Iraq Invasion against U.S./int'naI law

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Posted by andreas from ( on Thursday, September 12, 2002 at 1:09AM :

Re: Legality i.e. legalization i.e. rationalization of pre-emptive US
strike against Iraq

Hi all,

... Personally I wouldn't rely too much on the waxy US congress and the UN;
can be
easily undermined by their own ineptitude and moral weakness and - if then
necessary at all - by either covert actions (see eg. CIA press infiltration
and mediocracy,
pressure via the Scientology crowd etc. etc.) or by blackmail and pressure
on the diplomatic floor.
That at least the latter is not to be excluded with regard to the UN is
suggested and proven by the latest US machinations, plots and shoot downs
in case of

a) the ICC - International Criminal Court;
b) UN High Commisioner for Human Rights Mary Robins
c) Robert Watson, the much-respected chair of the Intergovernmental Panel
on Climate Change
d) Jose Mauricio Bustani, the head of the Organization for the Prohibition
of Chemical Weapons (OPCW)
(e) ... and still others to come ...

Neither body works in crucial questions on a democratic referendum basis
which would genuinely involve the people in a timely and appropriate way,
but on the basis of an illusionary statistical 'representation', i.e.
delegation, i.e. abdication by the people of their morality and
intelligence, and both bodies move on and on with a dramatically inadequate
sense of transparence, openness, checks & accountability.



Professor Marjorie Cohn

Thomas Jefferson School of Law

JURIST Contributing Editor

Despite opposition by many prominent Republicans, Dick Cheney and George W.
Bush are mounting an intensive public relations campaign to justify their
pre-ordained invasion of Iraq. A preemptive strike against Iraq would
violate the Constitution and the United Nations Charter.

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 Resolution provides that the “constitutional powers of the President
as Commander-in-Chief to introduce United States Armed Forces into
hostilities, or into situations where imminent involvement in hostilities
is clearly indicated by the circumstances, are exercised 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.”

Congress has not declared war on Iraq, no statute authorizes an invasion
and Iraq has not attacked the United States, its territories, possessions
or armed forces. President Bush’s lawyers have concluded that he needs no
new approval from Congress. They cite 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 Sept. 11 attacks.

These two resolutions do not provide a basis to circumvent Congressional
approval for attacking Iraq. The January 12, 1991 Persian Gulf Resolution
authorized the use of force pursuant to U.N. Security Council Resolution
678, which was directed at ensuring the withdrawal of Iraq from Kuwait.
That license ended on April 6, 1991, when Iraq formalized a cease-fire and
notified the Security Council. The September 14, 2001 resolution authorized
the use of armed force “against those responsible for the recent [Sept. 11]
attacks against the United States.” There is no evidence that Iraq was
responsible for the Sept. 11 attacks.

A preemptive invasion of Iraq would also violate the United Nations
Charter, which is a treaty and part of the supreme law of the United States
under Article 6, clause 2 of the Constitution. It requires the United
States to settle all disputes by peaceful means and not use military force
in the absence of an armed attack. The U.N. Charter empowers only the
Security Council to authorize the use of force, unless a member state is
acting in individual or collective self-defense. Iraq has not attacked this
country, or any other country in the past 11 years. None of Iraq’s
neighbors have appealed to the Security Council to protect them from an
imminent attack by Iraq, because they do not feel threatened.

Cheney and Bush cite the possibility that Iraq is developing weapons of
mass destruction as the rationale for a preemptive strike. Iraq is in
violation of Security Council Resolution 687, which requires full
cooperation with U.N. weapons inspectors. But this issue involves the Iraqi
government and the United Nations. The Security Council did not specify any
enforcement mechanisms in that or subsequent resolutions. Only the Security
Council is empowered to take “further steps as may be required for the
implementation of the resolution.” Although the Security Council warned
Iraq, in Resolution 1154, of the “severest consequences” if it continued
its refusal to comply, the Council declared that only it had the authority
to “ensure implementation of this resolution and peace and security in the

Articles 41 and 42 of the U.N. Charter declare that no member state has the
right to enforce any resolution with armed force unless the Security
Council decides there has been a material breach of it resolution, and
determines that all nonmilitary means of enforcement have been exhausted.
Then, the Council must specifically authorize the use of military force, as
it did in November 1990 with Resolution 678, in response to Iraq’s
occupation of Kuwait in violation of Security Council resolutions passed
the previous August. The Security Council has not authorized any use of
force for subsequent violations involving Iraq.

Moreover, the claim by Cheney and Bush that Iraq has developed weapons of
mass destruction is spurious. 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.” Ritter, a
twelve-year Marine Corps veteran who served under General Norman
Schwarzkopf in the Gulf War, maintains that the Iraqis never succeeded in
developing their chemical and biological agents to enable them to be
sprayed over a large area. It is undisputed that Iraq has not developed
nuclear capabilities.

There is no legal justification for a preemptive attack on Iraq. Only
Congress can authorize the use of United States armed forces, and only the
Security Council can sanction the use of force by a U.N. member state. Both
are necessary; neither has been forthcoming.

Marjorie Cohn, an associate professor at Thomas Jefferson School of Law in
San Diego, is on the national executive committee of the National Lawyers
September 2, 2002

(Response to the above article:)

Tuesday September 03, 2002 at 3:32 pm

Preemptive Self-Defense is Widely Condemned – Jordan J. Paust "Predominant
trends in decision" demonstrate widespread expectations and intense demands
that the use of armed force merely for preemptive or retaliatory purposes
is inconsistent with the purposes of the United Nations Charter and is
proscribed under Article 2 (4) of the Charter.

See, e.g.,
-- Ian Brownlie, International Law at the Fiftieth Anniversary of the
United Nations Charter, 255 Rec. des Cours 203-04 (1995);
-- Michael Byers, Terrorism, The Use of Force and International Law After
11 September, 51 Int’l & Comp. L.Q. 401, 401 & n.1, quoting U.N. S.C. Res.
188 (9 Apr. 1964), U.N. Doc. S/5650 (“The Security Council... [c]ondemns
reprisals as incompatible with the purposes and principles of the United
Nations.”), 410 (“Until 11 September, any right to pre-emptive action was
widely contested...firmly rejected”) (2020);
-- Jonathan I. Charney, The Use of Force Against Terrorism and
International Law, 95 Am. J. Int’l L. 835, 835 (2001);
-- Tom J. Farer, Beyond the Charter Frame: Unilateralism or
Condominium?, 96 Am. J. Int’l L. 359, 360 (2002); Sean D. Murphy, Terrorism
and the Concept of “Armed Attack” in Article 51 of the U.N. Charter, 43
Harv. Int’l L.J. 41, 42 (2002);
-- Jordan J. Paust, Responding Lawfully to International Terrorism: The
Use of Force Abroad, 8 Whittier L. Rev. 711, 713, 717-19 & n.21, 723
-- Sreenivasa Rao Pemmaraju, International Organizations and Use of
Force, in 2 Liber Amicorum Judge Shigeru Oda 1575, 1578-79 & n.10 (Nisuke
Ando, Edward McWhinney, Rudiger Wolfrum eds. 2002) (anticipatory
self-defense is impermissible);
-- Gregory M. Travalio, Terrorism, International Law, and the Use of
Military Force, 18 Wis. Int’l L.J. 145, 157 (2000) (Israeli retaliatory
raids have been constantly criticized by the U.N. Security Council or the
General Assembly);
-- U.N. S.C. Res. 573 (4 Oct. 1985) (condemnation of Israeli reprisal
against the PLO Headquarters in Tunis, Tunisia as an “act of armed
aggression perpetrated by Israel against Tunisian territory in flagrant
violation of the Charter of the United Nations, international law and norms
of conduct”);

but see
-- W. Michael Reisman, International Legal Responses to Terrorism, 22
Hous. J. Int’l L. 3, 18-19 (1999). The United States abstained with respect
to U.N. Security Council Resolution 573 in 1985, noting the “escalating
force and counter-force,” “the rising spiral of violence” and Israel’s
“responses to [prior] terrorist attacks,” but stated that the U.S. strongly
supports “the principle that a state subjected to continuing terrorist
attacks may respond with appropriate use of force to defend against further
attacks” as “an aspect of the inherent right of self-defense recognized in
the United Nations Charter.” See Statement of Ambassador Vernon A. Walters,
reproduced in Reprisals, 80 Am. J. Int’l L. 165, 166-67 (1986).

Professor Jordan J. Paust
Law Center, University of Houston

-- andreas
-- signature .

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