UNDERSTANDING THE U.S.-IRAQ CRISIS:

The World's Response, the UN & International Law

By Phyllis Bennis

A pamphlet of the Institute for Policy Studies, January 2003

Sections:I. The U.S. Rush to War / II. The World's Response, the UN & International Law / III. The Consequences of War: Iraq and Beyond / IV. The History of U.S.-Iraq Relations / V. Alternatives to War / Resource Guide

This Section:

Does the U.S. have the right to invade Iraq?
Does the U.S. have the right of self-defense against Iraq?
What does the rest of the world think about the current crisis with Iraq?
What are the legal consequences of an invasion? What precedent does it set elsewhere in the world?
What is the role of the United Nations in the Iraq crisis?
Can the U.S. get UN authority to go to war in Iraq?
What did the November 2002 United Nations inspections resolution say? Does it authorize war against Iraq?
How did arms inspections in Iraq get started in the first place? What happened during the earlier inspections?
What are war crimes? Are war crimes likely if the US attacks Iraq? What are the implications for US soldiers? For Iraqi civilians?

15. Does the U.S. have the right to invade Iraq?

No. The UN resolution passed in November 2002 sent arms inspectors back into Iraq to verify Iraq's disarmament, the final requirement before lifting sanctions. The resolution says there will be "serious consequences" if there is a "material breach" of the resolution, but it specifically does not identify what those consequences should or might be. The resolution states that a finding of "material breach" requires both omissions or lies in Iraq's arms declaration and non-compliance with inspectors. It reserves for the Council as a whole, not any individual country, authority to make those determinations.

When the resolution was passed, every Council ambassador other than Washington's made clear the resolution provides no authorization for war. According to Mexico's Ambassador, Adolfo Aguilar Zinser, force could only be valid, "with the prior, explicit authorization of the Security Council." The U.S. may decide to go to war without the Security Council's OK, and regardless of what the UN inspectors find or don't find. But the terms of the UN resolutions are very important considerations for Security Council countries such as France, Mexico, Germany and others, whose governments must balance their desire to join Bush's war with widespread public anti-war sentiment.

16. Does the U.S. have the right of self-defense against Iraq?

According to the United Nations Charter, no nation has the right to attack another. The only exceptions are 1) if the Security Council specifically authorizes a military strike, or 2) in self-defense. "Self-defense" is defined very narrowly. Article 51 of the Charter says a country has the right of self-defense only "IF an armed attack occurs." Iraq has not attacked the U.S. (see section 5 on "no-fly" zones), so self-defense does not apply. The U.S. claims it has the right of "preemptive self-defense" to go to war against Iraq, without any further authorization from the United Nations. But the UN Charter does not authorize such a claim. Some scholars believe that stopping an imminent attack would also give a country the right to use military force in a kind of self-defense. But even that argument fails, because no one, even the Bush super-hawks, claims that an Iraqi attack of any sort, especially on the United States, is "imminent."

17. What does the rest of the world think about the current crisis with Iraq?

There is almost no international support for the Bush administration's war drive. Most governments, and probably a majority of people around the world, accept the legitimacy of sending UN inspectors back to finish the task of disarming Iraq's WMD programs, although most also believe economic sanctions should be lifted immediately. But only a few governments, including Israel's and top officials in the UK, are unreservedly in favor of the Bush war calls. The call for war does not have the support of Iraq's closest neighbors, not even Kuwait, the victim of Iraq's 1990 invasion and occupation. Enormous mobilizations have brought Europeans out in the millions to protest the looming war. Public opinion across Asia, Latin America and Africa is similarly opposed to war. And throughout the Middle East, governments are struggling to satisfy demands from their economic and/or military sponsor in Washington while facing (and suppressing) massive citizen outrage against Washington's planned war (See question 30)

Many governments' opposition is based on the lack of United Nations authority for war. Yet some, such as Germany, have rejected direct participation of their military in a U.S. war in Iraq even if a Security Council resolution was passed. In the region, key U.S. dependents, such as Turkey and Saudi Arabia, have reluctantly agreed to provide support to a U.S. war only if it is authorized by a new UN resolution. For that reason, the U.S. is likely to escalate the pressure - bribes, threats, punishments - on the UN Security Council to win the necessary votes. (See questions 19 and 20.)

18. What are the legal consequences of an invasion? What precedent does it set elsewhere in the world?

Without UN authority, and since there is no legitimate claim of self-defense, any U.S. strike on Iraq would violate international law. It would constitute the crime of aggression, one of the most serious war crimes. Anyone with command responsibility for such an illegal war could be held accountable in a U.S. or international court.

A unilateral decision to invade Iraq (even if U.S. pressure drags other countries in) also sets a dangerous precedent. If the U.S. example of unilateral war is put forward as the standard response to another government's violation of a UN resolution, the world might see Algeria attack Morocco for its failure to abide by UN resolutions demanding an end to Rabat's occupation of the Western Sahara. Greece could go to war against Turkey for Ankara's continued violation of UN resolutions requiring an end to its occupation of northern Cyprus. And Syria or Jordan or Lebanon could cite the U.S. precedent to legitimize an attack on Israel for its violation of 60+ UN resolutions regarding its illegal occupation of Palestine and the Syrian Golan Heights. Already, Russia and Israel have cited Bush's claim of the right to "preemptive war" to justify their escalating repression in Chechnya and in occupied Palestine.

Further, if the U.S. claims its invasion is legitimate as "preventive self-defense" because Iraq may in the future acquire weapons of mass destruction, the United States itself would stand vulnerable to attack from virtually every country in the world as the world's biggest holder of all forms of weapons of mass destruction, and the only government ever to have used nuclear weapons.

At the end of the day, a U.S. preventive war in Iraq undermines the potential for U.S. collaborative non-military influence in the world, weakens U.S. efforts to bring international terrorists to justice, and constitutes a recipe for global chaos. As Nelson Mandela put it, "the attitude of the United States of America is a threat to world peace. Because what [America] is saying is that if you are afraid of a veto in the Security Council, you can go outside and take action and violate the sovereignty of other countries."

19. What is the role of the United Nations in the Iraq crisis?

The United Nations has played a central role in the U.S.-Iraq conflict since 1990, when the U.S. used bribes, threats and punishments to ensure Security Council endorsement of the Gulf War. Since then, the U.S. has manipulated the UN for its own political goals of war and sanctions against Iraq. Madeleine Albright, then-U.S. Ambassador to the UN and later Secretary of State was not shy in declaring, in 1995, that "the UN is a tool of American foreign policy." Even so, Bush administration ideologues have objected to UN centrality, or even UN involvement, in the Iraq crisis as a matter of principle.

This is particularly clear in the case of the economic sanctions that have devastated Iraq since the end of the Gulf War. While virtually every other country in the UN would support lifting sanctions and allowing Iraq to rebuild its shattered country, the sanctions remain in place because governments are afraid to defy the United States. (For more on sanctions and their impact, see question 26.) Much of the UN's continuing influence in the Iraq crisis stems from Resolution 687, the disarmament-sanctions-ceasefire resolution, which, ironically, is the very resolution the U.S. cites to justify its march to war. The resolution actually authorizes the UN Security Council, not any individual country, to make all decisions regarding Iraq's disarmament. It also states very specifically that sanctions must be lifted when Iraq is certified free of WMDs. The U.S., of course, has a long history of ignoring UN resolutions that do not fit its foreign policy goals, or imposing its own interpretation over weak objections from the Security Council (See question 5, on "no-fly zones," for one example.) In the past U.S. officials including Presidents George H.W. Bush and Bill Clinton, Secretaries of State James Baker and Madeleine Albright, National Security Adviser Sandy Berger and others have all asserted that they would not allow sanctions to be ended regardless of UN requirements unless Saddam Hussein has been removed from power -- something definitely not called for in any UN resolutions.

As of November 20002, the UN is again charged with implementing the UNMOVIC/IAEA inspection regime, and certifying disarmament that would require the end of sanctions. If the UN certifies disarmament, and war is averted, the U.S. is certainly likely to object to the end-the-sanctions requirements of Resolution 687, and a new campaign of U.S. bribes, threats and punishments of the Security Council to maintain sanctions can be anticipated. In response, the General Assembly could, under UN precedent allowing it to step in when the Security Council is deemed unable to act, take up the issue despite it being ordinarily reserved for the Council. Such a General Assembly initiative, of course, could only happen if the political backbone of other UN members were strengthened, for example by the expansion of a global peace and justice movement demanding that the more democratic Assembly challenge the U.S.-dominated Council.

20. Can the U.S. get UN authority to go to war in Iraq?

If the Administration decides to operate within the UN framework, and if it is prepared to pay high financial, political and diplomatic prices, there is little doubt that U.S. has the tools in its diplomatic arsenal to force a vote in its favor; it has done so in the past. But it may be difficult, especially without a "smoking gun" of Iraqi WMDs. Under such conditions, even though a majority of Council members may succumb to Washington's pressure, the resulting resolution would likely still constitute a violation of the UN Charter's commitment to peaceful solutions, rendering any war based on its terms still illegal.

In 1990, the U.S. bribed China with post-Tienanmen Square diplomatic rehabilitation and renewal of long-term development aid to prevent a veto of resolutions leading to the 1991 Gulf War. (China then abstained.) Poor countries on the Council's votes were purchased with cheap Saudi oil, new military aid, and economic assistance. And when Yemen, the sole Arab country on the Council, voted against the resolution authorizing war, a U.S. diplomat told the Yemeni ambassador, "that will be the most expensive 'no' vote you ever cast." Three days later the U.S. cut its entire aid budget to Yemen.

This time around, it was Mauritius that became the example. During the first two weeks of the UN debate on the inspections resolution, Jagdish Koonjul, the ambassador from Mauritius was recalled by his government because he had failed to clearly express Mauritius' support for the proposed U.S. resolution, despite instructions to do so. Why was his government concerned? Because Mauritius receives significant U.S. aid through the African Growth and Opportunity Act, which requires that as a recipient of US assistance, it ''does not engage in activities contrary to U.S. national security or foreign policy interests''.

21. What did the November 2002 United Nations inspections resolution say? Does it authorize war against Iraq?

The Resolution 1441 does not endorse the use of force. It officially redefines the Iraq crisis, at least in the international arena, as one of disarmament, not regime change, and may at least delay a U.S. attack. It provided a powerful tool to fight for U.S. accountability to multilateralism and the United Nations, and can be claimed as a partial victory by those who oppose the war. But it still reflects the United States' domination of the UN and the rest of the world and ultimately sets the terms for war.

The real victory is that the Bush Administration felt it necessary to go to the UN at all. As late as the summer of 2002 the Pentagon's "chicken-hawks" appeared to have derailed any UN-based strategy for Iraq. But the Joint Chiefs of Staff remained skeptical, polls showed less than a quarter of Americans supported attacking Iraq without the UN, and hundreds of thousands of protesters filled the streets. Washington's closest allies, from Germany to Mexico and even Tony Blair's own Labour Party, railed against growing US unilateralism. The "chicken-hawks", who felt that acknowledging any authority of even a U.S.-dominated UN was a mistake, lost the internecine battle, and the U.S. took its case for war to the UN.

Eight weeks of negotiations led to a series of U.S. compromises on what role its military or intelligence officials would be allowed to play in the inspections. But the resolution still lays out an inspection regime of unprecedented power and intrusiveness that allows UN inspection teams free rein to go anywhere in Iraq, with no notice, and gain access anywhere they like in their search for weapons, including the most high-security "presidential sites." The inspectors also gained extraordinary new powers, including the ability to take Iraqi scientists and their families out of Iraq for interrogation, and provide them with asylum abroad.

But the resolution does not authorize war. Instead, it specifies that the inspectors' reports of Iraqi violations are to trigger special Security Council consultations in response to any such violations. In the first month of its work, the new UN inspectors - UNMOVIC and IAEA - with unfettered cooperation from the Iraqis, carried out intrusive and wide-ranging inspections and interviews, and indicated no evidence of any prohibited weapons. The U.S. continues to claim it has "proof" of such WMDs, but has refused to provide enough evidence for the inspectors to be able to confirm the allegations. And under the terms of the resolution, these unsubstantiated, unilateral claims are insufficient to even trigger further Security Council consultations.

The Bush administration may still launch its own war for oil, for expansion of U.S. power, and for empire - but Resolution 1441 does not authorize it to do so in the name of the United Nations.

22. How did arms inspections in Iraq get started in the first place? What happened during the earlier inspections?

At the end of the Gulf War in 1991, the UN passed Resolution 687, which declared a ceasefire in the war, spelled out requirements for Iraq's disarmament of weapons of mass destruction, and imposed economic sanctions to be lifted when Iraq had fully complied with the disarmament requirements. To monitor the disarmament, the Security Council established the UN Special Commission (UNSCOM), which along with the International Atomic Energy Agency (IAEA) sent teams of inspectors into Iraq to find and destroy or render harmless all of Iraq's programs for chemical, biological and nuclear weapons and long-range missiles. UNSCOM worked in Iraq for seven years. During that time Iraq cooperated in some areas, but refused cooperation at other times. Despite the lack of full Iraqi cooperation, UNSCOM found and destroyed the overwhelming majority of Iraq's weapons programs components

But during that time, UNSCOM was severely compromised by the revelation that it was illegally spying for U.S. and Israeli intelligence agencies. UN inspectors were turning over information that had nothing to do with Iraq's prohibited weapons programs, but everything to do with the whereabouts of Saddam Hussein, the patterns of high-ranking government officials, the locations of the Republican Guards and more - all very useful for Washington's expressed intentions to overthrow the Iraqi regime, something definitely not on the UN agenda. At the same time, U.S. officials were attempting to micro-manage the inspection process, controlling the pace, intrusiveness, site selection and more, leading to a severe crisis within UNSCOM and the resignation of at least one top inspector.

During several crises between UNSCOM and Baghdad, the U.S. threatened massive military assault against Iraq. In early 1998, such a threat was derailed by last-minute negotiations of UN Secretary General Kofi Annan in Baghdad. But Washington continued to ratchet up the pressure, including pressure on UNSCOM itself. By the end of 1998, the U.S. and UNSCOM together orchestrated a new crisis, in which UNSCOM chief Richard Butler claimed with great fanfare that Iraq was completely preventing UNSCOM from doing its work. In fact, that was not the case. Butler's own report, despite the hysterical introduction, stated that "in statistical terms, the majority of the inspections of facilities and sites under the ongoing monitoring system were carried out with Iraq's cooperation."

But the U.S. again threatened to use force, and at U.S. urging, Butler suddenly pulled out his inspectors. Twenty-four hours later, the U.S. launched the 4-day illegal assault dubbed Desert Fox. There is no question that the U.S. was orchestrating the UNSCOM crisis. Senator Joseph Biden (D-DE) admitted in a television interview that he spent several hours with Butler at the U.S. Mission to the United Nations on December 13, two days before Butler's report was released. The Washington Post reported that on December 15, as he flew home from Israel, President Clinton reviewed "the final language" Butler intended to use in the report. The Post noted that this timetable indicated that Washington's sneak preview of the report "long preceded its delivery to its official first recipient, [UN Secretary-General Kofi] Annan."

Following the Desert Fox bombing, which destroyed most of the modest rehabilitation that Iraq had achieved since the end of the 1991 war, Iraq refused to allow the UNSCOM inspectors back into the country.

23. What are war crimes? Are war crimes likely if the US attacks Iraq? What are the implications for US soldiers? For Iraqi civilians?

War crimes are violations of the international laws governing warfare. They include such things as deliberately targeting civilians, attacking even military targets when the effect is disproportionately harmful to civilians, or violating the 4th Geneva Convention's requirements for humane treatment of civilians, wounded combatants or prisoners of war in wartime. War crimes were committed on all sides during the Gulf War. U.S. war crimes did not receive as much publicity during the war as Iraqi war crimes, so there is a great danger they will occur again. Those U.S. war crimes during the war itself include bombing a civilian air raid shelter, killing more than 400 civilians, and the attack on Iraqi troops fleeing Kuwait as they tried to surrender. Protocol II of the Geneva Convention also prohibits attacking "objects indispensable to the survival of the civilian population" under any circumstances, so the Pentagon's deliberate targeting of Iraq's electrical system was a war crime - regardless of its military value, civilian life depends on electricity for hospitals, clean water and the whole range of electricity-driven life support in an advanced industrial country. Though the U.S. has so far refused to sign Protocol II, that does not make U.S. violations of it legal.

U.S. political and military leaders could be held liable for war crimes if they issue orders similar to those of the 1991 Gulf War. For example, documents from January 1991 made public years later [see Tom Nagy's "The Secret Behind the Sanctions: How the US Intentionally Destroyed Iraq's Water Supply," in The Progressive, September 2001] demonstrate the Pentagon's knowing intent to destroy Iraq's electrical system with the explicitly known and identified consequence of disabling the life-support systems on which Iraqi civilian life depends - for instance, water treatment facilities -- thus allowing the spread of water-borne diseases that would kill large numbers of infants and children.

Almost all of the U.S. military strategies publicly debated in 2002 begin with a massive air campaign against Baghdad. The Pentagon rationale is that Baghdad is -as it is commonly described - "studded with anti-aircraft batteries and surrounded by crack troops of the Republican Guards." Whether or not those claims are true, Baghdad is a crowded city populated by 5 - 6 million ordinary Iraqi civilians, desperately trying to live something approach a normal life. However "smart" the U.S. bombs, it is unlikely those civilians will all be spared.

The economic sanctions themselves, responsible for the deaths of hundreds of thousands of innocents, clearly violate the laws of war prohibiting attacks on civilians, since their murderous impact is well known to their U.S. and UN perpetrators. Under international law, political and military leaders are accountable for their commands, and individual soldiers may also be charged with war crimes if they carry out such illegal orders. (In 2002, peace organizations began distributing warnings to young Israeli soldiers, cautioning them that orders they may be given in the occupied territories may constitute war crimes, and following the orders may subject them to criminal proceedings.)

Next Section: III. The Consequences of War: Iraq and Beyond

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