THE LEGAL WAR JUSTIFICATION FOR MILITARY ACTION IN IRAQ

Document Sample
THE LEGAL WAR JUSTIFICATION FOR MILITARY ACTION IN IRAQ Powered By Docstoc
					TAIT                                                                                           11/1/2012




       THE LEGAL WAR: A JUSTIFICATION FOR
            MILITARY ACTION IN IRAQ
                                          Adam P. Tait*

                          Cite as: Adam P. Tait, The Legal War:
                         A Justification for Military Action in Iraq
                              9 GONZ. J. INT’L L. 96 (2005),
                        available at http://www.across-borders.com


    I. INTRODUCTION .................................................................................. 96
   II. THE ROLE OF SECURITY COUNCIL RESOLUTIONS DURING THREATS TO
       INTERNATIONAL PEACE AND SECURITY ............................................ 98
  III. THE HISTORY OF IRAQ AND THE UN SECURITY COUNCIL ............. 100
  IV. EXISTING SECURITY COUNCIL RESOLUTIONS JUSTIFIED ARMED
       FORCE AGAINST IRAQ ..................................................................... 105
   V. THE RIGHT OF SELF-DEFENSE JUSTIFIED THE INVASION OF IRAQ .. 110
  VI. CONCLUSION ................................................................................... 114


                                     I.     INTRODUCTION

     On September 15, 2004, in a radio interview with the BBC, United
Nations Secretary General Kofi Annan declared that the military campaign
against Iraq in March of 2003 was “illegal,” calling into question, yet again,
whether the decision to remove Saddam Hussein from power was in line
with customary international law.1       Annan’s comments echoed the
sentiments of several nations (most notably Russia, France, and Germany),
as well as some international legal scholars, that the actions of the United
States (“US”), the United Kingdom (“UK”), and a “coalition of the willing”


* Adam P. Tait is a 2005 graduate of Gonzaga University School of Law, cum laude. Mr.
Tait will begin practicing commercial litigation at the Spokane firm of Reed & Giesa, P.S., in
the fall of 2005. Mr. Tait would like to thank his lovely wife, Nicola, and his son Riley, age 4,
and daughter Paige, age 2 for the support and joy they give him.
      1
            Patrick E. Tyler, U.N. Chief Ignites Firestorm By Calling Iraq War ‘Illegal,’ NEW
YORK TIMES, Sept. 17, 2004, at 11.

                                                 96
TAIT                                                                               11/1/2012




Fall 2005]                           The Legal War                                      97

did not conform to the United Nations (“UN”) Charter.2 Meanwhile, both
the US and the UK argued that the action was justified under international
law due to the combined effect of numerous UN Security Council
resolutions concerning Iraq.3 In September 2002, for example, President
George W. Bush spoke to the UN about the danger that Saddam Hussein
and his Ba’ath regime posed to the free world, citing Iraq’s continuing
repudiation of Security Council resolutions and the threat it posed to
international peace and security as a justification for military action.4
     This article examines the justifications for the war, and details two
reasons why the invasion of Iraq was legal under customary international
law. First, existing Security Council resolutions were valid and effective in
2003 to authorize the United States and other member states to participate in
the military effort against Iraq. Because those resolutions had never been
repealed or extinguished, and because events of the past 13 years made clear
that those resolutions still had effect, the US and UK were correct to justify
their actions on those resolutions. Second, this article will argue that the
effort was justified as preemptive self-defense as codified in Article 51 of
the UN Charter. Because Iraq posed a possibly imminent threat to the
collective security of the world, and because the definition of imminence
has changed in a post-Sept. 11 world, the coalition effort to remove Saddam
Hussein from power was an appropriate response to the Iraqi threat.
     This article is separated into four parts. Part I examines the role of the
UN Security Council during times of international conflict and threats to
peace and security. Namely, this section discusses the Security Council’s
ability to address specific threats, as well as the shortcomings and
inadequacies of this body. Part II details the history of events concerning
Iraq since Saddam Hussein’s forces first entered Kuwait in 1990. This
article provides a description of important Security Council resolutions that
concerned Iraq’s actions and refusals to abandon its Weapons of Mass
Destruction (“WMD”) programs. Part III argues why military action by
coalition forces against the regime of Saddam Hussein and the Ba’ath Party
was justified according to existing Security Council resolutions. Part IV
explains that military action was justified according to the inherent right to
self-defense, as codified by Article 51 of the UN Charter. Further, this
section demonstrates that state practice over the course of history affirms
the inherent right of self-defense. In conclusion, this article will offer some

       2
          Id.
       3
          See US Secretary of State Colin L. Powell, Briefing on Situation with Iraq (March
17, 2003), available at http://www.state.gov/secretary/former/powell/remarks/2003/
18771.htm.
    4
          George W. Bush, Address at the UN General Assembly (Sept. 12, 2002), in 38
Wkly Comp. Pres. Doc. 1529 (Sept. 16, 2002), available at http://www.whitehouse.gov/
news/releases/2002/09/20020912-1.html.
TAIT                                                                      11/1/2012




98                       Gonzaga Journal of International Law             [Vol. 9:1


suggestions to resolve the disputes that arose over the debate concerning
military action in Iraq.

II. THE ROLE OF SECURITY COUNCIL RESOLUTIONS DURING THREATS TO
               INTERNATIONAL PEACE AND SECURITY

    The Security Council is perhaps the most well known organ of the
United Nations, and surely the most controversial. Paragraph 1 of Article
24 of the UN Charter states:

           In order to ensure prompt and effective action by the United Nations,
           its Members confer on the Security Council primary responsibility for
           the maintenance of international peace and security, and agree that in
           carrying out its duties under this responsibility the Security Council
           acts on their behalf.5

      According to this responsibility to maintain peace and security among
the nations of the world, the Security Council must determine the existence
of threats to the peace, any breaches of the peace, or acts of aggression, and
make recommendations or decisions to restore peace.6 This duty is
tempered by the fact that it must act in accordance with the “Purposes and
Principles” of the UN, namely principles of “justice and international law.”7
When the Security Council acts according to this mandate, its decisions
become binding on Member States, which “agree to accept and carry out the
decisions of the Security Council in accordance with the...Charter.”8 While
there is a great deal of discussion about what constitutes a decision of the
Security Council and just when it acts ‘in accordance’ with its mandate,9 the
Security Council remains an important body in the realm of international
law–when it speaks, nations do listen.
      That is not to say that the Security Council clearly and definitively sets
forth decisions. Indeed, there have been numerous occasions when the
Security Council was not able to decide on a course of action, yet Member
States took up arms regardless of such inactivity. The Security Council’s
impotence with regards to the situation in Kosovo in the late 1990s is
telling. In 1993, the Security Council passed a resolution that asked the
former Federal Republic of Yugoslavia (“FRY”) to reconsider its refusal to



       5
         U.N. CHARTER art. 24, para. 1.
       6
         U.N. CHARTER art. 39.
   7
         U.N. CHARTER art. 24, para 2; DAVID SCHWEIGMAN, THE AUTHORITY OF THE
SECURITY COUNCIL UNDER CHAPTER VII OF THE UN CHARTER 28-29 (2001).
   8
         U.N. CHARTER art. 25.
   9
         SCHWEIGMAN, supra note 7, at 31 n.115-117.
TAIT                                                                               11/1/2012




Fall 2005]                           The Legal War                                      99

allow European bodies to continue their monitoring activities in Kosovo.10
By 1998, several nations, including the US, UK, Russia, Germany, and
France, urged the Security Council to pass a resolution forming an embargo
against the FRY, a request that the Council granted on March 31, 1998.11
      This latest resolution did little to deter the bloodshed in Kosovo, as
matters became increasingly worse. By September of 1998, Serbian and
Yugoslavian forces had ruthlessly displaced hundreds of thousands of
Kosovars, prompting the Security Council to demand an immediate cease-
fire in the region;12 however, nothing in the resolution clearly authorized the
use of force if the FRY continued to disregard former resolutions.13 It
became clear at that time that the Russians were prepared to veto any
resolution that went towards authorizing force against the FRY.14 NATO
nations took up the task of persuading Slobodan Milosevic, the FRY
President, through their authorization of activation orders for air strikes
shortly thereafter.15
      On March 24, 1999, after repeated attempts to bring the conflict to an
end, NATO nations commenced air strikes against FRY targets in Kosovo
and Serbia. The bombing campaign lasted for seventy-seven days, and
throughout the campaign the Security Council remained unable to influence
those events.16 The UK delegate to the Security Council reported to the
Council that the bombing campaign was legal and justified to prevent
humanitarian suffering, and that “[e]very means short of force ha[d] been
tried.”17 Two days later, a Russian effort to call an end to the NATO action
was voted down twelve against three.18 Commentators have considered this
to be an important event in defining the role of the Security Council in times
of crisis, showing that the proponents of military action may not have to
secure a resolution to justify such actions.19 Some military actions will go
forth without the “blessing” of a Security Council resolution when a
permanent member of the Security Council will not follow the others. In
this case, however, although the Security Council did not expressly

       10
           Sec. C. Res. 855, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/855 (1993).
       11
           Sec. C. Res. 1160, U.N. SCOR, 53rd Sess., U.N. Doc. S/RES/1160 (1998)
(imposing an arms embargo against the FRY and stated that the failure to move towards peace
in Kosovo would invite further action from the Council).
     12
           Sec. C. Res. 1199, U.N. SCOR, 53rd Sess., U.N. Doc. S/RES/1199 (1998).
     13
           Paul Heinbecker, Kosovo, in The UN Security Council: From the Cold War to the
21st Century 537, 540 (David Malone ed., 2004).
     14
           Id.
     15
           Id.
     16
           Id.
     17
           UK permanent representative Jeremy Greenstock, Address to the U.N. Security
Council (March 24, 1999).
     18
           Paul Heinbecker, Kosovo, in THE UN SECURITY COUNCIL: FROM THE COLD WAR
          ST
TO THE 21 CENTURY 537, 542 (David Malone ed., 2004).
     19
           See id.
TAIT                                                                        11/1/2012




100                   Gonzaga Journal of International Law                  [Vol. 9:1


authorize the use of force, it was clear that many Member States were
willing to support military action even if a minority of nations were
unwilling to do so.
     The Security Council has in fact rarely used its Chapter VII authority to
enforce international peace and security. During the Korean conflict, for
example, the Soviet delegation’s refusal to support a resolution to denounce
that aggression almost kept the Council from having any influence.
Fortunately, based on the absence of the Soviet delegation (which had
protested the inclusion of Nationalist Chinese as the Chinese representative
in the Council), the remaining members were able to pass a
recommendation to denounce aggression on the Korean peninsula.20 With
the return of the Soviets, however, no further Security Council action was
taken.21 The Security Council was unable to provide leadership during the
crisis. This situation, along with the crisis in Kosovo, shows that the
Council is often hard-pressed to exercise its authority under Chapter VII of
the Charter to authorize the use of force when international peace and
security are at risk.

            III. THE HISTORY OF IRAQ AND THE UN SECURITY COUNCIL

      On August 2, 1990, Iraqi forces stormed across the Kuwaiti border and
ruthlessly took control of that nation’s capital, Kuwait City. Six days later,
Iraq declared that it would annex Kuwait, and then, on August 28, 1990,
claimed that the country was a province of Iraq.22 In response to the armed
aggression of Saddam Hussein’s regime, the United Nations Security
Council passed Resolution 660, which denounced these actions and called
for Iraqi forces to withdraw from Kuwait.23 Of course, this call went
unheeded. The Security Council then passed Resolution 661, wherein it
expressed its concern with the actions of Iraq and its desire to end the
occupation of Kuwait and restore the “sovereignty, independence, and
territorial integrity of Kuwait.”24 Resolution 661 also addressed the right of
Kuwait and other nations to exercise the use of force in recognition of “the
inherent right of individual or collective self-defense in response to the
armed attack by Iraq against Kuwait, in accordance with Article 51 of the
Charter.”25 The Security Council then passed Resolution 662, which


       20
         John F. Murphy, Force and Arms, in THE UNITED NATIONS AND INTERNATIONAL
LAW, 108 (Christopher C. Joyner ed., 1997).
    21
         See id.
    22
         See C. Warbrick, The Invasion of Kuwait by Iraq, 40 ICLQ pt. 1, at 482-492
(1991).
    23
         Sec. C. Res. 660, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/660 (1990).
    24
         Sec. C. Res. 611, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/611 (1990).
    25
         Id.
TAIT                                                                      11/1/2012




Fall 2005]                       The Legal War                                101

memorialized its position that the Iraqi invasion and annexation of Kuwait
had “no legal validity, and [was] considered null and void.26
     Meanwhile, a coalition of nations led by the United States formed an
alliance named “Desert Shield” to defend against a possible invasion of
other Gulf States, most notably Saudi Arabia.27 On August 12, 1990, the
United States began to use its navy to create a blockade against any Iraqi oil
exports, only allowing humanitarian shipments into Kuwait, justifying the
decision as consistent with Article 51 and previous Security Council
resolutions that mandated sanctions against the Iraqi regime.28 After
repeated demands by the United Nations and the world community that
Iraqi forces withdraw from Kuwait, the Security Council adopted
Resolution 678, which authorized Member States to use “all necessary
means to uphold and implement resolution 660 and all subsequent relevant
resolutions and to restore international peace and security in the area.”29 On
January 16, 1991, after Saddam Hussein’s regime failed to honor the
demands of Resolution 678 and other resolutions, the multinational alliance
began a campaign of aerial bombardments of Iraqi sites. After almost a
month of bombing, a massive ground offensive began, which quickly and
effectively routed remaining Iraqi ground forces and removed the Iraqi
presence from Kuwait.30 Shortly thereafter, Iraq accepted the offer of
President George H. W. Bush to suspend offensive combat operations and
declare a cease-fire upon its willingness to abide by all Security Council
resolutions.31
     On April 3, 1991, the Security Council adopted Resolution 687, often
known as the “Mother of all Resolutions,” which in effect codified the
cease-fire agreement between Iraq and the international coalition.32 In that
resolution, the Security Council demanded that Iraq unconditionally accept
the destruction of all chemical, biological, and nuclear weapons programs.33
The resolution also required Iraq to destroy all ballistic missiles with a range
greater than 150 kilometers.34 In accordance with these measures, a strict
monitoring system was put into place to oversee Iraq’s compliance. The
International Atomic Energy Agency (“IAEA”) and United Nations Special



       26
         Sec. C. Res. 662, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/662 (1990).
       27
         D. Gilman, The Gulf War and the United Nations Charter: Did the Security
Council Fulfill its Original Mission?, 24 CONN. L. REV. 1131, 1149 (1992).
   28
         Id. at 1150.
   29
         Sec. C. Res. 678, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/678 (1990).
   30
         Supra note 20, at 113-114.
   31
         See id. at 114.
   32
         Sec. C. Res. 687, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/687 (1991).
   33
         Id. at paras. 8, 9 & 12.
   34
         Id. at para. 8.
TAIT                                                                                11/1/2012




102                     Gonzaga Journal of International Law                        [Vol. 9:1


Commission on Iraq (“UNSCOM”) were to supervise this monitoring
system.35
     The monitoring system created by Resolution 687, although considered
by some to be the “most comprehensive international monitoring system
ever established in the sphere of arms control,”36 did not compel Iraq’s
compliance.37 Just four months after Resolution 687 was created, the
Security Council condemned the non-compliance of the Hussein regime
with regards to the destruction of its weapons programs, stating that such
violations constituted a “material breach of the relevant provisions which
established a cease-fire and provided the conditions essential to the
restoration of peace and security in the region.”38 The Security Council
continued to note Iraq’s blatant disregard for relevant resolutions throughout
the 1990s. In June of 1996, the Security Council again condemned Iraq’s
refusal to work with UNSCOM inspectors and its “clear violations” of
relevant resolutions.39 One year later, the Security Council passed
Resolution 1115, noting Iraq’s “repeated refusal” to allow UNSCOM access
to weapons sites, a “clear and flagrant” violation of its obligations.40
Unbelievably, later that year, the Security Council was forced to again
condemn Iraq, noting the “continued violations by Iraq of its obligations
under the relevant resolutions to cooperate fully and unconditionally with
[UNSCOM].”41
     On February 23, 1998, UN Secretary General Kofi Annan reached an
agreement with Iraq to ensure its cooperation with UNSCOM and the IAEA
on disarmament activities.42 In late 1998, Iraq reported that it would not
finish its work with UNSCOM.43 This action prompted the US and the UK
to commence Operation Desert Fox, a bombing campaign that continued for
seventy hours. Both nations referred to Security Council Resolution 1154



       35
          Sec. C. Res. 687, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/687 (1991).
       36
          Report of the Secretary-General on the Status of the Implementation of the Special
Commission’s Plan for the Ongoing Monitoring and Verification of Iraq’s Compliance with
Relevant Parts of Section C of Security Council Resolution 687 (1991), U.N. Doc.
S/1994/11138 (Oct. 7, 1994).
    37
          A.J.R. Groom, Edward Newman, & Paul Taylor, Burdensome Victory: The United
Nations and Iraq, in A UNITED NATIONS FOR THE TWENTY-FIRST CENTURY: PEACE,
SECURITY AND DEVELOPMENT 149, 156 (Dimitris Bourantonis & Marios Evriviades eds.,
1996).
    38
          Sec. C. Res. 707, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/707 (1991).
    39
          Sec. C. Res. 1060, U.N. SCOR, 51st Sess., U.N. Doc. S/RES/ 1060 (1996).
    40
          Sec. C. Res. 1115, U.N. SCOR, 52nd Sess., U.N. Doc. S/RES/1115 (1997).
    41
          Sec. C. Res. 1137, U.N. SCOR, 52nd Sess., U.N. Doc. S/RES/1137 (1997).
    42
          Memorandum of Understanding, U.N. Doc. S/1998/166 (1998).
    43
          See Sec. C. Res. 1205, U.N. SCOR, 53rd Sess., U.N. Doc. S/RES/1205 (1998). The
Security Council noted “with alarm the decision of Iraq…to cease cooperation with the United
Nations Special Commission, and its continued restrictions on the work of the [IAEA].”
TAIT                                                                                11/1/2012




Fall 2005]                           The Legal War                                      103

as providing legal justification for the operation.44 That resolution stressed
“the compliance the Government of Iraq with its obligations, repeated again
in the memorandum of understanding, to accord immediate, unconditional,
and unrestricted access to the Special Commission and the IAEA in
conformity with the relevant resolutions is necessary for the implementation
of resolution 687 (1991), but that any violation would have the severest
consequences for Iraq.”45 Operation Desert Fox was the third armed attack
on Iraqi positions after the cease-fire. The Clinton Administration
conducted military strikes in 1993 and 1996 to extend the southern no-fly
zone, invoking Resolution 678 as authority.46
      After Operation Desert Fox, Iraq continued to refuse access to weapons
inspectors. The Security Council disbanded UNSCOM in December of
1999, and replaced it with the United Nations Monitoring, Verification, and
Inspection Commission (“UNMOVIC”).47 The resolution establishing
UNMOVIC provided that the Security Council would suspend several
sanctions against Iraq if it would cooperate with the inspection regiment put
into place in Resolution 687.48 Iraq refused to comply, denouncing the
resolution because it did not “address Iraq’s legitimate right to secure a
lifting of the embargo having met its commitments under UN accords.”49
      On September 12, 2002, a year and a day after the terrorist attacks of
September 11, President George W. Bush went before the United Nations to
call attention to Iraq’s decade-long pattern of obstructionism and defiance
towards the international community.50 Two months later, the Security
Council unanimously passed Resolution 1441, which called Iraq to task on
its continuing refusal to comply with previous resolutions and to address
“the threat...proliferation of weapons of mass destruction and long-range
missiles poses to international peace and security.”51 The resolution
condemned the fact that Iraq had not allowed inspectors in almost four
years, as well as its failure to condemn international terrorism.52
Importantly, the resolution gave Iraq “a final opportunity to comply with its

       44
          See S.M. Condron, Justification for Unilateral Action in Response to the Iraqi
Threat: A Critical Analysis of Operation Desert Fox, 161 MILITARY L. REV. 115-180 (1999).
    45
          Sec. C. Res. 1154, U.N. SCOR, 53rd Sess., U.N. Doc. S/RES/1154, at para. 3
(1998).
    46
          Frederick Rawski & Nathan Miller, The United States in the Security Council: A
Faustian Bargain?, in THE UN SECURITY COUNCIL: FROM THE COLD WAR TO THE 21ST
CENTURY 361 (David M. Malone ed., 2004).
    47
          Sec. C. Res. 1284, U.N. SCOR, 54th Sess., U.N. Doc. S/RES/1284 (1999).
    48
          Id. at pt. C.
    49
          Statement by the Iraqi Deputy Prime Minister, Tariq Aziz (Feb. 20, 2000) quoted in
“Iraq Condemns UN Resolution,” available at http://news.bbc.co.uk/1/hi/world/
middle_east/649826.stm.
    50
          George W. Bush, Address at the UN General Assembly, supra note 4.
    51
          Sec. C. Res. 1441, U.N. SCOR, 57th Sess., U.N. Doc. S/RES/1441 (2002).
    52
          Id. at 2.
TAIT                                                                               11/1/2012




104                    Gonzaga Journal of International Law                        [Vol. 9:1


disarmament obligations under relevant resolutions of the Council.”53 Iraq
was expected to comply with the resolution, as the Security Council
reminded the nation that it (the Security Council) had repeatedly warned of
“serious consequences” that would result from continued non-compliance.54
      Subsequently, Iraq allowed inspectors back into the country.55 While
Resolution 1441 aimed at the complete disarmament of Iraq under the threat
of serious consequences, the nation never complied.56 In accordance with
the mandates of Resolution 1441, Iraq submitted a declaration of the state of
its weapons programs and compliance efforts; however, this declaration was
considered a weak and untruthful attempt at compliance.57 Dr. Blix, in
January of 2003, acknowledged that the Iraqis had not lived up to the
demands of 1441, stating that the nation had yet to show “a genuine
acceptance, not even today, of the disarmament which was demanded of
it.”58 In March of 2003, the US and UK attempted to persuade the Security
Council to pass one more resolution authorizing the use of force against Iraq
for its continuing disregard of previous resolutions. However, certain
nations on the Security Council – including Russia, France and Germany –
were opposed to such a resolution.59 The follow-up resolution never
materialized, and the US and UK abandoned their attempts to convince their
stubborn partners on the Council.60 On March 19, 2003, the United States
led a coalition of nations that quickly destroyed Iraqi resistance and took
control of the nation.61 In May of 2003, President Bush announced an end
to major combat operations, signaling the end of the regime of Saddam
Hussein.62




       53
           Id. at 3.
       54
           Id. at 5.
    55
           Executive Chairman of UNMOVIC Dr. Hans Blix, Briefing of the Security Council
(Dec. 19, 2002), available at http://www.unmovic.org.
    56
           George W. Bush, Address at the UN General Assembly, supra note 4.
    57
           U.N. SCOR Twelfth Quarterly Report at 3, U.N. Doc. S/2003/232 (1999), available
at http://www.un.org/Depts/unmovic/new/documents/quarterly_reports/s-2003-232.pdf (UN-
MOVIC Executive Chairman Dr. Hans Blix stated that the declaration “contained little new
significant information”).
    58
           Executive Chairman of UNMOVIC Dr. Hans Blix, Briefing of the Security Council
(January 27, 2003), available at http://www.unmovic.org.
    59
           Adam Roberts, The Use of Force, in THE UN SECURITY COUNCIL: FROM THE COLD
WAR TO THE 21ST CENTURY 141 (David M. Malone ed., 2004).
    60
           See id.
    61
           John Yoo, Agora: Future Implications of the Iraq Conflict: International Law and
the War in Iraq, 97 A.J.I.L. 563, 564 (2003).
    62
           Id.
TAIT                                                                      11/1/2012




Fall 2005]                                The Legal War                       105

IV. EXISTING SECURITY COUNCIL RESOLUTIONS JUSTIFIED ARMED FORCE
                         AGAINST IRAQ

     The text of Resolution 678 is very clear. Member States were
authorized “to use all necessary means to uphold and implement Resolution
660 and all subsequent relevant resolutions and to restore international
peace and security in the area.”63 It is telling that this resolution does not
contain language expressly authorizing the US-led coalition to engage in
military action against Iraqi forces.64 Further, the Security Council did not
speak to enforcement measures after Resolution 678; this resolution served
as the basis for military action in Iraq in 1990, and served as justification for
any use of force to enforce the cease-fire memorialized in Resolution 687.
     Resolutions 678 and 687 stand together as twin pillars of justification
for the US-led invasion of Iraq in 2003. Whereas the former enables
Member States to employ “all necessary means” to uphold subsequent
resolutions with regards to Iraq,65 the latter sets out the mandates that Iraq
was required to obey in order to preserve the cease-fire and suspend
Resolution 678.66 Tracing the history of armed conflict in Iraq from the end
of the Gulf War and identifying the relevant Security Council resolutions
during those periods makes clear that Resolutions 678 and 687 were still in
effect in March of 2003, and provide the legal basis for the use of armed
force to enforce those resolutions.67
     The US and UK worked feverishly in late 2002 and early 2003 to
create the required consensus to pass a resolution that would authorize the
use of force in Iraq.68 Such a resolution would have been the eighteenth
resolution with regards to Iraq’s violation of international law, but it never
materialized.69 Three members of the Security Council, Russia, France and
Germany, strongly opposed such a resolution, believing that Resolution
1441 was the limit for threats against Saddam Hussein.70 As the Kosovo
and Korean situations illustrated before, the interests of but a few members
of the Security Council may bar the entire Council from fulfilling its duties
under the Charter. This surely was the case during the Iraq debate.
     One scholar has pointed out that the stance of Russia, France, and
Germany–that former resolutions such as 678 and 687 were no longer in
force–undermines the premise that Security Council resolutions are law at


       63
             Sec. C. Res. 678, supra note 29, at para. 2.
       64
             See Sec. C. Res. 678, supra note 29.
       65
             Sec. C. Res. 678, supra note 29, at para. 2.
       66
             See Sec. C. Res. 687, supra note 32.
       67
             See Yoo, supra note 61, at 564-67.
       68
             See Roberts, supra note 59, at 141.
       69
             See id.
       70
             Id.
TAIT                                                                       11/1/2012




106                       Gonzaga Journal of International Law             [Vol. 9:1


all.71 Professor John Yoo explains that these nations had agreed to authorize
the use of force against Iraq in 1991. The text of those resolutions has not
been changed and the conditions for their enforcement have remained
constant. If Russia, France, and Germany were to consider Resolutions 678
and 687 expired, argues Yoo, there would be considerable dispute about the
legal force and legitimacy of Security Council resolutions. Such a result
would call into question whether such resolutions are legal legislative acts
or “ad hoc legislative edicts.”72 In other words, when one or two Security
Council member states call into question the effectiveness of existing
resolutions, they in effect minimize the importance and legitimacy of the
resolutions. This then begs the question of whether a Security Council
resolution is binding as an expression of international law.
      The US and UK, when confronted with the reality that an eighteenth
resolution would not pass, moved forward with military plans, relying on
existing Security Council resolutions to justify the March 2003 invasion.
This was not a position of weakness. Resolutions 678 and 687 were still
viable, effective mandates at that time, as events of the previous decade
make clear.
      On January 13, 1993, US, UK and French aircraft attacked Iraqi
positions, destroying Iraqi missile launchers. In response to the attacks, UN
Secretary-General Boutros Boutros-Ghali said:

            The raid, and the forces that carried out the raid, have received a
            mandate from the Security Council, according to Resolution 678, and
            the cause of the raid was the violation by Iraq of Resolution 687
            concerning the cease-fire. So, as Secretary-General of the United
            Nations, I can say that this action was taken and conforms to the
            resolutions of the Security Council and conforms to the Charter of the
            United Nations.73

     Clearly, the military action in 1993 was considered legal under
international law, not because a new resolution had been passed to authorize
such a use of force, but instead because the action was in conformity with
existing Security Council resolutions. President George H.W. Bush cited
Iraq’s “failure to live up to the resolutions” when he ordered the strikes.74
In his report to Congress concerning the action, the President cited the
comments of Secretary-General to justify the action as conforming with

       71
         Yoo, supra note 61, at 568.
       72
         See id.
    73
         Simon Chesterman, Just War or Just Peace? HUMANITARIAN INTERVENTION AND
INT’L LAW, 201 (2001) (quoting Boutros Boutros-Ghali, January 14, 1993).
    74
         Barton Gellman & Ann Devroy, “Military Action Against Iraq Signaled by
Administration”, Washington Post, Jan. 14, 1993, at A1.
TAIT                                                                              11/1/2012




Fall 2005]                            The Legal War                                   107

international law, and necessary in light of Iraq’s violations of Resolution
687.75
     In December of 1998, the US and UK launched a seventy-hour air
assault against Iraqi targets. US officials, in providing a legal foundation
for the military action, made clear that Iraq’s continuing breaches of
obligations under existing resolutions served as a justification for the
attacks.76 President Bill Clinton justified the military action in much the
same way as his predecessor did stating that the military action was:

             consistent with and has been taken in support of...Resolutions 678
            and 687, which authorize UN Member States to use all necessary
            means to implement the Security Council resolutions and to
            restore peace and security in the region and establish the terms of
            the cease-fire mandated by the Council, including those related to
            the destruction of Iraq’s WMD programs.77

     Although some members of the Council did voice objections to the
action, international approval for the air strikes was strong. Thirteen nations
offered some sort of support, either in the form of facilities, troops, or
equipment, including Australia, Canada, Spain, and Germany.78 This
sentiment to enforce Resolutions 678 and 687 only served to strengthen the
position of the US and UK that the cease-fire and disarmament provisions of
those resolutions were still effective to authorize the use of force.
     The precedent from the 1993 and 1998 attacks on Iraqi targets is as
clear today as it was at those times. Saddam Hussein’s regime remained in
material violation of Resolution 687, which required the regime to comply
with the inspection regime and abandon and destroy its weapons programs.
Resolution 678, which authorized Member States “to use all necessary
means” to uphold “subsequent resolutions” such as Resolution 687, was the
correct authorization for the attacks of 1993 and 1998. There had been no
resolution which in effect caused those resolutions to expire; in fact, they
were very much effective and relevant in 2003 when the US-led coalition
invaded Iraq.
     It is important to note Security Council practice with regards to ending
its authorization to use force. When the Council decides to end the use of
force, it either passes a new resolution extinguishing the previous resolution,
       75
          Letter to Congressional Leaders Reporting on Iraq’s Compliance With United
Nations Security Council Resolutions (Jan. 19, 1993), 2 Pub. Papers of George Bush 2269-70
(1993).
    76
          Security Council Meets to Discuss Military Strikes Against Iraq; Some Members
Challenge Use of Force Without Council Consent UN Doc. SC/6611, at 1-2, 7 (Dec. 16,
1998).
    77
          Letter to Congressional Leaders on the Military Strikes Against Iraq (Dec. 18,
1998), 2 Pub. Papers of William J. Clinton 2197 (1998).
    78
          UN Doc. SC/6611, supra note 76, at 4.
TAIT                                                                               11/1/2012




108                    Gonzaga Journal of International Law                        [Vol. 9:1


or it makes a clear duration for authority in the resolution itself.79 In other
words, the Security Council must expressly terminate the authority of its
resolutions. There is no such language in Resolution 678 which makes clear
that its authorization to use force would lapse at a specific point or that the
Council had reserved the right to determine when the authorization would
end. Nor has the Council ever expressly terminated the effect of Resolution
678.80 These facts, coupled with the express language of Resolution 1441,
make clear that Resolutions 678 and 687 remained in effect in March 2003,
when the invasion of Iraq began.
      Resolution 1441, passed in late 2002, explicitly refers to Iraq’s “non-
compliance with Council resolutions and proliferation of weapons of mass
destruction and long-range missiles...[.]”81 The resolution actually referred
to Resolutions 678 and 687, as the Security Council “recall[ed] that its
resolution 678 (1990) authorized Member States to use all necessary means
to uphold and implement its resolution 660 (1990) of 2 August 1990 and all
relevant resolutions subsequent to Resolution 660 (1990) and to restore
international peace and security in the area.”82 Further, 1441 recalled Iraq’s
obligations under Resolution 687:

       Deploring the fact that Iraq has not provided an accurate, full,
       final, and complete disclosure, as required by resolution 687
       (1991), of all aspects of its programmes to develop weapons of
       mass destruction and ballistic missiles with a range greater than
       one hundred and fifty kilometres, and of all holdings of such
       weapons, their components and production facilities and locations,
       as well as all other nuclear programmes, including any which it
       claims are for purposes not related to nuclear-weapons-usable
       material.

       Deploring further that Iraq repeatedly obstructed immediate,
       unconditional, and unrestricted access to sites designated by the
       United Nations Special Commission (UNSCOM) and the
       International Atomic Energy Agency (IAEA), failed to cooperate
       fully and unconditionally with UNSCOM and IAEA weapons
       inspectors, as required by resolution 687 (1991), and ultimately
       ceased all cooperation with UNSCOM and the IAEA in 1998,

     79
           See, e.g., Sec. C. Res. 1031, U.N. SCOR, 50th Sess., U.N. Doc. S/RES/1031, at
para. 3 (1995) ("[T]he mandate…shall terminate on the date which the Secretary-General
reports to the Council."); Sec. C. Res. 929, U.N. SCOR, 49th Sess., U.N. Doc. S/RES/929, at
para. 2 (1994) ("[T]he mission of Member States cooperating with the Secretary-General will
be limited to a period of two months…").
     80
           See Sec. C. Res. 678, U.N. SCOR, 45th Sess., U.N. Doc. S/RES/678 (1990).
     81
           See Sec. C. Res. 1441, supra note 51, at para. 1.
     82
           See id., at preamble.
TAIT                                                                                 11/1/2012




Fall 2005]                                 The Legal War                                 109


            Deploring the absence, since December 1998, in Iraq of
            international monitoring, inspection, and verification, as required
            by relevant resolutions, of weapons of mass destruction and
            ballistic missiles...[.]83

      This was not the sort of language that could be interpreted as expressly
terminating any previous authorization to use force or repealing Iraq’s
duties under the inspection regime, as nations such as France, Germany, and
Russia argued.84 Instead, this language makes clear that those resolutions
still had a binding effect–reinforcing Security Council practice that
resolutions, if they are to be held as binding, must be expressly terminated,
or expressly limited by time or event requirements.
      Resolution 1441 also refers to the Security Council’s repeated previous
warnings to Iraq of “serious consequences” that would result from
continued violations of the regimes obligations.85 That language, when
compared to the language of Resolution 678, shows a high degree of
justification for the view that Resolution 1441 allowed the use of force upon
further non-compliance by Iraq. Resolution 678 gave Iraq “one final
opportunity” to withdraw from Kuwait and comply with the demands of the
Security Council.86 If Iraq did not take advantage of that opportunity, then
Member States were allowed to “use all necessary means” to comply
enforcement.87 Likewise, the language of 1441, while not specifically
authorizing the use of force, makes clear that such an option was authorized
upon Iraq’s further non-compliance with its obligations. The resolution
gave Iraq a “final opportunity to comply” with its duties.88 That language,
coupled with the “serious consequences” that would follow upon non-
compliance, shows that Resolution 1441 was in fact a legal authorization to
use force to ensure Iraqi compliance. The fact that no Member State found
Iraq to be in compliance with its obligations under existing resolutions
further justified the decision to use force.
      It should also be noted that the cease-fire agreement embodied in
Resolution 687 declares a formal suspension of hostilities between Iraq and
Member States such as the US, rather than with the United Nations itself.89
The resolution was a “formal cease-fire...between Iraq, Kuwait, and the
Member States cooperating with Kuwait in accordance with Resolution 678

       83
               Id.
       84
               See Roberts, supra note 59, at 141.
       85
               See Sec. C. Res. 1441, U.N. SCOR, 57th Sess., U.N. Doc. S/RES/1441 at para. 13
(2002).
       86
               Sec. C. Res. 678, supra note 80, at para. 1.
       87
               Id. at para. 2.
       88
               Sec. C. Res. 1441, supra note 85, at para. 2.
       89
               Sec. C. Res. 687, supra note 32, para. 33.
TAIT                                                                                   11/1/2012




110                      Gonzaga Journal of International Law                          [Vol. 9:1


(1990).”90 Iraq’s continued breaches of this resolution, which the US and
other nations cited when they used force in 1993 and 1998, served to
suspend the cease-fire and in effect renewed the authority given in
Resolution 678. In 2003, there was no disagreement as to whether Iraq was
in breach of its obligations under Resolution 687, all of which were re-
affirmed in Resolution 1441. Iraq’s breach suspended the cease-fire of
Resolution 687. As was the case in 1993 and in 1998, Member States that
had “cooperated” with Kuwait in the Gulf War were again authorized, under
Resolution 678, to use force in order to enforce Iraq’s existing obligations.
     In international law, a nation that is specially affected by another
nation’s breach of a treaty agreement may either suspend or terminate the
effect of the treaty with regards to the breaching nation.91 Iraq had
repeatedly breached its obligations under the cease-fire agreement of
Resolution 687. Therefore, the US and UK, as “Member States cooperating
with Kuwait,” had the right to suspend or terminate the cease-fire with
respect to Iraq.92 The treaty that was Resolution 687 did not have effect in
1993, 1998, or 2003, because of Iraq’s repeated breaches. The US and UK
could therefore legally suspend or terminate the cease-fire and appeal to
Resolution 678 to enforce “serious consequences” for Iraq’s intransigence
and to restore international peace and security to the region.

       V. THE RIGHT OF SELF-DEFENSE JUSTIFIED THE INVASION OF IRAQ

     Article 51 of the UN Charter provides the rights of nations to defend
themselves from threats to national security. Indeed, this right is considered
independent of any treaty or convention under international law: “[n]othing
in the present Charter shall impair the inherent right to individual or
collective self-defense if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measure necessary to
maintain international peace and security.”93 This language makes clear that
there is a right to defend one’s nation, or other nations, independent of
Security Council approval.94

       90
            Id.
       91
            See Vienna Convention on the Law of Treaties, art. 60(2)(b), May 23, 1969, 21
U.S.T 77.
       92
          See Ruth Wedgwood, The Enforcement of Security Council Resolution 687: The
Threat of Force Against Iraq's Weapons of Mass Destruction, 92 AJIL 724, 726 (1998); see
also, Vienna Convention, Art. 60, supra note 92, at art. 60; see also John Yoo, Agora: Future
Implications of the Iraq Conflict: International Law and the War in Iraq, 97 A.J.I.L. 563, 568-
569 (2003).
    93
          U.N. CHARTER art. 51.
    94
          See Myres S. McDougal, The Soviet-Cuban Quarantine and Self-Defense, 57 AJIL
597, 599 (1963); Oscar Schachter, The Right of States to Use Armed Force, 82 MICH. L. REV.
1620, 1634-1634 (1984); Abraham D. Sofaer, International Law and Kosovo, 36 STAN. J.
INT’L LAW 1, 16 (2000).
TAIT                                                                               11/1/2012




Fall 2005]                             The Legal War                                   111

     The inherent right to self-defense was first enunciated in the Caroline
incident. In 1837, a secret British military unit entered the United States and
destroyed the American vessel Caroline, which had been aiding Canadian
insurgents fighting against British rule. The incident resulted in the loss of
the vessel as well as two American lives. Confronted by American officials,
the British maintained that the attack on the Caroline was an act of self-
defense. Daniel Webster, the US Secretary of State, wrote a letter in return,
demanding that the British justify this claim by showing that the need for
self-defense was:

             instant, overwhelming, leaving no choice of means, and no
            moment for deliberation...even supposing the necessity of the
            moment authorized them to enter the territories of the United
            States at all, did nothing unreasonable or excessive; since the act,
            justified by the necessity of self-defence, must be limited by that
            necessity, and kept clearly within it.95

The British accepted this test by justifying its actions accordingly.96
     As has been explained by international scholars,97 the Caroline test
requires that nations show that use of force is necessary due to an imminent
threat, and that the response is proportionate to the threat.98 Accordingly,
the decision to invade Iraq, if not justified by existing Security Council
resolutions, would have to have been justified by an imminent threat coming
from Iraq, one proportionate to a response such as regime change. While
there most certainly was debate as to whether the threat emanating from Iraq
was “imminent,” the United States has made clear that nations can no longer
wait for threats to materialize in a post-Sept. 11 world:

             For centuries, international law recognized that nations need not
            suffer an attack before they can lawfully take action to defend
            themselves against forces that present an imminent danger of
            attack. Legal scholars and international jurists often conditioned
            the legitimacy of preemption on the existence of an imminent
            threat...

            Rogue states and terrorists do not seek to attack us using
            conventional means...Instead, they rely on acts of terror and,


       95
           Letter from U.S. Secretary of State Daniel Webster to British Minister Henry Fox
(Apr. 24, 1841), in 29 BRITISH AND FOREIGN STATE PAPERS, 1840-1841, at 1138 (1857).
    96
           Letter from Lord Ashburton to U.S. Secretary of State Daniel Webster (July 28,
1842), in 30 BRITISH AND FOREIGN STATE PAPERS, 1841-1842, at 1858 (1857).
    97
           See, e.g., YORAM DINSTEIN, WAR, AGRESSION, AND SELF-DEFENSE 208-212 (3d
ed. 2001); Yoo, supra note 92, at 572.
    98
           DINSTEIN, supra note 98, at 208-212, & 219-220.
TAIT                                                                           11/1/2012




112                        Gonzaga Journal of International Law                [Vol. 9:1


            potentially, the use of weapons of mass destruction—weapons that
            can be easily concealed, delivered covertly, and used without
            warning.

            As was demonstrated by the losses on September 11, 2001, mass
            civilian casualties is the specific objective of terrorists and these
            losses would be exponentially more severe if terrorists acquired
            and used weapons of mass destruction.

            The United States has long maintained the option of preemptive
            actions to counter a sufficient threat to our national security. The
            greater the threat, the greater is the risk of inaction— and the more
            compelling the case for taking anticipatory action to defend
            ourselves, even if uncertainty remains as to the time and place of
            the enemy’s attack. To forestall or prevent such hostile acts by our
            adversaries, the United States will, if necessary, act
            preemptively.99

     This view, prompted by the terrible events of Sept. 11, changes the
entire paradigm of the Caroline test. No longer can nations be aware of
imminent threats, and at least one nation, the United States, has made clear
that it will act preemptively to “forestall or prevent” a hostile regime or
group from attacking American targets.
     Preemptive self-defense has been practiced before, such as the Torrey
Canyon incident of 1967. There, the United Kingdom took unilateral action
to protect its coastal and marine resources after the Liberian oil tanker
Torrey Canyon ran aground in the English Channel.100 Fearing for the well-
being of its resources, the UK bombed and destroyed the ship, asserting a
customary international law right of intervention.101 In the 1950s, the
French seized foreign merchant ships on the high seas thought to be
carrying arms to the Algerian rebel movement.102 The French government
cited its inherent right to self-defense to justify the seizures.103 On several
occasions, the US has attacked another nation out of concern for self-
defense. In 1986, the US attacked Libyan targets in order to stop possible




       99
          The National Security Strategy of the United States of America, available at
http://www.whitehouse.gov/nsc/nssall.html.
    100
          See Michael Akehurst, A Modern Introduction to International Law 175 (3d ed.
1977).
    101
          See id.
    102
          Id.
    103
          Id.
TAIT                                                                                 11/1/2012




Fall 2005]                            The Legal War                                      113

terrorist attacks.104 In 1989, took military action in Panama, citing an
imminent threat to American lives.105 In 1993, the Clinton administration
ordered attacks on Iraqi targets after the regime failed to honor its
obligations under Resolution 687.106 In each instance, the UN took no
action, unable to pass a unanimous declaration that Article 51 of the UN
Charter did not authorize such actions.107
     The threats posed by the Iraqi regime in 2003 were not precisely
known, but current intelligence showed that the regime had not complied
with its obligations under Security Council resolutions to cooperate with the
inspections regime and declare the extend of its nuclear, chemical, and
biological weapons programs. Such intransigence had long worried the
world community, hence the seventeen resolutions that the Security Council
had passed since the invasion of Kuwait. President Clinton justified the
military action against Iraq in 1993 as an exercise in self-defense, stating:

        The evidence of the Government of Iraq’s violence and terrorism
       demonstrates that Iraq poses a continuing threat to United States
       nationals and shows utter disregard for the will of the international
       community as expressed in Security Council Resolutions and the
       United Nations Charter...I concluded that there was no reasonable
       prospect that new diplomatic initiatives or economic measures
       could influence the current Government of Iraq to cease planning
       future attacks against the United States.108

    In his testimony before the United Nations in February, 2003, US
Secretary of State Colin Powell set forth the case against the Iraqi regime,
explaining the threat as determined by US and foreign intelligence:

        The material I will present to you comes from a variety of
       sources. Some are U.S. sources and some are those of other
       countries. Some are the sources are technical, such as intercepted
       telephone conversations and photos taken by satellites. Other
       sources are people who have risked their lives to let the world
       know what Saddam Hussein is really up to.
    104
           See President’s Letter to the Speaker of the House of Representatives and the
President Pro Tempore of the Senate on the United States Air Strike Against Libya (Apr. 16,
1986), in 1 Pub. Papers 478 (1986).
    105
           See President’s Letter to the Speaker of the House of Representatives and the
President Pro Tempore of the Senate on the United States Military Action in Panama (Dec.
21, 1989), in 2 Pub. Papers 1734 (1989).
    106
           See President’s Letter to Congressional Leaders on the Strike on Iraq Intelligence
Headquarters (June 28, 1993), in 1 Pub. Papers 940 (1993).
    107
           See UN Doc. S/PV. 2682 (Apr. 21, 1986) (US, UK, Australia, Denmark, and
France oppose declaration); UN Doc. S/21048 (Dec. 22, 1989); UN Doc. S/PV. 2902 (Dec.
23, 1989) (US, UK, France, and Canada oppose declaration).
    108
           Supra 106.
TAIT                                                                             11/1/2012




114                    Gonzaga Journal of International Law                      [Vol. 9:1


         I cannot tell you everything that we know, but what I can share
         with you, when combined with what all of us have learned over
         the years, is deeply troubling. What you will see is an
         accumulation of facts and disturbing patterns of behavior. The
         facts and Iraqis’ behavior, Iraq’s behavior, demonstrate that
         Saddam Hussein and his regime have made no effort, no effort, to
         disarm, as required by the international community.

         Indeed, the facts and Iraq’s behavior show that Saddam Hussein
         and his regime are concealing their efforts to produce more
         weapons of mass destruction.109

     Given what the international community knew about Iraq’s continued
intransigence, the fact that the extent of Iraq’s weapons programs was
unknown, and the magnitude of suffering that could occur if Iraq did have
those weapons programs, the US-led coalition, in an act of collective self-
defense, was justified in its invasion of Iraq under the Caroline test.
Invasion was a proportionate response to the threat that Iraq’s weapons
programs posed, and the history of violations by the Saddam Hussein
regime made clear that his removal was justified. Further, the events of
September 11, 2001, made clear that threats not considered imminent are
real and deadly nonetheless. The aggressive actions of the coalition were
consistent with previous acts of self-defense taken by numerous nations, and
entirely appropriate under the Caroline test.

                                 VI. CONCLUSION

      In conclusion, the US-led coalition was justified in its invasion of Iraq
and removal of Saddam Hussein from power. Existing Security Council
resolutions and authorization, coupled with Iraq’s continued breach of its
obligations under those resolutions, show that there was license to enforce
those duties by “all necessary means.” The Security Council never
expressly extinguished authorization to use force under these resolutions,
nor did it put a time limit on that authority. Resolutions 678 and 687 were
still effective in 2002-2003, as evidenced by the language of Resolution
1441.110 Second, because the threat posed by Iraq’s non-compliance with
weapons programs was grave, growing, and possibly imminent, the action
to remove him from power was justifiable as an act of preemptive self-
defense. The US has expressed the view that, in a post-Sept. 11 arena,

       109
          U.S. Secretary of State Colin Powell, Address at U.N. Security Council (Feb. 5,
2003), available at http://www.un.int/usa/03clp0205.htm.
   110
          Supra note 85.
TAIT                                                                     11/1/2012




Fall 2005]                      The Legal War                                115

nations cannot wait for an express declaration of war or other clear signs to
designate a threat as “imminent.” Following the practice of numerous states
over the past half-century, the US led a coalition to preemptively defend
itself and other nations from the possibility of an Iraqi regime armed with
WMD. Considering the costs of a WMD attack, regime change was an
appropriate response to the Iraqi threat.
      The action against Iraq revives an old and troublesome dilemma for the
United Nations and the Security Council. The events of September 11 gave
rise to the possibility that acts of war will not be announced by formal
declarations, but instead may be delivered by secret and silent terror groups
with no ties to any one nation or state. Nations are more aware of their need
to curb possible violence, and regimes which support terror groups or terror
acts, or which seek weapons of mass-destruction, are now considered
greater dangers than ever before. The US-promoted doctrine of pre-emption
will force the Security Council to consider the mandates and authorizations
it gives in the future, but also magnifies the problems that disagreement
between Council Members may produce.
      Although a large group of nations, including Russia, France, and
Germany, opposed the US-led coalition against Iraq, it is clear that a
precedent has been set, if not reinforced. The US government, under the
leadership of George W. Bush, has made the case that nations cannot wait
for “imminent” threats to materialize. No longer can nations simply wait
for enemies to formally declare war. Nor can nations even rely on
intelligence capabilities to detect the massing of enemy troops, or the launch
of a missile carrying a nuclear weapon. The sophistication and sinister
motives of terror groups make it almost impossible to identify an imminent
threat before it is carried out. The fact that over thirty nations supported the
coalition efforts against Saddam Hussein demonstrates that this theory is
gaining traction, and will continue to conflict with the Security Council’s
Chapter VII authority.
      Preemptive self-defense is now squarely in conflict with the view that
Security Council authority is still paramount in armed aggression between
nations. Those who espouse the latter view will continue to argue that no
nation should use force without Security Council authority unless the
inherent right to self-defense is clearly invoked. Those who support the
former view will counter with the claim that, in the end, each nation must
have the right to defend itself, even if without Security Council approval.
Therein lies the danger of such a conflict. As was evidenced in both the
Korea and Bosnia situations, disagreement between Security Council
members results in inaction – precisely the result that nations cannot afford.
As Security Council members argue as to their rights against the duties and
powers of that body, the question of state action against potential threats –
be they rogue states or terror groups – goes unanswered. And as was made
TAIT                                                                     11/1/2012




116                 Gonzaga Journal of International Law                 [Vol. 9:1


painfully clear on the morning of Sept. 11, complacency or inaction on the
part of the world community can result in deadly consequences.
      Although the prospect seems dim, Security Council members are
compelled to find a solution. Some on the political right argue for the
dissolution of the United Nations and a return to regional and ad-hoc
coalitions. Some on the far left of the political spectrum push for sanctions
and penalties against the US-led coalition and a strengthening of Security
Council authority. Either way, the Security Council’s role must be defined
in this post-Sept. 11 world. This article has argued that the US-led coalition
was justified, not only by existing Security Council resolutions, but also by
the realities of preemptive self-defense after Sept. 11. However, just
because international law justified the coalition action, it should not be
assumed that the action was free from controversy.
      This article recommends that UN members work to redefine Article 51
of the Charter. The realities of the threats that nations now face demand
that the world look at what is an “imminent” threat and determine when
self-defense, including preemptive self-defense, is justified. The text of
Article 51 gives a nation the right to respond to an armed attack. However,
given the manner in which the Bush administration framed the Iraq debate,
it is clear that nations in the future will be more willing to take preemptive
steps to deter attacks, rather than wait for the armed attack to actually take
place. It is clear that Article 51 has run its course in its current form, and
needs revision. Further, UN members must make clear the scope of
authority of UN Security Council resolutions. It must be clear whether a
resolution authorizes the use of force, and if so, when that authority ends.
During the drafting of Security Council resolutions, members must find a
way to escape the political nuance that causes vague and open-ended
resolutions. This may even entail an overhaul of procedural rules, to ensure
that certain requirements are met during the creation of each resolution.
Each nation must be fully aware of its rights and duties under a Security
Council resolution, and must be able to rely on the plain text of the
resolution.
      The Security Council is truly at a crossroads. Its inability to assert any
semblance of authority during times of crisis has potentially deadly
ramifications, as was made clear in Bosnia. However, the decision by the
US and UK to break away from the decaying framework surrounding the
Security Council and take action brought hope in more ways than one.
First, the coalition demonstrated that nations can use military force without
approval from the Security Council, and still find justification in
international law. This result legitimizes military efforts that are necessary,
but perhaps opposed by a few influential nations. Second, the coalition
brought the Security Council’s inefficiencies and shortcomings to a head –
so perhaps they can be rectified. It is now clear that the UN and the
TAIT                                                                     11/1/2012




Fall 2005]                      The Legal War                                117

Security Council must address these problems. And third, the coalition was
able to remove a murderous regime independently of a UN mandate. While
some may question the virtues of such a result, the action does signal hope
to those in the world whom the UN is to protect. A coalition of willing
nations may come together under the mandate of international law, to
actually alleviate suffering in the world. If the rest of the world wants to see
the UN and the Security Council to play a part in such an important mission,
it is now on notice.

				
DOCUMENT INFO
Shared By:
Categories:
Tags:
Stats:
views:2
posted:11/1/2012
language:Unknown
pages:22