War's Moral Poverty Cannot Be Saved by Legality
 

By George D. Pappas, Esq., B.Sc. (Econ)Hon., LL.B. (Hon)., LL.M.*

United Nations General Secretary, Kofi Annan, in a BBC World Interview on September 16, 2004 said, "I'm one of those who believe that there should have been a second resolution" to legalize the use of force in Iraq.

 Specifically when pressed by the BBC as to whether the US led invasion of Iraq was illegal, Annan said, "I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal."

To opponents of the War in Iraq, the illegality is based on a violation of United Nations law. Are we to presume that had the United Nations Security Council voted in favor of disarming Iraq, that the use of force would have been "legal"? Are we to conclude that had the US and Britain achieved yet another "second resolution" calling for the use of "force" in the event of non-compliance by Iraq, that the war in Iraq would have been based on sound legal footing?

What does the United Nations Charter state with respect to the powers granted to the Security Council? Once this question is answered, we can then judge whether or not Kofi Annan’s assertion that the US led invasion was "illegal" is correct.

Does the United Nations Charter assign responsibility to the Security Council with respect to international peace? According to Article 24 of the United Nations Charter it does. Article 24 states:

"In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf."

So the United Nations Charter grants "primary responsibility" to the Security Council on matters of International Peace. The next question is what is the Security Council’s position with respect to enforcing international peace? UN Resolution 1441 provides a surprising answer.

Resolution 1441 was adopted in December 2002 by the unanimous vote of the UN Security Council after two months of arduous debate. The United States and Britain argued that Iraq should be given specific time limits within which to comply with prior UN resolutions or else face the prospect of military force.

Russia and France advanced the view that resolution 1441 should sanction the re-introduction of UN inspections, while holding off on any threat of force. In other words, France did not want to imbed the application of "automatic" force in the event of non-compliance by Iraq.

Resolution 1441 satisfies both the French concern with respect to the automatic use of force and also satisfies the British and American position that any member state (not just the security council members) can "use all necessary means to uphold and implement…" prior UN Security Council Resolutions. Therefore, the Security Council’s interpretation and application of "all necessary means" provides a vital context prior to the US led invasion of Iraq.

The United Nations uses a two-pronged legal test for the use of "all necessary means". The test would be satisfied if: 1. Iraq was in material breach of one or more UN Security Council Resolutions to disarm weapons of mass destruction. 2. Whether the UN provides any specific reference to the use of "any means necessary" to uphold UN resolutions with respect to Iraq.

The first test is satisfied by a reading of resolution 1441 itself, which states:

"that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 – 13 of resolution 687 (1991)."

Resolution 1441 thus confirms the "material breach" by Iraq with respect to past Security Resolutions.

The second test is also satisfied because the US, Britain and other coalition partners were legally authorized under United Nations resolutions to resort to the use of force because Resolution 1441 delegates the power to member states to "use all necessary means to uphold and implement its resolutions 660 (1990)…and all relevant resolutions subsequent to Resolution 660…" Member states under the authority of Resolution 1441 used military force in Somalia (1992), Haiti (1994) and Bosnia (1995). The second test is also satisfied.

The historical application of Resolution 1441 provides an unequivocal legal basis for unilateral military force by a UN member state in the event of non-compliance with Security Council resolutions.

While the rule of the law is the cornerstone of international law, and while that rule’s application is sufficient evidence to show that the US invasion of Iraq had legal grounds within the context of the United Nations Charter, the issue of whether the US led invasion was a just or moral one is well beyond the scope of legality.

If there ever was a war that had a legal basis devoid of moral authority, it is the US led war on Iraq. Evidence is now mounting from the 9/11 Commission, The Butler Report and the news media that show that President Bush and Prime Minister Blair were presented with a wide range of intelligence. Reports show that Bush and Blair selectively presented (and still do) a skewed set of facts to make the case of imminent threat by Iraq where no such threat existed.

While the US and Britain may pass the test of a legality for invading Iraq, sadly, facts discovered by the 9/11 Commission and The Butler Report show the moral poverty of sending troops into harms way when such action was a preordained policy decision that used the United Nations not for legal cover, but as a moral cover for zealots within the Bush administration.

The moral cover sought by the Bush Administration was not a plea to the UN that a legal basis existed to invade Iraq, but an illusion cast before the world press. That illusion was reflected by mirrors that made the pretense of appearing before the General Assembly and Security Council, calling for international action, in and of itself a sham desire for diplomacy.

The illusion presented by President Bush and Secretary of State Colin Powell was in reality a military plan orchestrated by Bush policy hawks, such as Vice President Dick Cheney, rather than an imminent threat posed by weapons of mass destruction in Iraq or any Iraqi connections to Al Quadia.

Defense Secretary Paul Wolfiwitz, according to the 9/11 Commission Report, "made the case for striking Iraq during ‘this round’ on the war of terrorism." In other words, use the cover of the War on Terror as the convenient cover to invade Iraq.

Vice President Dick Cheney, according to an October 3, 2004 New York Times article, was well briefed with a wide spectrum of dissenting US intelligence views about the reasons and capabilities of Iraqi purchases of Aluminum tubes (e.g., rockets vs. uranium centrifuges). Vice President Cheney made statements to the American Public that Iraq had already developed a nuclear weapons program when it in fact the US intelligence community was nowhere near that assessment.

Even now, National Security Advisor, Condelssa Rice, attempts to rewrite history with new "spin" on how the Bush Administration interpreted intelligence prior to the war in Iraq.

In a statement to ABC’s "This Week" Rice said "I stand by to this day the correctness of the decision to take seriously an intelligence assessment that Saddam Hussein would likely have a nuclear weapon by the end of the decade" if the US did not invade Iraq. That is NOT the message Rice and other Bush administration officials portrayed before the world community in the run up to the March 2003 invasion of Iraq.

The Bush Administration used the pretext of an "imminent" threat posed by Iraq through the use of weapons of mass destruction (WMD). Rice attempts to shift the time line of the threat from "imminent" to "the end of the decade" – this shift is critical for the Administration’s policy justification. Namely, it sanctifies the Bush decision for war by validating their pre-war intelligence, even if they got the intelligence wrong on WMD and even if they got the intelligence wrong on Iraq’s importation of aluminum tubes.

Changing the time line at this late hour before the Presidential election is not only an attempt at historical revisionism, it is a down right distortion of the facts to find a moral cover to what has turned into what Democratic Presidential Candidate John F. Kerry describes as a "Colossal Mistake in Judgment," by the Bush Administration.