Five Decade's Warning Unheeded

Invading Iraq: Declaring War on the Rule of Law

by Peter Erlinder, professor of law, William Mitchell College of Law and
past-president of the National Lawyers Guild

A limited victory could reasonably be claimed last week by the nations and peoples of the world who are opposed to the Bush Administration’s push for war against Iraq. Bush’s appearance at the U.N General Assembly to call for enforcement of the U.N. resolutions which require Iraq to cooperate with U.N. inspectors was an implicit recognition that even the U.S. cannot completely ignore the central principle of the U.N. Charter, which is that only the Security Council can authorize the use of force, unless a member state is acting in individual or collective self-defense. The domestic and international pressure has worked, to a point.

For months, Cheney, Rumsfeld, and other “desk chair warriors” had been declaring that the U.S. government had all the legal support it needed to justify the unilateral invasion of Iraq. They touted a doctrine of “pre-emptive self-defense” that, if taken seriously, would permit any nation to attack another based solely on the attacker’s assessment of the possibility of aggression by the nation being attacked. But, if such a justification for invasion were to be recognized in international law, it would mean the end of the United Nations as an arbiter of international conflicts. “Pre-emptive self-defense,” if raised to a general principle of international law, would invite and encourage all nations that calculated they could prevail on a first strike to act without reliance on international juridical bodies. “International law” and “the law of the jungle” would have few meaningful, fundamental distinctions.

The Administration had to argue for recognition of “pre-emptive self-defense” because there is no justification under the U.N. Charter, or existing international law, for an attack on Iraq by the U.S. All signatories of the U.N. treaty, including the United States of America, are required to settle all disputes by peaceful means and not use military force in the absence of an armed attack. Although Iraq invaded Kuwait in 1991 (with the apparent blessing of the then U.S. Ambassador April Glaspie), Iraq has not attacked any country in the past eleven years. Iraq’s neighbors have not felt sufficiently threatened to appeal to the Security Council to protect them from Iraq. There is no evidence that Iraq was responsible for the September 11 attacks, and the Bush Administration has not even attempted to make such a claim.

The only Security Council authorization of force against Iraq was the 1991 Persian Gulf Resolution to enforce Iraqi withdrawal from Kuwait as required by Resolution 678. That authorization ended on April 6, 1991, when Iraq formalized a cease-fire with the Security Council. Only the Security Council is empowered to take “further steps as may be required for the implementation of the resolution.” In Resolution 1154, the Security Council warned Iraq of the “severest consequences” if it continued its refusal to cooperate with weapons inspectors. However, the Council has only authorized those acts that “ensure implementation of this resolution and peace and security in the area” and did not authorize the use of force against Iraq.

Articles 41 and 42 of the U.N. Charter declare that no member state, not even the all-powerful U.S., has the right to enforce any U.N. resolution with armed force unless the Security Council decides there has been a material breach of the resolution and determines that all nonmilitary means of enforcement have been exhausted. Only then may the Council authorize the use of military force and must do so specifically. This means that, rather than authorizing another invasion of Iraq, the U.N. Charter and Security Council resolutions make clear that the United States has already been in violation of international law for more than a decade. Neither the “No Fly Zones” nor the repeated bombing of Iraqi territory by the U.S. under both Clinton and Bush has ever been authorized by the U.N. Security Council.

While the Bush speech was a victory of sorts, it also revealed the precarious state of the entire system of international law when the world’s sole hyper-power can threaten to make the United Nations, itself, “irrelevant” by taking unilateral military action if the U.N. Security Council refuses to do its bidding. Before the collapse of the Soviet Union, such a demand would have been absurd, given the ability of any member to veto Security Council resolutions.

However, under present circumstances, as reported in the September 13 Washington Post, all permanent members of the Security Council (the U.S., Russia, China, Great Britain, and France) will directly benefit from free access to Iraqi oil reserves. But the U.S. will benefit the most by occupying a postwar Iraq. The new reality is that the Security Council no longer provides the counterbalance between superpower interests upon which the veto system was premised.
As a result, it is quite likely that the Security Council will renew its demand for Iraqi cooperation with inspectors. It is also likely that U.N. military action, with the United States providing most of the firepower, is likely to be approved if the Iraqi government fails to comply.

Former U.N. inspector Scott Ritter, who spent seven years in Iraq with the UNSCOM weapons inspection teams, has said, “There is absolutely no reason to believe that Iraq could have meaningfully reconstituted any element of its [weapons of mass destruction] capabilities.” Even chief U.N. weapons inspector Rolf Ekeus of Sweden has stated that Iraq poses a “marginal threat.” There is no evidence that Iraq has developed nuclear capabilities since 1991.

Under these circumstances, why would a rational Iraqi government hesitate for even a moment in granting U.N. inspectors access, if they weren’t hiding a horde of “weapons of mass destruction” that the former weapons inspectors don’t think exist? [Editor’s Note: Since this writing, Iraq extended an invitation to U.N. weapons inspectors.] Iraqi reluctance to cooperate may be a bit more understandable if one recalls that the Clinton Administration admitted that its bombing of Iraq was aided by information provided by CIA operatives, spies who had infiltrated the U.N. inspection teams the last time the “inspectors” were in Iraq. Iraq has learned that admitting U.N. inspectors actually results in better targeting for future U.S. military attacks. Also, the U.N. has never condemned the U.S. and British post-cease-fire bombing of Iraq as the ongoing violation of international law that the bombing represents.

However, under the U.N. Charter, if the U.N. Security Council would authorize the U.S. to attack Iraq, the attack would be “legal” under international law. Whether it is actually necessary, or wise, is another question. The likely result of Security Council authorization would be a “United Nations” military operation in name only. A similar “U.N.” operation, composed almost entirely of American troops, was directed against North Korea in the early 1950s and continues to occupy the Korean peninsula in spite of persistent demands from many Koreans, both North and South, that the foreign troops be removed. In light of these realities, Iraqi reluctance may not be as irrational as it might appear.

However, even if the invasion were lawful under international law, because the Security Council authorized the invasion, the subsequent war against Iraq would still violate the U.S. Constitution and the War Powers Act, if it were to occur without additional Congressional authorization. While the U.N. treaty is part of the supreme law of the land under article 6, clause 2 of the U.S. Constitution, thus presumably allowing the United States to use military force under the auspices of the United Nations Charter, other sections of the Constitution would seem to require more than a Security Council resolution before American troops could be put in harm’s way in Iraq.
Article I, section 8 of the Constitution empowers Congress, not the president, to debate and decide to declare war on another country. The War Powers Act (enacted to provide a balance between presidential claims of the need for quick action and the Congressional prerogative to declare war) specifically authorizes the commander in chief to introduce troops into “hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances,” only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) “a national emergency created by attack upon the United States, its territories, or possessions, or its armed forces.” But, even in such an emergency, the commitment of troops can last no more than 90 days without specific Congressional approval.

As of this writing, Congress has not declared war on Iraq, no statute authorizes an invasion of Iraq and Iraq has not attacked “the United States, its territories, possessions, or armed forces.” But Administration lawyers have argued that Bush needs no new approval from Congress by citing a 1991 Congressional resolution authorizing the use of force in the Persian Gulf, and the September 14, 2001, Congressional resolution authorizing the use of force against those “responsible for the September 11 attacks.” However, the stated purpose for hostilities in 1991 was to repel the invasion of Kuwait, which ended with the signing of the accord with the U.N. Security Council in April 1991. The September 14, 2001, resolution only authorized the use of armed force “against those responsible for the recent [September 11, 2001] attacks against the United States.”
Using the September 14 resolution as justification for war against Iraq would require one of two interpretations: (1) a showing that Iraq was instrumental in the September 11 attack, or (2) acceptance of the Administration’s claim that this Congressional resolution allows military action against any nation or entity which the Administration chooses to accuse of “terrorism,” without further Congressional approval (in essence a “blank check” for a never-ending “War Against Terrorism”).

With respect to the first argument, the Bush Administration has not provided any evidence to support a connection between the secular Iraqi government and Al-Qaeda Islamists, who have sworn opposition to all secular Arab governments, including the government of Iraq. Acceptance of the second argument means that we have become a nation in which perpetual war may be pursued, as long as it serves the interests of the administration in power.

This second possibility is important to reflect upon. The regime of Bush I fell when the Gulf War ended and the American people awoke from the stupor of “support-the-troops patriotism” to find a shattered economy. Political advisors to Bush II must certainly understand that the present state of the economy carries the same or greater risk. It must have occurred to at least one of his political advisors that this “War Against . . . Someone” must last until at least 2004, or Bush II could well suffer the same fate.