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This week, rumors were confirmed that the UK Attorney General warned shortly before the invasion of Iraq that it could be considered illegal.

While there are a number of reasons that the war was against several aspects of international, U.S., and U.K. law, I thought I should take a moment to point out the reason it was illegal according to U.N. Security Council Resolution 1441, because that resolution is by far the favorite defense of the war employed by the White House, Blair, and the right-wing blogosphere.

Please read on....

Here are the pertinent sections from Resolution 1441:
7.... UNMOVIC and the IAEA shall have unrestricted rights of entry into and out of Iraq, the right to free, unrestricted, and immediate movement to and from inspection sites, and the right to inspect any sites and buildings....

10. Requests all Member States to give full support to UNMOVIC and the IAEA in the discharge of their mandates....

So, by forcing the inspectors to evacuate on March 17th so that they could bomb Iraq, the coalition violated Resolution 1441 by impeding the inspectors' freedom of movement in Iraq, and they are still in volation of it to this day, because the inspectors have not been allowed to return.

Since Russia, France, and China threatned a veto of any resolution permitting the use of force against Iraq, the coalition never requested such authorization from the Security Council.

Please remember this the next time you have the opportunity to debate the point.  The question to ask is:  Why would the vague "serious consequences" threatened in Resolution 1441 take precidence over the explicit requirements to support UNMOVIC's and IAEA's access, freedom of movement, and mandate to complete their inspections?

It should also be pointed out that the U.N. inspectors were essentially sucessful in their mission, as there were no weapons of mass destruction Iraq, after all.  Also, in the weeks before and up until the day they were forced out, they were in the process of destroying several dozen missles which were found to be disallowed because they had maximum ranges slightly above what Iraq was allowed.  It is not as if the inspectors were ineffective in any way.

They say hindsight is always 20/20, but the illegality of the war was plain as day to Bush, Blair, and everyone who might have read Resolution 1441 well in advance of the invasion.  Don't let anyone get away with saying anything to the contrary.

This has been a public service announcement.

Originally posted to js7a on Fri Feb 25, 2005 at 10:42 PM PST.

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Comment Preferences

  •  I don't care whether you recommend or tip... (none)
    ...just please remember and use the argument whenever possible, and in as public fora as possible, please.
  •  A very good talking point... (none)
    ... that I have never seen brought up before. That it hasn't been, even by the nation most vocally opposing the war, France, shows that the way nations interact in the UN is at present a rigged game, in which even nations that want to resist US thuggery are not ready to point out that international institutions such as the UN are little more than a front for US power.

    But quite apart from this resolution, the Anglo-American invasion and occupation of Iraq were illegal, since such offensive actions are explicitly prohibited by the UN charter, which has the status ofd international law, and hence US law according to the US constitution.

    To make abstractions hold in reality is to destroy reality. -- Hegel
    modern times

    by Alexander on Fri Feb 25, 2005 at 10:51:45 PM PST

  •  Several problems with this argument (none)
    To put my cards on the table, I opposed the war, but I think it had sufficient legal authorization. It was wrong, but not illegal. I'll come back to where I think the legal authorization existed, but first I want to deal with js7a's analysis of SCR 1441, and why I don't find it persuasive.

    First, operatiive paragraph (OP) 7, before the portion excerpted by js7a, clearly states that it is a requirement " which shall be binding upon Iraq." This is a demand that Iraq not interfere with the inspectors, not a prohibition of member states using force.

    Second, OP 10, as quoted above, "requests" member states support the inspectors. The language of Security Council resolutions is very specific, and when the Council "requests" states do something, it is not legally binding. So this didn't make the war illegal.

    So 1441 doesn't make the war illegal. It also doesn't make it legal. What it does, in the preamble, is lay out an interpretation of prior resolutions--678 (1990) and 687 (1991)--that establishes ongoing authorization for member states to use force to compel Iraq to comply with the terms of SCR 687. That was the legal basis claimed by the Blair government--preexisting authorization based on 678 and 687. (That was also the justification used by the US, UK, and France for bombing surface to air missiles in the no-fly zone in 1993. Then Secretary-General Boutros-Ghali endorsed the legal argument at the time.) As far as I can tell, it holds up.

    The premable of a Security Council resolution is not operative, so it doesn't constitute a legal basis for war by itself. But the fact that the Security Council unanimously voted for a resolution which clearly laid out a legal argument in its preamble establishing that states were already authorized to use force does weigh in favor of the UK's legal interpretation.

    1441 was an ultimatum. In light of the preamble, what it basically says is "We, the international community, already have all the legal basis we need to invade. But we're gonna give you (Saddam) one last chance for appearance's sake, and in the hopes that some other countries will sign on."

    •  Interesting point. But how do you deal with (none)
      - this analysis by Michael Dorf?

      writ.news.findlaw.com :

      U.N. Security Council Authorization: The First Possible Ground For War

      In his March 17 speech, President Bush claimed that prior U.N. resolutions have already provided the necessary legal authority for attacking Iraq. Speaking for the Blair Administration, British Attorney General Lord Goldsmith made the same point. Are they correct? The answer is no.

      In November 1990, the U.N. Security Council adopted Resolution 678, authorizing nations "co-operating with the Government of Kuwait . . . to use all necessary means" of dislodging Saddam Hussein's troops from Kuwait.

      This resolution authorized force only for the purpose of driving the Iraqi military out of Kuwait, an objective which was fully accomplished by 1991. It would be arguably relevant now only if Saddam reinvaded Kuwait.

      Then, at the conclusion of the Gulf War, the Security Council adopted Resolution 687. It called for, among other things, Iraq's destruction and renunciation of various weapons, including biological, chemical and nuclear arms. And it stated the Security Council's intention "to take as appropriate all necessary measures" to guarantee the inviolability of the Iraq-Kuwait border. Although that language is broad, it does not refer to the disarmament provisions. Resolution 687 makes clear that its disarmament provisions are governed by the Security Council's resolve "to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area."

      That last statement hardly reads as a blank check to any Security Council member or other state to act on its own to require Iraq's disarmament. Instead, it suggests, quite to the contrary, that the Security Council itself, acting via additional resolutions, could take "further steps."

      Last November, the Security Council passed Resolution 1441. It warned that Iraq would "face serious consequences" if it were to remain in "material breach" of its disarmament obligations. Employing the Resolution's language, the Bush Administration has argued that Iraq is in "material breach" and that war is thus justified.

      However, as I explained in an earlier column, Resolution 1441 implies that the Security Council itself will decide if a material breach has occurred, and expressly states that the Security Council itself, in the event of such a breach, will "consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security."

      We know that the Security Council does not think that a serious breach warranting all-out war has occurred. Perhaps the Security Council, under veto threat from France (and possibly Russia as well), has behaved unreasonably and irresponsibly in this respect, as suggested by American and British diplomats. But if so, that still does not alter the fact that the Security Council did not authorize war. At most, it bolsters the moral case for war, not the legal case.

      Politics is the entertainment branch of industry. - Frank Zappa

      by Sirocco on Sat Feb 26, 2005 at 07:47:15 AM PST

      [ Parent ]

      •  thank you (none)
        When your argument is blown out of the water, it's good to know that you are still right even if for the wrong reason.  What a relief!
      •  Here's my take (none)
        For what it's worth, I'm not a laywer let alone an international law specialist, and as best I can tell most international law experts agree with Dorf.

        So this is just my opinion (a minority, non-expert opinion, but I think a fairly well informed opinion), not some kind of authoritative determination.

        That said, Dorf is rebutting two different legal justifications offered for the war. The second part of the passage above deals with 1441, and he's right, the operative language of 1441 did not constitute authority for the use of force.

        But I don't think he's persuasive on the first part. His basis for rejecting 678/687 as authorization is that the last paragraph of 687, which he quotes from, contains a "seized of the matter" clause. When the Security Council ends a resolution by saying it remains "seized of the matter," it's saying that the issue dealt with in the resolution remains on the Security Council agenda. The question is what that implies. Dorf asserts that it means that no state can then act unless the Security Council passes a further resolution. But I've tried to find a basis for that interpretation, and been unable to.

        The UN Charter and other sources I consulted specify that when the Security Council is "seized" of a matter--when it's actively on the Security Council's agenda--the General Assembly may not take action on that matter (although the Uniting for Peace resolution established a loophole). But that's just an internal check and balance within the UN, not a prohibition on any other entity, including UN member states, taking action. I think Dorf is reading more into the seized of the matter clause than is really there.

        Finally, Dorf points to 678's authorization to use force to remove Iraq from Kuwait, but fails to mention that it also authorized force "to restore international peace and security to the area." So his attempt to dismiss 678 as nullified by Iraq's withdrawal from Kuwait doesn't hold up. the Security Council continued to pass resolutions declaring Iraq's noncompliance with disarmament verification to be a threat to international peace and security, so 678's authorization to use force arguably remained in effect since peace and security had not been restored, according to the Council.

        So that's my take. The issue comes down to what the phrase "seized of the matter" means. I think Dorf has that wrong.

        I still opposed going to war, but not based on this sort of legal argument.

        •  Thanks for replying (none)
          Again, an intriguing argument. Since, as you note, most international law experts side with Dorf, the odds are that it has a ready answer, but I certainly can't come up with it - at least not without more research than I have time for right now. I am no lawyer either but it seems to me that you could have done rather well in that profession!

          Looking forward to further discussions with you on other topics. Cheers.

          Politics is the entertainment branch of industry. - Frank Zappa

          by Sirocco on Sun Feb 27, 2005 at 04:59:29 AM PST

          [ Parent ]

  •  Head up from "This Week in Fascism" (none)
         I have a policy of letting diary authors know what I said about their diaries in my series on "This Week in Fascism."

         Come on over and let me know what you think about my comments. I also remind the Authors that I probably recommended their diaries and am consistantly the top recommended each week. Hint! Hint!

         without further ado here is what I said.

         Js7a brought us this PSA: Why the War Was Illegal According to UN Res. 1441. Not only did the UK Attorney General warned shortly before the invasion of Iraq that it could be considered illegal but the Bush Administrations orders to the UN's weapons inspectors to leave Iraq were in direct violation of the famed UN Resolution 1441. JS even gave us the specific provisions that were violated. This Public Service Announcement was brought to you by the Non-Violent Anti-fascistic Movement.

    "It's about the accountability, stupid." Thomas Davis 2005

    by Tomtech on Sun Feb 27, 2005 at 09:06:52 PM PST

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