The invasion and subsequent occupation of Iraq is what international law experts call a preventive war. The Center for Constitutional Rights calls a preventive war a "crime against peace" because the UN does not authorize it. "One country cannot attack another just because at some time in the future it believes the other country might launch an attack."[i] The US led invasion of Iraq is a preventive war.
The UN Charter is part of U.S. laws as it was signed by President Harry Truman, and ratified by the Senate. It prohibits wars which have not been authorized by the UN Security Council except for self defense. The UN Charter preamble states that "armed force shall not be used, save in the common interest. According to the second article member nations must "refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations."[ii]
Ann Fagan Ginger, Executive Director of the Meiklejohn Civil Liberties Institute, describes the UN Charter as the "supreme law of the land" because it was ratified by the U.S. "By ratifying the Charter," Ginger stated, "the United States made certain commitments to all other member nations to obey the law set forth in the Charter."[iii]
Retired international law professor Richard Falk explains how the UN Charter views wars fought in self defense and preventive wars:
The UN Charter has carried forward the idea that all wars that are not fought in self-defense or with the approval of the UN Security Council are illegal wars, and hence a Crime Against Peace. The WTI has been initiated by citizens of many countries who share the belief that the Iraq War is such an illegal war, and that the leaders of the USA and United Kingdom are individually and criminally responsible for its initiation and for the violations of the Law of War that have accompanied the occupation of Iraq.[iv]
The UN Security Council never authorized the use of force against Iraq by the U.S. During a 2004 interview with the BBC, then UN Secretary-General Kofi Annan answered "yes" when asked if the war in Iraq was illegal. He stated, "I have indicated it is not in conformity with the UN Charter, from our point of view, and from the Charter point of view it was illegal." During a September 2004 press briefing in New York Fred Eckhard, spokesman for Annan, said, "He has…used the words 'not in conformity with the Charter' to describe his view of the Iraq war." Eckhard added, "His purposes in establishing the UN panel on change was to look at the question of preventive war and try to bring that in conformity with the Charter principles, which do not promote preventive war."[v]
Retired international law professor Richard Falk characterized the Bush administration's push to invade Iraq in 2002 as violating the "spirit and letter of the U.S. Constitution" and violating the UN Charter. As Henry Kissinger stated, "The notion of justified pre-emption runs counter to modern international law, which sanctions the use of force in self-defense only against actual not potential threats."[vi]
Michael Glennon, professor of international law at Tufts University, wrote an article for the journal Foreign Affairs about the failure of the UN Security Council to prevent the U.S. from attacking Iraq. UN Resolution 1441 found Iraq in "material breach" of past resolutions, created a new inspections team, and warned of "serious consequences" if Iraq did not disarm. However, Glennon stated in his article that the resolution does "not explicitly authorize force, however, and Washington pledged to return to the council for another discussion before resorting to arms."
Ten days after the UN weapons inspectors returned and reported to the Security Council that they did not find any evidence of Iraq possessing WMDs, the U.S., Britain, and Spain introduced a resolution which would have had the Council declare that "Iraq has failed to take the final opportunity afforded to it in Resolution 1441."[vii] The Resolution did not pass because France, Germany, and Russia voted to give Iraq more time.
The Bush administration released a document in September 2002 "detailing its national security strategy…that left no doubt about its plans to ensure no other nation would rival its military strength." The document declared a "doctrine of preemption…one that, incidentally, flatly contradicts the precepts of the UN Charter." The document announced that "the United States will, if necessary, act preemptively." Glennon noted that Article 51 of the Charter "permits the use of force only in self defense…if an armed attack occurs against a member of the UN."[viii]
Law experts weigh in
Duncan E.J. Currie, who practiced international and environmental law for over 20 years, wrote a treatise on preventive war May 2003. In the treatise Currie referred to the Bush "doctrine of preventive war" as a "departure from the prohibition of the use of force under international law" which is a part of the UN Charter. He cited the Bush administration document titled the "National Security Strategy of the United States," published in 2002, which stated that the U.S. would act against "emerging threats before they are fully formed." Currie described the document as implying "that the U.S…is willing to act beyond the constraints of international law and even beyond limits it has observed in the past."[ix]
Matrix Chambers is a British law practice which works in an atmosphere "where diversity and accessibility are widely championed, and out-dated practice is challenged," according to its website. In a joint opinion two Matrix lawyers, Rabinder Singh and Charlotte Kilroy, said the "the use of force against Iraq would not be justified under international law" unless Baghdad directly attacked the U.S. or U.K., or the UN Security Council "authorized the use of force in clear terms." Concerning UN Resolution 1441 they wrote, "Russia, China, and France made clear: they did not want the resolution to authorize force."[x]
Next week: Iraq contains the second largest oil reserve in the world. Both President Bush and Vice-President Cheney are former oil executives. Evidence suggests the real reason for the war in Iraq is oil.
[i] Center for Constitutional Rights.
[iv] Falk, Richard. "Bush's War against Iraq would Violate Constitution," CounterPunch. August 24, 2002.
[vi] Falk, Richard. "Bush's War against Iraq would Violate Constitution," CounterPunch. August 24, 2002.
[vii] Glennon, Michael J. "Why the Security Council Failed," Foreign Affairs, May/June 2003.