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On March 17, 2003, President George W. Bush addressed the American public and a world wide audience in arguably one of the most significant public speeches in this century. He established in no uncertain terms that a war with Iraq is “almost” inevitable: “Free nations have a duty to defend our people by uniting against the violent, and tonight, as we have done before, America and our allies accept that responsibility.”
The address proffered what appears to be a final justification for a military invasion of Iraq and perhaps a concluding attempt to convince those who dissent and oppose military action under the present circumstances. Ultimately, the historical significance of this address will not be founded in the validity or substance of the speech; but will likely be grounded in the glaring distortions and inaccuracies put forth as justification for war.
From an American domestic political perspective, the address accomplished its goal of attempting to rally a steadfast and ready electorate. From an analytical and legal perspective, however, the address created a further rift between the United States and the international legal community which opposes the impending war. For analytical and legal purposes, several particular statements of the President's address require a counter response.
“For more than a decade, the United States and other nations have pursued patient and honourable efforts to disarm the Iraqi regime without a war”:
The United Nations Security Council passed Security Council Resolution 661 on 6 August 1990, which imposed strict and severe economic sanctions upon Iraq for its illegal and aggressive invasion of Kuwait. Such sanctions, although harsh, were widely and globally supported because they were seen as an opportunity to compel Iraq's compliance. These sanctions were refocused and redefined once again by the Security Council through the implementation of Resolution 678, which used economic sanctions as a tool to “encourage” Iraqi disarmament. Despite the fact that Iraq had demonstrated inroads to a commitment to disarmament since that resolution, economic sanctions continue to the present.
| Causing the death of more than 500,000 children is neither “patient” nor “honourable.” |
An August 2002 report entitled “Iraq Sanctions: Humanitarian Implications and Options for the Future,” and published by a conglomeration of NGOs, has concluded that the effect of these sanctions and the humanitarian crisis caused thereof has contributed to the deaths of approximately 900,000 civilians.1 In an earlier study entitled Child and Maternal Mortality Survey 1999 Preliminary Report, published by UNICEF in 1999, it was determined that 500,000 children under the age of 5 perished between 1991 and 1999.2 Although the report could not ascribe complete liability on the sanctions, it is clear that the sanctions made a significant contribution to that number.
Since Iraq's initial steps towards disarmament, the majority of nations on the Security Council have questioned the continuing legitimacy of such sanctions. Attempts to eliminate or dramatically restructure sanctions have been thwarted by the United States, Great Britain and the respective veto power that these states hold as permanent members of the Security Council. In an exclusive interview with Leslie Stahl of the American news program “60 Minutes” in 1996, Madeline Albright stated her opinion of the “patient and honorable” efforts of United States sponsored sanctions:
Stahl: We have heard that over half a million children have died. I mean, that's more than died in Hiroshima. And, you know, is the price worth it?
Albright: I think this is a very hard choice. But the price-- we think the price is worth it.
| The significance of war will show itself in the ashes of Iraq. |
In addition to economic sanctions, specific Iraqi sites have been the target of “coalition” air strikes. This series of strikes began with the establishment of “no-fly zones” in the northern portion of Iraq, which expanded to a southern no fly zone. These air strikes intensified with Operation Desert Fox in 1998. This particular operation led to several civilian casualties and further damage to a disabled Iraqi infrastructure.3 Such operations continue to the present, and almost on a weekly basis.
The unfettered support for economic sanctions that have at least partially contributed to the deaths of nearly one million Iraqis, and continuous deadly coalition air strikes led primarily by the United States, do not constitute “patient and honorable” efforts to disarm Iraq. These actions and omissions constitute a breach of the spirit of the United Nations Charter, and an overall abuse of the United States permanent membership of the United States Security Council.
The United States has the sovereign authority to use force in assuring its own national security:
Pursuant to Article 51 of the United Nations Charter, states are entitled to use force for purposes of self-defense. Article 51 permits the right of individual and/or collective self defense “if an armed attack occurs against a Member of the United Nations.” The notion of “anticipatory self defense” or pre-emption denotes that self-defensive measures are taken to prevent an imminent attack on that particular country. Professor Donald Rothwell, president of the Australian and New Zealand Society of International law, stated:
This is a very controversial doctrine and instance where it has been relied upon, such as Israel's 1981 attack upon Iraq's nuclear power facilities, were widely condemned by the international community. For any such anticipatory attack upon Iraq to have any possible foundation in law, it would be necessary to show clear evidence that Iraq was planning to attack another state. Notwithstanding the significant evidence being gathered in recent months, to date there has been no credible suggestion made that it is planning any such attack upon its neighbours, the U.S., or Australia.4
To be certain, if credible and irrefutable evidence existed about an Iraqi plan to recapture Kuwait, then perhaps the doctrine would have some validity. And to be sure, if Iraq implemented a reinvasion, Article 51 and Security Council resolution 678 would authorize the use of force to expel Iraq. However, there is no ascertainable or irrefutable evidence of such a threat. An invocation of Article 51 and the doctrine of “anticipatory self defense” cannot legally be made under the present circumstances.
“In the case of Iraq, the Security Council did act in the early 1990s. Under resolutions 678 and 687, both still in effect, the United States and our allies are authorized to use force in ridding Iraq of weapons of mass destruction. This is not a question of authority; it is a question of will”:
| The United States cannot base a unilateral attack on resolution 678. |
This assertion is legally flawed, and there remains a serious question as to the legal authority of the basis for unilateral military action against Iraq. Security Council resolution 678, in the face of an illegal invasion of Kuwait, authorized member states to use all “necessary means to uphold and implement Resolution 660, and subsequent resolutions to restore international peace and security in the area.” 5 Resolution 660, the legal basis for resolution 678, addresses only the invasion of Kuwait. 678 authorizes the use of force only with respect to Iraq's breach of sovereign Kuwait territory. The United States cannot reasonably base a unilateral attack on resolution 678.
Resolution 687 operates as a summary of the conditions for a ceasefire. The essence of the ceasefire, and of resolution 678, is the Iraqi withdrawal of Kuwait; an end to Iraq's breach of Kuwait's sovereign and territorial integrity, which constituted a breach of the gravest kind. Resolution 687 authorizes the resumption of force if the territorial and sovereign integrity of Kuwait is again breached following the ceasefire:
...decides to guarantee the inviolability of the above mentioned international boundary and to take, as appropriate, all necessary measures to that end in accordance with the Charter of the United Nations.
If Iraq were to attempt a reinvasion of Kuwait, any Member state could legally and justifiably take unilateral action in defense of Kuwait's territorial and sovereign integrity, acting on the basis of Resolution 687. However, although 687 requires Iraqi disarmament of biological, chemical and nuclear capabilities, those policing the disarmament process were not given a carte blanche option of recourse to “all necessary means” to ensure compliance, unlike those safeguarding the Kuwaiti border. According to Professor Rothwell:
Finally it is argued that Iraq is in material breach of Resolution 1441 thereby authorizing the use of force to disarm Iraq. The legal basis for intervention has its roots in resolution 687, which contained the terms of the original 1991 Gulf War ceasefire. That resolution has two elements. First, it demanded that Iraq and Kuwait “respect the invioliability of the international boundary” between them. Second, Iraq was required to disarm and “unconditionally accept the destruction, removal or rendering harmless” of its stockpiles of chemical weapons and ballistic missiles with a range greater than 150 km. While Iraq has continued to respect the Iraq-Kuwait border, it has yet to disarm in the manner demanded of it. However, the key issue is whether Iraq's failure to disarm consistently with Resolution 687 and more recently 1441 authorises military intervention to enforce disarmament. Clearly it was central to the process of restoring regional peace and security and for Iraq to redeem itself in the eyes of the international community. But only the most serious breach of the ceasefire terms such as the violation of the Iraq-Kuwait border could possibly automatically revive the operation of those Security Council resolutions authorizing the use of “all necessary means” to expel Iraq from Kuwait…6
Thus Resolution 687 cannot sanction the use of force (as President Bush states) in order to disarm Iraq of weapons of mass destruction.
“Saddam Hussein and his sons must leave Iraq within 48 hours. Their refusal to do so will result in military conflict commenced at a time of our choosing”:
The President ultimatum towards Saddam Hussein and his sons, which would force them into exile, is legally null and void. Under international law, specifically the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR): “Everyone has the right to leave any country, including his own, and to return to his country”7 and “No one shall be arbitrarily deprived of the right to enter his own country.” 8 Legally, Saddam Hussein and other Iraqis cannot be expelled from Iraq, even by citizens of Iraq who want him put in exile. For the leader of another nation to demand his expulsion sets new precedent that has absolutely no legal validity.
“...all Iraqi military and civil personnel should listen carefully to this warning: In any conflict your fate will depend on your actions. Do not destroy oil wells, a source of wealth that belongs to the Iraqi people. Do not obey any command to use weapons of mass destruction against anyone, including the Iraqi people. War crimes will be prosecuted, war criminals will be punished and it will be no defense to say, “I was just following orders ”:
President Bush's assertion is partially accurate. The justification of “I was just following orders” upon the commission of war crimes and crimes against humanity is not a legally justifiable defense. The “Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious of to Have Indiscriminate Effects” prohibits the use of “incendiary weapons” such as chemical and biological weapons on the civilian population. If Iraq engages in attacks on the civilian population, it will also be a violation of the Protocols of the Geneva Convention.
However, one cannot help but question the utter hypocrisy of Bush's assertion. In essence he is saying that Iraqis who breach the “laws of war” will be prosecuted to the fullest extent applicable. The United States has refused to be under the jurisdiction of the first International Criminal Court that was established order to prosecute war crimes and crimes against humanity under a principle of universal jurisdiction.
Conclusion
Regardless of any analysis or counter response to American reasoning behind unilaterally attacking Iraq, or the opinion of the international legal community, war will be upon us with no recourse to those who oppose it. The ultimate significance of war will show itself in the ashes of Iraq. That significance is the erosion of the concept of the international community and the United Nations. Significant inroads made in international law during the past fifty years now face uncertainty as do the lives of millions of Iraqis.
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