As the Bush administration continues its hard bargaining over Iraq with other
members of the U.N. Security Council, it is making a not-so-veiled threat -- if
the council fails to adopt a new resolution authorizing the use of force against
Saddam Hussein, the United States may go to war anyway.
We don't really need your approval, the administration appears to be saying.
We already have it, so we can invade whenever we want.
The point has been made repeatedly, most recently Thursday, when Secretary
of State Colin Powell said "the United States does not need any additional (U.
N.) authority, even now, to take action to defend ourselves."
It's a powerful blank check, backed legally -- in the administration's view
-- not only by the recently passed congressional resolution endorsing the use
of force, but also by Security Council resolutions passed in 1990 and 1991 that
authorized military action to remove Hussein's forces from Kuwait.
There's only one hitch. According to most members of the council and numerous
U.S. legal scholars, Washington's interpretation is wrong.
Without a new council resolution explicitly authorizing war, the United States
cannot act alone, they say.
While Washington has backed down somewhat from its earlier go-it-alone position
by agreeing that the Security Council would first be consulted if Iraq is found
in breach of new weapons inspections, it still insists it will not feel bound
to wait for a U.N. decision before taking action.
POWELL CLAIMS 'AUTHORITY TO ACT'
Powell said Thursday that the congressional war authorization signed by Bush
the day before "says that the president has the authority to act . . . in the
best interest of the United States in concert with well-minded nations, whether
the United Nations is active or not."
The congressional authorization directly echoes legal arguments made previously
by the Clinton and Bush administrations. It cites Security Council Resolution
678 of November 1990, which authorized "member states . . . to use all necessary
means to uphold and implement Resolution 660 (which ordered Iraq out of Kuwait)
and all subsequent relevant resolutions and restore international peace and security
in the area."
TRYING TO USE ORIGINAL RESOLUTION
According to Washington's view, the mandate of Resolution 678 is not limited
to removing Iraq from Kuwait but refers indefinitely to all matters related to
Iraq, such as disarmament, regional security and protection of Iraq's civilian
population, as summarized in Resolution 687, which created the cease-fire to end
the Gulf War in 1991.
The United States argues that Iraq is violating 687 and other resolutions,
so the original authorization in 678 to use force still stands -- and can be used
Many international legal experts disagree. They say 678's mandate referred
only to those resolutions related to Iraq's occupation of Kuwait. They also note
that 687 and other Iraq resolutions after the Gulf War state the council "remains
seized of the matter" -- legal jargon meaning that all further actions are to
be decided by the council.
"This broad interpretation of Resolutions 678 and 687 is absolutely incorrect,"
said Jules Lobel, a law professor at the University of Pittsburgh who is a leading
scholar of U.N. jurisprudence.
"The French, Russians, Chinese and most other countries of the world are correct
that it's for the Security Council, not for the United States and Britain, to
decide on any other actions to further enforce the resolutions."
Since the Gulf War, all other U.S. and British military action against Iraq
-- imposition of the "no-fly" zones in northern and southern Iraq, and the December
1998 bombing of Baghdad -- has employed the same interpretation, which legal experts
and other Security Council members say is equally invalid because Washington and
London did not obtain explicit U.N. authorization.
BACKERS QUESTIONING POLICY
Even those who support the administration's policy say the U.S. case is far
from solid legally.
Abraham Sofaer, a former State Department legal adviser to the Reagan and first
Bush administrations who is a senior fellow at the Hoover Institution at Stanford
University, said the current U.S. legal argument "isn't clear, it's controversial.
I support the president, I think we should act even without explicit (new) authority
from the Security Council. . . . But now, you just can't say you have a clear
Sofaer agreed that the problem isn't new. "It's a dilemma we faced in Kosovo
(in 1999), where we didn't have explicit legal authority, but we went to NATO
and said, 'Let's just do it.' "
This creates a dangerous precedent, some analysts say.
"No single nation has the right to decide enforcement of U.N. Security Council
resolutions," said Stephen Zunes, a professor of politics and chair of the Peace
and Justice Studies Program at the University of San Francisco.
"If that were the case, Russia could invade Turkey because of its violation
of resolutions on Cyprus; Spain could invade Morocco because of the Western Sahara;
Syria could invade Israel, and so on."
U.S. OFTEN BLOCKS ENFORCEMENT
Zunes recently carried out a study that found that since World War II, 91 council
resolutions have been violated with no attempt to enforce them. In many cases
-- such as resolutions critical of Israel -- the United States has blocked enforcement
Other scholars point out that because U.N. resolutions have the status of foreign
treaties and thus are "the supreme law of the land," as described in the U.S.
Constitution, they should trump any law passed by Congress.
Bruce Ackerman, a professor of constitutional law and political science at
Yale University, said such high principles have been ignored by American courts.
"Under existing Supreme Court case law the courts will follow the congressional
resolution even though the country is violating one of its solemn treaty obligations,"
Legal experts agree that the Bush administration's strongest card could be
to cite the right to individual or collective self-defense, which is enshrined
in the U.N. Charter. American officials have laid the groundwork for the use of
force under what they call "pre-emptive self-defense," saying that Hussein supports
al Qaeda and other international terrorist groups that might use chemical, biological
or nuclear weapons against the United States.
But the administration has held back from making an explicit legal case, apparently
because it lacks firm evidence that Iraq is giving such support or that an attack
is imminent, as the Charter requires.
ARGUMENT COULD BACKFIRE
What's worse, the self-defense argument could boomerang. If the United States
fails to get U.N. backing yet declares its intention to invade Iraq anyway, Baghdad
could cite self-defense as justification to launch a pre- emptive attack on U.S.
military forces in the gulf region.
In the end, the legal issues may simply be determined by the realities of the
"If the United States invades and it's over in a week, this would be just another
violation of the U.N. Charter, the Security Council would be powerless to do anything
about it, and few people would pay any more attention," said Sobel of the University
"But if U.S. troops get mired in combat in Baghdad, it would be very serious
if they're doing it in contravention of the charter and Security Council wishes."
©2002 San Francisco Chronicle