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CounterPunch
March 11,
2003
UN Resolution or Not
This War Violates International
Law
By RAHUL MAHAJAN
The majority of the antiwar movement has made
a mistake in emphasizing the unilateral nature of the war on
Iraq and the need for United Nations approval, and we may well
reap the consequences of that mistake.
The argument has made major inroads with
the public; polls consistently show that the majority of Americans
oppose a unilateral war without international support and the
latest poll in Britain shows only 15% of the population supports
a war without a second U.N. resolution.
It's also an entirely unobjectionable
argument in a negative sense - without a Security Council resolution,
the war is clearly a violation of international law, as U.N.
Secretary-General Kofi Annan has recently pointed out. It is,
however, possible for a war fought with U.N. approval still to
be a violation of international law.
That is the fundamental question --
not whether our "allies" support us, not whether we
can strong-arm and browbeat enough members of the Security Council
to acquiesce, but whether or not the war is illegal.
Interestingly, in this, as in so many
other things, the Bush administration turns this question on
its head and claims that the war is necessary in order to uphold
international law.
Let's start with that argument.
Iraq is threatening no country with aggression
and its violations of Security Council resolutions, while clear,
are technical, mostly a matter of providing incomplete documentation
about weapons that may or may not exist, and for the use of which
there are no apparent plans. At the same time, Israel is in violation
of, at a very conservative count, over 30 resolutions, pertaining
among other things to the very substantive issue of the continuing
illegal occupation of another people, along with violations of
the Fourth Geneva Convention through steady encroachment on and
effective annexation of that land. Indonesia, another U.S. ally,
violated U.N. resolutions for a quarter of a century in East
Timor with relative impunity. Morocco is illegally occupying
Western Sahara. In each of these cases, the United States wouldn't
be required to go to war to help uphold international law; it
could start simply by terminating aid and arms sales to these
countries.
The United States is also a very odd
country to claim to uphold such a principle. Ever since a 1986
International Court of Justice ruling against the United States
and in favor of Nicaragua, the United States has refused to acknowledge
the ICJ's authority (the $17 billion in damages it was ordered
to pay were never delivered). Shortly after that judgment, the
United States actually vetoed a Security Council resolution calling
on states to respect international law. Of course, the United
States doesn't itself violate Security Council resolutions, since
it can always veto them -- as it did when the Security Council
tried to condemn its blatantly illegal invasion of Panama in
1989, and on seven occasions regarding its contra war on Nicaragua.
For the sake of argument, let's forget
about the international double standard and focus just on Iraq.
Even without reference to anything else, one can argue that repeated
U.S. violations of international law when it comes to Iraq and
in particular of the specific "containment" regime
instituted after the Gulf War release Iraq from any obligations.
To start, Iraq has been under illegal
attack for the past decade, with numerous bombings including
the Desert Fox campaign, even as it was being called on to start
obeying international law.
The United States also took numerous
illegal or questionably legal steps to subvert the legal regime
of "containment" -- passing the "Iraq Liberation
Act" in October 1998, which provided $97 million for groups
trying to overthrow the Iraqi government, a clear violation of
Iraqi sovereignty and a violation of international law; stating
that only with regime change would the sanctions be lifted, in
violation of UNSCR 687; and using weapons inspections to commit
espionage, the information from which was then used in targeting
decisions during Desert Fox.
Is the War Itself a Violation of International
Law?
Perhaps the most cogent argument, however,
is the fact that the war the United States is planning on Iraq
is an act of premeditated aggression.
All the signs point in the same direction.
First, in August, Defense Secretary Rumsfeld
ordered that the list of bombing targets be extended far beyond
any goal of enforcing the no-fly zones to include command-and-control
centers and in general to go beyond simple reaction to threats.
According to John Pike of Globalsecurity.org, this was "part
of their strategy of going ahead and softening up the air defenses
now" to prepare for war later. By December 2002, the shift
could be noted in a 300% increase in ordnance dropped per threat
detected -- a clear sign that simply defending the overflights
was no longer the primary aim of the bombings. According to the
Guardian, "Whitehall officials have admitted privately that
the 'no-fly' patrols, conducted by RAF and US aircraft from bases
in Kuwait, are designed to weaken Iraq's air defence systems
and have nothing to do with their stated original purpose."
Weakening air defense and command-and-control are the standard
first steps in all U.S. wars since 1991, so the first salvoes
in the war were being fired even as inspections continued. In
the first two months of this year, bombings occurred almost every
other day.
Even worse, according to strategic analyst
Michael Klare, by February 2002 it had become clear that all
of the administration's supposed diplomatic activities in the
Fall of 2002 and early 2003 had merely been a smokescreen.
The war was being seriously planned from
at least the spring of 2002, but in the summer there was a serious
internal debate in the military between a so-called "Afghan
option" with 50-75,000 troops and heavy reliance on air
power and Iraqi opposition forces and the eventual plan, "Desert
Storm lite," with 200-250,000 troops and a full-scale invasion.
The decision was made in late August,
but the more involved plan, according to Klare, required at least
a six-month deployment. Ever since then, the timetable has not
been one of diplomacy, U.N. resolutions, and weapons inspections,
but rather one of deployment, strong-arming of regional allies
needed as staging areas for the invasion, and, quite likely,
replenishment of stocks of precision weapons depleted in the
war on Afghanistan.
For over a month, as inspections increase
in effectiveness and scope, as Iraq dismantles its al-Samoud
missiles, and as it struggles desperately to find ways to reconcile
questions over biological and chemical agents, the White House
has contemptuously dismissed all efforts. The constant refrain
is that time is running out, with no explanation of why the time
is so limited. The reason is simple; it's not because of any
imminent threat from Iraq, it's just because the troops are there
and ready to go.
The obvious conclusion is that the war
was decided on long ago, irrespective of Iraq's actions. Nothing
Iraq could have done short of full-scale capitulation and "regime
change" would have stopped the United States from going
to war. That makes this war a clear case of aggression.
Even the fig leaf of another U.N. Security
Council resolution will not change this fact. Nor will it confer
any legitimacy on the actions, because of the massive attempts
by the United States, documented in the study "Coalition
of the Willing or Coalition of the Coerced?" by the Institute
for Policy Studies, to coerce, bribe, and otherwise exert undue
influence on other countries, including key undecided Security
Council members, to support the U.S. position.
Above all else, if other countries acquiesce
to U.S. plans, it will be because of the constant refrain of
the Bush administration -- that the United States will go to
war with or without their consent, so there is nothing to be
gained (and much to be lost) by resisting.
In fact, the U.S. war on Iraq is itself
the most fundamental violation of international law. In the language
coined at the Nuremberg trials, it is a crime against peace.
Former Supreme Court Justice Robert Jackson, chief U.S. prosecutor
at the first Nuremberg trial, called waging aggressive war "the
supreme international crime differing only from other war crimes
in that it contains within itself the accumulated evil of the
whole."
It surely is unprecedented in world history
that a country is under escalating attack; told repeatedly that
it will be subjected to a full-scale war; required to disarm
itself before that war; and then castigated by the "international
community" for significant but partial compliance.
Rahul Mahajan
is a founding member of the Nowar
Collective and serves on the National Board of Peace Action.
This article has been excerpted from his forthcoming book, "The
U.S. War Against Iraq: Myths, Facts, and Lies," published
by Seven Stories. His first book, "The
New Crusade: America's War on Terrorism," has been described
as "mandatory reading for all those who wish to get a handle
on the war on terrorism." His articles can be found at http://www.rahulmahajan.com
He can be contacted at rahul@tao.ca
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