Committee for Conflict Transformation Support

CCTS
Newsletter 17

The Rule of Law or the Rule of Might?

This article, reacting to the threat by the US and the UK to declare war on Iraq, has been written by Paul Clifford

The drums of war are beating loudly. Public opinion in the US and the UK is being prepared for war though official denials of any decision being taken are still being uttered. Preparations are being made by the US Government: by building a suitable base in Oman (given Saudi Arabia will not permit the US to attack Iraq from its territory), by increasing their stock of weapons and missiles and by stockpiling oil reserves in case the war leads to a drop in oil supplies.

The US and UK governments believe that they have sufficient authority to attack Iraq without the need to return to the United Nations to discuss the matter further. Many governments, many political parties, many organisations (both religious and secular) and countless individuals are fervently opposed to a war against Iraq, believing that there is neither legal nor moral justification for it.

The justification for the war in the view of the US and UK governments is that Iraq is in breach of UN resolutions, that it has chemical and biological weapons of mass destruction, which its government could use or supply to others. Iraq is also believed to be developing a nuclear weapons capability. It would thus be a pre-emptive war, to bring about 'regime change' in Iraq, i.e. to get rid of Saddam Hussein.

Would the war be legal?

Let us first examine the legality of such a war. There is little doubt that Iraq is, indeed, in breach of UN Security Council resolutions. Resolution 687 (1991) requires Iraq to permit UN weapons inspectors to verify the dismantling of its weapons of mass destruction. The penalty for non-compliance, stated in the resolution, is the imposition of sanctions - there is no reference to military action. Resolution 678 (1990) had previously authorised states to use "all necessary means" against Iraq, but this was solely in relation to reversing Iraq's invasion of Kuwait. Once the invasion had been reversed in 1991, the authority to use military action against Iraq lapsed. There is therefore no current UN resolution permitting the use of force against Iraq.

The other attempt to legally justify a war against Iraq relates to Article 51 of the United Nations charter, which permits member states to take action in self-defence against a threat posed against them. To attempt to justify the war on these grounds, George W. Bush has stated that "Iraq poses a continuing, unusual and extraordinary threat to the national security of the United States of America". To date, he has put no information in the public arena that justifies this assertion.

Those that oppose the war claim that there is no legal justification for it. As the Bishop of Oxford stated "by threatening to attack a sovereign state without a specific UN mandate, without demonstrating just cause and without exhausting all chances of a peaceful resolution, the governments of the USA and the UK make a mockery of international law."

Whether or not there is a current UN resolution allowing or justifying a military attack against Iraq under Article 51 could, of course, be clarified, by seeking a clear UN mandate for such an attack. For reasons I will examine later, this seems highly unlikely to happen.

What then of the other arguments for and against the war? The US government and others who support the war provide an impressive list of justifications for launching a war against Saddam Hussein:

He has chemical weapons, which he has used against his own people.
He has biological weapons, which he is prepared to use.
He is developing nuclear weapons and the capability of delivering them.
In the Gulf War, he attacked Saudi Arabia and Israel as well as Kuwait, and will do so again unless stopped.
He wants to destroy Israel.
He wants to control the Saudi and Kuwaiti oilfields.
It will be easier to sort out the Israel/Palestine situation once he is removed from office.
He oppresses his own people and threatens others. Though it is difficult for them to say it publicly, the Iraqi people and their Arab neighbours will rejoice at his overthrow.
He makes a mockery of the UN's role 'to maintain international peace and security.'
The United Nations Security Council is not an adequate defence against evil.
It is acceptable to have a more benign military dictator take over from him, at least in the short term.
Failure to attack is a worse option than to attack.

Few would argue with the notion that Saddam Hussein is a dictator who oppresses his own people and who has used chemical weapons against them, and who has attacked Kuwait, Saudi Arabia and Israel. But the invasion of Kuwait was dealt with at the time; and a policy of containment, threats, sanctions, and economic, political and diplomatic pressure has been in place ever since. In fact, many people argue that the sanctions are no longer justified and have had the effect of killing vast numbers of Iraqi children. Also, reports suggest that the effect of these policies has been highly punitive on the Iraqi people as a whole and that Iraq has been reduced to the point where it is not a threat to anyone. Thus any further military action against Iraq now would be gratuitous as well as illegal.

It is true that the weapons inspectors have not been able to carry out their role of verification for many years now. If it were possible to negotiate their return, in accordance with resolution 687, would this then be sufficient to call off the impending war? Not according to the US administration, which has stated that the return of weapons inspectors is not enough - what they require is 'regime change'.

It would thus seem that, for the US government, the possession of, and possible use of, weapons of mass destruction is not the core issue. What they want is the removal of Saddam Hussein and nothing else will do.

The argument against war

Those who argue against the war declare that there is no evidence that Saddam Hussein has the capability of using chemical and biological weapons to attack others, and that, even if he did have that capability he would not use it, because the consequent attack upon Iraq would destroy both himself and much of the country. If nothing else, he wants to remain in power in Iraq and would not commence an attack that would assuredly lead to retribution and his own downfall.

If the weapons inspectors could continue with their work, it would at least produce some verifiable evidence of whether Iraq has once again built up stocks of chemical and biological weapons and whether it is building a nuclear weapons capacity. The dismissal of this as irrelevant by the US administration is hardly likely to encourage the Iraqis to co-operate.

Why then is the current US administration, with the backing of its UK ally, so unwilling to seek a clear UN mandate for an attack on Iraq? And why is it so unwilling to trust in the UN weapons inspection mechanism to determine whether Iraq has developed and has the means of delivering weapons of mass destruction?

If we examine the record of the current US administration since it came to power, we see, inter alia, that it has:

continued to develop biological weapons of its own, in contravention of the biological weapons convention
refused to grant chemical weapons inspectors full access to its laboratories while demanding that other countries, including Iraq, submit to full inspection
withdrawn from the Anti Ballistic Missile treaty
undermined the setting up of the International Criminal Court
refused to sign the climate change protocol
given the green light to the CIA to assassinate Saddam Hussein
threatened war on Iraq without seeking a UN mandate

It also appears to be ready to violate the nuclear test ban treaty.

These are the actions of an administration that appears to have little commitment to, or trust in, the United Nations. It would rather rely on its own military and economic might to further its own interests. Taking the issue of a war against Iraq to the UN clearly runs the risk of it not being approved. Rather than take this risk, the US administration, together with its UK ally, would rather reserve the power to act unilaterally.

The authority of the UN

Pax Christi stated recently "it is deplorable that the world's most powerful nations continue to regard war and the threat of war as an acceptable instrument of foreign policy, in violation of the ethos of both the UN and Christian moral teaching... The way to peace does not lie through war but through the transformation of structures of injustice and of the politics of exclusion and that is the cause to which the west should be devoting its technological, diplomatic and economic resources."

If the authority of the United Nations and the upholding of international law is to have any meaning in the future, then at the very least, I would suggest that the following needs to happen:

Negotiations should continue to ensure the return of UN weapons inspectors to Iraq in accordance with resolution 687.
Diplomatic and political efforts should continue to be made to attempt to resolve issues of conflict between Iraq, the USA and the UK governments.

War against Iraq should certainly not be contemplated by the US and the UK unless there is approval from the US Congress and the UK Parliament, and there is a UN mandate specifically sanctioning an attack on Iraq. Under present circumstances, I find it hard to imagine that such a mandate could possibly be given, which means that every effort should be put into finding political and diplomatic solutions to this situation.

If the US administration, with or without the backing of its UK ally, initiates a war against Iraq, the consequences could be catastrophic not only for the Iraqi people, but also throughout the Middle East, as the fallout from the war is impossible to predict. If the conflicts in the Middle East worsen, this has implications for all of us. There is also concern that after Iraq, others could be attacked. Iran is certainly a prime candidate as it fulfils many of the criteria that the US administration is using to justify an attack on Iraq.

This issue is not just about Iraq. It is about whether the militarily and economically powerful nations choose to use that power over others to get their own way or whether nations use the structures of the United Nations and international law to try and resolve disputes and conflicts between them.

Paul Clifford

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