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War on Iraq Based on Shaky Legal Ground - Empire? - Global Policy Forum War on Iraq
Based on Shaky Legal GroundBy Dominic Evans
Reuters
March 28, 2002
If U.S. President George W. Bush extends his "war on terror" to strike against Iraqi President Saddam Hussein, he will not just be walking into a military minefield.
He might be breaking the law.
Bush has fanned expectations that his administration will take its battle to Saddam by naming Iraq in a three-strong "axis of evil" and ratcheting up his rhetoric against Baghdad over its obstruction of United Nations weapons inspections. But legal experts say that, without a new United Nations Security Council resolution explicitly backing the use of force, the justification for strikes against Baghdad is at best shaky.
The United States and its close ally Britain say Saddam is already violating several U.N. resolutions, putting him in material breach of the 1991 Gulf War ceasefire reached after his troops had been expelled from Kuwait. "Legally we would be perfectly entitled to use force as we have done in the past without the support of a United Nations Security Council resolution," British Defence Secretary Geoff Hoon said earlier this week.
In fact it is unclear whether the law is on the side of Bush and British Prime Minister Tony Blair. At issue are two questions - whether the Gulf War ceasefire allows a resumption of conflict if Iraq fails to cooperate, and whether pre-emptive action can be justified to avert a military threat or humanitarian disaster.
U.N. Security Council resolution 687, adopted shortly after a U.S.-led coalition expelled Iraqi forces from Kuwait in March 1991, formally brought hostilities to a close. It also demanded that Iraq destroy all its weapons of mass destruction. "The ceasefire is clearly conditional on Iraq doing certain things. If Iraq is in violation of those terms then the ceasefire is called into question," said Adam Roberts, professor of international relations at Oxford University.
The difficulty for Washington lies in the phrasing of the resolution, which appeared to leave responsibility for overseeing that ceasefire with the U.N. Security Council itself, not individual states. "There is no provision for enforcement in the resolution which authorises states to carry out military action," said Durham University's Professor Colin Warbrick. "It's for the Security Council to decide what action to take."
Seeking a mandate for use of force from the council - where veto-wielding members China, Russia and France have all expressed concern at possible military action against Iraq - would be a huge task for Bush.
SELF-DEFENCE?
The justification for military strikes as self-defence - invoked in Afghanistan - or as part of a humanitarian intervention as in NATO's 1999 *Kosovo* campaign and Britain's deployment to Sierra Leone a year later, is also disputed. "The argument is not to alleviate a humanitarian tragedy in Iraq but to make it comply with the United Nations, or in a broader context...that it is prevented in engaging in terrorism," said Warbrick.
The self-defence argument was "too remote" because Washington could not convincingly portray Iraq's alleged weapons of mass destruction as an immediate threat, he added. The same questions have been raised about sporadic punitive air strikes against Iraq since 1991 and the "no-fly zones" over northern and southern Iraq patrolled by U.S. and British pilots.
The two countries say the zones, set up without a specific U.N. mandate, were justified on humanitarian grounds to prevent Saddam persecuting Shiites in the south and Kurds in the north.
"To maintain this justification over what is now literally a decade, one would need to demonstrate that there are populations in danger of imminent destruction and that this measure is strictly necessary to avert that danger," said Marc Weller of the Centre of International Studies at Cambridge University.
"There has not even been a serious attempt over recent years to make this argument," Weller said, adding that pilots' rules of engagement had been widened to include attacks on targets which appeared to pose no threat to their patrols.
Washington and London have shown in the past that they are prepared to act alone and without a specific U.N. backing. In December 1998 they launched four days of air strikes against Iraq to punish Saddam for hindering some weapons inspections. But this time, the stakes are higher. "What may be at issue is major war," said Oxford University's Roberts.
"LAW OF THE JUNGLE"
Britain's Foreign Secretary Jack Straw was less certain than his cabinet colleague this week that there was a green light for action. Straw, a lawyer like Defence Secretary Hoon, said Washington and London "don't have a mandate to invade Iraq now". Iraq has argued for years that the Gulf War ceasefire brought hostilities to a complete halt.
But a senior British diplomat argued in a foreign policy pamphlet this week that there was a powerful case for active intervention to address security threats and that sometimes Western countries would have to break the rules.
"Among ourselves, we operate on the basis of laws and open co-operative security," said Robert Cooper. "But when dealing with more old-fashioned kinds of states outside the postmodern continent of Europe, we need to revert to rougher methods of an earlier era - force, pre-emptive attack, deception," he wrote.
"Among ourselves, we keep the law but when we are operating in the jungle, we must also use the laws of the jungle".
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