September 4, 2002
Is an attack on Iraq legal?
By V. S. Mani
The U.N. Security Council alone is competent to authorize military action under its direct control against a recalcitrant state.
THE STAGE is being set for the United States to take unilateral military action against Saddam Hussein. The `hawks' in the U.S. administration are in a frenzy even as the first anniversary of the September 11 terrorist attacks draws near. The Defense Secretary, Donald Rumsfeld, has said that fleeing Al-Qaeda terrorists from Afghanistan have found refuge in Iraq. He ridiculed the suggestion that Mr. Hussein was possibly unaware of this. He is reported to have said: "In a vicious, repressive dictatorship that exercises near-total control of its population, it is very hard to imagine that the Government is not aware of what is taking place in the country." (He would not, of course, extend the same logic to other, `friendly' military dictatorships!). Addressing a National Convention of the American Veterans of Foreign Wars on August 26, the U.S. Vice-President, Dick Cheney, conceded that "Intelligence is an uncertain business, even in the best of circumstances". Yet, he was convinced that, "simply stated, there is no doubt that Saddam Hussein now has weapons of mass destruction. There is no doubt he is amassing them to use against our friends, against our allies, and against us. And there is no doubt that his aggressive regional ambitions will lead him into future confrontations with his neighbours ó confrontations that will involve both the weapons he has today, and the ones he will continue to develop with his oil wealth". "The risks of inaction are far greater than the risk of action," he thundered to the enthusiastic applause of the war veterans. The legal arguments in support of a possible pre-emptive attack on Iraq appear to be three-fold, one based on the U.N. Security Council resolutions, the second, the right of self-defence, and the third, a duty to prevent and punish acts of international terrorism.
So far the Security Council has, acting both in camera and in open sittings, adopted wide-ranging resolutions pursuant to its broad powers of enforcement action under Chapter VII of the U.N. Charter. Resolution 678 of November 30, 1990, inter alia, authorized "member-states cooperating with the Government of Kuwait," i.e., the 28-member multinational group led by the U.S., "to use all necessary means to implement Security Council Resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area". It was well known that "necessary means" included the use of military force by the U.S.-led multinational group, which the Cuban representative promptly characterized as "a virtual declaration of war". Can this resolution be the basis for further military action against Iraq? Obviously not. Its purpose was to vacate the Iraqi invasion of Kuwait and resolve related issues. While one may have serious legal reservations about the Security Council's constitutional power to delegate unconditionally its plenary powers (to employ armed forces on behalf of the organization) to a selected group of states to be exercised without any accountability to the Council, this authorization expired when the objectives of vacating the aggression were achieved by April 1991. Hence, the all-pervasive Council resolution 687 of April 5, 1991, which laid down the framework for shearing Iraq of all potential for weapons of mass destruction, chemical and biological weapons, and delivery systems, under international supervision. Violations, if any, of the obligations imposed on Iraq by this and other subsequent resolutions would call for remedial action by the Council acting under Chapter VII. It would not justify unilateral action by the U.S. outside the framework of the Charter. No one has authorized the U.S. and its allies to sit in judgment over such violations and `enforce' the obligations imposed by the Council, on its behalf.
A second basis for possible unilateral action by the U.S. against Iraq would be self-defense. But where is the justification for such action? Military action in self-defense must respond to an armed attack. Two arguments are raised here in support of the U.S. One, Iraq has been shooting at U.S. and British aircraft over the two "no-fly zones" over Iraq and hence the several retaliatory air strikes by the U.S. and U.K. over the years since March 1991 when these zones were established. The legal basis of these "no-fly zones" is claimed to be the Council resolution 688 of April 5, 1991. This resolution, adopted not under Chapter VII, condemned the repression by the Iraqi Government of its Kurdish population, which amounted to a threat to international peace and security. In fact, the establishment of these zones was a unilateral act by U.S.-U.K.-France, a clear violation of Iraqi sovereignty, and no authority flowed from the Council resolution. In other words, the establishment of the no-fly zones was illegal per se and no right of self-defense arises in defense of an originally illegal situation.
A second argument on the basis of self-defense is more remarkable. The Dick Cheney argument runs thus: Saddam Hussein's `conduct or history' does not give any scope for hope. The U.S. should not repeat the mistake it made during World War II in ignoring the magnitude of the danger it faced until it received, unexpectedly, a devastating blow at Pearl Harbour. "What we must not do in the face of a mortal threat is give in to wishful thinking or willful blindness." So, don't wait until the `monster' hits you with nuclear weapons or other weapons of mass destruction. Thus, action now and a regime change in Iraq are in order. This argument is legally flawed in two respects. First, the use of force in self-defense is justified only in case of an armed attack, not in case of a perceived security threat. Second, effecting a regime change is not the function of an outside power; it is inane in the face of the Iraqis' right to self-determination. Forcible intervention to effect a regime change was roundly condemned by the International Court of Justice in the Nicaragua case. (1986, paragraphs 255, 258).
Finally, does the obligation of every state to "prevent and punish" acts of international terrorism imply a right to resort to military force unilaterally? The obligations in respect of "preventing and punishing" criminal acts of terrorism are obligations to be implemented within the territorial jurisdiction of a state. By no stretch of imagination can a duty to "prevent" imply a duty to "take unilateral military action" against another state under the facade of enforcement of international obligations.
At any rate, since the adoption by the Security Council of Resolution 1373 on September 28, 2001, the Council alone is competent to authorize military action under its direct control against a recalcitrant state. Nor can the U.S. claim an extended right of self-defense based on the September 11 attacks on the specious argument that many Al-Qaeda operatives, driven out of Afghanistan, have now found safe havens in Iraq illustrating Mr. Hussein's complicity in promoting international terrorism.
It is understandable that arrogance of power usually leads to a preference for unilateralism in use of military force. In any unilateral action of this type, the biggest casualty is the truth. It is therefore advisable to seek the interposition of the available international organisation in such matters.
Organisational interposition has a dual advantage. One, a claim of gross violations of international obligations could be subject to multilateral appraisal. Two, responses to them would have better chances of international legitimacy and accountability.
(The writer teaches International Law at the School of International Studies, JNU.)