Iraq and international law
washtimes.com
House Editorial
Published March 14, 2003
The Washington Times
[Here's the full text of Michael's ref. --fl]
While it would certainly be preferable to have the U.N. Security Council endorse U.S.-led military action to eliminate the threat posed by Iraq and its weapons of mass destruction, it's clear that, barring a miracle, such support will not be forthcoming due to the disgraceful intransigence of France. But, it's important to remember that, contrary to the assertions of his critics, when President Bush gives the order for U.S. military strikes against Iraq, he will hardly be "violating international law." Indeed, precisely the opposite is true. When the "coalition of the willing" moves to disarm Saddam Hussein, it will be taking action to enforce Security Council resolutions enacted under Chapter 7 of the U.N. Charter, which are supposed to constitute the very backbone of international law.
The current problem is that, even though Iraq has openly defied these resolutions again and again since 1990, the Security Council is refusing to act. Chapter 7 resolutions -- which cover "Threats to Peace, Breaches of the Peace and Acts of Aggression" -- are the most serious kind of legal action that the council can take against a country.
The scope of Saddam's defiance of these resolutions is breathtaking. In April 1991 -- five weeks after losing the Gulf War -- the Iraqi dictator agreed to U.N. Security Council Resolution 687 in order to stay in power and avert getting tried as a war criminal for his invasion of Kuwait. That resolution, among other things, required Iraq to "unconditionally accept" the destruction, removal or rendering harmless "under international supervision" of all "chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities." The resolution, approved on April 3, 1991, also stipulated that Baghdad must not "use, develop, construct or acquire" any weapons of mass destruction.
Just four months later, the Security Council approved UNSCR 707, condemning Iraq's "serious violation" of 687. Since 1990, the Bush administration emphasizes (and no serious party disagrees), Iraq has been in violation of 14 other resolutions passed by the council.
When the council approved UNSCR 1441 last Nov. 8, a measure requiring once again that Iraq disarm, it was made clear that that was Saddam Hussein's last chance to cooperate with inspectors before Iraq was forcibly disarmed. But it's clear that Iraq hasn't done so, and that the Security Council has decided not to enforce its own resolutions. In fact, UNSCR 1441 is self-executing, and does not require that another vote be taken before force is used. Thus, under Chapter 7, Resolution 1441 authorizes military action, which the United States may carry out.
According to a report issued in September by the Library of Congress, customary international law has consistently recognized the right of a country to use preemptive force. Hugo Grotius, widely described as the "father of international law," wrote in 1625 that it would be "lawful to kill him who is preparing to kill." A century later, legal scholar Emmerich de Vattel wrote that "A nation has the right to resist the injury another seeks to inflict upon it, and to use force ... against the aggressor."
After the founding of the republic, Secretary of State Daniel Webster explained the right of preemptive attack in connection with the Caroline incident of 1837, which occurred when British forces sank the Caroline -- an American ship in U.S. waters, which was being used to provide supplies to insurrectionists against British rule in Canada. The United States protested the sinking. In the course of diplomatic exchanges between the two sides, Webster stated that the preemptive use of force must be necessary and proportional to the threat.
With the founding of the United Nations in 1945, the U.N. Charter sought to limit those instances in which individual states could use force. Article 51 says that "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security." Some scholars suggest that, read literally, this would bar preemptive action against Iraq. But other scholars reject this interpretation, saying that it would be absurd to suggest that the framers of the U.N. Charter sought to protect the aggressor's right to launch a first strike. They contend that the Charter was meant to enforce the "inherent right of individual or collective self-defense" as advocated by de Vattel and Grotius.
We believe that protecting this country from the possibility of an attack utilizing chemical or biological weapons like the anthrax and VX nerve gas which Saddam Hussein has refused to account for is self-defense and does not violate international law. President Bush is on strong legal ground in moving forward now.
Notwithstanding all of the above, the United States, which maintains full possession of its sovereignty, may authorize war. This power was exercised in October, when Congress, pursuant to Article I, Section 8 of the Constitution, passed legislation authorizing the use of force against Iraq. The president, who signed this legislation into law, is legally authorized to commence military action against Iraq under Article II of the Constitution. Thus, under international law and pursuant to our own Constitution, the United States is authorized to commence military action against Iraq.
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