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UN: Legality, Legitimacy Of Using Force Against Iraq Under Scrutiny

  • Robert McMahon

United Nations Secretary-General Kofi Annan has asserted that if the United States acts against Iraq without a Security Council mandate, it would violate the UN Charter. International legal experts dispute this, with many saying the charter does not carry the authority originally intended. But a number of international experts believe that for U.S. military action in Iraq to gain crucial long-term support, it must be seen as legitimate, if not legal.

United Nations, 14 March 2003 (RFE/RL) -- The United States continues to pursue last-minute efforts to gain United Nations Security Council backing for a resolution authorizing force against Iraq. Yet Washington has also made clear that it already has the legal authority to act against Iraq for violating previous disarmament resolutions.

UN Secretary-General Kofi Annan, however, said this week that such action would violate the UN Charter. The charter permits the use of force only in cases of self-defense or under authority of the UN Security Council.

Now there are indications the United States may consider withdrawing the resolution, which still has the public support of only four council members. If the measure were put to a vote and defeated, some diplomats say, military action could be depicted as illegal and cause a domestic backlash against the governments of Britain and Spain, which helped sponsor the resolution.

Without a new resolution, a U.S.-led coalition could say it derives authority from five-month-old Resolution 1441, which threatens Iraq with "serious consequences" if it fails to fulfill its disarmament obligations.

U.S. Secretary of State Colin Powell told a U.S. congressional committee yesterday the government is keeping its options open. "Our options remain [to] go for a vote and see what [UN Security Council] members say or not go for a vote. But all of the options that you can imagine are before us, and we will be examining them today, tomorrow, and over the weekend," Powell said.

Meanwhile, Iraqi Foreign Minister Naji Sabri yesterday sought to maintain the focus on the UN Charter and the legality of any U.S. military action. "If [the U.S. administration] respects the Security Council resolutions and the United Nations Charter, it should not embark on any aggression against Iraq, because a planned aggression against Iraq is a serious violation, a flagrant violation to the United Nations Charter, to all Security Council resolutions, and to the will of all nations around the world," Sabri said.

The comments have brought new focus to the issue of the appropriate use of military force in international relations. The UN Charter is universally accepted as the main authority regarding the international use of force. But the charter's effectiveness has come under increasing debate by legal scholars.

It has not proven to be a major deterrent to warfare since its signing 58 years ago. A new report issued by the United Nations Association, a New York-based policy institute, says there have been 291 interstate conflicts involving 126 countries since 1945.

The report also says that international treaty law may be contradicted by what it calls "customary international law." It says "customary" law can include the general conduct of states, Security Council precedent, rulings of the International Court of Justice, and judicial decisions of respected jurists.

The challenges facing the UN Charter today can best be seen in the cases of North Korea and Kosovo, said Michael Glennon, a professor of international law at the Fletcher School of Law and Diplomacy at Tufts University in the United States.

Glennon told RFE/RL that it is significant that North Korea has been seeking a nonaggression pact with the United States to resolve its current crisis rather than rely on the UN Charter, which was intended to be what he called "the mother of all nonaggression pacts."

In the case of Kosovo, the United States led a NATO air campaign against Yugoslavia after Russia threatened to veto any such action in the Security Council. Glennon said the NATO bombardment had international legitimacy, although it was technically illegal. "NATO in 1999, with all 19 NATO democracies joining together, proceeded to bomb Yugoslavia in plain violation of the [UN] Charter. There was no authorization of the Security Council, but it was done because it was thought to be wise, because the benefits were thought to outweigh the costs. That's the test that is applied today, whether it's wise, not whether it's lawful," Glennon said.

Glennon disagrees with those who suggest a conflict in Iraq will upset the international legal order or threaten the legitimacy of the Security Council. "There are well over 100 incidents since World War II in which members of the United Nations have used force against other members of the United Nations without any Security Council approval, and it's just implausible to suggest today that the use of force by the United States suddenly has become unreasonable or unlawful," Glennon said.

Richard Gardner is a professor of international law at Columbia University in New York and a former diplomat. He told RFE/RL he has long held the view that the United States and its allies have had the right to take action against Iraqi President Saddam Hussein because of his violation of the cease-fire conditions ending the 1991 Gulf War.

But he said that with the passage of Resolution 1441 last November by the Security Council, the situation has become more ambiguous. "What has changed is that we passed Resolution 1441, which confirms that he's [Hussein] in material breach but gives him one last chance to cooperate. Now what makes it so difficult is that members of the council disagree. Is he availing himself reasonably of this one last chance to cooperate or not?" Gardner said.

With the legal aspects of military action against Iraq up for debate, Gardner said the United Nations is still an important source of legitimacy for the United States, especially, he said, for the difficult task of post-conflict reconstruction in Iraq, in which UN assistance would be crucial.

Chapter 7 of the UN Charter says the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken, to maintain or restore international peace and security.

Throughout the 1990s, the Security Council on a number of occasions delegated its Chapter 7 powers to member states, which volunteered their forces to carry out enforcement actions. This included delegating enforcement powers to a multinational force led by Australia in East Timor in 1999, a force assembled by the Economic Community of West African States in Liberia and Sierra Leone in 1997, and NATO in several conflicts in the former Yugoslavia.

Security Council Resolution 678 in 1990 authorized UN member states, led by the United States, to use "all necessary means to uphold and implement" the previous resolution, 660, demanding Iraq's withdrawal from Kuwait and to "restore international peace and security in the area."

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