UN Resolution or Not, This War
Violates International Law
by Rahul Mahajan
March 15, 2003
The majority of the antiwar movement has made a mistake in emphasizing the unilateral nature of the war on Iraq and the need for United Nations approval, and we may well reap the consequences of that mistake.
The argument has made major inroads with the public; polls consistently show that the majority of Americans oppose a unilateral war without international support and the latest poll in Britain shows only 15% of the population supports a war without a second U.N. resolution.
It's also an entirely unobjectionable argument in a negative sense - without a Security Council resolution, the war is clearly a violation of international law, as U.N. Secretary-General Kofi Annan has recently pointed out. It is, however, possible for a war fought with U.N. approval still to be a violation of international law.
That is the fundamental question -- not whether our "allies" support us, not whether we can strong-arm and browbeat enough members of the Security Council to acquiesce, but whether or not the war is illegal.
Interestingly, in this, as in so many other things, the Bush administration turns this question on its head and claims that the war is necessary in order to uphold international law.
Let's start with that argument.
Iraq is threatening no country with aggression and its violations of Security Council resolutions, while clear, are technical, mostly a matter of providing incomplete documentation about weapons that may or may not exist, and for the use of which there are no apparent plans. At the same time, Israel is in violation of, at a very conservative count, over 30 resolutions, pertaining among other things to the very substantive issue of the continuing illegal occupation of another people, along with violations of the Fourth Geneva Convention through steady encroachment on and effective annexation of that land. Indonesia, another U.S. ally, violated U.N. resolutions for a quarter of a century in East Timor with relative impunity. Morocco is illegally occupying Western Sahara. In each of these cases, the United States wouldn't be required to go to war to help uphold international law; it could start simply by terminating aid and arms sales to these countries.
The United States is also a very odd country to claim to uphold such a principle. Ever since a 1986 International Court of Justice ruling against the United States and in favor of Nicaragua, the United States has refused to acknowledge the ICJ's authority (the $17 billion in damages it was ordered to pay were never delivered). Shortly after that judgment, the United States actually vetoed a Security Council resolution calling on states to respect international law. Of course, the United States doesn't itself violate Security Council resolutions, since it can always veto them -- as it did when the Security Council tried to condemn its blatantly illegal invasion of Panama in 1989, and on seven occasions regarding its contra war on Nicaragua.
For the sake of argument, let's forget about the international double standard and focus just on Iraq. Even without reference to anything else, one can argue that repeated U.S. violations of international law when it comes to Iraq and in particular of the specific "containment" regime instituted after the Gulf War release Iraq from any obligations.
To start, Iraq has been under illegal attack for the past decade, with numerous bombings including the Desert Fox campaign, even as it was being called on to start obeying international law.
The United States also took numerous illegal or questionably legal steps to subvert the legal regime of "containment" -- passing the "Iraq Liberation Act" in October 1998, which provided $97 million for groups trying to overthrow the Iraqi government, a clear violation of Iraqi sovereignty and a violation of international law; stating that only with regime change would the sanctions be lifted, in violation of UNSCR 687; and using weapons inspections to commit espionage, the information from which was then used in targeting decisions during Desert Fox.
Is the War Itself a Violation of International Law?
Perhaps the most cogent argument, however, is the fact that the war the United States is planning on Iraq is an act of premeditated aggression.
All the signs point in the same direction.
First, in August, Defense Secretary Rumsfeld ordered that the list of bombing targets be extended far beyond any goal of enforcing the no-fly zones to include command-and-control centers and in general to go beyond simple reaction to threats. According to John Pike of Globalsecurity.org, this was "part of their strategy of going ahead and softening up the air defenses now" to prepare for war later. By December 2002, the shift could be noted in a 300% increase in ordnance dropped per threat detected -- a clear sign that simply defending the overflights was no longer the primary aim of the bombings. According to the Guardian, "Whitehall officials have admitted privately that the 'no-fly' patrols, conducted by RAF and US aircraft from bases in Kuwait, are designed to weaken Iraq's air defence systems and have nothing to do with their stated original purpose." Weakening air defense and command-and-control are the standard first steps in all U.S. wars since 1991, so the first salvoes in the war were being fired even as inspections continued. In the first two months of this year, bombings occurred almost every other day.
Even worse, according to strategic analyst Michael Klare, by February 2002 it had become clear that all of the administration's supposed diplomatic activities in the Fall of 2002 and early 2003 had merely been a smokescreen.
The war was being seriously planned from at least the spring of 2002, but in the summer there was a serious internal debate in the military between a so-called "Afghan option" with 50-75,000 troops and heavy reliance on air power and Iraqi opposition forces and the eventual plan, "Desert Storm lite," with 200-250,000 troops and a full-scale invasion.
The decision was made in late August, but the more involved plan, according to Klare, required at least a six-month deployment. Ever since then, the timetable has not been one of diplomacy, U.N. resolutions, and weapons inspections, but rather one of deployment, strong-arming of regional allies needed as staging areas for the invasion, and, quite likely, replenishment of stocks of precision weapons depleted in the war on Afghanistan.
For over a month, as inspections increase in effectiveness and scope, as Iraq dismantles its al-Samoud missiles, and as it struggles desperately to find ways to reconcile questions over biological and chemical agents, the White House has contemptuously dismissed all efforts. The constant refrain is that time is running out, with no explanation of why the time is so limited. The reason is simple; it's not because of any imminent threat from Iraq, it's just because the troops are there and ready to go.
The obvious conclusion is that the war was decided on long ago, irrespective of Iraq's actions. Nothing Iraq could have done short of full-scale capitulation and "regime change" would have stopped the United States from going to war. That makes this war a clear case of aggression.
Even the fig leaf of another U.N. Security Council resolution will not change this fact. Nor will it confer any legitimacy on the actions, because of the massive attempts by the United States, documented in the study "Coalition of the Willing or Coalition of the Coerced?" by the Institute for Policy Studies, to coerce, bribe, and otherwise exert undue influence on other countries, including key undecided Security Council members, to support the U.S. position.
Above all else, if other countries acquiesce to U.S. plans, it will be because of the constant refrain of the Bush administration -- that the United States will go to war with or without their consent, so there is nothing to be gained (and much to be lost) by resisting.
In fact, the U.S. war on Iraq is itself the most fundamental violation of international law. In the language coined at the Nuremberg trials, it is a crime against peace. Former Supreme Court Justice Robert Jackson, chief U.S. prosecutor at the first Nuremberg trial, called waging aggressive war "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."
It surely is unprecedented in world history that a country is under escalating attack; told repeatedly that it will be subjected to a full-scale war; required to disarm itself before that war; and then castigated by the "international community" for significant but partial compliance.
Rahul Mahajan is a founding member of the Nowar Collective and serves on the National Board of Peace Action. This article has been excerpted from his forthcoming book, The U.S. War Against Iraq: Myths, Facts, and Lies, published by Seven Stories. His first book, "The New Crusade: America's War on Terrorism," has been described as "mandatory reading for all those who wish to get a handle on the war on terrorism." His articles can be found at http://www.rahulmahajan.com. Email: firstname.lastname@example.org