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Journal SeanAhern's Journal: UN Legality, Legitimacy of Unilateral Force against Iraq 22

Journal by SeanAhern

I found an interesting article about the debate about whether the use of force by the U.S. against Iraq, without a "second" (hah!) U.N. resolution, is "legal". I put "legal" in quotes because there are conflicting ideas about what body of law should be used. Here's the full article. It's not very long.

Some salient bits:

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.

As has been mentioned other places, the lack of a specific U.N. resolution authorizing the use of force does not automatically make such force "illegal". NATO actions in Kosovo are frequently brought up in this context:

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.

And then you have the reason why I believe that the U.S. is perfectly legally justified, on all fronts, to unilaterally act against Iraq:

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.

Bring on the debate!

(I only have 8 fans, but you gotta start somewhere...)

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UN Legality, Legitimacy of Unilateral Force against Iraq More

UN Legality, Legitimacy of Unilateral Force against Iraq

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  • It seems to me that we're dealing with two different ideas here: legality and legitimacy.

    The concept of legality, as it pertains to international law, is always a fuzzy one. Because there's no written body of international law that defines what is and what is not legal, the question is always open to interpretation.

    Legitimacy, on the other hand, is easier to figure, but harder to quantify. An international act is legitimate is the concensus of world opinion is that it is legitimate.

    I doubt that there's a

    • ...But because we've gone down this road toward another UNSEC resolution, we've implied that we think one is necessary. It's not.

      ...We're giving the UN Security Council an opportunity to finish the job it started in 1991, rather than just dropping the ball and letting us pick it up, but if they choose not to do that, we're ready to take over.

      I think you're very right here, and I think it may have been a mistake by the US. By going to the UN and declaring its intentions and asking for support for the war

      • I think perhaps a stronger emphasis on Iraq's failure to obey earlier resolutions is what could sway opinion.

        That's been the heart of every single one of the administration's statements on the subject since last September, and even before. People's opinions aren't being swayed because they aren't listening.

        And I, for one, have just about stopped caring.

        • Pardon the delayed response, I try to stay away from the computer over weekends.

          Hmm, possibly you're right, but it hasn't reached the general populace. It has been mixed in there with a dozen other reasons to invade Iraq, but I can't say it's been obvious from the official side that violating past UN resolutions are the core reason for the war. What we have seen in the news is that Iraq isn't complying with 1441, and that gives the impression that 1441 alone is the resolution that grants the UN members the

          • Hmm, possibly you're right, but it hasn't reached the general populace.

            This morning's polls indicate that 64% of Americans support waging war against Iraq under the current circumstances; that is, without the support of the Security Council, but with the support of our allies.

            What we have seen in the news is that Iraq isn't complying with 1441, and that gives the impression that 1441 alone is the resolution that grants the UN members the right for action.

            That is a valid interpretation of the facts. It

            • Of course my own impressions color it, it'd be hard to avoid that. But I find support for that impression in so many of the debates or articles that focus on 1441 and other later reasons there are for war. Is Iraq in violation of 1441, are the Iraqis oppressed, is Saddam such a bad guy, is he a threat to his neighbours, is he a threat to the US, is he a threat to europe, etc etc etc. If the general understanding was that the war on Iraq is to be because of older UN resolutions then many of those debates wou

  • Well, you got another fried.

    I'm not much on arguing the legalities of the whole Iraq conflict. I think the big problem is that you have one side arguing about the legalities and the reasons that this conflict must be waged. The other side is just saying "give peace a chance" and "war is bad".

    Now we've got France taking the role of Russia claiming that they'll veto any resolution that authorizes force. Personally, I'd love it if we had enough votes to bring it to that point and see if they actually have
    • In this particular case I think a military action in Iraq would be both Legitimate AND Lawful looking back at the original cease fire conditions.

      I too think you are correct on this. But sometimes things that are both legitimate and lawful are not always best. I still don't want to go to war, but unfortunately, I do not really see "giving peace a chance" as effective against Saddam Hussein.
    • Well, you got another fried.

      It's my first journal entry - I hope I don't get fried! ;-)

      I think one of the major reasons that we're seeing a lot of talk about backing away from an additional resolution is that Russia and especially France really are gonna veto it. As insane as that sounds, they somehow got the cahones in the last few weeks to actually go that far. (The question about why the heck France has veto power in the U.N. is a debate for another day.)

      In this particular case I think a military
      • Sorry, guess the n key flaked on me. :-D

        As far as 1441 goes the list of items that would trigger the serious consequences started with an innaccurate or incomplete report submitted by Iraq. That has already happened (even Hans Blix agrees with this when he says there are a number of "outstanding issues").

        The thing I'm wondering about is why France didn't have these cojones back when 1441 was being hammered out. What the heck did they think "serious consequences" meant?
  • Well, shucks, I can't be the third guy to say "yeah, that's legal and legitimate." Here are my agnostic arguments on why my country is doing wrong. (Which, for the curious, are superceded by my religious beliefs that it is evil to not oppose evil.)

    The war is not legitimate because it ended: The first Gulf war started to get Iraq out of Kuwait. They're out. If we had any authority to remake Iraq, it ended when we pulled our troops out and filled out the inspection regime.

    The war is illegal because in
    • The first Gulf war started to get Iraq out of Kuwait. They're out. If we had any authority to remake Iraq, it ended when we pulled our troops out and filled out the inspection regime.

      This is incorrect, the first gulf war "ended" by way of a cease fire. This cease fire was brought under the conditions that Iraq had to meet a series of resolutions. Ones in which it has failed, completely and totally, to comply with for over a decade.

      The war is illegal because inspections are ongoing: Until such time as
      • I'm going to wade into the frey with some points. The language is strong and condemning in an attempt to provide a more vivid point, but the points are salient nonetheless.

        And, to quote someone who failed to read one of my comments in a completely unrelated thread: The war is both illegal and illegitimate because "IRAQ NEVER ATTACKED THE UNITED STATES"

        Neither did the Germans.

        Yes, but in the two World Wars, it took several years for the United States to pitch in - even against Hitler, who was slaughter

        • A lot of talk to reply to a four-word statement, but that's my throw-in on the matter, and I'm not likely to say much else in the discussion.

          Great points, and thanks for your contribution.
    • It's nice to have a Devil's advocate to enliven the debate! I'll see if I can answer the points.

      The war is not legitimate because it ended: The first Gulf war started to get Iraq out of Kuwait. They're out. If we had any authority to remake Iraq, it ended when we pulled our troops out and filled out the inspection regime.

      Did it end? The use of force which started the Gulf war was authorized by UNSEC resolution 678, which says, in part:

      Authorizes Member States co-operating with the Government of Kuwa

    • The war is not legitimate because it ended

      In order to argue that it ended, you have to argue that it began. In the abstract, it's easy: war starts with a declaration of war and ends with a permanent peace treaty. In reality, it never happens that way. (Well, World War II did, and a few others, but those are the exceptions rather than the rule.)

      If the Gulf War can be said to be a legal war at all, it began with UNSCR 678, which called on Iraq to withdraw or, barring that, for UNSEC members to use all nece
      • Neither did Germany.

        Actually, Germany did fire on US ships several times before they declared war on us, even SANK US ships while we were neutral - Reuben James anyone? (and remember, Hitler declared war on us, not us on him).

        ----
        October 31, 1941: While escorting convoy HX-156, the American destroyer U.S.S. Reuben James was torpedoed and sunk with the loss of 115 of 160 crewmen, including all officers. Although not the first U.S. Navy ship torpedoed before the war, the Reuben James was the first one lost
  • The points you included in your journal entry are all valid.

    I think that what we are seeing with the UN charter is its weakest but strongest selling point for the countries in the world to join.

    The UN charter was set up by the winners of WWII and they wanted to make sure that neither of them can the other what to do. They also wanted to make sure that no one country can rise to the leadership position taken by Germany at the beginning of WWII.

    Thus, the UN charter in Article 2 states:"Nothing contained

  • By definition, International law cannot exist among sovereign states. I fail to see why people appeal to the UN - implying is has some sort of more/legal piety - unbiased and without ulterior motives. I would ask, from where does the UN derive this common unified morality; and better yet, can it be defined? The United Nations cannot even be attributed with the most basic moral convictions such as, human rights, and liberty. 20 million North Koreans are starving to death under the leadership of an despo

    • I will never forget that footage from Desert Storm of Iraqi soldiers running up with their hands in the air surrendering to journalists.

      Some have started already.... [suntimes.com]

      I agree with what you have said, but keep an eye on China. I expect we will see massive changes from them over the next 10 years. There is a ground swell of pro-western/pro-free-market/pro-democratic feeling building in the grasslands and cities of china. I hope we'll be witness to one of the largest, blood-free democratizations in/of histor

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