Legality of Iraq War

[Mad_Michael]

The "earlier resolution" argument has no standing from any point of view other than hired (and paid skyhigh $$$$) lawyer's. For a simple analogy, consider police coming to search your house with a 10 year old order.

If it is an outstanding 10 year old warrant, it can certainly be legally applicable. Sometimes criminals evade them for many years.

Evading the consequences of one's acts for ten years doesn't make one innocent of the charge.

[bush_cheney2004]

I guess we'll have to do this the hard way...the UNSC invoked 687 into late 2002, to wit:

The Security Council,

Recalling all its previous relevant resolutions, in particular its resolutions 661 (1990) of 6 August 1990, 678 (1990) of 29 November 1990, 686 (1991) of 2 March 1991, 687 (1991) of 3 April 1991, 688 (1991) of 5 April 1991, 707 (1991) of 15 August 1991, 715 (1991) of 11 October 1991, 986 (1995) of 14 April 1995, and 1284 (1999) of 17 December 1999, and all the relevant statements of its President,

Recalling also its resolution 1382 (2001) of 29 November 2001 and its intention to implement it fully,

Recognizing the threat Iraq's noncompliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security,

Recalling that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to Resolution 660 (1990) and to restore international peace and security in the area,

Further recalling that its resolution 687 (1991) imposed obligations on Iraq as a necessary step for achievement of its stated objective of restoring international peace and security in the area,

Deploring the fact that Iraq has not provided an accurate, full, final, and complete disclosure, as required by resolution 687 (1991), of all aspects of its programmes to develop weapons of mass destruction and ballistic missiles with a range greater than one hundred and fifty kilometres, and of all holdings of such weapons, their components and production facilities and locations, as well as all other nuclear programmes, including any which it claims are for purposes not related to nuclear-weapons-usable materia....

...1. Decides 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 to 13 of resolution 687 (1991);

http://edition.cnn.com/2002/US/11/08/resolution.text/

Seems that UNSC 687 was alive and well after all.

[myata]

The "earlier resolution" argument has no standing from any point of view other than hired (and paid skyhigh $$$$) lawyer's. For a simple analogy, consider police coming to search your house with a 10 year old order.

If it is an outstanding 10 year old warrant, it can certainly be legally applicable. Sometimes criminals evade them for many years.

Evading the consequences of one's acts for ten years doesn't make one innocent of the charge.

It's not a matter of innocence, simply of due process. If an action is required on the outstanding order, the police would have to go to a judge and obtain a warrant.

They (Iraqi coalition) did understand that, and they did go to the Security council and tried to obtain the authorisation for the war. And they didn't get one. Not much can be added, really.

If judge now and today won't give police the warrant based on the old order, that's the end of way. They can come back with more information and try to change the decision, but they can't just go and do it anyways. That would be illegal.

[bush_cheney2004]

They (Iraqi coalition) did understand that, and they did go to the Security council and tried to obtain the authorisation for the war. And they didn't get one. Not much can be added, really.

They didn't need one....only "wanted one" to solidify domestic and international support. By such reasoning, the "crimes against peace" trials for Chretien, Clinton, Schroeder, Chirac, and Blair should have been over by now for NATO's Allied Force (Kosovo).

[myata]

They didn't need one....only "wanted one" to solidify domestic and international support. By such reasoning, the "crimes against peace" trials for Chretien, Clinton, Schroeder, Chirac, and Blair should have been over by now for NATO's Allied Force (Kosovo).

No they needed it because since the old order was issued ten years had passed and the situation on the ground has changed. The same reason police will need a current warrant for any action.

Kosovo may or may not be relevant to this discussion, depending on the specifics. I really don't remember the details. If it was done without proper sanction from the UN then certainly there would be a case to call it illegal. But it's a topic for another discussion.

[Hollus]

Myata is correct. The UNSC resolutions are multilateral agreements and do not authorize UN Member States to decide on their own that Iraqi transgressions justify those States in using military force against Iraq. It is for the Security Council to decide upon the measures to be taken, and who should take them, in the event that a State breaches a Security Council resolution.

Considering the substantial change between conditions from when UNSC resolutions where drafted in design of the liberation of Kuwait to when they were reaffermed in response to Iraqi non-compliance, UNSC Members drafted resolution 1441 which updated the current crisis situation. Surely this resolution subverted any twisted argument put forth that the United States had the authority to invade Iraq based on decade old authorization which pertained to reinstating the regional peace in response to Iraqi aggressions against neighbouring States.

Resolution 1441 had two things very clear: Iraq had a final chance to comply with disarmament obligations and, if Iraq failed to comply with obligations there would be no automaticity to military action, but instead would be up to the UNSC to reconvene and authorize what further measures be taken.

UNSC Member States comments upon passing resolution 1441:

United States :The resolution contained, he said, no “hidden triggers” and no “automaticity” with the use of force.  The procedure to be followed was laid out in the resolution.

United Kingdom: He said there was no “automaticity” in the resolution.  If there was a further Iraqi breach of its disarmament obligations, the matter would return to the Council for discussion.

France: If the inspection authorities reported to the Council Iraq had not complied with its obligations, the Council would meet immediately and decide on a course of action.  France welcomed the lack of “automaticity” in the final resolution.

Mexico: In case of failure to comply, the Council would act on determinations it would make on whether international peace and security was threatened.  The Council decision preserved the legitimacy, effectiveness and relevance of the Council, in compliance with its mandate to maintain international peace and security. 

Ireland: The resolution, he said, provided for a clear, sequential process for Iraq compliance.  Developments would be then examined by the Council itself, which had the primary responsibility to decide whatever action needed to be taken.

Russia: The resolution opened the road to diplomatic settlement.  In case of dispute, it was UNMOVIC and the IAEA that would report it to the Council, who would then consider the situation that had developed.

Bulgaria: The resolution did not provide a pretext for the automatic use of force, but instead a firm insistence on the accomplishment of its objective, the disarmament of Iraq. He further welcomed the fact that the resolution categorically reaffirmed the unanimity of the Council in the decision-making process, and multilateralism as a primary principle in international relations.

Syria: His country had voted in favour after having received from the United States and United Kingdom, as well as France and the Russian Federation, reassurances that the resolution would not be used as pretext to strike Iraq and did not constitute a basis for “automaticity”. The resolution should not be interpreted in any way that any entity could use force.

Norway: He said his country wanted the conflict with Iraq to be resolved peacefully. The resolution set out very clearly that the Iraqi authorities had a choice.  In case of Iraqi non-compliance, the resolution set out a procedure where the Council would convene immediately in order to secure international peace and security.

Columbia: The resolution was not authorizing the use of force, but provided a final opportunity to Iraq to comply. The resolution would make it possible to move forward in the crisis, as it showed that the Council intended to respond to any new challenges.

Guinea: It would make possible a peaceful resolution of the crisis, and reaffirmed the key role of the Council in maintaining international peace and security.

Mauritius: said the unanimous vote had strengthened the unity of the Council, which was a prerequisite for implementation of the resolution.

China: He was pleased to note that the co-sponsors of the resolution had accommodated his country’s concerns.  The purpose was to disarm Iraq, and it no longer contained any “automaticity” for the use of force.  The Council must meet again if there was non-compliance by Iraq.

http://www.un.org/News/Press/docs/2002/SC7564.doc.htm

[bush_cheney2004]

No they needed it because since the old order was issued ten years had passed and the situation on the ground has changed. The same reason police will need a current warrant for any action.

Kosovo may or may not be relevant to this discussion, depending on the specifics. I really don't remember the details. If it was done without proper sanction from the UN then certainly there would be a case to call it illegal. But it's a topic for another discussion.

But of course....my bad...Kosovo is always a topic for a different discussion, because it is very inconvenient to compare with the "Iraq War"...very inconvenient for Canada and PM Chretien. Comparisons to other wars with UNSC approval are welcomed to underscore the illegal deeds of 30 or so nations in Iraq, but please do not mention NATO's Allied Force as it is off topic and may prove to be a bit problematic for the amateur international law attorneys amongst us.

Ten years of history did not change anything about UNSC 687...from "illegal" no-fly zones, to Desert Fox, to crippling UN sanctions (based on the "ten year old resolutions"), and resolutions approved in 2002 for the resumption of inspections ( only complied with after 240,000 troops went camping in Kuwait).

In a way, it is a small price to pay to satisfy the "peacemongers", for it is such things that they value most of all, even as they live and feed on the wicked West. There will be no indictments, no ICC trials, and no sentences for the leaders of NATO or coalition nations, but the protesters can wear their tee-shirt slogans and go to their graves knowing in their hearts that the wars were "illegal".

[ScottSA]

Myata is correct. The UNSC resolutions are multilateral agreements and do not authorize UN Member States to decide on their own that Iraqi transgressions justify those States in using military force against Iraq. It is for the Security Council to decide upon the measures to be taken, and who should take them, in the event that a State breaches a Security Council resolution.

You clearly don't understand the way the UN works. You, and many other folks like you, seem to imagine that the UN is modelled along the lines of a domestic legal system, with all the formulations and coercions of a domestic legal system built in. It isn't.

Let's look at the response of the US to Afghanistan. The US took unilateral action and attacked Afghanistan. At the time, the same crop of "experts" leapt up and announced that that invasion was illegal too. It wasn't. The US invoked article 51, an overriding clause abrogating everything else in Chapter VII. The UNSC subsequently upheld the US actions, but even if it hadn't, the only way the action would have been deemed "illegal" is if the UNSC had issued a resolution condemning it.

You'll note that this has no parallel in domestic law at all, either in particular or in fundamental theory. There is no Leviathan in the international arena, and the closest thing that comes to it is the UNSC. The UN is an ad hoc body of self-interested states...closer in conception to the Paris mob than to any body of domestic law. The Charter is a lose collection of grand and extremely vague principles...even the Charter itself has chunks of it that the member nations ignore...articles 46 and 47 come immediately to mind, but there are others too. In short, the UN is not a judge with a rulebook in front of it, and there is no police force. Policing is done on a posse system.

Your immediate argument, after having been shown the light on the others, is that 1441 somehow abrogated 687 or cast it in some new light . It didn't. That's not how UNSC resolutions work. Here's something you may not realize about UNSC resolutions: Look at the text of 1441:

“Recalling all its previous relevant resolutions, in particular its resolutions 661 (1990) of 6 August 1990, 678 (1990) of 29 November 1990, 686 (1991) of 2 March 1991, 687 (1991) of 3 April 1991, 688 (1991) of 5 April 1991, 707 (1991) of 15 August 1991, 715 (1991) of 11 October 1991, 986 (1995) of

14 April 1995, and 1284 (1999) of 17 December 1999, and all the relevant statements of its President,

“Recalling also its resolution 1382 (2001) of 29 November 2001 and its intention to implement it fully..."

Why do you think those clauses are in there? Why do you think this clause is there:

“Recalling that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to resolution 660 (1990) and to restore international peace and security in the area..."

What do you think this means:

"...678 (1990) authorized Member States to use all necessary means..."

What those clauses mean is that far from abrogating the previous resolutions, 1441 is reaffirming them in the strongest possible terms, and actually adding to them. 1441 didn't override anything; it reaffirmed everything and added to it.

The second part of your argument seems to be that 1441 didn't specifically "automatize" the use of force, so therefore the US acted illegally. To bolster this argument, you attempt to make it seem that the US merely took 1441 and attacked Iraq on the fact of it without any further ado. That's not the way it happened, though. What 1441 said is that this is a last chance for Iraq to comply. Several weeks after the resolution, Iraq was still found to be in material breach on numerous counts, and in fact 1441 DID authorize force in the event of non-compliance. It was in the event of non-compliance that res 1441 authorized "...authorized Member States to use all necessary means...". So no, 1441 didn't automatize the use of force, but force wasn't used automatically either...only after Blix's subsequently found Iraq in material breach. In that case the procedures were laid out in the resolution, and those procedures were followed to the tee.

So all the readings you presented in your post, issued at the time of 1441, are merely stating that the resolution, in and of itself, didn't give anyone the authority to attack out of hand that day. It did however give member states the authority to attack under further non-compliance. That is what happened.

Finally, if in fact the invasion had been deemed "illegal," the UNSC would have had to issue a subsequent resolution condemning the invasion. Simply calling something illegal from the sidelines is meaningless.

[myata]

To B-C: if the situation with Kosovo was similar to Iraq with respect to proper authorization, I'll agree that Kosovo was illegal as well. It's simply another topic which isn't directly related to this discussion.

Generally, I've no interested to go into pseudo-legalistic arguments as these discussions tend to degenerate into. I'm no expert in the international law and I have no information that those on the opposite side of this argument were either. If there was on this planet a court, based on the concept of law and impartial justice and competent in the matter, it would be the only way to decide the matter formally.

For the absence of that possibility, however, I do find it appropriate to examine this situation from a common sense perspective, and that why domestic analogy. From that perspective it's very obvious that final authorisation was indeed required. It's is obvious from the following translation of pre-war situation into everyday language:

1. Saddam is put on parole;

2. Parole officer (Hans Blix's team) reports progress, along with some issues, and recommends continuation of inspections;

3. Some parties aren't satisfied with the progress and request authorisation for a strong action;

4. Authorization for the action is not given.

The only legal choice in this situation, in our everyday law, would be to continue parole while possibly attempting to pursuade the judge to change their decision. Direct action wouldn't be a legal option. So, the war is illegal in the common sense, if not that of the international law view (which still isn't settled, if ever will be). And that's good enough for me.

[ScottSA]

To B-C: if the situation with Kosovo was similar to Iraq with respect to proper authorization, I'll agree that Kosovo was illegal as well. It's simply another topic which isn't directly related to this discussion.

Generally, I've no interested to go into pseudo-legalistic arguments as these discussions tend to degenerate into. I'm no expert in the international law and I have no information that those on the opposite side of this argument were either. If there was on this planet a court, based on the concept of law and impartial justice and competent in the matter, it would be the only way to decide the matter formally.

For the absence of that possibility, however, I do find it appropriate to examine this situation from a common sense perspective, and that why domestic analogy. From that perspective it's very obvious that final authorisation was indeed required. It's is obvious from the following translation of pre-war situation into everyday language:

You're in effect saying that you don't have a clue what you're talking about; something that is appalingly obvious from your previus posts. No one here is an international legal "expert," since that usually requires one to have written a masters or doctoral thesis on a given subject, or have in depth post doc work on the subject. But that doesn't mean that everyone who hasn't done those things is on a level playing field in knowledge on the subject. You clearly don't even understand the very basics of international law, nor how it is codified or implimented.

"Common sense" is not a substitute for knowledge. You can argue that something "ought" to be from the standpoint of common sense, but you cannot viably argue that something legally "is" from any standpoint other than knowledge of the legality.

[bush_cheney2004]

1. Saddam is put on parole;

2. Parole officer (Hans Blix's team) reports progress, along with some issues, and recommends continuation of inspections;

3. Some parties aren't satisfied with the progress and request authorisation for a strong action;

4. Authorization for the action is not given.

This analogy is flawed....let's make it more realistic:

1. Saddam is put on parole for murder and weapons violations

2. Parole officer loses track of Saddam and is barred from inspecting residence

3. Saddam modifies weapons in violation of parole

4. Saddam will not permit police to enter his home

5. Police use SWAT tactics to enter home and arrest Saddam

WRT Kosovo....I shall wait patiently for the rabid MLW postings demanding trials for PM Chretien and President Clinton for "crimes against peace". LOL!

[myata]

Given that (real and qualified) experts seem to be divided on the matter, you definitly should consider contributing your valued opinion to their learned discussions. Why wasting your expertise here on someone who wouldn't even be able to recognise it for the gem it is. And who knows maybe it's your flawless argument that will decide the matter once and forever?

[myata]

This analogy is flawed....let's make it more realistic:

1. Saddam is put on parole for murder and weapons violations

2. Parole officer loses track of Saddam and is barred from inspecting residence

3. Saddam modifies weapons in violation of parole

4. Saddam will not permit police to enter his home

Except it wouldn't be exactly true. It's a common knowledge that inspection teams were fully operational in Iraq immediately before the invasion.

WRT Kosovo....I shall wait patiently for the rabid MLW postings demanding trials for PM Chretien and President Clinton for "crimes against peace". LOL!

Why wait? Just start a new topic.

[ScottSA]

Given that (real and qualified) experts seem to be divided on the matter, you definitly should consider contributing your valued opinion to their learned discussions. Why wasting your expertise here on someone who wouldn't even be able to recognise it for the gem it is. And who knows maybe it's your flawless argument that will decide the matter once and forever?

Whatever. It's not me making a horse's ass of myself foolishly arguing things I have no clue about.

[bush_cheney2004]

Except it wouldn't be exactly true. It's a common knowledge that inspection teams were fully operational in Iraq immediately before the invasion.

Yes it would be true...the inspections were only permitted after many nations staged 240,000 troops in Kuwait. The inspection teams were still thwarted at every move.

Poor Saddam.....he was a bad poker player.

[weaponeer]

The whole idea of a legal or illegal war is insane!!!!

[bush_cheney2004]

The whole idea of a legal or illegal war is insane!!!!

Agreed....any such word association is an oxymoron. But I guess some people rest better at night knowing that their armed forces have "legally" killed people.

[myata]

Whatever. It's not me making a horse's ass of myself foolishly arguing things I have no clue about.

No, eh? Thought so. Could it because you aren't not sure if you yourself have any clue about it (and make that ... of yourself, but in front of a learned audience)? Or just natural modesty?

[myata]

Agreed....any such word association is an oxymoron. But I guess some people rest better at night knowing that their armed forces have "legally" killed people.

And the alternative? The right of the might?

[bush_cheney2004]

And the alternative? The right of the might?

Of course....much less paperwork. See "Oka Crisis".

[myata]

Whatever it had to do with the Oka crisis, I'd at least understand that position if the US administrations wouldn't be pumping its chest on every corner as a champion of international peace and democracy. As it stands, its policy is less than consistent. And credible at that.

[bush_cheney2004]

Whatever it had to do with the Oka crisis, I'd at least understand that position if the US administrations wouldn't be pumping its chest on every corner as a champion of international peace and democracy. As it stands, its policy is less than consistent. And credible at that.

Big deal....did you listen to the Canada Day speeches from the PM and GG? Something about championing "freedom" and "liberty" all over the world.

"We can not take this freedom for granted and it is our responsibility to spread this freedom around us and around the world. The commitment of our soldiers in Afghanistan is an excellent reminder of this."

...just "spreading freedom"...one bullet at a time.

[myata]

"We can not take this freedom for granted and it is our responsibility to spread this freedom around us and around the world. The commitment of our soldiers in Afghanistan is an excellent reminder of this."

...just "spreading freedom"...one bullet at a time.

I do not believe that this country should be in the business of "spreading the freedom". Thanks for pointing it out. Another reason to keep an eye on Harper, especially in Afganistan.

[ScottSA]

"We can not take this freedom for granted and it is our responsibility to spread this freedom around us and around the world. The commitment of our soldiers in Afghanistan is an excellent reminder of this."

...just "spreading freedom"...one bullet at a time.

I do not believe that this country should be in the business of "spreading the freedom". Thanks for pointing it out. Another reason to keep an eye on Harper, especially in Afganistan.

Harper is not in Afghanistan, and I strongly suspect you won't be bestirring yourself to Afghanistan anytime soon to keep "eyes" on anything.

[myata]

I guess that was the climax of what you could come up with as far as contributions to this thread go. Well done. Congratulations. Everybody's truly impressed.