International House of Dan: A Note on the Iraq War

Saturday, March 26, 2005

A Note on the Iraq War

Note: This post was originally set to be posted on March 19th.

Just over two years ago I sat with friends in Columbia, MO watching President Bush announce plans to take military action against Iraq in the coming months. It seemed odd at the time, since there basically hadn't been a peep out of the country since the last war, save a couple of flights out of the no-fly zone, and since Osama Bin Laden was still in the news then. Over the years I've grown accustomed to Mr. Bush prioritizing "out of the blue" issues in order to draw attention away from more pressing matters, Iraq distracted us from Bin Laden, gay marriage from Iraq, the whole Mars thing... well, that didn't really get anywhere, but still. Anyway, two years ago today, the current Iraq war was launched, and to mark the anniversary of the affair I've decided to write a quick note on the legality of war in international law under the U.N. System, as applied to Iraq.

First, there are two big legal concepts which are relevant to the legality of war: jus ad bellum and jus in bello. The latter is better known, it regards the laws of war (authorized uses of force, treatment of civilians, proportional responses, etc.), but the former is more relevant for this post, as it deals with the legal basis for the war to take place at all. The Iraq war has been mislabeled a preemptive war, it is really more of a preventive war, and this is significant from a jus ad bellum standpoint in that the legal standards for each are different. Despite White House rhetoric, the evidence has shown that there was no imminent attack on the U.S., and there lies the key distinction. For us to argue that "our best intelligence at the time" suggested an imminent attack is absurd, and would retroactively validate Nazi Germany's justifications for invading Russia based on that their best intelligence at the time suggested that Russia would otherwise invade them.

Preventive war is aggressive war, and needs to meet a high threshold of justification before it can said to be legal. Our starting point must be the Charter of the United Nations, Chapter VII, on acts of aggression and threats to and breaches of peace. Article 41 grants to the Security Council the authority to decide upon measures, not amounting to war, by which to enforce international peace. There is nothing in the Charter to limit the number of U.N. Resolutions that can be passed towards this end before armed conflict becomes a necessity. Article 42 then vests, in the Security Council, the authority to direct armed attack should it find that the measures it adopted under Article 41 were not sufficient. I've read the U.N. Charter many, many times, and it's pretty clear that the Security Council gets to decide when to use force to enforce its Resolutions, not Dick Cheney. By demanding more time for inspections, the Security Council was in fact following its own process of ascertaining the progress made under Article 41 measures before deciding to move on to Article 42 measures. If anybody is wondering, this is what it looks like when the Security Council authorizes military action to enforce its resolutions.

The new Iraq war is really the old Iraq war. Our stated basis for launching military operations was that Iraq's failure to comply with U.N. Resolutions materially breached the existing cease-fire. In other words, we never left.

The U.S. has also cited Article 51, which provides that "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." This is all well and good, but the only armed attack that occurred against a Member of the United Nations was the one launched by us. The matter of self-defense necessarily takes us back to the preemptive/preventive threshold.

Diplomacy moves slowly, but that is because the stakes at its table are so high. Two years after this whole mess began, I wonder how many lives have been lost because of our failure to follow the rule of law. I won't get into the debate on the other justifications for military action against Mr. Hussein, like his monstrous record. My views on this rationale are clear, I support action against tyrants, but I support it even-handedly. I do not support it as a pretext for action against a particular leader, because a country cannot claim moral indignation at human rights abuses in Iraq while it debates acting on worse and ongoing human rights abuses elsewhere. I do not support it while we fight the International Criminal Court. Not that it matters, because the Resolutions in question pertained solely to disarmament, not to human rights abuses.

This only begins to scrape the surface of the legal issues involved, but I hope it serves as a decent starting point. I hope I won't still be writing about this in a year, but I think we all know that, sadly, I probably will.


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