ABOUT THE LEGALITY OF THE WAR AGAINST IRAQ ON 2003*
Manuel BECERRA RAMÍREZ**
Original Text (Spanish) PDF
SUMMARY
I. Introduction. II. The US legal doctrine on the use of force. III. Preventive legitimate defense. IV. The "legal foundations" of the war. The Security Council's resolutions. V. The SC after the invasion to Iraq. Towards "Iraq's rebuilding". VI. Conclusions.
I. INTRODUCTION
One of the most important features of the twentieth century’s international law is, undoubtedly the proscription of war as a dispute settlement method. The international law doctrine sets as a starting point the 1928 Brian-Kellog Pact, which along time has developed a legal transformation of international law of customary nature.1 The world after World War II follows the same tendency. The United Nations Charter bans war and allows only one exception: the use of armed violence within the framework of the legal institution of either individual or collective legitimate self defense. Thus, article 2.4 of the Charter essentially bans the State to use the force against each other; and articles 42 and 43 cover the use of force within the framework of the United Nations Security Council (SC), which may intervene when a situation endangers international peace and security, or when article 51 is executed that, as we know, allows legitimate defense. The resort to war is also possible when the peoples’ self-determination right is claimed, in a war of national liberation.
The international legal structure of the second half of the 20th century bans the resort of war in international relations, except for the mentioned cases. Despite the latter, the ideal world, visualized by the architects of the post-war period met the Cold War, and the armed conflicts became an everyday matter. Though, the doctrine of international law does not acknowledge that there has been a customary abrogation of the principle that bans war in international relations.
Later, the end of the Cold War raised expectations that the international community would find, in international organizations and their mechanisms, means to strengthen international cooperation and legality, which enable pacific co-habitation and development. Though, in practice, a unipolar system has emerged regarding military force, as it showed in conflicts such as the invasion of Kuwait by Iraq and the unfortunate September 11, where the international legality and organization built in the second half of the 20th century were left quite damaged. The latter, given the positions of the United States that involved itself in a war against Iraq on the year 2003 with a questionable legal foundation. Indeed, some literature on international law sustains that the war against Iraq is legal. The internationalists that elaborate the legal strategy of the United States and the Great Britain, as well as part of the international law doctrine, have become absorbed in a strong and interesting polemic that claims for the legality of the use of force in the invasion to Iraq, even when the UN Security Council was marginalized. My purpose in this work is precisely to analyze these positions and give my point of view about them.
II. THE US LEGAL DOCTRINE ON THE USE OF FORCE
As a consequence of 9/11, President Bush’s government rebuilt its foreign policy where the war against terrorism and the identification of a series of States as part of the "evil axis" are the spinal column. Together with this foreign policy, a legal argumentation that supposedly legalizes the behavior of this powerful State in its "war against international terrorism", has tried to be established. Here, I am referring to two features of the legal focus of the US: the first one is the "prevention" in the execution of the legitimate defense; and the second one, the interpretation of the Resolutions of the UN Security Council, that, finally were the foundation of the US’s legal argumentation to invade Iraq.
This way, the "prevention" in the exercise of the legitimate defense becomes a quite important element in the legal structuring of the US’s government discourse. The 1st of June of 2002 President Bush said: "We shall begin the battle against the enemy, bring down their plans, and face the gravest threats before they emerge".2 Later, the 17th of September of year 2002, he made more explicit its concept of "preemptive" as part of its "legal" argument:
We shall stop and destroy the terrorist organizations by means of:
Direct and continuous actions using all the elements of the national and international power. Our immediate target shall be those terrorist organizations of global scope, and any terrorist or State that sponsors terrorism that intends to obtain or use weapons of mass destruction (WMD) or their ancestors.
Defending the United States, the American people and our interests both within the country and outside it, by identifying and destroying the threats before they reach our borders. Besides the constant efforts of the US to find support in the international community, we shall not hesitate in acting on our own, if necessary, in order to execute our right to legitimate defense, acting in a preventive way against such terrorists in order to prevent them from causing damage to our people and our country.
Denying sponsorship and additional support and the sanctuary for terrorists convincing the corresponding States of accepting sovereign responsibilities.3
Even more explicit, in its National Strategy to Combat Mass Destruction Weapons, President Bush expressed on December 2002:
In case the contention does not work, and given the potential devastating consequences of the use of WMD against our forces and our civil population, the US military forces and the corresponding civil agencies, shall have the capacity of defense against the WMD of the adversary, including, in adequate cases, prevention measures.4
On September 2002 the President of the US transferred the Congress a Report called "The National Security of United States".5 Basically, the Report claims, among other things, a right contained in the development of international law, in favor of the US to use preemptive self defense against the threat of those rogue States "that possess weapons of mass destruction…".
The reason of the US government is that there has been a change in international relations (end of the Cold War). During that time, he claims, the WMD were considered last resource alternative, however at present "our enemies view the WMD as optional weapons. For the rogue States, these weapons are tools of military threat and aggression against their neighbors".
Then, according to this doctrine, the traditional concept of "containment" present during the Cold War is not suitable at present, they assert; inaction is a very high risk that we shall not take, especially when aggression could be addressed to the civil population, as it happened during 9/11.
Nonetheless, the United States, according to their new doctrine, will not use the force in every case to prevent emerging aggressions, nor do the nations shall use prevention as an excuse for aggression. "Further, during a time when the enemies of the civilization openly and actively look for the most destructive technologies in the world, the United States cannot remain passive while the danger becomes stronger".
This doctrine is criticized as unilateral by a sector of the international law European doctrinaires.6
Afterwards, on January 2003, the State Department developed this conception, especially around the non-intervention principle. According to the State Department, there are three exceptions to the non-intervention principle:
When a State fails in preventing genocide or crimes against humanity in its own territory. Then the international community has the duty to act in order to save the lives of the innocent.
In the case of the war against terrorism, which, from the US perspective, is a growing consent with a global scope. In this sense, the US has the right to protect its citizens against terrorist States that support, help or protect international terrorists, or that are unable to stop terrorist operations against their territory.
When the dangerous States, given their aggression and support background, own WMD that endanger the international community, they cannot claim the non-intervention principle, and the United States have the right of legitimate preemptive defense.7
In his message to the nation on March 21, 2003, President Bush, referring to Saddam Hussein’s regime argued why had he decided to start war. Point by point I sustain my opinion:
1. Intelligence obtained by other governments does not leave any doubt that the regime of Iraq still owns and hides some lethal weapons never invented before.
After more than one year the war started, the assertion about the danger Iraq entails given the possession or hiding of WMD is totally false. At the moment such weapons have not been found and during the armed conflict developed by the Allies, it is clear that such WMD did not appear.8 Moreover, the premise "Iraq has WMD" is not sufficient to authorize the States to exercise the military force against a State, since, as we saw, the exercise of the use of force is an exception in international relations, and as such, it is circumscribed to the UN Security Council’s faculties. Though, I insist, even supposing that the possession of WMD is illegal, in the case of Iraq, it absolutely resulted in a premise built on a false basis.
On the other hand, it is also evident that the American and English discourses have tried to change, by sustaining mainly that the war is a kind of release from a non-democratic, repressive and unpopular regime,9 which again sets us before the question of who has the faculty, according to the international law, to make such judgments? Only the international organizations, in their competence field can make them.10
2. The Iraqi regime has already used weapons of mass destruction against its neighbors and against its own people.
This statement is true, although it is essentially Manichean since from the moral point of view, it is execrable. The United States protected the dictator Saddam Hussein and also encouraged and supported him in his war against Iran, which with an Islamic fundamentalist government, was not well seen by Washington, causing the loss of President James Carter’s re-election. Besides, it is true that it used weapons of mass destruction against its people and neighbors (where did those weapons come from?) but, once again, international law has means for its punishment. Evidently, the use of WMD "against its neighbors and own people" is a crime punished by international criminal law. International courts through universal jurisdiction, or the domestic jurisdiction have the power to know about these cases, with the limitation that certain people with a high position in the government cannot be judged, because international law itself grants them immunity.11 Though, the limitation is that this immunity is only granted while they have that position and for the actions committed as fulfilling their functions, as it was determined in the Case of Pinochet before the British courts.12
Once again, the US’s position intends to take the law into its own hands, when we assume that international law along centuries of development has gone through the phase in which ancient societies used to take the law into their own hands.
3. The regime has a constant aggression background in the Middle East. It has a deep hatred against America and our friends, and it has also helped, trained, and covered terrorists, including Al Qaeda.
Another unproved statement. Up to now, the US has asserted, without any proof, that Al Qaeda’s operatives have been protected and have had the support and training of Hussein’s regime. Perhaps with the judgment to Hussein himself, this information might be somehow cleared up, but evidently the actions move to the opposite way; first, a country is invaded over the basis of unproved information, and then the information is looked for.
With respect to the constant aggression background, it is provable that Saddam Hussein’s regime, in the past, had the support and complicity of the Western powers such as the US and the Great Britain, for example, to display and maintain his war against the Iranian regime. Finally, the President does not offer evidence of "deep hatred", besides, it is a psychological of proof and it does not play any role at all, it is worthless to international law.
4. The danger is clear: with the use of chemical, biological, or some day nuclear weapons obtained with Iraq’s help, terrorism may fulfill its ambitions and kill thousands or hundreds of thousands of innocent people in our country or in another one.
The logic is quite weak for several reasons. One of them is that in the case of 9/11 it is clear that the only ones that have helped have been the friends of the US, I am referring to Saudi Arabia, which is where Osama Bin Laden and his group have become armed, or Israel, which has armed itself with the protection and consent of the US. However, for political and strategic reasons, the US has followed a selective policy. On the other hand, international terrorism with 9/11 has showed that it does not require WMD, for its capacity of infiltration and imagination has no limits (Who ever thought that the horror of the attacks to the twin towers would be possible?). In fact, my point is that 9/11 proved — as the 11th of March in Madrid later confirmed, that international terrorism does not require WMD; the ones available in the market are enough. For example, information in British journals reveal that assumed terrorists were detained in London, in possession of a considerable amount of fertilizers, which are possible to use as an ingredient to make bombs.
But, on the other hand, I insist, it was not proved that Iraq had such kind of weapons. On the contrary, the attack of the allies is provoking the terrorism of the future, as it is happening precisely in the territory of Iraq, with "bomb men".
5. The United States and other nations did nothing to deserve or entice such menace. But we shall do all possible to end it. Instead of pitying ourselves for the tragedy, we shall take all the necessary security measures. Before the day the horror comes, before it is too late to act, the danger will be finished.
This is a questionable ideological position. International law precisely, has as one of its purposes to stop or ban private revenge. As we saw, one of the purposes of contemporary international law, created after two world conflagrations, is to create a system in which the conflicts can be solved pacifically. An expectation of an illegal action cannot bring the use of force. This applies for all the legal systems, starting with the domestic legal system.
6. The United States has the sovereign right to use the force to assure its own national security. It is my responsibility as Commander in Chief by the protest I have made, by the protest I shall follow. Acknowledging the threat to our country, the majority in the US Congress voted last year to support the use of force against Iraq. The United States tried to work together with the United Nations in order to face this threat because we wanted to solve the matter peacefully. We believe in the United Nations’ mission. One of the reasons of their foundation, after WWII, was confronting actively and anticipating the dictators' aggression before they were able to attack the innocent and destroy peace.
Up to now, the system of creation of the international order is based on the sovereignty of States, but not of only one country.13 Without the acknowledgement that the States have the same sovereignty it is not possible to build the international order. The UN Charter itself starts over the basis of equal sovereignty of States. The US demand with this position, a superior sovereignty, in which they decide when there is a threat against them. The UN’s mission, of course, is to face the threat to international peace and security, but always within the framework of Chapter VI and VII of the Charter.
7. In the case of Iraq, the Security Council did it in the beginning of the nineties. Under resolutions 678 and 687, both of them into force, the US and our allies are authorized to use the force in order to deprive Iraq from weapons of mass destruction. This is not a matter of authority, but of will.
Regardless that it is a matter of interpretation of the SC’s Resolutions, the point is: where are the WMDs? And why was the UN verification process in force thrown overboard? With this information, the government of President Bush leaves unveiled its main legal argument, that resolutions 678 and 687 authorize the use of force. I shall return to this point later.
8. Last September I attended the United Nations General Assembly and I urged the nations of the world to unite and bring an end to this danger. On November 8, the Security Council unanimously accepted Resolution 1441 which declared Iraq breached its obligations and promised serious consequences if Iraq did not disarm totally and immediately.
The interpretation of R-1441 will be approached later.
9. Nowadays no nation could possibly declare that Iraq has disarmed and it will not disarm as long as Saddam Hussein is still in power. During the last 4 and half months, the US and our allies have been working inside the Security Council in order to apply the demands made, some time ago, by the Security Council. This way, some permanent SC members have publicly announced that they would veto any resolution regarding Iraq’s disarmament. These governments share our calculation of the risk, but not our resolution to face it.
Here, once again, the fundamental point is proving that Iraq had WMD, which was in the verge of being determined with the professionalism and the objectiveness of two verification commissions, detained by the armed action against Iraq.
On the other hand, from the reading of the commented paragraph, it might seem that the difference between those who were in favor and against the war against Iraq, was granted by the "resolution to face it" (the danger Iraq represented). I consider that what was being discussed was whether it was possible to declare the use of force without evidence of the WMD, and then, even with evidences, whether a new resolution after the 1441 was required or not, in order to use the force against Iraq. It was not a matter of a "resolution to face". The matter was merely legal.
10. Many nations, however, have the determination and the force to act against this threat to peace, and a comprehensive coalition is being conformed in order to enforce the just demands of the world. The United Nations Security Council does not deal properly with its responsibilities, then, let’s do it ourselves.14
Opposing this assertion, in the practice this "broad coalition" was basically composed by two countries, the United States and the Great Britain, which is far from being "broad", and that from the perspective of international law, it obstructs the creation of customary norms, for it has an impact in the opinio juris.
Further, who decides which are the responsibilities of a State: only one of them, or the international organization with the participation of other States? This last point is precisely one of the most delicate ones because it meant a kind of coup d’état against the UN in that the US government overtook the functions of this organization in order to "apply the just demands of the world", providing that the "Security Council did not behaved according to its responsibilities".
III. PREVENTIVE LEGITIMATE DEFENSE
The doctrine of preemptive legitimate defense does not have a theoretical background; it is a unilateral policy from the United States that places this State as an international judge and police in detriment of the UN Security Council’s functions or those of the international organization.15 The preemptive legitimate defense has been used several times in: Israel v. Egypt, 1967; in 1975 against the Palestinian camps in Lebanon; and in 1981 against Iraq when Israeli planes bombed Osiraq, an Iraqi reactor close to Baghdad;16 in 1980 Iraq justified its armed attack on Iran. Further, this theory has been used previously in the international law doctrine by eminent English and American specialists.17 In the contemporary American doctrine, it also finds its equivalent with Robert D. Kaplan18 and C. Carr.19
Nowadays, it is interesting to notice that these positions have been posed once again in the international law doctrine. For example, it has been argued that there has been an evolution of international law since the fight against terrorism and the duty all the States have to eradicate it.20 Also, some internationalists judge that,21 the legal structure of the San Francisco Charter is quite limited,22 and that it has been surpassed with phenomena such as the bipolar confrontation during the Cold War, when the great powers’ veto, permanent SC members, prevented the application of articles 42 and 43 of the Charter.
The American professor Thomas Frank emphasizes on the type of phenomena in international relations, such as the apparition of other forms of indirect aggressions, the exportation of insurgency, and the concealed participation in civil wars, that were not covered by the Charter. He also affirms that the same is happening with technological development of war, which transformed weaponry (nuclear, chemical and biological) and the transportation by means of rockets; and finally, the global public conscience of the importance of humane freedom and the relationship between the repression of human rights and the threat to peace. These phenomena, according to T. Frank, are not covered by the Law created in 1945 and are now a proof of the limited character of the Charter’s legal framework, about the banning of the use of force.
Evidently, the international relations have changed partly because of the technological development, but the essence remains the same: war is banned in any way as a means of dispute settlement. This principle was a result of many years of humane evolution. In the 20th century, it took two world wars so that the world could understand that war is not a solution, only leaving destruction and suffering to the people. This is clear and also, this banning of the use of force, together with the principle of non-intervention in the States’ domestic affairs, included in article 2.7, constitute an axis that prevents the States from the resource to violence.
Indeed, article 2.4 of the Charter of San Francisco establishes that:
Art. 2
4. The members of the Organization, in their international relations, shall abstain from resorting to the threat or use of force against the territorial integrity or the political independence of any State, or in any other form that is incompatible with the United Nations’ aims...
We shall recall that this principle was confirmed and developed with the Resolution of the GA-2625 of October 24, 1970 that refers to the Declaration about the "Principles of Public International Law regarding the relations of friendship and cooperation between States, according to the UN Charter". Further, regardless its conventional nature (it has been repeated in several treaties after the Brian-Kellog Pact), the principle has a customary character for it has been confirmed by different resolutions of the General Assembly itself, as well as by the International Court of Justice in the case of the Corfu Strait when it rejected the possibility of legitimately resorting to force within the framework of international law.23
Moreover, the international law doctrine sustains that the ban of the use of force in international relations is a norm of jus cogens.24 In fact, since its very comments to the project of the 1969 Vienna Convention on the Law of the Treaties, the International Law Commission pointed out that the banning contained in the UN Charter was a "conspicuous example of jus cogens".25 This means that the Parties in a treaty cannot be against this principle, and it places the banning in a superior level with consequences such as considering as a serious crime those actions that transgress it.
This nature is also shared by the other part of article 2.4 of the San Francisco Charter, the "prohibition to resort to threat". This is a banning that is also affirmed and developed by customary law. The UNGA Resolution 3314 (XXIX) of December 14, 1974 is also relevant, in that it defines aggression26 and considers that "the aggression war is a crime against international peace. Aggression creates international responsibility".27
This banning that exists in international law after WWII is clear, understandable for its historical context. The architects of the San Francisco Charter had the clear idea of creating a system in which its members would not resort to war. War is an international pathology and has unpredictable consequences; it can be determined when it begins, but not when and how it ends. The war against Iraq is precisely an example of this statement.
The position of the current US government and part of the US doctrine regarding that article 2.4 of the UN Charter is dead letter and that international practice goes on the opposite direction, is false and very dangerous to international relations.
The obsolescence of article 2.4 does not have a theoretical support, as professor Yoram Dinstein brilliantly sustains. There are many reasons that are against this position. The violation of article 2.4 does not mean it disappears, as it happens with criminal bans that the States have in their domestic Law; its breaching does not lead to the extinction of criminal Law. On the other hand, when the States have resorted to force in violation of article 2.4 they also try to found their action and claim they have not breached it (regardless they are right or not) or that there is an exception that protects them. Such is the case of claiming the right of legitimate self defense; or that the Security Council authorizes it, even when such arguments are not well founded or false.
Professor Dinstein supports himself in the ICJ, which in the case Nicaragua VS. United States, determined:
If a State acts in a certain way, prima facie incompatible with a known rule, but it stands for its conduct basing on the exceptions or justifications contained in such rule, then, regardless the State’s behavior is justified or not, the meaning of such attitude is confirming, more than weakening the rule.28
It is possible to state that, in fact, the principle is still in force in international law. Thinking the opposite way would be carrying international law back to the 19th century.
Now we have the issue of whether the exceptions to such principle have been modified, as is the legitimate defense and the SC’s action when international peace and security are in danger. Of course, it is possible to affirm it, but such statement is inconsistent with international law. As we saw, international practice has rejected the concept of preemptive self-defense, but especially there is not an example of any practice that denies that the SC has the monopoly of decisions to execute the actions contained in Chapter VII of the San Francisco Charter. This is the core point, the SC has kept the monopoly of the exercise of armed action and Chapter VII of the Charter covers the way it is exerted. Even when it might be claimed that there are different modalities to those contained in article 41 of the Charter, in the international practice when the SC launches measures that imply the use of the force, this UN body for example, authorizes its members to use force in certain cases for determined periods of time, or where it is conditioned to grant impartiality. Moreover, the United States have the duty to report regularly to the SC.29
Another core point we shall not miss is that the SC’s armed action within the framework of Chapter VII of the San Francisco Charter, is a mere exception to the principle of "not resort to" and as such, it has limitations. States ought to be quite careful when invoking and applying such exception; otherwise they risk making the principle unimplemented. Furthermore, there is no precedent, not even political, social or philosophical reasons that lead us to assert that the threat of force or the use of force are allowed in international relations. On the contrary, the essence of the Law created after WWII has the premise that war is a scourge that hits humanity and that has to be eradicated.
For this reason perhaps the US government and its lawyers have tried to justify the military action against Iraq in the year 2003 in the resolutions stated beforehand by the SC itself.30 Therefore, it is important to establish the correct scope of the SC’s resolutions.
IV. THE "LEGAL FOUNDATIONS" OF THE WAR. THE SECURITY COUNCIL’S RESOLUTIONS
Even when there was a great discussion around the concept of preemptive legitimate defense (doctrine used by the governments of Australia, Spain, UK and USA), the war on Iraq was founded on the SC’s resolutions launched since 1990, as the US government explained in a letter sent to the UN, to explain its legal position:
The actions undertaken are authorized by the resolutions issued by the Security Council, including resolutions 678 (1990) and 687 (1991). Resolution 687 imposed a series of obligations to Iraq, including the most important one, extensive obligation to disarm, which was a condition of the cease fire imposed by it. It has been fully recognized and understood that a material breach of these obligations removes the base of the cease fire and livens the authority of the use of force under Resolution 678 (1990). This has been the foundation of the use of force by the coalition in the past, and the Security Council has accepted it. As evidence there is for example, the public announcement of the Secretary General on January 1st, 1993 that followed a material breach of Resolution 687 (1991) that the coalition forces have received a mandate from the Council to use the force according to Resolution 678 (1990). Iraq continues breaching its obligations of disarming, according to Resolution 687 (1991), as the Council affirmed in its Resolution 1441 (2002), acting under the authority of Chapter VII of the United Nations Charter, such Council unanimously decided that Iraq has breached and still breaches its obligations and reminds its constant warnings to Iraq such as that it would face serious consequences as a result of its continuous violations of its obligations. Then, the Resolution granted Iraq a "final chance" to fulfill its obligations. However, it particularly underlined that Iraq’s violations of its obligations under Resolution 1441 (2002) to present a suitable, total and complete declaration of every aspect of its weapons of mass destruction, and fully obeying and cooperating in the enforcement of the resolutions, would constitute an additional material violation.
The government of Iraq decided not to accept this final chance granted by Resolution 1441 and it has clearly committed additional violations. Given Iraq’s further material violations, the bases of the cease fire have been removed and the use of force is authorized under Resolution 678 (1990).31
On March 20, the legal advisor of the US State Department reiterated its legal theory and also that it had full authorization under the US law in order to carry out the intervention.
Some members of the SC denied the existence of such legal authority (Russia’s and France’s public opposition is public); the international public opinion was against the intervention. The US spoke about a "Coalition", although in the practice only the governments of the US and UK, Australia and Poland contributed with military forces.32 The essence of the American allegation, which was the same one Prime Minister Tony Blair used,33 relies in that the legality of the allies’ actions lied within the SC’s resolutions themselves. Therefore it is necessary to analyze carefully each of the Resolutions appointed by the US government.
1. Resolution 660 (1990)
It was pronounced on August 2, 1990. It is a Resolution that still looks towards negotiation to solve the problem of the invasion to Kuwait by Iraq. Only having four points, it condemns invasion, demands the immediate and unconditional withdrawal of Iraq from the invaded territory, it calls upon the Middle Eastern States to start negotiations, and leaves the door open for the Security Council to knowing more about the topic. The Resolution was adopted with 14 votes in favor, and Yemen’s abstention.
2. Resolution 661 (1990)
This resolution was pronounced only few days after 660, on August 6th, 1990. It is a much longer and complex resolution, was adopted with 13 votes in favor and two abstentions (Cuba and Yemen). This resolution affirms "the inherent right of individual or collective self-defense, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the San Francisco Charter...".
Resolution 661 was launched within the framework of Chapter VII of the Charter, and it contains an embargo and a total blockade, except for the medical and humanitarian issues, of Iraq because of its illegal invasion to Kuwait. The Resolution still does not authorize force.
3. Resolutions 662 (1990) and 677 (1990)
Resolution 662 (1990) launched on August 9, 1990 was adopted unanimously, and it recognizes the invalidity of the invasion of Iraq to Kuwait. Resolution 677 (1990) still intends not to request to the exercise of armed force against Iraq, and it condemns "Iraq’s attempts to alter Kuwait’s demographic composition and to destroy the civil files kept by the legitimate government of Kuwait". This resolution was also adopted unanimously.
4. Resolution 678 (1990)
This resolution already has "teeth", and in an unusual way to what Chapter VII establishes, although acting within the framework of this chapter: "demands that Iraq comply fully with Resolution 660, and all the subsequent relevant resolutions", that is, the immediate and unconditional withdrawal of Iraq from the invaded territory; "it authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implement, as set forth in paragraph 1 above, the above-mentioned resolutions", "to use all necessary means to uphold and implement resolution 660 (1990) and all the subsequent necessary resolutions to restore international peace and security in the area", which in a certain way authorizes the SC to use the force.
Furthermore, it requests all States to provide the appropriate support for the actions undertaken in pursuance with paragraph 2 above-mentioned. Resolution 678 was adopted with 12 votes, 2 against (Yemen and Cuba), and one abstention of a SC permanent member (China). It is notorious that the members did not unanimously adopt this transcendental resolution. It is indispensable to measure the level of acceptance of the resolution as a whole, given that the States’ acquiescence towards this type of resolutions is important in the creation of international law. This is also a significant element in the interpretation of the SC’s Resolutions, which is generally omitted, since reference is made only to the adoption of resolutions, but not by whom.
The SC decides not to directly exert the use of armed force, as strictly Chapter VII of the Charter appoints. Instead, it authorizes the States members to use it ("requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2…").
It is also necessary to point out that the SC keeps itself busy with the subject, that is, it does not delegate all its faculties, it controls the situation ("It requests the States concerned to keep the Security Council regularly informed on the progress of actions undertaken...").
One of the most unfortunate paragraphs of R-678 given its vagueness is to leave the expedient open when referring to "all subsequent relevant resolutions to restore international peace and security in the area".
How to interpret this part of R-678? I believe that in order to make a correct interpretation of a resolution, it must be studied within the context in which it was issued, in the first place, and then, the nature of the organ that issued it, in other words, define which are the purposes and functions of the Security Council within the framework of international law.
Up to this moment, the aim of the SC’s Resolutions was that Iraq vacated the invaded territory and that Kuwait’s sovereignty was restored, (R-660), thus the expression "all subsequent resolutions…" has a limit: restoring the peace torn by the invasion made by Iraq. To think the opposite would be like authorizing the use of force according to resolutions that were still not issued in that moment. This would fall into the vice of legal uncertainty. That is, Law sets rules of conduct in which the rights and duties of the receivers shall be acknowledged; the vagueness of the norms carries the danger of legal uncertainty for the receivers, which may leave them in a defenseless situation. In such cases, the interpretation of a vague norm shall be made with very restrictive criteria being careful not to surpass the limits of the functions of the organ that issued it.
That is, the SC authorizes the States members to "pull the trigger" to fulfill Resolution 660 and in a very broad way "all the subsequent resolutions", with the sole requirement of "being necessary for the restoration of international peace and security in the area" in the conflict caused by the illegal actions of Iraq. It does not make any sense to think that the SC extended a blank cheque for all that might happen in the region and ad infinitum, because if it were like this, I insist, the principle of legal security would be damaged.
On the other hand, the limits of the SC on security are evident. This is the UN body that does not have legislative functions, thus it cannot create normative dispositions that rule the future activity of the States. Its resolutions about the use of force have clear limitations, since they refer to keep or reestablish international peace and security, and they are an exception to the principle that the "Members of the Organization, in their international relations, shall abstain from resorting to the threat or use of force…" and as an exception it should have a restrictive interpretation, otherwise, once again, the abovementioned principle becomes unimplemented. Moreover, given the great importance of international peace and security, the SC is the only one with the monopoly to issue exceptional measures for the use of the force. Even when it delegates these measures to the States, this is temporary, not definitive; otherwise it would mean to transfer the SC’s faculties to the individual States. This would go against the logic of the creation of the SC, its functions, including the exceptional right of veto.
5. Resolutions 697 and 994
Resolution 697, issued on April 3, 1991, after Iraq withdrew from Kuwait, has a series of measures, basically obligations to Iraq, but also for the Secretary General, as well as, in some cases for the States and the international organizations (paragraph 25). It is a Resolution in which the status of the parties in conflict is established, after going back to the situation before the Iraqi invasion. It creates, for example, a demilitarized zone, it obliges Iraq to destroy and remove different types of weapons (chemical, biological, ballistic missiles with a power higher than one hundred and fifty kilometers). Resolution 687 ends with the classic paragraph of the SC: "It decides to remain busy in the matter and take the steps required for the application of the present resolution and assure peace and security in the region". Evidently, it does not imply any automatic authorization to any State to act in case it is not fulfilled; the SC monopolizes the use of force.
Moreover, for a better interpretation of this resolution we shall take into account that it was not adopted unanimously: 12 members of the SC voted in favor, 1 (Cuba) against, and two abstentions (Yemen and Ecuador).
Different to how some may judge this Resolution as a basis to justify the legality of the war against Iraq, we witness that the SC always keeps monopoly of its faculties and it may not be claimed that this Resolution authorizes a State to use the force.
On the other hand, in 1994 the SC, aware of possible aggressions of Iraq, with respect to its neighbor Kuwait condemns Iraq’s military deployments in the direction of the border with Kuwait and demands it to return to their original positions. Further, it is a resolution that takes into account sovereignty, territorial integrity, and political independence, not only of Kuwait but also of Iraq, and finally, it does not establish cohesive elements in case of not fulfilling it. Despite it uses a quite strong language (calls upon) it ends with the normal phrase "decides to continue considering the issue actively", which implies that the SC keeps its competency and its interest towards the issue, without delegating it to anybody else.
6. Resolution 1441
After several weeks of negotiation, Resolution 1441 was put into discussion, and was finally approved by the 15 members of the SC, and even Syria, the Arabic representative, voted in favor. What was the reason of the success of this resolution. In the first place, the Resolution was subject of a long discussion, time was given to fulfill the consent, and the negotiation process took about eight weeks. However, in subsequent allegations such "consent" turned out to be only apparent, since there were many interpretations of the Resolution.
On the one hand, the Anglo-Saxons, basically the Americans, believed (best said, alleged to believe) that they had accomplished what they had not: a Resolution in which they compelled to turn back to the SC only to consult, not to ask for permission to use the force. That was London’s guideline: if war was reached, a Resolution was preferable but not necessary.34
On the opposite, France and Russia, two members with the right to veto within the SC, considered that a new Resolution was necessary before starting war.
Actually, an irrefutable fact was that the double USA-UK plus Spain launched a quite broad and important diplomatic offensive in order to reach a second Resolution within the SC, which is another core aspect to interpret R-1441 in its true dimension.
Resolution 1441 has 14 points and it appoints the sequence of SC resolutions related to Iraq’s obligation to disarm, and in the considerations, it recalls the Resolution to use all the necessary means to enforce Resolution 660 (1990) of August 2, 1990 and all the relevant resolutions, subsequent to the latter and to restore international peace and security in the area.35
Moreover, in its Resolution 687, (1991) the SC declared that a cease fire was based on Iraq’s acceptance of the dispositions of such Resolution, including the obligations contained in the former. Therefore, the SC in its decision points acknowledges the unaccomplishment of Iraq’s obligations and grants it a final opportunity to fulfill its disarmament obligations according to the Council’s relevant resolutions. Consequently, it "decides to begin an improved inspection regime with the purpose of reaching a process of total and whole, verified disarmament, established by Resolution 687 (1991) and the subsequent Resolutions of the Council" (point 2).
Aiming to fulfill its disarmament and verification obligations, it was established an obligation to Iraq of providing the UNMOVIC, the IAEA and the SC within thirty days after the date of the Resolution, "a whole and total declaration, correctly updated in every aspect of its programs to develop nuclear, chemical and biological weapons, ballistic missiles and other launching systems..." (point 3) and in general, information about its weapons.
Point 4 is especially important because it refers to the consequences of unaccomplishment: "it decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fulfill in the implementation of this resolution, shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12" (the italics are mine). It is evident the SC’s intention of keeping control of Iraq’s theme within its control.
Point 13 "recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations".
Paragraph 14 finishes with the decision to "remain seized of the matter". One of the outstanding aspects in this Resolution is that the Council remains, in every moment, seized of the situation in Iraq, both in the inspection obligations and in the subsequent steps. One of the interesting aspects is that point 2 considers as a "final opportunity", which is clear, but this does not mean an authorization, as others resolutions have put it, to exert an armed action.
Certain analysts of Resolution 1441 consider it is ample and thus, there could also be an authorization for the use of armed force. Those who agree with this interpretation find an authorization, as we saw, not only in R-1441, but also in the previously issued by the SC.
However, I insist, the British diplomacy knew what they were up to, the extensiveness of R-1441, was not for all, since the interpretation that had allowed unanimity was that the use of force against Iraq required another Resolution. To pull again the trigger, according to Resolution 678, in order to keep it into force, it was necessary to find a subsequent Resolution and prove that its fulfillment was necessary in order to restore international peace and security in the area.
Such resolutions refer to the obligation of disarmament; and Resolution 1441 keeps obligations to Iraq to give the necessary means to the inspectors to carry out their job of evaluating the possibility of the government of Iraq having WMD. Therefore, the logic thing to do is to link one SC resolution with the inspector’s reports. The inspectors had the floor, according to R-1441.
However, without having found support in the search of the inspectors lead by Hans Blix, since they did not find WMD in Iraq, the allies began to underestimate and obstruct their job, supposedly trusting their own intelligence sources.36 By displacing the inspectors’ job and declaring war against Iraq on their own account, the USA and UKGB broke the international legality that was found within the SC’s domain.
Further, R-1441, as we saw, does not use the usual phrase of "use of the necessary means". This was so clear that the double USA-UK sought for another resolution of the SC and did not make it. It is logical to think that had both parties been sure about their interpretation, they would not have carried out diplomatic efforts for a new resolution.
Now, it might be claimed that there was a secret diplomatic negotiation among the States in favor, and those against the use of force in Iraq, at that moment, in order to give an ample sense to the interpretation of R-1441. We shall remember that secret negotiations are banned in international law; therefore, international treaties shall be published and are registered by the United Nations. It is not possible to allege there was a secret negotiation in order to grant a specific sense to R-1441, since it goes against international contemporary Law, which is transparent in its rules; and even less to give it an interpretation that can surpass the SC’s functions.
In addition, the war started by the so-called "coalition" breached international contemporary law, for it was carried out with the assumed foundation in the SC’s resolutions, and it is false that such authorization was granted.
This situation, which is illegal, also finds an answer in international law since, basically after WW-II and with the Tribunals of Nuremberg and Tokyo and those created to judge the crimes committed in Yugoslavia, an international legal undivided assets whose purpose is to punish transgressor States and individuals that commit them. It is true that the Rome Convention, that created the International Criminal Court did not define the "aggression crime", and that the USA is not a member of the Court; but it is also true that the international customary law has a normative compilation vigorous enough37 to take S. Milosevic to the Court or to judge A. Pinochet. In this case, the crimes committed by the powerful are subject of the to’s-and-fro’s of international politics since, we know that the governors who transgress international legality have immunity, but it is temporary, while they are acting.38
V. THE SC AFTER THE INVASION TO IRAQ. TOWARDS "IRAQ’S REBUILDING"
The SC, in a situation we may qualify as "neurotic" in subsequent Resolutions to R-1441, after members of the Coalition overtook the country, as if nothing had happened, it continued concerning about the topic of Iraq, and it continued considering it within Chapter VII of the UN Charter. We use the term "neurotic" because no resolution, even by chance, reflects the possibility that the war against Iraq had been illegal, as many thought and still think. This situation of international "neurosis" of the UN is caused by the attempt to conceal a de facto situation, lacking legality, with the need of being fully abreast of the situation in Iraq and intervening in its rebuilding, in certain way. On the other hand, the UN, most important international organization created with a total participation of the international community, was condemned to its disappearance.
But, does the UN participation by means of the SC mean the legalization of war? To a certain point, yes, although its position of ignorance of war leaves in a safe place the qualification in the future of the illegal action committed by the forces of Coalition.
As it stands out in R-1483, the most important resolution, where it covers Iraq’s reconstruction, the SC’s position is giving the guidelines, without totally meddling,39 leaving the burden of the reconstruction to the Coalition. But this is a double-edged weapon since at the same time it grants the Coalition ample powers and it exceeds its functions, as we will see further.
From the analysis of several resolutions issued after R-1441, we find the following characteristics:
1) It acknowledges Iraq’s sovereignty and territorial integrity. Resolutions 1472 (2003), 1483 (2003), 1490 (2003), 1500 (2003), 1511 (2003) make this clear, moreover, it states that "Iraq’s sovereignty lies in the State of Iraq, reaffirming the right of Iraq’s people to freely determine their own political future and control their own natural resources…". This quite adventurous statement has nothing to do with the violation of sovereignty by the Coalition forces, and as we will see, the Security Council creates an exceptional system acknowledging sovereign rights to the occupants on Iraq.
2) It acknowledges the State of belligerence and demands the application of international humanitarian Law, and "all the concerned parties are asked to strictly fulfill the obligations acquired according to international law, particularly the Conventions of Geneva and the Regulations of The Hague, including the obligations relative to the essential civil needs of Iraq’s people".40 Curiously, the resolution does not acknowledge which are the belligerent parties; it calls them "concerned" parties. Though, it also has as a consequence that "as concerned party" the Iraqi resistance that emerged after the forces of Coalition overtook the country, is considered belligerent party, which is a concept different to "terrorist" with which the members of the Coalition commonly call them. Then, both parties, the forces of Coalition and resistance, shall fulfill the legislation contained in international law, and one of its duties is not to attempt against the civil population.
3) On the other hand, the UN General Secretary has extensive faculties to manage the "Food for Oil Program", with which an important participation is granted to the United Nations.41 This posture is reaffirmed with Resolution 1483 (2003) where it clearly expresses "Resolved that the United Nations should play a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration and establishment of national and local institutions for representative governance".42 Here, it is evident that the SC’s logic is absurd, or it does not even have one: without the SC’s authorization, it declares war, and then intervention is left for the UN in order to rebuild the country.
4) On the other hand, the United States of America and the United Kingdom of Great Britain and Northern Ireland are recognized as "occupant powers", being called "Authority", to which the government of Iraq is entrusted.43 With this, the SC has its legal shield in favor of the occupants, the members of the Coalition, and calls the international community to collaborate with the authority in the administration and the rebuilding issues. Actually, the Authority acquires sufficient faculties to manage the country.
5) It is interesting to note how through the SC, there is a "legality robe over the Coalition’s activities and transcends to aspects that are unusual to the Security Council, and that have nothing to do with the functions that shall essentially carry the SC, according to Chapter VII of the United Nations Charter. With this, we mean that the SC acts ultra vires in many of the dispositions contained in the Resolutions after R-1441. For example, the SC stated:
...petroleum, petroleum products, and natural gas originating in Iraq shall be immune, until title passes to the initial purchaser, from legal proceedings against them and not be subject to any form of attachment, garnishment, or execution, and that all States shall take any steps that may be necessary under their respective domestic legal systems to assure this protection.44
At the same time, the SC created a Development Fund for Iraq with a thousand million dollars from the US, and the SC determined that such fund had prerogatives and immunities equivalent to those of the UN. This is surprising, since such determinations exceed the regular functions of the SC, which with this, becomes an international legislator in that such dispositions could normally derive in a judicial resolution or in a multilateral treaty, but not in a decision of 15 States that conform the SC.
Also, the legality robe still extends over Iraq’s domestic security, by authorizing a multinational force to be in charge of it. Moreover, it calls the UN State members to give assistance, including military forces. It is understandable that the SC intervenes in case an event endangers international peace and security, but what happens when international peace and security are damaged because of the activities of two of its members? The legal logic tells us that it is not possible to be judge and party at the same time. Therefore, these SC Resolutions are vitiated as international legal actions. They cannot be considered as legal precedents that may lead to the creation of an international costume since illegal actions cannot be source of the international customary law.
This tendency of a clear involvement of the SC and thus, of the UN in the chaos in Iraq that followed the invasion and Hussein’s overthrow can be seen in Resolution 1546 (2004) which was cheerfully announced for having been adopted unanimously. In this resolution the SC, as if it were a domestic body, replaced the absence of authorities de jure and even established the deadlines and modalities in order to assumingly return the Iraqi people their sovereignty. First, a provisional government was elected, which is in charge since June 30, 2004, of Ayad Allawi, to whom the international press identifies with a former CIA agent. The election of a National Transition Assembly was announced at the latest on September 31, 2004. Such National Assembly has the objective of forming Transitional Government in Iraq, and the elaboration of a permanent Constitution that leads to a constitutionally elected government by December 31, 2005. Furthermore, R-1546, as if it were a program of political transition, refers to the details in order to carry out this aim. It is outstanding the degree of involvement shown by the SC in functions that are not covered by Chapter VII, but where there is an acquiescence of its members and apparently also of the international community, because countries like Mexico have gotten involved, giving electoral assistance to Allawi’s government.
In a not quite orthodox way, the treatment the SC gives the war on Iraq in its post-1441 phase is quite disgraceful, since many had in mind the war’s illegality, even more when the Coalition’s reasons to declare war (WMD possession) were never proved. In these cases, international law is surpassed by international political reasons with a high content of cynicism from the decision makers of the Coalition’s States.
VI. CONCLUSIONS
The illegality of the war against Iraq has produced a severe damage to the credibility of the UN and its collective security system. It is necessary to compensate the damage caused to the most important international organization. The attempts to rebuild legality within the SC are quite difficult and they are susceptible of evident contradictions, because it is intended to cope with a de facto situation (the invasion and destruction of a country) requiring the UN to keep the situation in Iraq under control without allowing to legalize (retrospectively) the war against Iraq. This is to attempt a balance hard to reach, what is shown in the contradictions in its resolutions or in the surpassing of the SC’s faculties.
The evident illegality of the war together with the strong opposition against it during the year 2004, supporting the people from Iraq, allows us state that, contrary to what many jurists from the great powers may claim, new rules for the use of force by the SC have not been created. Both the war started by the Coalition and Iraq’s occupation totally breach international law.
Ironically, the legal analysis of what happened after Iraq’s invasion by the Coalition, places it in a clear violation of international law, particularly of basic precepts of the Charter of San Francisco.
This analysis cannot be complete and different from those who have reached the conclusion that the war lead by the Angle-Saxon coalition is illegal,45 if we do not consider to the consequences of such violation.
We shall remember that crimes against international law, such as a war declaration —that is, an aggression—, are committed by individuals, not by abstract entities. Thus, only by punishing those individuals can international law be executed. This is the criteria and the practice of the military tribunals, since Nuremberg and Tokyo. Precisely, the decisions of these tribunals, including the Court to pursue crimes committed in Yugoslavia, have created an abundant and vigorous jurisprudence that was later reflected in the Statute that created the International Criminal Court, which, even when its article 5.2 announces the exercise of jurisdiction over the crime of aggression, it covers the adoption of a future disposition, according to its articles 121 and 123. Nonetheless, the international legal framework is very clear in acknowledging aggression as an international crime and in punishing the criminals of the aggression war. This way, the Declaration on the Principles of International Law Relative to Friendly and Cooperation Relations among States, according to the San Francisco Charter, claimed that "aggression war constitutes a crime against peace, and in accordance with international law, it entails responsibility".46
Precisely, this international responsibility lies in the individuals. Besides, the General Assembly adopted in 1974 a resolution that launches a clear definition of aggression (article 1), which has been criticized as a support to the International Court of Justice’s verdict in the case Nicaragua v. United States of 1986, which reads:
Aggression is the use of armed force by a State against sovereignty, territorial integrity or the political independence of another State, or in any other way that is incompatible with the United Nations Charter, as the present definition states.
And the consequence of such an action is found further: "The war aggression is a crime against international peace. Aggression entails international responsibility".47
The enumeration of specific actions of aggression appears in article 3, of which it is possible to mention clause (a:
Invasion or attack by the armed forces of a State from the territory by another State, or any military occupation, even when it is temporary, that results of such invasion or attack, or every annexation by the use of force, of the territory of another State or of part of it.
It is also acknowledged that this Resolution has a legally binding effect by means of international costume.48
Therefore, Iraq’s invaders have committed the crime of aggression. But is it possible to judge Heads of State, like the leaders of the great powers? Of course not, while they continue in their position. But afterwards, once they had left it, it is possible. However, the level of disdain towards the international situation is very delicate and striking from the perspective of international politics, even in times of a brutal assault of the American forces in Falluha, where violations were committed against the civil population in a clear violation of international humanitarian law. Neither the UN nor the international community have made any comment against it. The situation in Iraq on November 2004, particularly Falluha, was a clear violation that in another time and in another country, following the prevalent tendency in the last decade, the SC would have already done something about it.
Therefore, in this cases, in which the policies of force seem to prevail before the Law, the looks turn towards the civil society, as the only one that can put pressure on its respective government in order to modify its aggressive or passive policies when facing a violation of international legality. However, we should underline that international law still is the only parameter that allows to identify the norms of a pacific cohabitation, that have developed throughout the centuries, and that enable the existence of the States as sovereign entities. Farther than this, there is chaos, imperialist powers, which mean plundering, oppression and instability.
Notes
* Translated by Ingrid Berlanga Vasile.
** Full time researcher at the Institute of Legal Research. Visitor researcher at University of Oxford.
1 In 1938 the Pact already had 63 States members, which was a small number compared to the current members of the UN, but they were a lot for that time and for the level of development the international relations had reached.
2 Bush, George W., Commencement Address at the United States Military Academy in West Point (June 1, 2002), 38 Weekly Comp. Press doc. 944 (June 10, 2002).
3 National Security Strategy the United States 6 (September 2000, available in: http:/www.whithouse.gov/response/index.html).
4 National Strategy to Combat Weapons of Mass Destruction 3 (December 2002), available in http://www. whitehouse.gov/response/index.html.
5 White House, The National Security Strategy of the United States of America 25-29 (September 17, 2002) available in http://www.whitehouse.gov/nsc/nss.pdf.
6 See, for example the number about US unilateralism, basically from a European perspective, in: European Journal of International Law, vol. 11, no. 1, March 2000, Oxford University Press.
7 See: Haass, Richard, N., US Department of State Policy Planning Staff, sovereignty: Existing, Evolving Responsibilities, Remarks at Georgetown University (January 14, 2003), available at http://www.state.gov/s/prem/2003/16648pf.htm.
8 Hall, Sarah and others, "Blair admits weapons of mass destruction may never be found", The Guardian, January 12, 2004.
9 Moreover, it is immoral to sustain such discourse, when the allies, at the moment helped Iraq to arm itself (see: Hari, Johann, "Why do we continue to arm oppressive regimes?, The Independent, December 10, 2003, p. 13. About this, also Johan Simpson asserts: "In September 1980 Saddam Hussein launched an unprovoked attack on Iran, encouraged by the Reagan Administration, which was alarmed by the fall of its key ally, the Shah, and the recent Islamic revolution" ("Saddam-a dictator of mass destruction", in BBC News, The Battle for Iraq, BB New, London, 2003, P. 140). Also, in recent publications, about the Administration of the current President Bush, it is claimed that "from the beginning there was a conviction that Saddam Hussein was a dictator and that he needed to leave. Then, everything was fixed in order to seek the excuse that finally showed up. About this, Paul O’Neill, who was the US Treasury since the beginning of President Bush II Administration, and that was dismissed from his position in December 2002 (See: Boger Julian, "Bush decided to remove Saddam on day one", The Guardian, London, Jan 12, 2004, p. 4. Also see: The Times, "The Bush Doctrine", London, November 20, 2003.
10 Undoubtedly, the authority is not either from the United States or the government of President G. Bush, whose first election was plagued of multiple questions and the US electoral system itself, has been fully criticized for its obsolescence.
11 As it was decided in the verdict Democratic Republic of Congo vs. Belgium, case Concerning the Arrest Warrant of 11 April 2000.
12 R v Bow Street Stipendiary Magistrate Ex p. Pinochet Ugarte (HL (E) (2000) I AC 61 (Judgment, November 1998).
13 Precisely, this order was created since 1648 with the Westphalia Treaty that has functioned well up to now. We could argue that the present international relations are so different that they need a change, however, the proposal of the English-American allies that disdain the principle of non-intervention and claim for a pre-emptive intervention right and a dislocation of the multilateral order, does not seem to be the adequate replacement.
14 Bush, George, Address to the Nation on Iraq, 39 weekly comp. Press Doc. 338-39 (May 17, 2003).
15 Besides, this position is highly dangerous because it places the international community in a spiral of aggression (Masahico, Asada, "National Security Strategy and Self-Defence in International Law" Speech presented in United States and the Foundations of International Law, London IICL, November 28, 2003.
16 The SC, in Resolution 487/1981 "energetically condemned" Israel for its military actions as a "clear violation to the UN Charter and the norms of international behaviour" (paragraph 1 of Resolution 487/1981).
17 For example in the American case, see: Mac Dougall and F.P. Feliciano (editors), Law and Minimum World Public Order (New Haven).
18 Kaplan, Robert D., Warrior Politics: Why Leadership Demands a Pagan Ethos, New York, Random House, 2002, p. 198.
19 Carr Coleb, The Lesson of Terror: A History of Warfare Against Civilian. Why It Has Always Failed and Why It Will Fail Again, New York, Random House, p. 272.
20 For example, it asserts that: "Adopted on September 28, 2001, Resolution 1373 is the cornerstone of the United Nations’ counter terrorism effort. It also represents a departure for the institution. Adopted under Chapter VII, it declares international terrorism a threat to "international peace and security" and imposes binding obligations on all UN member states. The Security Council’ deep involvement in the United Nation’s counter terrorism effort represents a new development" (Rosand, Erik, "Security Council Resolution 1373, The Counter - Terrorism Committee, and the Fight Against Terrorism", American Journal of International Law, vol. 97, no. 2, April 2003, p. 333).
21 Frank, Thomas, Recourse to Force, State Action Against Threats and Armed Attacks, Cambridge, Cambridge University Press, 2002, pp. 3 and 4.
22 This same position is taken in: Reisman, Michael W., "Editorial Comment Assessing Claims to Revise the Law of War", American Journal of International Law, vol. 97, no. 1, January 2003, pp. 82-90.
23 See: Acosta Estévez, José B., "El derecho internacional ante el fenómeno bélico: la prevención y atenuación de las consecuencias de los conflictos armados", Anuario Mexicano de Derecho Internacional, Mexico, vol. III, 2003, p. 20.
24 Dinstein, Yoram, War Agression and Self-Defence, 3rd edition, Cambridge University Press, 2001, p. 94.
25 Report of the International Law Commission, 18th session (1996) II ILL,Ybk, 172, 248, 261.
26 It is "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State or in another way that is inconsistent with the UN Charter, as it is established in this definition", article 1 of Resolution 3314 (XXIX).
27 Article 5 of Resolution 3314 (XXIX). Consulted in Brownlie, Ian, Principles of Public International Law, 6th edition, New York, Oxford university Press, 2003, pp. 703-705.
28 Dinstein, op. cit., p. 89.
29 Gray, Christine, "The Use of Force An The International Legal Order", in International Law, edited by Malcom D. Evans, Oxford, UK, 2003, p. 609.
30 Actually, this position of the US and GB governments is not new, for the States previously invoked resolutions 1154 (of March 2, 1998) and 1205 (November 5, 1998) to use the force against Iraq, even when such resolutions did not authorize it, but it was claimed that the Security Council had issued them (see Gray Christine, op. cit., p. 610).
31 Letter of March 20, 2003, from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, UNDoc.S/2003/351 (March 21, 2003).
32 Joined by countries like Japan, The Netherlands, Spain, Italy and small countries whose participation is merely symbolic, such as Nicaragua, Dominican Republic, Philippines, Ukraine. We shall add that with the upsurge of the Iraqi resistance, this Coalition broke apart until it reached it real dimension.
33 The representatives of Great Britain and Australia signed this same letter. The United Kingdom besides asserted that "the military actions were taken only when it was evident that there was no other way to make Iraq fulfil its obligations", which was a fallacy in that Blix’s inspection process was on the way. Australia had the same position and alleged that the military actions were in accordance with CS’s Resolutions 678, 687 and 1441.
34 Kendall, Bridget, "Showdown at the UN", in BBC News, The Battle for Iraq, London, 2003, p. 57.
35 View Murphy, Sean D., "Contemporary Practice of the United States Elating to International Law, Use of Force and Arms Control", American Journal of International Law, vol. 97, no. 2, April 2003, pp. 419-432.
36 See Blix, Hans, Disarming Irak: the Search for Weapons of Mass Destruction, Bloomsbury, 2004.
37 Dinstein, Yoram, op. cit., pp. 106-134.
38 See Democratic Republic of the Congo vs. Belgium, Case concerning the Arrest Warrant of April 11, 2000, ICJ, General list, No. 121, Judgment of February 14, 2002.
39 See: Boisson de Chazournes, Laurence, "The United Nations (UN) on Shifting Sands: About the Rebuilding of Iraq", International Law Forum du Droit International, no. 5, 2003, pp. 254-261.
40 Point 1, RES1472 May 28, 2003.
41 RES 1472 (2003).
42 RES 1483 May 22, 2003.
43 RES 1483 (2003) and 1511 (2003).
44 Paragraph 22 of RES1483 (2003).
45 See, for example, Weisburd, A. Mark, "The War in Iraq and the Dilemma of Controlling the International Use of Force", Texas International Law Journal, vol. 39, no. 4, summer 2004, pp. 521-560.
46 Resolution 2625 (XXV) of the UN General Assembly, of October 24, 1970.
47 Article 5.2 of Resolution 3314 (XXIX) of 1974 of the United Nations General Assembly.
48 Dinstein, Yoram, "War Aggression and Self Defence", op. cit., p. 118.
