Global Policy Forum

By Jim Lobe

The U.S.-led invasion of Iraq violates the basic rules of the United Nations Charter requiring countries to exhaust all peaceful means of maintaining global security before taking military action, and permitting the use of force in self-defense only in response to actual or imminent attack, two U.S. legal groups said Thursday.

The U.N. Security Council's refusal to approve a resolution proposed by the United States, Britain and Spain clarified that the weapons inspection process initiated by Security Council Resolution 1441 last November should have been permitted to continue before military action could be authorized, added The Lawyers' Committee on Nuclear Policy (LCNP) and the Western States Legal Foundation (WSLF).

The two groups, the U.S. affiliates of the International Association of Lawyers Against Nuclear Arms (IALANA), supported an open letter signed by 31 Canadian international law professors released Wednesday that called a U.S. attack against Iraq "a fundamental breach of international law (that) would seriously threaten the integrity of the international legal order that has been in place since the end of the Second World War." Such an action "would simply return us to an international order based on imperial ambition and coercive force," they added.

The legalities of the U.S. attack on Iraq have sparked considerable debate since Washington, Britain, and Spain decided to pull their proposed resolution from consideration by the Security Council in the face of almost-certain defeat by a majority of members, including the threat of vetoes cast by permanent Council members France and Russia.

By withdrawing the resolution and issuing an ultimatum to Iraqi President Saddam Hussein to leave the country or face attack--demands that have not been included in any Security Council resolution--Washington asserted its sovereign right to self-defense and its intention to enforce previous resolutions, including 1441, which called for Iraqi disarmament.

Some international lawyers, such as Yale University's Ruth Wedgwood, have claimed that the previous resolutions gave Washington adequate legal cover to unilaterally enforce disarmament, and that precedent for circumventing the Security Council was established when Washington and its NATO allies launched their air campaign against Serbia in 1999 without Council authorization. Another prominent expert, Anne-Marie Slaughter, argued that while technically "illegal," Washington's decision to take military action without Council backing might still be "legitimate."

Also citing the Serbia precedent, Slaughter, dean of the Woodrow Wilson School of Public and International Affairs at Princeton University, argued that Washington could still gain U.N. approval if its forces found "irrefutable evidence" that the Iraqi regime possessed weapons of mass destruction.

"Even without such evidence, the United States and its allies can justify their intervention if the Iraqi people welcome their coming and if they turn immediately back to the United Nations to help rebuild the country," she wrote in the New York Times.

"Even for international lawyers, insisting on formal legality in this case may be counterproductive," she said, arguing that supporters of international law should accept that the United Nations is a "political institution as well as a legal one."

But LCNP President Peter Weiss strongly denounced that reasoning, calling it "shocking beyond belief, coming from the current president of the American Society of International Law." LCNP and WSLF argued that Washington could not use the right of self-defense to start military action unless it was actually attacked or was threatened by an immediate and unavoidable attack. In the absence of those circumstances, according to WSLF Program Director Andrew Lichterman, only the Security Council may approve such a U.S. attack. "Because Iraq has not attacked any state, nor is there any showing whatever of an imminent attack by Iraq, self-defense cannot justify U.S. war on Iraq," he said.

The U.S. administration's attempt to expand the concept of self-defense to authorize preventive attacks against states based on potential future threats "would destabilize the present system of U.N. Charter restraints on use of force," Lichterman added.

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