INVADING IRAQ WOULD VIOLATE U.S. AND INTERNATIONAL LAW

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 area."

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 Guild.