Guest Column: U.S. use of force against Iraq would violate International Law
By Maria Berger
Last week, President Bush pressed the United Nations to issue a stricter Security Council resolution that would force Iraqi President Saddam Hussein to disarm or face military consequences. While Mr. Bush did not threaten war, he clearly implied that the United States would not wait long for the U.N. to act. On that same day, a senior administration official said that while Mr. Bush was still seeking a diplomatic solution, he was also considering his options for attack. A few days later, Prime Minister Tony Blair formally joined Mr. Bushs condemnation of Iraq, issuing a dossier charging Iraq with the development of weapons of mass destruction.Although Mr. Bush is preliminarily seeking U.N. approval, Britain and the U.S. have consistently maintained that they have all the necessary authorization required to use force against Iraq without any further action by the Security Council. This claim is so clearly erroneous that it can only be seen as an attempt to deliberately mislead the public about the international legality of the use of force against Iraq. No matter how we as citizens may feel about U.S. membership in the United Nations, we have signed and ratified that charter, and we continually use it to keep other nations, including Iraq, in check. We must, therefore, understand its provisions and urge our leaders to comply with its mandates.
All aggressive use of force against the sovereignty of another state is clearly prohibited by the U.N. charter. When there is a dispute, all diplomatic and other pacific means are to be pursued for the resolution of the problem. If pacific efforts do not bring about a successful resolution, the matter is to be brought to the attention of the Security Council. The use of force without a prior resolution by the Security Council is allowed only in cases of self-defense against an aggressive use of force. The Security Council does have the power under Article 42 of the United Nations charter to use force to maintain or restore international peace and security, but this must come through a Security Council resolution specifically authorizing this use of force following a determination by that organ that there has been a threat of the peace, a breach of the peace, or an act of aggression.
In order for the use of force against Iraq by any member nation to be legal, the Security Council would first have to find that the acts by Iraq constitute a material breach of the cease-fire provisions in Resolution 687 and that this breach constituted a threat to the peace or a breach of the peace. It would then be up to the Security Council to decide which member nations would take part and what measures would be used. Under no circumstance does the U.N. charter allow for the unilateral or collective use of force against another nation that is not an act of defense or specifically authorized by a Security Council resolution.
Britain and the U.S. purport to get this authorization from the original Resolution 687 (1991) implementing the sanctions. The claim is that the phrase, such further steps as may be required, authorizes the use of force by member nations, for the implementation of the present resolution…. This argument fails for two reasons.
First, this reading would import into the very general and ambiguous wording of the phrase the explicit authorization for the use of force that is required by the U.N. charter. Second, the full text of the statement reveals that the phrase is self-referential to the Security Council. The full text of the phrase in question reads, 34. Decides 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. U.N. S.C. Res. 687 (1991)(available at http://www.un.org last visited Dec. 13, 1997) This statement clearly only reflects a decision on the part of the Security Council to remain seized of the matter and take further steps if they are necessary. This is not an authorization for the use of force at the will of individual member nations, whether they are a part of the Security Council or not. Whether or not further steps are necessary, what those further steps are, and when those steps are to be taken is still only in the power of the Security Council to decide.
Therefore, it is clear that no member nation has Security Council authorization for the use of force against Iraq, and any such use of force would violate international law as an act of aggression against the sovereignty of another state, and a breach of the peace. As such, a military response by Iraq in defending that aggression would be a legal act of self-defense.
Additionally, since neither the U.S. nor Britain has any authorization to use force against Iraq, the threats of force that those countries have made against Iraq constitute an illegal threat to the peace. These threats are provocative in nature and have caused the unnecessary military escalation of the present conflict, which might have been dealt with through pacific means in the U.N.
The Security Council could theoretically take measures against the United States for these actions, but the U.S. veto power makes such action unlikely.
While the question of whether Iraq is indeed harboring weapons of mass destruction remains to be answered, what is clear is that the Bush administration is prepared to push a position that belies its unwillingness to abide by the same international laws it wants enforced against other nations. As long as other members of the Security Council have reservations about the use of force against Iraq, Washingtons best tactic would be to amass enough evidence to convince these nations that Hussein poses a true and imminent threat.
Maria N. Berger is a graduate of the University of Illinois College of Law and has written extensively as Business Manager for the University of Illinois Law Review.