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The War on Iraq as Illegal and Illegitimate

“The Iraqi dictator must not be permitted to threaten America and the world with horrible poisons and diseases and gases and atomic weapons.”

George W. Bush, October 7, 2002

“I think unless the United Nations shows some backbone and courage, it could render the Security Council irrelevant.”

George W. Bush, February 17, 2003

We now know that there were no weapons of mass destruction in Iraq, as repeatedly alleged by Mr. Bush and other members of his administration. And contrary to Mr. Bush’s allegation that the United Nations showed no backbone and courage, the Security Council did, in fact, stand up to the Bush administration’s pressure and did resist authorizing war prior to the UN weapons inspectors completing their task. It was the Bush administration’s impatience with the Security Council process and unwillingness to abide by it that led them to initiate an unauthorized attack on Iraq in violation of international law. Although the war in Iraq is widely regarded throughout the world as illegal under international law, few consequences seem to be flowing from this in holding to account the perpetrators of the war, including leading figures in the Bush administration.

At issue is a view often articulated by detractors of the war, such as former Secretary of State Madeleine Albright, describing the war in Iraq as a “war of choice,” rather than a war of necessity.1 This would suggest that those with sufficient power have choices in matters of war and peace in which they can initiate war without being held accountable; or, at best, be held accountable only by the democratic process of defeat in the next election. The implication is that an illegal war of aggression, while it may be neither wise nor necessary, is a prerogative of power.

The two main justifications offered by the Bush administration for the war against Iraq prior to its inception have by now been completely discredited. First, administration spokespersons repeatedly pointed to an imminent threat that Iraq would use weapons of mass destruction against the US or its allies, or would transfer these weapons to terrorist organizations. UN weapons inspectors in Iraq prior to the war reported that they were not finding weapons of mass destruction and needed more time to complete their inspections. The Bush administration, however, continued to assert that Iraq had such weapons, despite a lack of credible corroboration, and finally warned the UN inspectors to leave Iraq before the US initiated what they called a “preemptive” war. Secretary of State Colin Powell, in his presentation to the United Nations Security Council, asserted without question that the US had knowledge of Iraqi weapons of mass destruction and proceeded to produce intelligence photographs of the sites where they were being manufactured and stored.2 His assertions turned out to be false.

In the aftermath of the war, no weapons of mass destruction were located in Iraq, despite extensive efforts on the part of UN inspectors and US military personnel. This wholly discredited the numerous pronouncements by members of the Bush administration that they not only knew there were such weapons but even knew where they were located within Iraq.

The second justification for the war made by the Bush administration prior to initiating the war was that there was a link between Iraq and the Al Qaeda terrorist organization. The evidence establishing this link has also proven to be false or, at best, extremely tenuous. This led the US to come up with new post hoc justifications for the war, such as the assertion that Saddam Hussein was a bad man and evil dictator, even though the US supported Hussein despite his poor human rights record when it believed that it served its interests to do so. While the latter, after-the-fact justifications may be true, they do not make an effective case for legality, or even legitimacy, of an aggressive war initiated without UN authorization.

If allowed to stand unchallenged, the US initiation of war on Iraq and the rationale that permitted it could set an extremely dangerous precedent. Such actions could also undermine the legal and normative system to prevent wars of aggression, centered in the United Nations and enunciated in the Nuremberg Principles, which were the basis for the trials of Axis leaders in the aftermath of World War II. The Nuremberg Principles list “Crimes against peace” as first among the crimes punishable under international law and define Crimes against peace as: “(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation of a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).”

The words of the US chief prosecutor at the Nuremberg Trials, Justice Robert Jackson, are relevant. Jackson was adamant that the true test of what was done at Nuremberg would be the extent to which the Allied victors, including the US, applied these principles to themselves in future years. In his opening statement to the Court, Jackson placed the issue of “victor’s justice” in context: “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.”3 Such “aspirations to do justice” included for Jackson applying the law equally and fairly to all. “If certain acts in violation of treaties are crimes,” he stated, “they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us.”4

The Illegality of the Iraq War

The UN Charter is clear that wars of aggression are prohibited. Article 2(4) states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”5 This prohibition on the use of force finds an exception in Article 51 of the Charter, which allows for the possibility of self-defense.6

Article 51 states: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”7 It should be emphasized that this exception to the general prohibition against the use of force is only valid in the event of “an armed attack” and only “until the Security Council has taken measures necessary to maintain international peace and security.”

In the case of the US war against Iraq, there was no armed attack against the US by Iraq, nor any substantiated threat of armed attack. There was no credible evidence that Iraq had any relationship to the September 11, 2001 terrorist attacks against the US. There was, therefore, no appropriate justification for the invocation of the self-defense exception to the UN Charter’s prohibition against the use of force. If the US could proceed to war against Iraq on the basis of a claim of potential future attack, it would open the door to a broad range of assertions of potential future attacks by one country against another that would justify unilateral initiation of warfare, whether or not based on factual foundations, paranoia or simple expediency. It would throw the international order into a state of chaos.

Further, the matter of Iraq’s failure to complete the disarmament obligations imposed upon it by the Security Council following the 1991 Gulf War was actually placed before the Security Council by the US for action, and the Security Council resisted US pressure to provide the US with an authorization to use force. The Bush administration, at the urging of Secretary of State Colin Powell and over objections of other administration officials, sought a Security Council mandate to initiate what the US called a “preemptive war” (but was actually a “preventive war” since it involved no imminent threat of attack but only sought to prevent the imagined possibility of a future attack) against Iraq.

The Security Council did agree to one resolution, UNSC Resolution 1441, that called on Iraq to disarm its weapons of mass destruction and cooperate with UN inspectors, but did not include an authorization for the use of force against Iraq.8 In Resolution 1441, the Security Council indicated that it would remain “seized” of the matter, meaning that it continued to assert its authority as the final international arbiter of the use of force in the matter. When the US went back to the Security Council for a second and follow-up resolution to 1441, this one to provide authorization to proceed to war against Iraq, the Security Council refused to comply with the US demand for such authorization on the grounds that it wanted to give the UN inspectors more time to finish their work.

Rather than awaiting authorization from the Security Council or abiding by the Council’s unwillingness to provide such authorization, the US, under the Bush administration, which had been gradually repositioning its military forces into the Middle East in preparation for war with Iraq, abandoned its quest for UN authorization and proceeded to attack and invade Iraq. The Bush administration sought to justify its illegal actions on the basis of Security Council Resolution 678, a 1990 resolution that authorized “all necessary means” to uphold previous resolutions related to Iraq’s invasion and occupation of Kuwait and to restore peace and security in the area.9 The resolution authorized the use of force unless Iraq fully complied with previous Council resolutions by January 15, 1991. This resolution was used as legal justification for the attack against Iraq on that date by the US-led coalition and also by the Bush II administration for its attack in March 2003. While the justification is relevant, at least legally, to the 1991 Gulf War, it is basically used as sophistry in relation to the 2003 attack.

Following the first Gulf War, Iraq accepted a cease-fire contained in Security Council Resolution 687.10 This resolution imposed certain conditions on them, including weapons of mass destruction (WMD) disarmament obligations. In justifying the 2003 war on Iraq, Bush administration officials continued to rely upon the Security Council resolutions preceding and immediately following the 199l Gulf War. State Department Legal Advisers, for example, argued, “As a legal matter, a material breach of the conditions that had been essential to the establishment of the cease-fire left the responsibility to member states to enforce those conditions, operating consistently with Resolution 678 to use all necessary means to restore international peace and security in the area.”11

These officials further argued that the provision in Resolution 1441 indicating that Iraq was in “material breach of its obligations” to cooperate with UN inspectors on WMD inspections under previous resolutions, including resolutions 678 and 687, allowed them to legally initiate their attack on Iraq.12 In fact, however, Resolution 1441 offered Iraq “a final opportunity to comply with disarmament obligations,”13 and Iraq was doing so. Iraq was cooperating with UN inspectors on these issues, and the arguments to the contrary, by Colin Powell and others in the Bush administration, have since been exposed as misrepresentations.14 Most important, though, Security Council Resolution 1441 stated that the Security Council would remain seized of the matter, thus indicating that without further Council authorization there was not legal justification for the US and its allies to proceed to war against Iraq.15

The US-led attack against Iraq constitutes a clear undermining of established Security Council authority in the realm of war and peace. The attack and initiation of the Iraq War would later be described by President Bush in terms of the US not needing a “permission slip,” presumably from the United Nations, when US security interests were threatened.16 As was subsequently revealed, however, US security interests were not threatened, as had been alleged by the Bush administration, and the war therefore had no legal basis. It was considered by the opposition party in the US to be at best a “war of choice.” More realistically, it was understood by large majorities of the populations of nearly all countries in the world to be an aggressive and illegal war of the type for which Axis leaders were held to account by the Allied powers after World War II. UN Secretary General Kofi Annan said unequivocally that the war was illegal. Referring to the war, he stated, “I have indicated it was not in conformity with the UN Charter. From our point of view and from the Charter point of view it was illegal.”17

The Security Council could have chosen to act under Article 39 of the UN Charter to authorize the use of force against Iraq if it determined that there had been a breach of the peace or act of aggression. Article 39 states,18“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 in accordance with Articles 41 and 42, to maintain or restore international peace and security.”19 Article 41 refers to actions the Security Council can take that do not involve the use of force. Article 42 refers to acts of force the Security Council can take if it finds the measures under Article 41 to be inadequate. These include “such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.”20 No such actions were authorized by the Security Council in relation to the Iraq War initiated by Mr. Bush and other US and coalition leaders in March 2003.

The Illegitimacy of the Iraq War

Despite the nearly universal understanding of the illegality of the war, it might be asked under what conditions it might nonetheless be considered legitimate, even if not legal. This line of inquiry takes into account the argument that the threat of a possible attack with weapons of mass destruction, particularly nuclear weapons, would allow for some bending of international law to fit the extreme dangers associated with such weapons. In response to this line of inquiry, it seems reasonable to suggest that evidence of the development of weapons of mass destruction, when combined with further evidence of imminent intent to use such weapons, could constitute a sufficient threat to justify preemptive war in an attempt to prevent the use of weapons of mass destruction. (Query: Would the 2001 US Nuclear Posture Review,21 which calls for developing contingency plans for the use of nuclear weapons against seven countries, suggest imminent threat, and constitute sufficient grounds for a preemptive attack by one of these states against the US?)

Hans Blix, the former chief UN Weapons Inspector in Iraq, analyzed the pre-war situation in Iraq in this way: “Any government learning that a 9/11, perhaps with weapons of mass destruction, is about to happen cannot sit and wait, but will seek to prevent it. However, such preventive action, if undertaken without the authorization of the Security Council, would have to rely critically upon solid intelligence if it were to be internationally accepted. The case of Iraq cannot be said to have strengthened faith in national intelligence as a basis for preemptive military action without Security Council authorization. Saddam Hussein did not have any weapons of mass destruction in March 2003, and the evidence invoked of the existence of such weapons had begun to fall apart even before the invasion started.”22 Based on this analysis, Blix concluded: “Saddam Hussein was not a valid object for counter-proliferation. He was not an imminent or even remote threat to the United States or to Iraq’s neighbors.”23

It should be understood that even if there had been weapons of mass destruction in Iraq, this alone would not have been a sufficient justification for preemptive war. The mere presence of weapons of mass destruction, absent evidence of imminent intent to use them, would be insufficient to justify a preemptive war, let alone a preventive war. If the mere presence of weapons of mass destruction were sufficient, it would mean that any country possessing weapons of mass destruction would be a legitimate target of preventive attack by a potential enemy of that country. Such logic would push all states in the direction of preventive warfare and would substantially increase both the likelihood and danger of such wars. It would allow for attacks against Israel on the basis of its secret but widely recognized nuclear weapons program, for attacks by either India or Pakistan against the other, and for attacks by any of the nuclear weapons states against one another. This is, in part, why the International Court of Justice, in its 1996 Advisory Opinion on the illegality of nuclear weapons, stated: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”24

Following further this line of inquiry, a distinction needs to be drawn between a state possessing weapons of mass destruction and non-state extremist groups possessing the same weapons. In the former case, a country has a fixed location and is therefore far more likely to be deterred by threat of retaliation from using such weapons. On the other hand, the same weapons in the hands of extremists who are not easily locatable and who may be suicidal as well, and therefore are not subject to being deterred by threats of retaliation, present a far more dangerous threat. In the case of both states of concern – such as Iraq, Iran and North Korea – and of extremist groups, however, the best remedy is surely policies to prevent nuclear proliferation and achieve nuclear disarmament rather than a preemptive war. An aggressive war could only stand as a final barrier and one that is unacceptable and illegal unless under the mandate of the international community through authorization by the United Nations Security Council.

Given the after-the-fact findings in Iraq that there were neither weapons of mass destruction nor links to extremist organizations, there was no reasonable justification, either in legality or in legitimacy, for the US-led war against that country. US leaders continue to make the claim that previous Security Council resolutions provide the necessary justification, but this is a poor argument that is not borne out by scrutiny of the earlier resolutions and, in any event, is overridden by the fact that the Security Council had decided in Resolution 1441 to remain seized of the matter.

Costs of the War

Defenders of the Iraq War claim that the removal of Saddam Hussein by the rapidly diminishing “Coalition of the Willing” will make it possible for democracy to eventually take root in the country, and that a new Iraq will serve as a model to other countries in the region, transforming a troublesome, but oil rich, part of the world into one that is stable, peaceful and democratic. This is an unlikely scenario, given the realities that have ensued as a result of the war.

While many Iraqi citizens are pleased to see Saddam Hussein dislodged from power, the result of the Iraq War has been the deaths of some 100,000 innocent civilians, severe injury to tens of thousands more, and enormous destruction to the infrastructure of the country.25 Iraqi society has been devastated by warfare and its citizens subjected to death, injury, torture and humiliating abuses such as were revealed at Abu Ghraib prison. The price for regime change has been very high in terms of death and destruction. Iraq will now have to struggle with reestablishing itself as a sovereign state, finding its own means of governance in a post-Saddam and post-US occupation country. As part of this struggle, it will have to come to terms with its relationship to the US, which undoubtedly seeks to assure special privileges with Iraq with regard to Iraqi oil supplies and the continued presence of US troops in the region, particularly on newly established US military bases in Iraq itself.

Of course, the US has also paid a price for the war in terms of its financial costs, currently estimated at over $200 billion, the deaths and injuries of its soldiers, the spreading thin of its armed forces to levels considered dangerous by leading US military figures, and the loss of respect for and credibility of the US in the world community.

A second area of equally severe costs of the war against Iraq is its unfortunate implications for world order in the 21 st century. If the US precedent of aggressive war under false pretenses against Iraq is allowed to stand as a fait accompli without some form of international sanction against the US and its leaders, it bodes ill for the continuation of the world order system established after World War II to prevent “the scourge of war.”26 Clearly, the US is a key actor in the international system and, with its overwhelming military and economic power, it is not easy for the international community to stand up for principles of international law against US actions that violate the UN Charter. Yet, the continued viability of the Charter demands principled action by the members of the UN even in the face of US pressure. One extremely important principle of law is that no person or nation stands above the law. Law can only be respected and ultimately enforced when it applies to all, equally and alike. The US-led invasion of Iraq, under false pretenses and without UN Security Council approval, is a direct challenge to the principle of prohibition on the use of force in the UN Charter. Had the Security Council actually authorized the US attack on Iraq, it would have undermined the credibility of the United Nations itself, including its commitment to the basic principles of its own Charter.

The Need for Accountability

Throughout the world, there have been an ongoing series of inquiries into international crimes committed by US and Coalition leaders in initiating and conducting the war against Iraq in the form of international people’s tribunals.27 These tribunals, in the spirit of the Bertrand Russell War Crimes Tribunals during the Vietnam War, are amassing evidence of international crimes and will be reporting these to the public throughout the world. This is an important initiative of civil society, and it promises to help educate people and governments about the dangers and criminal nature of wars of aggression as well as crimes committed in the conduct of the war. Something more is needed, however, than leaving this matter to be dealt with only by civil society. The UN, for the health and integrity of the organization, also needs to initiate its own inquiry into the nature of the US war against Iraq. This could be done either in the General Assembly or by a committee of selected representative members of the UN and brought back to the General Assembly and, through it, to the people of the world. If the facts bear out the circumvention of the UN Charter by the US in direct defiance of the Security Council, at a minimum, the US should be censured for its actions. Further recommendations by the General Assembly could include a call for reparations to the Iraqi people, prohibitions on the US profiting from its aggression, the disgorgement of profits already obtained, and the trial and punishment of responsible US and coalition leaders for their actions.

An early act of the Bush administration was to “unsign” the treaty establishing an International Criminal Court (ICC).28 Under the Bush administration, the US has been hostile to the ICC, arguing that it did not want to subject US military personnel to the dictates of this international court. In light of the US circumvention of international law in its initiation of an aggressive war against Iraq, it becomes clearer that US leaders were seeking to give themselves greater degrees of freedom to commit serious violations of international criminal law without being subjected to the jurisdiction of the court.

No country, even the most powerful, should be immune from international law. The United Nations owes it to itself and the principles for which the organization stands not to allow the law to be violated without, at a minimum, drawing public attention to the violations. While a report by the UN on illegal actions by a member state might upset the government of that state, it would also help to draw the attention of the people of that country to illegal acts being committed in their name. This would bear some resemblance at the international level to the truth aspect of the Truth and Reconciliation Commission that was successfully used in South Africa after apartheid ended and Nelson Mandela was released from prison to become president of that country.29 It would be useful for a UN committee examining the violations of international law in the US-led war against Iraq to also look carefully into the more than a decade of sanctions imposed upon Iraq and the results of those sanctions in terms of human life and suffering of innocent parties.

The Iraq War and Weapons of Mass Destruction

At the heart of world conditions that provided the ostensible reason that the US went into Iraq are the extreme threats posed by weapons of mass destruction. Many countries are now concerned about the incendiary mix that lies at the intersection of weapons of mass destruction and terrorism. The need is greater today than ever before to bring weapons of mass destruction under effective international control, and many countries have voiced their concern that more must be done to keep weapons of mass destruction from proliferating to states of concern and non-state extremist organizations. Mr. Bush has spoken out on the importance of preventing nuclear terrorism. His plans involve attempting to keep what he refers to as the world’s most dangerous weapons out of the hands of the world’s most dangerous states and extremist organizations. Mr. Bush has organized a Proliferation Security Initiative that seeks to prevent the further proliferation of nuclear and other weapons of mass destruction to other states and to terrorist groups.30 To accomplish this, cooperating countries are tightening export controls, criminalizing transfers of weapons of mass destruction and the materials to create them, and making arrangements to board and inspect ships at sea suspected of transporting contraband materials.

Bush has noted the “loophole” in the Nuclear Non-Proliferation Treaty that allows states to develop peaceful nuclear programs that could be converted to nuclear weapons programs.31 He has called for closing this “loophole,” although the treaty itself calls the peaceful uses of nuclear energy an “inalienable right.”32 Additionally, he has called for tighter controls on nuclear materials by the International Atomic Energy Agency and particularly international controls on the technologies to reprocess plutonium and enrich uranium. Bush has not raised, however, the key obligation of the nuclear weapons states in the treaty, the Article VI obligation to engage in good faith negotiations for nuclear disarmament, which, more than any other single act, could limit the possibilities of nuclear weapons or the materials to make them falling into the hands of terrorists.33

A major problem in the international system related to preventing proliferation of weapons of mass destruction is the double standard on nuclear weapons that the permanent members of the UN Security Council continue attempting to uphold individually and collectively. While these states continue to maintain nuclear arsenals, all seek also to prevent other states from developing these weapons. In the end, such double standards cannot be maintained. It is not likely, for example, that the US would have initiated its aggressive war against Iraq if it truly believed that Iraq possessed weapons of mass destruction that it was prepared to use. A consequence of the Iraq War is that it demonstrated to non-nuclear weapon states that there are advantages to possessing these weapons if only to deter a stronger power, such as the US, from an unprovoked and illegal attack. This message does not seem to be lost on either North Korea, which announced that it has developed nuclear weapons, or on Iran, a country that appears to be pursuing a nuclear weapons program.

The initiation of warfare to prevent the proliferation of weapons of mass destruction by a state possessing weapons of mass destruction reflects the ultimate double standard in the current international system. It is a standard that ultimately cannot hold, and in the end will bring the current international order tumbling down. In a sense, the nuclear weapons states are holding the world hostage to this double standard by failing to fulfill their obligations under the nuclear Non-Proliferation Treaty. Projecting into the future a continuation of the effort to maintain these double standards, despite long-standing obligations under the nuclear Non-Proliferation Treaty, suggests the possibility that aggressive “wars of choice” may increase and become a regular occurrence in relations among countries. Such a future will also increase the likelihood of the use of weapons of mass destruction, either preemptively by a nuclear weapons state, or by extremist organizations intent on inflicting maximum damage on powerful states in the only way they are capable of damaging them, that is, by attacks on innocent civilians.

Need for Action by the United Nations

The world continues to stand at a crossroads. In one direction is a continuation of the status quo based on double standards related to weapons of mass destruction; in the other direction is a world in which international law applies to all countries, even the most powerful. The world’s countries, acting through the United Nations, must find a way to end double standards relating to weapons of mass destruction and, at the same time, to fulfill the promise of the nuclear Non-Proliferation Treaty to achieve total nuclear disarmament through the phased elimination of all nuclear arsenals. Prohibitions already exist on chemical and biological weapons, but the international community must find a way to assure the viability of these prohibitions through robust inspection and verification mechanisms.

In the short run, the war against Iraq has alerted the world to the dangers of a breakdown of accepted international norms and prohibitions against aggressive war. In the longer run, however, the resolution of this problem will require the strengthening of the UN itself and the ending of current double standards applied to the possession of weapons of mass destruction. The starting point for addressing this problem is for the UN to take responsibility for reviewing and evaluating what happened leading to the war against Iraq and to draw attention to violations of the UN Charter that occurred when the US and its coalition partners proceeded to invade and occupy Iraq without authorization by the Security Council. In doing so, it is likely that the conclusion will be inescapable that the US-led war was neither legal nor legitimate.

Some Final Questions

Finally, let us consider some remaining questions that might be raised about the Iraq War. Was it a defining moment for international law? If it was a defining moment, it was so only in calling for a clear response from the international community that no state, including the most powerful, stands above the law. Otherwise, the Iraq War represents aggressive warfare of a type that has occurred throughout history. Nonetheless, we might inquire about the right of states, individually or collectively, to remove from power a dictator that has a long record of violating international law and committing crimes against his own people. Certainly the international community has some responsibility in such a case, but it is a responsibility that must be exercised with proper authorization of the UN Security Council. Absent such authorization, there is no right under the law for a state to proceed to forcefully intervene in the internal affairs of another sovereign state.

Was the Security Council’s refusal to authorize war a triumphant moment for it, as some would argue, or was it an abdication of responsibility as others, particularly the US, would argue? If it was a triumphant moment, it was certainly a hollow one, for although the Security Council, to its credit, did not authorize the use of force in violation of the UN Charter, it was unable to prevent its most powerful member from acting without its authorization. Thus, although the Security Council may have been right, its authority was weakened by the noncompliance of the United States in acting without UN authority, and thereby illegally, in a spirit of exceptionalism.

Should the legal norm of non-intervention in the internal affairs of sovereign states be abandoned? This norm deserves review by the Security Council in an attempt to better delineate under what circumstances this norm should be set aside by the Security Council. Examples of overriding circumstances could include when genocides or crimes against humanity are occurring or are believed, based on sufficient evidence, to be imminent. A strong case can be made for establishing a UN Emergency Peace Service, a well-trained force composed of international volunteers, which would be available for rapid deployment upon authorization of the Security Council to prevent genocide or crimes against humanity.34 In relation to genocide and crimes against humanity, it would be appropriate to place limits on the veto power of the permanent members of the UN Security Council.

Does the Iraq War provide a model for future instances of controlling weapons of mass destruction? It is a very poor model for this purpose. Wars to control weapons of mass destruction are costly in terms of life and treasure, and sometimes, as in the case of Iraq, the wars may be based on faulty information, manipulated intelligence, false premises, misrepresentations and deceptions. The control of weapons of mass destruction can only be achieved in the end by doing away with double standards and placing all weapons of mass destruction and the materials to make them under verifiable international control while they are being dismantled and destroyed. This will require strengthening the chemical, biological and nuclear non-proliferation regimes; and this, in turn, will require a much higher level of political will by the states currently possessing such weapons of mass destruction.

A Step Backward for International Law

The Iraq War has been a step backward for international law, has harmed the authority of the UN Security Council and has undermined the credibility of the United States in the eyes of the world. The United Nations is faced with the dilemma of reasserting the post-World War II emphasis on ending the “scourge of war” in the face of a disturbing pattern of unilateralism, exceptionalism and disregard for international law displayed by the United States. The international community, acting through the United Nations, needs to establish effective limitations on unilateral action by all states and censure and apply sanctions to any country, including the most powerful, that defies the dictates of international law. At a minimum, the UN General Assembly should conduct a thorough review of the circumstances leading to the initiation of war against Iraq, and determine authoritatively whether that war was conducted legally with reference to international law.

This matter cannot be left in the hands of the UN Security Council since the US, as a permanent member, would exercise its veto power to prevent such a review from going forward. If the General Assembly deems it appropriate, it can turn to the International Court of Justice for an advisory opinion on the matter. The UN report or advisory opinion of the Court should be made public and widely disseminated. Proposals should be made by the General Assembly on preventing aggressive wars in the future and on the circumstances under which humanitarian interventions are appropriate. Were the United Nations to thoroughly review the matter and issue a strong report, it is possible that the international community could learn from what has happened and attempt to more effectively control such unauthorized and costly interventions in the future.

David Krieger is the president of the Nuclear Age Peace Foundation (www.wagingpeace.org). He is a leader in the global effort to abolish nuclear weapons and is the author of many studies of peace in the Nuclear Age, including Nuclear Weapons and the World Court.

*This paper has been submitted for inclusion in the book The Iraq Crisis and World Order: Structural and Normative Challenges, Ramesh Thakur and Waheguru Pal Singh Sidhu, editors, to be published by United Nations University Press, Tokyo (www.unu.edu/unupress).

  1. See, for example, Albright, Madeleine, “Medallion Speaker Address” (Commonwealth Club), 12 February 2004, http://www.commonwealthclub.org/archive/04/04-02albright-speech.html. Albright states, “Because although the war in Iraq was a war of choice, not necessity, winning the peace is a necessity, not a choice.”
  2. “ US Secretary of State Colin Powell Addresses UN Security Council,” 5 February 2003, http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html.
  3. General Assembly Resolution 95(1), 11 December 1946.
  4. Quoted in Taylor, Telford, The Anatomy of the Nuremberg Trials. New York: Alfred A. Knopf: 1992, p. 168.
  5. Quoted in Tusa, Ann and John Tusa, The Nuremberg Trial. New York: The Notable Trials Library, 1990, p. 81.
  6. United Nations Charter, entered into force 24 October 1945, http://www.un.org/aboutun/charter.
  7. . bid.
  8. Ibid.
  9. Security Council Resolution 1441, 8 November 2002, 42 ILM 250 (2003).
  10. Security Council Resolution 678, 29 November 1990, 29 ILM 1565 (1990).
  11. Security Council Resolution 687, 3 April 1991, 30 ILM 846 (1991).
  12. Taft IV, William H. and Todd F. Buchwald, “Preemption, Iraq and International Law,” American Journal of International Law, Vol. 97, No. 3, July 2003, p. 559. (The authors work for the US State Department. Mr. Taft is Legal Adviser to the US State Department, and Mr. Buchwald is Assistant Legal Adviser for Political-Military Affairs.)
  13. Taft and Buchwald, op.cit., pp. 560-561.
  14. Security Council Resolution 1441, operative paragraph 2 states: “Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council.”
  15. “US Secretary of State Colin Powell’s Address to the UN Security Council,” 5 February 2003, can be found on the White House website under the heading, “Iraq, Denial and Deception,” http://www.whitehouse.gov/news/releases/2003/02/20030205-1.html. Powell was later reported to have “told The Washington Post that he doesn’t know whether he would have recommended the invasion of Iraq if he had been told at the time that there were no stockpiles of banned weapons.” See “The Man Who Knew,” 4 February 2004, http://www.cbsnews.com/stories/2003/10/14/60II/main577975.shtml.
  16. Security Council Resolution 1441, operative paragraph 14 states: “”Decides to remain seized of the matter.”
  17. Bush, George W., “State of the Union Address,” 20 January 2004, http://www.whitehouse.gov/news/releases/2004/01/20040120-7.html.
  18. See MacAskill, Ewen and Julian Borger, “Iraq War was Illegal and Breached UN Charter, Says Annan,” Guardian, 16 September 2004, http://www.commondreams.org/headlines04/0916-01.htm.
  19. United Nations Charter, http://www.un.org/aboutun/charter.
  20. Ibid.
  21. Excerpts from the classified Nuclear Posture Review, submitted to Congress on 31 December 2001, can be found at http://www.globalsecurity.org/wmd/library/policy/dod/npr.htm.
  22. Blix, Hans, “The Importance of Inspections.” Proliferation Brief (Carnegie Endowment for International Peace), Vol. 7, No. 11, 2004, http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=1591.
  23. Ibid.
  24. “Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons,” General Assembly document A/51/218, 15 October 1996, p. 37.
  25. Rosenthal, Elisabeth, “Study puts civilian toll in Iraq at over 100,000,” International Herald Tribune, 30 October 2004.
  26. United Nations Charter, http://www.un.org/aboutun/charter.
  27. See, for example, “World Tribunal on Iraq, Platform Document, 29 October 2003, http://www.brusselstribunal.org/wti_platform_text.htm.
  28. The Treaty Establishing an International Criminal Court, entered into force on July 1, 2002. The treaty was signed by President Clinton on December 31, 2000. President Bush took the unprecedented step of “unsigning” the treaty in May 2002.
  29. See Tutu, Desmond, No Future Without Forgiveness. New York: Doubleday, 1999.
  30. On the Proliferation Security Initiative see: Bolton, John, “The Proliferation Security Initiative: A Vision Becomes a Reality,” 31 May 2004, http://www.state.gov/t/us/rm/33046.htm. For a more critical perspective, see “The Proliferation Security Initiative: Naval Interception Bush-Style,” Center for Defense Information, 25 August 2003, http://www.cdi.org/friendlyversion/printversion.cfm?documentID=1667.
  31. See Milbank, Dana and Peter Slevin, “Bush Details Plans to Curb Nuclear Arms,” Washington Post, 12 February 2004.
  32. The Treaty on the Non-Proliferation of Nuclear Weapons, entered into force on March 5, 1970, http://www.armscontrol.org/documents/npt.asp. Article IV(1) of the Treaty states: “Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop, research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with articles I and II of this Treaty.” This clause may be viewed as an obstacle to achieving the non-proliferation and nuclear disarmament goals of the Treaty.
  33. The Treaty on the Non-Proliferation of Nuclear Weapons, http://www.armscontrol.org/documents/npt.asp. Article VI of the Treaty states: “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” This critical element of the nuclear non-proliferation/disarmament bargain has been largely ignored by the nuclear weapons states.
  34. See Wang, Justine, “A Symposium on Genocide and Crimes Against Humanity: The Challenge of Prevention and Enforcement,” 8 January 2004, http://www.wagingpeace.org/articles/2004/01/08_wang_symposium.htm.

David Krieger
David Krieger
David Krieger is President of the Nuclear Age Peace Foundation (www.wagingpeace.org). He is the author and editor of many books on peace and nuclear weapons abolition, including "Speaking of Peace: Quotations to Inspire Action."