Twelve years ago, the elder President George Bush took our country to war against Iraq and asserted that we were defending international law and world order based upon law. Now his son is poised to launch another war against Iraq, but this time in violation of the very international law principle his father invoked in 1991.
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| | | Jules Lobel is a professor of international law at the University of Pittsburgh (lobel@law.pitt.edu). He is vice president of the Center for Constitutional Rights, a nonprofit legal and educational organization based in New York. | |
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Iraq's 1990 invasion of Kuwait violated Article 2(4) of the U.N. Charter, which prohibits one country from attacking another except in self-defense or with Security Council authorization. Our imminent invasion of Iraq will also violate Article 2(4). As U.N. Secretary-General Kofi Annan put it recently, "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."
The U.N. Charter was in large part drafted by the United States in 1945. It is a solemn treaty commitment ratified by the U.S. Senate and under our Constitution constitutes a part of our "supreme law." The Charter has played an important role in preserving some semblance of international order in the turbulent post-World War II world. Our striking international isolation as we approach this war can not be attributed to French petulance, Russian reluctance or a hostile world. Rather, it is in large part a reflection of the fact that this war deeply offends a fundamental principle of the charter, which is widely accepted by international public opinion. This war will be an illegal, aggressive war.
The Bush administration's legal arguments for war are as shifting and problematic as its political rationales. At times, administration officials have claimed that we are acting in self-defense, which is permitted under Article 51 of the charter. However, a nation can employ self-defense under international law only if an armed attack occurs, or in response to an imminent attack.
The classic definition of an imminent attack, still authoritative today, was stated by Secretary of State Daniel Webster in 1842: The exception is "confined to cases in which the necessity of that self-defense is instant, overwhelming and leaving no choice of means and no moment for deliberation." The administration does not assert that Iraq is currently attacking the United States, nor that it has imminent plans to do so. None of the reasons given by the Bush administration for attacking Iraq, including destruction of weapons of mass destruction or overthrowing an evil dictator, constitute self-defense under the U.N. Charter.
Prior to this administration, the United States and virtually every other country in the world rejected the use of self-defense to justify the pre-emptive use of force to counter serious, nonimminent threats to their security.
For example, when the Kennedy administration forcefully quarantined Cuba in response to the Soviet placement of nuclear weapons 90 miles from U.S. territory, it expressly eschewed reliance on Article 51. Instead, Kennedy argued the Organization of American States authorization made that quarantine legal. To recognize the right of nations to launch pre-emptive attacks would completely eviscerate the charter's prohibition against the use of force and lead to anarchy.
Administration officials have also claimed that the U.N. Security Council has authorized their war against Iraq, a most peculiar argument in light of the Council's refusal to do just that in the past few weeks despite massive lobbying by the United States and Britain.
The administration's Orwellian argument is that U.N. Resolution 678, enacted in 1990 to authorize the United States and other states to use force to oust Iraq from Kuwait, now provides authority for a United States invasion to overthrow Saddam Hussein 12 years later. However, that resolution was nullified by Cease Fire Resolution 687, which ended the war and directed Iraq to disarm. The enforcement of Resolution 687 was left to the Security Council and not individual nations. Paragraph 34 of Resolution 687 states the Council's decision " 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."
Nor did Resolution 1141, enacted by the Security Council in November, authorize the United States to use force against Iraq. That resolution required the inspectors to report to the Security Council, which would meet to decide what to do. The Security Council heard the inspectors report of some meaningful progress and refused to authorize force.
The U.S. military campaign may quickly defeat Iraq's army. In the short run, the law will be overwhelmed by military might. But history demonstrates that the long-term stability and security of the United States and the world depends on law and not mere power.
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