Why can't the US 'legally' attack Iraq today?

This should maybe be in Great Debates but i am actually hoping for a factual answer to this question. The ethical and practical implications should be ignored for the sake of this thread (there are plenty of other threads around here getting into just that anyway).

By ‘legally’ attack Iraq I mean within the bounds of international law. Obviously the US can hang the law and do as it pleases but I hear on the radio frequently that other countries (e.g. Germany and France) feel a UN resolution to attack Iraq is necessary to stay within the bounds of international law.

From my perspective it would seem the US already has all the legal justification it could want to attack Iraq.

[li] Iraq takes regular potshots at US/Allied aircraft and has been for years. So far they’ve only managed to nail a few unmanned drones. Nevertheless doesn’t shooting at another country’s aircraft that are legally where they are supposed to be constitute an act of war?[/li]
[li] Saddam Hussein is in breach of his initial surrender agreement from the Gulf War. Technically doesn’t that allow the US to say the war is on again?[/li]
[li] Today on NPR someone mentioned that Saddam Hussein offers $25,000 to the families of suicide bombers and the person speaking mentioned that essentially constitutes an act of piracy which throughout history has been justification enough to go to war.[/li][/ul]

There may be other items (feel free to list any if you like). Those alone however would seem to me to be enough justification for the US to say to the UN that we are going to war and we are NOT in violation of anything. The UN may not like it but that’s a different issue.

Any scholars on international law around here who can say just what international agreements have to say about all of this?

  1. We can leave, then he won’t be able to shoot down our drones.

  2. Not familiar with the agreement, exactly. How do the other signatories of the agreement feel about it? Was the war declared by the U.S., or the U.N.? If the U.N., we could urge the U.N. to declare war, but for us to do it ourselves would be outside the box.

  3. Cite?

Long story short: We can’t do it because he hasn’t done anything worth that level of reprisal.

This doesn’t work. By that thinking any plane flying anywhere can be shot down and the shooter merely needs to say, “Hey, don’t fly there and you won’t get shot at.”

Good point…I don’t know what entity declared war and what mechanisms are there to re-start it.


In the 25 July 2002 issue of London Review of Books there was an article by Michael Byers, who teaches international law at Duke University in North Carolina, titled Jumping the Gun. In it he discussed the international law behind the current situation, at least in regards to the pre-emptive military action idea. It all goes back to an 1837 incident involving a Canadian revolt against the British, and a U.S. militia using a steamboat called the Caroline to transport arms and men across the Niagara River.

I can’t do Mr. Byers’s article justice, please read it in the link provided above. It should help shed some light on the subject.

However, if I may give my two cents, in light of Caroline, none of the actions you described in your OP would seem to constitute a military attack on the U.S. I think that’s why the administration is so desperate to connect Saddam w/ bin Laden.

Now, regarding the U.N. resolution about inspectors and disclosure and whatnot, that’s a whole other ball game as far as I know. But I get the impression that the U.N. has to give the green light before action may be taken on that front.

International law is incredibly complex, because it largely depends on what treaties each nation involved has ratified… there are several major treaties the United States signed but never ratified. Being a democracy, that’s as good as a pinky swear. I’ll leave my opinions on some of those treaties out of this coughICcough.

As for your 3 points, they are all also complex. On the one hand, they are enforcing the no-fly zone put in place by the (asinine) treaty signed to end the Gulf War. On the other hand, I don’t have a text of that treaty, so I don’t know if we have violated, when it ends, etc… Also, there are points such as the Nuclear Non-Proliferation Treaty which Iraq signed and broke.

In any case, treaty law isn’t exactly courtroom law… for one, treaties are broken in their details by pretty much everyone.

I don’t recall the UN charter forbidding military action by its members (which makes sense, since most UN member nations have taken part in non-UN sanctioned battles/wars at one time or another). At most, anyway, the UN would only be able to condemn the US and boot us out of more committees.



I think this is most relevant:

For justification of terrorism charges, see UN sources:



Interesting read but I don’t think the Caroline incident is completely applicable.

I am maintaining that what I cited in my OP do, in fact, constitute acts of war. Further, the Caroline was made up of a private militia and not technically an act of the US government. Splitting hairs maybe but many (maybe even most) countries support armed actions ‘behind the scenes’ so they themselves don’t get embroiled in the conflict themselves. Generally those don’t seem to constitute acts of war.

Iraq, on the other hand, is directly taking action. They are firing in US planes, they are paying suicide bombers (which are effectively smart bombs) to attack their perceived enemies and so on.

Is war only truly ‘justified’ when an opposing country lands 50,000 troops on one of your beaches? What does it take?

To follow modern international “law,” an attack on national territory or citizens, but a war isn’t a war until one of the parties declares it so. England and France declared war on Germany because of aggression against neighboring nations, much like we did with Kuwait - but they just kinda sat there for a year or so before Germany decided to invade France. On the other hand, America and the USSR did not declare war until they were attacked in turn. Going back to WWI, America didn’t declare war and later declared war for a hazy variety pack of reasons largely having to do with national politics and popular sentiment and very little to do with Germany doing anything different.

There is no black and white definition for war being justified, triggered, or decalred, including invasion, these days. Whether ANY war is justified will always be a debate, but war can be entered into at will, the only restraints being treaties and reputation.

Keep in mind that America has been sitting around taking part in unofficial shooting wars around the globe for the past 50 years. This is public when we do something stupid like shoot down an Iranian passenger jet or screw up invading island nations to our south or drop a few choppers into a city or the like. In fact, we’ve gotten quite good and unleashing a can of whoop ass and making the end result look like we didn’t (witness: Afghanistan).

I understand that the reality is different from the theory. International law is all well and good but doesn’t amount to much as it lacks in enforcement. Bottom line is countries will likely do what is in their own interest and screw the ‘law’. If they can claim the ‘right’ under international law then great…it’s worth something to say you are justified…but it isn’t likely to stop anyone.

Still, the US, at least for now, is trying hard to abide by international law (ok…skirting the edge for now and that may change). Nevertheless the effort is being made and other countries will hoot and holler that the US is not abiding by international law and gain whatever political juice they can from that.

By the definition above I’d say the US already has the ‘right’ to go to war but obviously it is dicier than that. I just don’t see why the US, in nice diplomatic terms, doesn’t tell the world that frankly we already have all the provokation we need to go to war. Anything else we do to avoid war (UN speechifying, sanctions and such) is merely because we’re being nice about it.

They won’t hollar about international law. They’ll hollar about it being unjust and imperialistic. The only people who would really complain about the law are the UN, Amnesty International, and the City of Berkeley. :-p

What we are looking for is justification, mostly domestic and regional. Your average American doesn’t like war, and has to be convinced that there is a reason - and this extends to a little thing called “Congress” we have which has something or other to say about it. If we find proof of the violations (of which the US has also been guilty, but shhh) we can say that we are going to war to do this and that, to protect the people of the United States.

Similarly, we need at least grudging apathy from the regional nations. The Saudis are hardly stable as is, but they’ll go along. Kuwait didn’t even support invading Iraq. They have some fairly legitimate concerns for what the US will leave in place of Saddam, and we can’t just walk into a hostile area and start knocking off leaders, or no one will work with us or value our treaties. We need a reason to do so, at least superficially, a reason that no other country can ignore.

Diplomacy is often a very subtle and silly game, but a necessary one. If we just walk in and drop a bomb onto Saddam’s lap a la “Hot Shots,” we’ll make more problems for ourselves than we could solve with it… this is what we did to piss everyone off and start the terrorism in the first place. :-p

By definition, International Law is an oxymoron.

Something that makes a nation a nation is the laws contained within it. There can be treaties and agreements etc. between nations, but not laws. The power to enforce a law stops at the border, and the only real way to extend that power across the border is to remove the border (i.e. make them one nation).

So saying whether its ‘legal’ or not for the US to attack Iraq today or anytime is completely meaningless.

*Originally posted by Whack-a-Mole *
[li] Iraq takes regular potshots at US/Allied aircraft and has been for years. So far they’ve only managed to nail a few unmanned drones. Nevertheless doesn’t shooting at another country’s aircraft that are legally where they are supposed to be constitute an act of war?[/li][/Quote]

The no-fly zones were never approved by the UN security council so technically under international law, that air space is Iraqi and they can shoot at intruders as they like. I’m not saying that I don’t think the no fly zones were not justified, but you did ask for the international law aspect…

[li] Saddam Hussein is in breach of his initial surrender agreement from the Gulf War. Technically doesn’t that allow the US to say the war is on again?**[/li][/quote]

I think his agreement to end hostilities was with the UN and so only the UN can legally re-start the war.

[li] Today on NPR someone mentioned that Saddam Hussein offers $25,000 to the families of suicide bombers and the person speaking mentioned that essentially constitutes an act of piracy which throughout history has been justification enough to go to war.**[/li][/QUOTE]

That’s an interesting interpretation of an act of piracy. But I do believe that Israel could invoke the right to self-defense against Iraq. I’m not sure how that pertains to allies like the US, I guess we could use that pretense. That just doesn’t happen to be the one we are using. Things could get diplomatically difficult considering many of the anti-Israeli funding comes from supposed US allies in the region.

Whack-a-Mole, you asked a question in GQ and I provided a link to a credible answer from a professor of int’l. law at a respectable university. Nothing mentioned in the OP has come about since 25 July 2002, I’m sure he was aware of them when he wrote the piece on the Caroline incident. With all due respect, if the professor of int’l. law doesn’t consider those to be acts of war, then maybe you should reconsider your position. Otherwise, ask a mod. to move this to GD.

Professors can have agendas too. I don’t think his article answered all of my questions and I gave one reason why I disagreed (I had other bones of contention as well). Even us poor, illiterate goobs are allowed our opinions. You’re free attach your opinions to those of others without insepction…I won’t.

If a Mod feels this needs to go to GD they are welcome (not that they need my permission). It may have been too broad and difficult a question to ask in GQ.

Some quick points here:

There is no “treaty” ending Desert Storm: the only document put in place was a “ceasefire”, officially known as UNSCR 687. Ceasefires are temporary, unlike treaties and armistices, so this weakens the US position considerably.

In addition, nowhere in the document are the overflights specified - they are not a condition of the ceasefire, so they can be considered (and are considered by many) to be without legal authority.

If you want support of Palestinian suicide bombers to be one of the conditions justifying a war, then why pick the Iraqis out of the bunch? They aren’t the only ones - the Saudis have contributed, as have people in Qatar and the UAE. Want to widen the scope of this war even further?

No matter how you cut it, it would still be up to the UN, as the deciding body and signatory to the ceasefire (the primary document terminating hostilities) to make any determinations of war, not the US. Unless, of course, us or one of our allies was under direct attack, which is not currently the case.

Thanks -


BTW here is a link to the document, if interested. http://www1.umn.edu/humanrts/peace/docs/scres687.html

I do not know the legal implications of a ceasefire vs. an armistice. To my mind it would seem a ceasefire would be an even simpler thing to undo. E.G. “We’ll stop shooting for now IF you do X, Y and Z. Don’t do those things and the shooting starts again.” Maybe too simplistic but any clarification would be nice.

They are specified now. Unfortunately my previous link to the relevant document above seems to have a time limit and it expired so I’ll provide the text again and a link one step back. Since this was passed I know a few unmanned spy planes have been shot down. I’m unsure if regular aircraft (with pilots) have taken fire or not.

Because Saddam has taken it from behind the curtain and placed it centerstage. His payments are well known and well advertised. Giving $25,000 to a given group could ostensibly be for humanitarian purposes (food and such even if everyone knows that isn’t really the case). Giving $25,000 (which I read is equivalent to a Palestinian family of around $600,000 if they lived in the US) to someone specifically if the blow themselves up AND take out Americans and/or Israelis is something else entirely. How does that differ from buying a $25,000 bomb and dropping it on a bus stop? I imagine most would find that an overtly aggressive act.

Regarding the cease-fire agreement: once again, whether temporary or not, it was not between the US and Iraq, but the UN and Iraq. Though we are a member of the UN, we are not the signatory party to the agreement.

UNSCR 1441 does indeed try to give some validation to the no-fly zones; I don’t know what a court would hold if such a “modification” were done in domestic civil or criminal law, but it probably wouldn’t be pretty. In this case, I think it would be safe to say that the UN was simply appeasing us by admitting the status quo.

Once again - Saddam is one of crowd on this last accusation: Saudi publicly set aside over $50 Million for this express purpose, and has done so publicly since at least 2000. Though the administration (and many others, obviously) refuse to admit it, it is absolutely no different from what Saddam has done. He has set an amount (so much for wounds, so much for dying in combat, the highest for a suicide), but the Saudis definitely pay out to individuals, not just organizations. A telethon last year raised $110 Million in support of “organizations” such as Hamas and Al Aqsa Brigades; however, the individual payments are documented. Like I have said before: I live here, and I see it - shows on television showing Saudis handing money to families of Palestinians killed by Israelis, and those that have blown themselves up as well. If you need the cites, no problem, but about 2 minutes on Google will tell you I am right. And, once again, you would have to classify them as “overtly aggressive” as Saddam; so where are the war drums, then?

Here is a quick link: it’s last year’s but it makes the point pretty clearly.



Not on points of fact.

Your argument that Iraq has engaged in acts of war against the U.S. and its allies boils down to this statement: “I am maintaining that what I cited in my OP do, in fact, constitute acts of war.” If they did, then by the quote from the Caroline article you offered, the U.S. would be justified. However, it doesn’t seem that firing on a third party who is taking sides in a civil war, breaking a treaty, and compensating the families of those who die fighting against apartheid and ethnic cleansing under the guise of “settlement” building by a gov’t. headed by a known war criminal and a state which hasn’t seriously sought peace for quite some time evidently don’t qualify as acts of war. If they did, you wouldn’t be asking the question.

Sorry the Caroline article didn’t hit your question on the head, but it did seem relevant. The “acts of war” argument seem to have been completely absent from the public debate, which has (from what I have seen) revolved around the pre-emptive defense issue, with the apparently sole exception of the Iraq-bin Laden link, as I mentioned before. Whether one agrees with the Bush=war slogans of the peace demonstrators, the fact remains that any legal justification the administration has to go to war makes the threat that much more powerful. At this point the theory that Bush is a hard-core peacenik who plays a mean game of brinkmanship is just as credible as the Bush loves killing theory. Surely, Bush would not weaken his hand by throwing away an ace! Why the admistration doesn’t consider those to qualify as acts of war is a question I can’t answer. But if they did, wouldn’t the administration utilize them to full effect?