President Bush said last night that previous U.N. Security Council resolutions confer international legal authority for a "just" war against Iraq to oust President Saddam Hussein and rid the country of weapons of mass destruction.
Although Bush acknowledged earlier in the day that the Security Council was not prepared to pass a new resolution explicitly authorizing the use of force, he said U.N. authority for war existed. He said the United States was acting to enforce what the Security Council would not.
"This is not a question of authority," Bush said in announcing that the United States would attack if Hussein and his sons did not leave within 48 hours. "It is a question of will."
Bush's assertion that a war would be legal without a new council vote is a subject of considerable dispute among legal scholars, many of whom contend a prospective U.S.-led attack would defy and weaken international norms.
"It clearly wouldn't be seen as legal or legitimate by a huge swath of the world," said Diane Orentlicher, professor of international law at American University.
The importance of the issue was reflected yesterday by comments on both sides of the Atlantic. Russian President Vladimir Putin said a military assault without U.N. authorization would be illegal and harmful. U.N. Secretary General Kofi Annan said the war's "legitimacy will be questioned and the support for it will be diminished."
In London, where Prime Minister Tony Blair has been a firm supporter of force to disarm Hussein, the British attorney general sided with the Bush administration view that a war in Iraq would be consistent with Resolution 1441, approved unanimously by the Security Council in November, and two resolutions that sandwiched the 1991 Persian Gulf War.
Bush cited those three resolutions in his address to the nation last night. Bush began with Resolution 1441, which warned of "serious consequences" if Hussein refused to surrender his weapons of mass destruction.
The White House, in an argument often used by Secretary of State Colin L. Powell, contends the 14 other Security Council members knew "serious consequences" meant war and did not require another council resolution. A number of council members, however, have said they meant no such thing, asserting that they did not intend to authorize armed force without another vote.
Bush also cited the two principal Gulf War resolutions. Resolution 678, adopted in 1990, preceded the war and authorized the use of "all necessary means" to evict Iraqi forces from Kuwait and -- important for current events -- "to restore international peace and security in the area."
Resolution 687, adopted shortly after the war ended, imposed economic sanctions and called on Iraq to surrender biological, chemical or nuclear weapons and related materials, among other demands. It referred to previous resolutions, including 678 and its authorization of force.
The Bush administration argues that Hussein failed to comply with the will of the Security Council as expressed in those resolutions, clearing the way for a legitimate use of force now.
University of Pittsburgh law professor Jules Lobel called the administration's argument "ludicrous." He said a war would be "clearly illegal," not least because he believes it is "absolutely clear" that a large portion of the Security Council does not favor military action.
"Resolution 678 was passed to allow U.N. members to drive Iraq out of Kuwait," Lobel said. "It's now being used almost 13 years later on something that had nothing to do with the original intent and purpose of the resolution."
The U.N. Charter permits force in two circumstances. The first is in self-defense when a nation is attacked. The second is when the Security Council authorizes action to counter a threat, typically understood to be imminent.
Princeton University professor Ann-Marie Slaughter suggested that although a war in Iraq would be illegal, its legitimacy would ultimately be determined by world opinion.
"It could be legitimate if they find what the United States and Britain claim they're going to find: a significant number of weapons of mass destruction," said Slaughter, dean of the Woodrow Wilson School of Public and International Affairs. "It's going to be up to global public opinion to decide who had the right moral argument."
Legal scholar Ruth Wedgwood shares the administration's argument that Iraq is subject to ongoing obligations stemming from the Gulf War period, particularly from 687, known as the ceasefire resolution.
"It's not any old resolution," said Wedgwood, of Johns Hopkins University's School of Advanced and International Studies. "With a failure to perform, the ceasefire is suspended, just as if Iraq were to invade Kuwait again."
© 2003 The Washington Post Company