UN Resolution or Not, This War
Violates International Law
by
Rahul Mahajan
Dissident Voice
March 15, 2003
The
majority of the antiwar movement has made a mistake in emphasizing the
unilateral nature of the war on Iraq and the need for United Nations approval, and
we may well reap the consequences of that mistake.
The argument has made major
inroads with the public; polls consistently show that the majority of Americans
oppose a unilateral war without international support and the latest poll in
Britain shows only 15% of the population supports a war without a second U.N.
resolution.
It's also an entirely
unobjectionable argument in a negative sense - without a Security Council
resolution, the war is clearly a violation of international law, as U.N.
Secretary-General Kofi Annan has recently pointed out. It is, however, possible
for a war fought with U.N. approval still to be a violation of international
law.
That is the fundamental
question -- not whether our "allies" support us, not whether we can
strong-arm and browbeat enough members of the Security Council to acquiesce,
but whether or not the war is illegal.
Interestingly, in this, as
in so many other things, the Bush administration turns this question on its head
and claims that the war is necessary in order to uphold international law.
Let's start with that
argument.
Iraq is threatening no
country with aggression and its violations of Security Council resolutions,
while clear, are technical, mostly a matter of providing incomplete
documentation about weapons that may or may not exist, and for the use of which
there are no apparent plans. At the same time, Israel is in violation of, at a
very conservative count, over 30 resolutions, pertaining among other things to
the very substantive issue of the continuing illegal occupation of another
people, along with violations of the Fourth Geneva Convention through steady
encroachment on and effective annexation of that land. Indonesia, another U.S.
ally, violated U.N. resolutions for a quarter of a century in East Timor with
relative impunity. Morocco is illegally occupying Western Sahara. In each of
these cases, the United States wouldn't be required to go to war to help uphold
international law; it could start simply by terminating aid and arms sales to
these countries.
The United States is also a
very odd country to claim to uphold such a principle. Ever since a 1986
International Court of Justice ruling against the United States and in favor of
Nicaragua, the United States has refused to acknowledge the ICJ's authority
(the $17 billion in damages it was ordered to pay were never delivered).
Shortly after that judgment, the United States actually vetoed a Security
Council resolution calling on states to respect international law. Of course,
the United States doesn't itself violate Security Council resolutions, since it
can always veto them -- as it did when the Security Council tried to condemn
its blatantly illegal invasion of Panama in 1989, and on seven occasions regarding
its contra war on Nicaragua.
For the sake of argument,
let's forget about the international double standard and focus just on Iraq.
Even without reference to anything else, one can argue that repeated U.S.
violations of international law when it comes to Iraq and in particular of the
specific "containment" regime instituted after the Gulf War release
Iraq from any obligations.
To start, Iraq has been
under illegal attack for the past decade, with numerous bombings including the
Desert Fox campaign, even as it was being called on to start obeying
international law.
The United States also took
numerous illegal or questionably legal steps to subvert the legal regime of
"containment" -- passing the "Iraq Liberation Act" in
October 1998, which provided $97 million for groups trying to overthrow the
Iraqi government, a clear violation of Iraqi sovereignty and a violation of
international law; stating that only with regime change would the sanctions be
lifted, in violation of UNSCR 687; and using weapons inspections to commit
espionage, the information from which was then used in targeting decisions
during Desert Fox.
Is the War Itself a
Violation of International Law?
Perhaps the most cogent
argument, however, is the fact that the war the United States is planning on
Iraq is an act of premeditated aggression.
All the signs point in the
same direction.
First, in August, Defense
Secretary Rumsfeld ordered that the list of bombing targets be extended far
beyond any goal of enforcing the no-fly zones to include command-and-control
centers and in general to go beyond simple reaction to threats. According to
John Pike of Globalsecurity.org, this was "part of their strategy of going
ahead and softening up the air defenses now" to prepare for war later. By
December 2002, the shift could be noted in a 300% increase in ordnance dropped
per threat detected -- a clear sign that simply defending the overflights was
no longer the primary aim of the bombings. According to the Guardian,
"Whitehall officials have admitted privately that the 'no-fly' patrols,
conducted by RAF and US aircraft from bases in Kuwait, are designed to weaken
Iraq's air defence systems and have nothing to do with their stated original
purpose." Weakening air defense and command-and-control are the standard
first steps in all U.S. wars since 1991, so the first salvoes in the war were
being fired even as inspections continued. In the first two months of this
year, bombings occurred almost every other day.
Even worse, according
to strategic analyst Michael Klare, by February 2002 it had become clear
that all of the administration's supposed diplomatic activities in the Fall of
2002 and early 2003 had merely been a smokescreen.
The war was being seriously
planned from at least the spring of 2002, but in the summer there was a serious
internal debate in the military between a so-called "Afghan option"
with 50-75,000 troops and heavy reliance on air power and Iraqi opposition
forces and the eventual plan, "Desert Storm lite," with 200-250,000
troops and a full-scale invasion.
The decision was made in
late August, but the more involved plan, according to Klare, required at least
a six-month deployment. Ever since then, the timetable has not been one of
diplomacy, U.N. resolutions, and weapons inspections, but rather one of
deployment, strong-arming of regional allies needed as staging areas for the
invasion, and, quite likely, replenishment of stocks of precision weapons
depleted in the war on Afghanistan.
For over a month, as inspections
increase in effectiveness and scope, as Iraq dismantles its al-Samoud missiles,
and as it struggles desperately to find ways to reconcile questions over
biological and chemical agents, the White House has contemptuously dismissed
all efforts. The constant refrain is that time is running out, with no
explanation of why the time is so limited. The reason is simple; it's not
because of any imminent threat from Iraq, it's just because the troops are
there and ready to go.
The obvious conclusion is that
the war was decided on long ago, irrespective of Iraq's actions. Nothing Iraq
could have done short of full-scale capitulation and "regime change"
would have stopped the United States from going to war. That makes this war a
clear case of aggression.
Even the fig leaf of another
U.N. Security Council resolution will not change this fact. Nor will it confer
any legitimacy on the actions, because of the massive attempts by the United
States, documented in the study "Coalition of the Willing or Coalition
of the Coerced?" by the Institute for Policy Studies, to coerce,
bribe, and otherwise exert undue influence on other countries, including key
undecided Security Council members, to support the U.S. position.
Above all else, if other
countries acquiesce to U.S. plans, it will be because of the constant refrain
of the Bush administration -- that the United States will go to war with or
without their consent, so there is nothing to be gained (and much to be lost)
by resisting.
In fact, the U.S. war on
Iraq is itself the most fundamental violation of international law. In the
language coined at the Nuremberg trials, it is a crime against peace. Former
Supreme Court Justice Robert Jackson, chief U.S. prosecutor at the first
Nuremberg trial, called waging aggressive war "the supreme international
crime differing only from other war crimes in that it contains within itself
the accumulated evil of the whole."
It surely is unprecedented
in world history that a country is under escalating attack; told repeatedly that
it will be subjected to a full-scale war; required to disarm itself before that
war; and then castigated by the "international community" for
significant but partial compliance.
Rahul Mahajan is a founding member of the Nowar Collective and serves on the
National Board of Peace Action. This article has been excerpted from his
forthcoming book, The U.S. War Against Iraq: Myths, Facts, and Lies,
published by Seven Stories. His first book, "The New Crusade: America's
War on Terrorism," has been described as "mandatory reading for all
those who wish to get a handle on the war on terrorism." His articles can
be found at http://www.rahulmahajan.com. Email: rahul@tao.ca