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The Illegal Iraq Invasion
According to the UN Charter, the U.S. Constitution,
Resolution 1441, and the Nuremberg Charter

by Edward Jayne and Ronald Kramer
September 20, 2004

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The invasion of a single nation by another nation or group of nations is only legal under the UN Charter if such an invasion has been sanctioned by the vote of the UN Security Council.  This did not happen in the case of the recent Iraq invasion, since the United States and Great Britain, led by the U.S. Secretary of State Powell, withdrew on March 17, 2003 their resolution to stage such an invasion from consideration by the UN Security Council when they realized that the majority of its members would vote against it.  Instead, Powell and others insisted that this approval was unnecessary, since UN Resolutions 687 and 1441 (the latter of 8 November 2002) had already granted this right.  However, this is simply not true.  As demonstrated by a close examination of the UN Charter and these particular resolutions, there is no possible interpretation that preempts the need for a final decision by the Security Council.  Because the U.S. and U.K. withdrew their resolution, there could be no decision permitting an invasion.  As a result, the invasion of Iraq was illegal, and those who brought it about can be held responsible for war crimes by an impartial international tribunal, for example the International Criminal Court (ICC).

Significantly, the Preamble to the UN Charter begins by declaring its primary purpose is “to prevent the scourge of war,” and Article 1 repeats this prerogative by stating that the UN’s role is to “maintain international peace and security.”  As a peremptory norm of international law, Article 2(4) more explicitly prohibits the use of military force in international affairs except in accord with the guiding principles of the UN: “All members shall refrain . . . from the threat or use of force against the territorial integrity or political independence of any state or in any manner inconsistent with the Purposes of the United Nations.”  In retrospect this emphasis may be appreciated as a consequence of the UN Charter having been drafted and adopted at the end of World War II, when the avoidance of warfare seemed of the utmost importance.  Today, in light of the Iraq invasion, it seems no less important.

If and when warfare seems unavoidable, Articles 41 and 42 of Chapter VII of the UN Charter specify under what circumstances military conflict can be sanctioned.  Article 41 declares that effective means short of conflict must first be employed to resolve differences, and Article 42 makes it plain that only with the failure of these preliminary measures may the Security Council vote to permit military action.  This decision is obtained by vote as specified by Article 27(e) earlier in the Charter.

Both Articles 41 and 42 are relatively short and may be quoted in their entirety:

Article 41: The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of nations to apply such measures.  These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication and the severance of diplomatic relations.

Also permitted by Article 41 as a “measure not involving the use of armed force” would be the inspections specified by Resolution 1441 in order to ascertain Iraq’s possession of weapons of mass destruction (WMD).  Only the failure of these measures to satisfy the Security Council would justify warfare as explained by the next article:

Article 42:  Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.  Such actions may include demonstrations, blockade, and other operations by land, sea, or land forces of Members of the United Nations.

In a nutshell, if preventative measures are found to be unsuccessful, then--and only then--can the Security Council decide to permit warfare.  First there must be an effort short of warfare, after which warfare may be undertaken once the consent of the Security Council has been obtained through its finding that the preliminary effort has been unsuccessful.  Obviously, this consent may only be ascertained by means of a vote--exactly the vote Secretary Powell first sought, then avoided, once he realized he would lose it, since UN inspections had come up with no evidence of WMD in Iraq.  As a result, Powell was not able to recruit a majority of delegates who supported an invasion, and, even if he had, both France and Russia were prepared to veto the measure. He accordingly skipped the required vote, after which President Bush launched his invasion--necessarily an illegal act of war, since it had not been approved by the Security Council.

Again, let it be stated for emphasis: Articles 41 and 42 impose a simple and unavoidable sequence: (1) effective preventative measures short of military conflict should first be explored before (2) the Security Council can decide that every alternative short of military conflict has been exhausted without success, whereupon (3) military conflict can finally be undertaken.  Unavoidably, the second step necessitates a majority vote to mandate warfare by the Security Council.  Secretary Powell skipped this step by jumping from the use of preventative measures to an invasion not sanctioned by the UN Security Council.  As a result the invasion was in violation of the UN Charter and therefore illegal.

The only exception to this sequence is under an extreme emergency as specified by Article 51 of Chapter VII: “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 . . .”  However, the situation with Iraq did not fit this description, since Iraq had never attacked the U.S. or U.K., and there was no evidence of any imminent armed attack against anybody else.  Thus Article 51 did not apply.

Some apologists for the invasion argue that Resolution 1441, which established the inspections regime in Iraq, somehow rendered unnecessary a Security Council vote to justify warfare as specified by Articles 41 and 42.  The argument is simply not valid.  Significantly, Resolution 1441 is specified to act “under Chapter VII of the Charter of the United Nations.” Chapter VII includes all Articles from 39 to 51, of which 41 and 42 have a direct bearing upon the possibility of an Iraq invasion.  By specifying its conformity to Chapter VII, Resolution 1441 confirms the necessary application of both Articles 41 and 42 for the Security Council to accept the transition from peaceful to military means.  In other words, the choice of Powell to withdraw his second resolution did not eliminate the need for permission from the Security Council, especially after steps preliminary to its vote had already been undertaken fully in accord with resolution 1441.

Also, Resolution 1441’s second listed “decision” describes inspections as “a final opportunity to comply” preceding “subsequent resolutions of the Council.” This reference to “subsequent resolutions clearly establishes the inspections program as a preliminary measure to the Security Council vote obliged by Article 42.  The same is true of the twelfth “decision” of Resolution 1441, which emphasizes the necessity, “to convene immediately upon receipt of a report [bearing upon inspections] . . . in order to consider the situation and the need for full compliance with all of the relevant council resolutions in order to secure international peace and security.”  The wording is euphemistic, but here again it accords with Article 42 to the effect that a vote would have been needed to mandate war before an invasion could be launched.  Without such a vote (because Powell knew it would be negative), the invasion became totally illegal as specified by the UN Charter and therefore no less illegal relevant to Resolution 1441.

Nor could the Security Council be bypassed because of earlier Resolutions 678 and 687 of the Security Council at the time of the Gulf War in 1991.  These were intended to compel Iraq first to withdraw from Kuwait and then to fully cooperate with UN weapons inspectors.  Some invasion apologists have argued that these resolutions somehow provided legal authority for the later invasion, but this is not true.  All UN Security Council Resolutions are specific relevant to time and space, and they cannot be cited years later to justify unilateral actions.  Moreover, no country alone can presume to play the role of judge, jury and high executioner.  Only the Security Council can find “material breach” and authorize “all necessary means.”  This it was prepared to do on March 17, prevented only by the U.S. and U.K.’s withdrawal of their resolution

The U.S. Constitution also compels the need for a Security Council vote, since our nation is a signatory of the UN Charter, thus giving the Charter the status of a treaty guaranteed by the Constitution itself.  The Supremacy Clause of the Constitution in Article VI, Section 2, specifically grants international treaties the same status as the Constitution itself and all state and federal laws enacted in accord with the Constitution.  Moreover, as specified by Article 103 of the UN Charter, the Charter is the highest treaty of the world and supersedes any other international agreement.  Accordingly, the Supremacy Clause extends the application of Articles 41 and 42 to all warfare conducted by our own particular government except under emergencies dictated by Article 51.

President Bush and Powell might have had a better case in justifying an invasion if they had bypassed the involvement of the UN in the first place.  They could have applied the precedent that the United States already went to war against Vietnam, Cambodia, Panama, Grenada, the Dominican Republic, and, most recently Kosovo, without the approval of the Security Council.  In the latter instance, President Clinton invoked the NATO connection, and the potential illegality of this decision was ignored in view of the need to terminate genocidal killings as soon as possible.  The obvious demand for quick measures was satisfied, but at the cost of reinforcing a dangerous precedent in international relations.

Regarding Iraq, however, the U.S. and U.K. presented their case to the UN Security Council in order to obtain Resolution 1441 that met the demands of Article 41, and then, as required by Article 42, presented a second resolution permitting an invasion because of Iraq’s failure to meet the terms of Resolution 1441.  All of this was intended to meet the guidelines of the UN Charter, obliging the U.S. to abide by its final authority in determining the legitimacy of military action against Iraq.  However, as already indicated, Powell withdrew this second resolution once it became plain the Security Council would reject U.S. arguments that sufficient evidence had been disclosed to justify an invasion and that every alternative short of military conflict had been exhausted.  Bush thereupon bypassed the Security Council’s vote by launching a unilateral preemptive strike on entirely illegal grounds.

Significantly, without the consent of the Security Council, those who planned and implemented the invasion of Iraq can be held responsible for war crimes as defined by the Nuremberg Charter.  One doubts this will ever happen, since victors seldom prosecute themselves.  However, it should, since U.S. government officials responsible for the Iraq invasion without the sanction of the Security Council are in direct violation of the Nuremberg Charter’s prohibition against “crimes against peace” and “crimes against humanity.” Therefore, they are liable for criminal prosecution by the new International Criminal Court.  Specifically, the Nuremberg Charter describes “Crimes against Peace” as “planning, preparation, initiation or waging of wars of aggression, or a war in violation of international treaties or participating in a common plan or conspiracy to wage an aggressive war.”  The invasion of Iraq clearly falls under this category, since it violates the UN Charter, signed by all its members, the U.S. included.  Moreover, the Nuremberg Charter notes that “to initiate a war of aggression . . . is not only an international crime, it is the supreme international crime.”  Granted there are many war crimes deserving of prosecution, inclusive of prohibited weaponry, the mistreatment of prisoners, etc., but the very worst of all is the illegal resort to warfare, and of course its illegality ultimately depends on  its violation of the U.N. Charter.

The Nuremberg Charter’s general laws of war also prohibit the use of weapons or tactics that cause indiscriminate harm to noncombatants.  The “shock and awe” bombing of Baghdad and the use of depleted uranium tipped shells appear to violate these laws of war.  As already indicated, government officials and military personnel who engage in these violations can be prosecuted under the new International Criminal Court (ICC).  True, the U.S. is not yet a signatory to the ICC, but the Iraqi government has a right to make its appeal to the UN, and the ICC would thereby have technical jurisdiction over any war crimes committed during the conflict.

In sum, the U.S., U.K., and their allies have been aggressor nations in the invasion of Iraq, since they have conducted this invasion in clear violation of both international and domestic law.  By now as many as 37,000 Iraqi and almost 1,000 Americans are estimated to have been killed, and the number who were injured surpasses anybody’s guess.  No matter how vicious or bloodthirsty the behavior of combatants on either side, the responsibility for their acts of violence primarily reverts to the government leaders who possessed the authority to impose upon them an illegal war rejected by the world at large.

But see for yourself.   Almost any college or municipal reference librarian can provide the necessary documents to confirm the arguments presented here.

Edward Jayne is a retired English professor with experience as a '60s activist. He can be contacted at: Ron Kramer is Professor of Sociology and Director of the Criminal Justice Program at Western Michigan University.


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