaved unreasonably and irresponsibly in this respect, as suggested by
American and British diplomats. But if so, that still does not alter
the fact that the Security Council did not authorize war. At most, it
bolsters the moral case for war, not the legal case.

Self-Defense: The Second Possible Ground for War

 The boldest argument for war is that the United States and other
countries face the prospect of an "armed attack" by Iraq, thus
justifying the sovereign right to use force in self-defense. But
certainly Iraq was not about to invade the United States or even
Kuwait, where thousands of American and British troops have patrolled
the border since the Gulf War. Nor have Bush and Blair pointed to any
information indicating an imminent threat; instead, they have rested
their arguments primarily on the fear of Saddam's future direct or
indirect use of weapons of mass destruction.

 Thus, the argument for self-defense must be based on an expansion of
that concept - from self-defense as repelling an ongoing or imminent
attack, to self-defense as pre-emption of a feared future attack.

 Under the pre-emption doctrine, touted by the Bush Administration, an
enemy that is in the process of acquiring weapons of mass destruction
can be attacked before using those weapons. The underlying concern is
no doubt a serious one. The doctrine, however, remains outside of
international law and could potentially prove quite dangerous.

 Self-defense, as it traditionally has been understood under
international law, is very much like self-defense in the law governing
individuals. If an aggressor is in the midst of, or just about to,
attack, one need not absorb the first blow before fighting back. The
attack, however, must be imminent, if not already underway.

 The imminence requirement is extremely important in international
affairs. If the U.S. can take non-Security-Council authorized
pre-emptive or preventive military action, then other countries can as
well. Thus, regional powers fearing the rise of neighboring rivals
could decide that it is better to act against their future enemies
before the threat fully materializes.

 Not every invocation of the doctrine of pre-emption will be justified.
Some will be based on misjudgments, and others will simply be
pretextual - justifying aggression under the guise of pre-emption.
Ultimately, the doctrine allowing pre-emption of long-term threats has
the potential to be enormously destabilizing.

Was War Constitutionally Authorized by Congress?

 The international law arguments in favor of the war's legality, then,
are weak at best. What about the war's legality as a matter of U.S.
law? There, the question is closer.

 The U.S. Constitution sets no limits on the reasons for which the
United States may go to war. Its primary limit is procedural. While the
President is the Commander-in-Chief of the armed forces, Congress alone
has the power to declare war.

 Congress has not formally declared war since World War II. As I
explained in an earlier column, the failure to issue formal
declarations of war partly reflects the fact that such declarations are
antiquated. But Congressional equivocation also reflects Congressional
ambivalence. Members of Congress do not want to have to take the heat
for a war that goes badly, but they also want to appear supportive of
our troops. Thus, they have a built-in incentive to sit on the fence.

 Judged by the standards of recent American military actions, Congress
provided President Bush with crystal clear authority to make war on
Iraq. In October 2002, Congress passed a joint resolution authorizing
the President "to use the Armed Forces of the United States as he
determines to be necessary and appropriate in order to (1) defend the
national security of the United States against the continuing threat
posed by Iraq; and (2) enforce all United Nations Security Council
resolutions regarding Iraq."

 The constitutional problem with the Congressional authorization, if
there is one, is not lack of clarity; it's that Congress passed the
buck. A number of commentators and even some individual members of
Congress have argued that Congress may not delegate to the President
the power to declare war. The Constitution, on this view, puts the
power to declare war in the hands of Congress so that members of
Congress--who must stand for frequent re-election--will make the hard
decisions themselves.

 This objection would be a good one if Congress had delegated something
approximating its entire warmaking power to the President. But under
the circumstances, the delegation appears reasonable. If one believed
that Saddam would only disarm under military pressure, then to make the
threat of war credible, Congress had to delegate power to the
President. It would have been premature for Congress actually to
declare war back in October, before further planned diplomatic efforts
were undertaken. The Constitution is best interpreted to permit
Congress to use this type of carrot-and-stick tactic.

 There is one further wrinkle under U.S. law. Article VI of the U.S.
Constitution makes treaties into which the U.S. has entered "the
supreme Law of the Land." The United States is a signatory to the U.N.
Charter, and as discussed above, under the Charter, there is no clear
legal authority for war on Iraq. Accordingly, if the war violates
international law - as I have suggested it does - then it also thereby
violates U.S. law.

 That is not to say that any court will entertain a challenge to
military action. U.S. courts have long treated such questions as
committed to the political branches. And it is clear that Congress and
the President have made their decision.

Does the Lawfulness of War Matter?

 In the end, the question of whether war on Iraq is legally justified
is less important than whether it is morally and practically justified.
If the U.S. and its allies prevail in a relatively quick war with
minimal loss of life, if further evidence of Saddam's malevolent intent
surfaces, and if the Iraqi people welcome allied forces as liberators
rather than conquerors, then quibbles about legality may be overlooked.

 Nonetheless, one impact of a war of dubious lawfulness may be the
continued erosion of respect for the United States as a nation
committed to principles of justice under law. President Bush says that
he is justified in using military might because his cause is just. To
much of the rest of the world, however, it looks the other way around:
that the U.S. and its allies act as they wish because, in the American
view, might makes right.

 In that respect, a bit of ancient history may be relevant. In Chapter
Seventeen of his History of the Peloponnesian War (between Athens and
Sparta in the Fifth Century B.C.), Thucydides recounted the reaction of
the people of the small neutral island state of Melos to the invading
Athenian navy. Before attacking Melos, the Athenians gave the Melians
an opportunity to surrender. The Melians attempted to persuade the
Athenians to leave them alone. According to Thucydides, the Athenians
would have none of it. Questions of justice arise only among equals,
the Athenians said, while the strong do what they will and the weak
suffer what they must.

 The Melians refused to surrender; the Athenians prevailed militarily;
they killed the adult Melian males; and they sold the women and
children into slavery. But ultimately with aid from Persia (modern-day
Iran), Sparta defeated and conquered Athens, which never regained its

 Even as we hope that President Bush can bring the spirit of Athenian
democracy to the cradle of civilization, we may fear that he has forged
a different, and darker, connection to ancient Athens.

Dr. Eric Herring
Department of Politics
University of Bristol
10 Priory Road
Bristol BS8 1TU
England, UK
Office tel. +44-(0)117-928-8582
Mobile tel. +44-(0)7771-966608
Fax +44-(0)117-973-2133

Network of Activist Scholars
of Politics and International Relations (NASPIR)

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