Is the war about to happen illegal?

This is obviously a heated matter and it is easy to lose one’s cool, but please try and focus on the scope of this OP, and this OP only, which includes: UNSC resolutions, their context, and their scope. Please leave personal opinions on the motivations of respective administrations out of it.

The case is this: is this war actually illegal, given the resolutions that were passed against Iraq in the decades past and recent history (at least up to 1441)?

Washington Post briefly discusses different sides.

UNSC Resolution 1441. UNSC Resolution 687. UNSC Resolution 678. These are the documents referenced in the article (you’ll need to browse to them, I get errors when I link directly).

So what I want to hear is, in light of these resolutions, is a move against Iraq really unauthorized, even if unpopular?

[sub]If this has been debated here previously, then I apologize and please link me to the discussion.[/sub]

I know nothing about international law.

In the U.S., there are certain rules to be followed when interpreting a statute. For example, if the plain meaning of the law is clear, a court may not delve into the legislative intent behind the law, unless the plain meaning would lead to an absurd or nonsensical result.

If we accept the UN Charter as “law,” and the resolutions of the Security Council as law, and apply the above rules, I would say the action contemplated by the US is legal.

But I have no idea if that method of analysis is correct under international law.

  • Rick

Check this thread:

Basically, it is the US’s contention that the UN did not meet its responsiblity with regard to Resolution 1441 and that a second resolution to pronounce an deadline is not specifically needed when 1441 already has language that would accomodate military action against Iraq, just not a set date.

Another argument is that the Gulf War actually never ended officially. Combat stopped because a cease-fire was agreed to by Iraq. They have not lived up to the cease-fire, so it is over and combat resumes.

I just came from my International Law class where this was, unsurprisingly, one of the day’s major discussion topics.

The consensus among the students, our professor, and the visiting law professor from the UK, was that Bush’s only real claim to legality rests on an interpretation of the phrase “to restore international security and peace in the area” (678) that is, at best, questionable. It becomes even more questionable when you remember that at the end of the Gulf War, Bush Sr. said that the mandate had been accomplished.

That point is debatable, and I’m sure people will debate it. Something that is more clear is that the majority of the international community is opposed to this war, and that counts for a lot in international law. That’s one of the differences between international law and domestic law – it’s not just a matter of what’s written down, but also involves customary practice and international opinion. This makes determining the legality of the upcoming war tricky. I personally cannot find much legal justification for it, but plenty of people who know more about these things than I do obviously disagree.

This is an interesting question, and since there isn’t much discussion here in the US, I have been interested in the discussions in the UK on this topic.

It had been speculated earlier that Blair may have been advised that it would be illegal without a second UN resolution, which related to why he wanted the second resolution.

But in an unprecedented release, the British Attorney General released his legal opinion for the perusal of the MPs. This article out of the London Times lays out his assessment.

Like kniz above, it basically rests on the laurels of Resolution 687 (the ceasefire agreement), and that Resolution 1441 didn’t effectively change anything. I have little doubt that Ashcroft has advised Dubya similarly.

If I were to argue the other side, I would point to the words of the UN Ambassadors of both the US and UK right after 1441 was passed, both of which made the point that 1441 did not contain any triggers for the use of force. It was quite clear back in October that neither Ambassador understood that 1441 authorized force.

And then add to fact the very public effort to seek a second UN resolution, including Dubya’s words to effect that it would be called, no matter the whip count, to see who stood where on the issue. And then the administration’s decision to not put the vote to the UNSC since France had promised to veto.

If it is legal, it is really on thin ice, IMHO.

Note: 1441 included “serious consequences” for continued material breach, whereas the magic words of the UN to authorize force in the past was “any means necessary”, such as was included in 678 and 687.

In any case, for anyone interested in this topic, I recommend the quick read of the article linked above.

Thanks for the link, X~Slayer(ALE).

kniz, do you have the text of the cease-fire agreement? Because, hey, I don’t think we’ve stopped bombing them for the passed decade, either.

Bricker, that was kind of my reading, too, until I wandered into this article (from the thread linked to by Slayer). It seems even then there was debate about 1441. Two interesting quotes:

I’m thoroughly confused.

Lamia, thanks for the contribution, though I guess you’re right, it is hardly serendipitous. Is it your suggestion (perhaps even as a proxy speaker for what you heard, don’t want to pin you down per se) that though the UNSC is an ostensible forum of international opinion, and as such, its resolutions are always up for discussion? International politics and law are somewhat mysterious to me, and I thought the wording was plain but seemingly it isn’t plain enough. Do you suppose this possible ambiguity referred to in the article quoted above would be enough to make the war illegal?

On preview… no time to respond to AZCowboy’s post yet, sorry! ::rushes back to work::

Speaking of ambiguity… what I meant to ask was, do you think there is a prima facie case here because of the initial resolution for force, and the corresponding cease-fire?

I’m sort of trying to understand things… if the initial resolution is still in effect, then why 1441? Is 1441 the sort of document meant to say, “Look, we’ve got a cease-fire here, and there are terms, and if you aren’t meeting them then the cease-fire is off”? Is that America’s case (disregarding rhetoric)?

Trudging through these resolutions is not easy work for me.

(Of course this is meant to be an open question, not to pick on kniz.)

AZCowboy, a quickie since I have a moment… if it is on thin ice, do you suppose another country like, say, Russia, could put forth a resolution condemning the US (even if we were to veto it I think it would be a politically impressive move) by citing other resolutions?

That’s more or less my concern… I understand international opinion is low, but given the agreements reached so far in the UNSC, does international opinion have a leg to stand on (even noting Lamia’s mention about international opinion and international law)? Some think it does with what was said about 1441… but I remain confused on the issue.

Isn’t everything always up for discussion? :wink: With the United Nations and the UNSC, you’ve also got the question of authority – it isn’t really a world government, after all. Some question whether the UN should have the right to authorize the use of force under any circumstances. But I really don’t know enough to offer an informed opinion here.

As AZCowboy explained, 1441 was previously understood as not authorizing the use of force. If the US formerly accepted it that way, we can’t turn around and say that we think it does justify the use of force after all even if the phrasing does seem open to interpretation. Appeals to 678 and 687 are also problematic, as their mandates seem to have been fulfilled long ago so they shouldn’t apply anymore.

Of course, the countering opinion is that the mandates were never fully fulfilled, so those resolutions do still apply. But while that opinion has its supporters, it is not the one held by the other big players (or many of the small players) in the international community. If they decide this war is illegal then we may have some 'splaining to do…and it’ll have to be a lot more convincing than anything seen thus far. In my decidely non-expert opinion, if we get away with this it will be on the strength of the US’s status as a world superpower, not because there’s any solid legal justification for a war with Iraq at this time.

I’ve said it before and I’ll say it again. The UN is neither a world court nor a legislator of international laws. It is merely a world embassy.

There is no such thing as international law. It is an oxymoron. It is a contradiction in terms. We are a planet of nation-states. Laws begin and end at the national borders. Period. End-of-discussion.

Having the whole planet follow a common set of laws would be a great thing, but it is incredibly naive, not to mention potentially disastrous, to think that international law can exist simply because you really really want it to.

To hopefully kill that hijack, Hail Ants, you might note that nations’ laws themselves are only there because someone really really wants them to be. If everyone but the US, hypothetically, thinks there is international law, thinks we violate it, and takes action against us for it, I’m inclined to at least consider the possibility that there may, in fact, be international law. Its structure is just different from laws within a nation, is all. Furthermore, any body which can reprimand, impose sanctions, and muster incredible physical force to “get its way” has as much a claim to being “the law” over nations as any nation does over its citizens. Perhaps MHO, but there you have it. It has as much claim to dictate “law” as international contracts have claim to being real contracts, which are—perhaps not surprisingly—sometimes settled in international courts.

The federal government is not a fiction to NY’s governor, even if the methods, scope, and composition differ drastically.

Hijack?! Ahem, the OP was Is the war about to happen illegal? so I don’t see my post as any kind of a hijack.

But you also might note that they really want them to be because, for the most part, the people are all really really similar in beliefs, culture, religion i.e. they’re a nation!

IANAInternational lawyer but as already mentioned we were all acting like we needed a second resolution a year ago, suddenly a new interpretation? Fishy.

The point I thought was important all along was as AZCowboy said:
Note: 1441 included “serious consequences” for continued material breach, whereas the magic words of the UN to authorize force in the past was “any means necessary”, such as was included in 678 and 687.

How grievous it is considered will be a tricky matter. What kind of censure will the rest of the world attempt? Remembering of course that any “judgement” will be ignored with extreme prejudice.

Kofi Annan just stated in a news conference that if the US proceeds to attack Iraq without the UN’s blessing, the legitimacy of that action would be questioned. Sounds like he is choosing his words carefully, but basically saying it would be illegal.

BTW, the no-fly zones were not established by any UN resolution, and are definitely a violation of international law, as stated by Boutros-Ghaly (or however you spell his name). Thus, any argument that the first Gulf War never ended and it is OK to continue it is bogus. The first Gulf War ended and the US and UK began an illegal action, and now are trying to initiate another illegal action.

Yes, there is such a thing as “international law”. But the question becomes, how do you enforce international law? There is no extranational body that enforces international law, nations have to enforce it themselves. If the US acts, what consequences can or will the rest of the nations of the world enforce against them? The war is illegal only if the rest of the world enforces meaningful consequences against the US. And no matter how upset the rest of the world is, they are not going to enforce anything against the US. So, therefore, the invasion is not illegal, since nothing is going to be done about it except for some strongly worded letters and speaches.

I think your implication arrow is pointing the wrong way.

Blair advised ‘war on Iraq is legal’

Just thought I’d add that to the debate. Bush’s Solicitor General has also said the war would be legal, as has Australia’s PM.

I ran into this while reviewing a summary of the debates in the UK today:

It doesn’t matter whether or not it’s legal or illegal. Who is going to have the gaul to stand up against the United States, and say “nuh uh, that’s illegal Mr Bush.” Honestly who?
Justify the war as they may, it is now inevitable, and that means come Wednesday, a lot of innocent people are going to die…