The Illegality of the War

The Illegality of the War
Peter Weiss
Presentation at the New York Session of the World Tribunal on Iraq
Copper Union, New York, 8 May 2004

Let us begin at the beginning. World War II, the second "war to end all wars", ended in Europe 58 years ago to the day. Less than two months later, on June 26, 1945, the United
Nations Charter was adopted in San Francisco. It entered into force for the United States as a binding treaty on October 24, 1945. The Charter, which is the closest thing we have to a constitution for the world, begins with the following words:

1. WE THE PEOPLES OF THE UNITED NATIONS DETERMINED
   To save future generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind ...

Reflect for a moment on these poetic words. Not "we the nations" or "we the states" or
"we the governments", but "we the peoples". "We the peoples", you and I, are the
owners of this document. It is up to us, therefore, to save it from its falsifiers, its
detractors, its destroyers. That, in a sense, is what we are about here today.

Consider further these opening words which define the core purpose of the United
Nations, as envisaged by its founders. To save not ourselves, but selflessly " to save
future generations". From what? From"the scourge of war." There is nothing here about
the glory of war, which has cluttered so many plazas with statues of saberwielding men
on horseback. But there is mention of the "untold sorrows" which the two great wars of
the first half of the previous century have brought to mankind (as humanity was called
before women were discovered).

After reciting other purposes of the UN, including faith in fundamental human rights and
respect for the obligations arising from treaties and other sources of international law,
the Charter continues:

2. AND FOR THESE ENDS ... ..
   ... . To ensure, by the acceptance of principles and the institution of methods, that
   armed force shall not be used, save in the common interest.

Note that armed force is to be used only in the common interest, an obligation running
precisely contrary to the Bushworld’s doctrine of national interest über alles.
The preamble ends with the announcement that "we the peoples of the United Nations" –
not some hastily drummed up "coalition of the willing" -

HAVE RESOLVED TO COMBINE OUR EFFORTS TO ACCOMPLISH THESE
AIMS.

We come then to the cornerstone of the Charter’s definition of that part of the laws of
war called by jurists ius ad bellum, or the law governing when armed force may be used.
It reads as follows:

3. Article 2(4): All Members shall 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.

That sounds like a pretty categorical prohibition, wouldn’t you say? But, contrary to
what you might hear on the O’Reilly Factor or at a closed door neocon gathering, the
Charter was not drafted by a bunch of woolly headed pacifists, but by some of the
world’s leading statesmen (don’t think there were any women) well aware of the fact that
World War II was provoked by Hitler’s naked aggression. Hence, Chapter VII of the
Charter introduces a note of reality into the anti-war theme of the preamble and Chapter
I.

CHAPTER VII

4. Article 39: The Security Council shall determine the existence of any threat to the
   peace, breach of the peace, or act of aggression and shall make recommendations,
   or decide what measures shall be taken in accordance with Articles 41 and 42, to
   maintain or restore international peace and security.

   Article 41:The Security Council may decide what measures not involving the use
   of armed force are to be employed to give effect to its decisions ... ..

   Article 42: Should the Security Council consider that measures provided for in
   Article 41 would be inadequate or have proved to be inadequate, it may take such
   action by air, sea, or land forces as may be necessary to maintain or restore
   international peace and security. Such action may include demonstrations,
   blockade, and other operations by land, sea or air forces of the United Nations.

These three articles describe the conditions under which the Security Council may
authorize the use of armed force. The following article describes the condition under
which individual members, individually or collectively, may use armed force in selfdefense,

5. Article 51: Nothing in the present Charter shall impair the inherent right of
   individual or collective self-defense if an armed attack occurs against a Member
   of the United Nations, until the Security Council has taken measures to secure
   international peace and security, Measures taken by Members in the exercise of
   this right of self-defense shall be immediately reported to the Security Council
   and shall not in any way affect the authority and responsibility of the Security
   Council under the present Charter to take at any time such action as it deems
   necessary in order to maintain or restore international peace and security.

How does this deliberately detailed scenario for an authorization to go to war apply
to the war commenced on March 20, 2003 by British-American forces against Iraq?
Clearly it was not a case of self-defense under Article 51 since there was no armed
attack by Iraq against a member of the United Nations. Nor does it meet the
requirements of Articles 39, 41 and 42. The Security Council never gave a green light
for war, as it could have done article 39 or 42. The closest it came was the following
language in Security Council Resolution 1441 of November 8, 2002:

6. The Security Council
   ... ..12. Decides to convene immediately upon receipt of a report in accordance
   with paragraphs 4 or 11 above, in order to consider the situation and the need for
   full compliance with all of the relevant Council resolutions in order to se cure
   international peace and security;

   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;
   :14. Decides to remain seized of the matter.

But deciding to reconvene if certain conditions are not met, or recalling a warning
about "serious consequences", is very different from taking the grave step of
authorizing the use of armed force by the United Nations or any of its members.
Indeed, some delegations insisted and all other delegations, including that of the
United Stataes, agreed that there was no "automaticity" in Resolution 1441. This
meant that Iraq’s failure to comply, i.a. with the stringent requirements for
unrestricted access by UNMOVIC and IAEA to any site in Iraq and for a full
declaration of Iraq’s WMD program, could not automatically lead to the use of armed
force against Iraq. Subsequent attempts by the United States to obtain specific
warmaking authority failed, not only because of the threat of a French veto, but also
because the United States could not muster more than three votes beyond its own
for the proposed resolution, from the fifteen members of the Security Council.

Thus thwarted in its attempt to obtain international legitimacy for its long planned
invasion of Iraq, the United States fell back on Security Council Resolutions 678 from
1990 and 687 from 1991, arguing – to a more than skeptical world audience – that
since the former authorized the use of force to eject Iraq from Kuwait and to restore
peace and security to the area and the latter imposed obligations on Iraq to destroy
its weapons of mass destruction, Iraq’s failure to do so revived 678 and with it the
authorization to use force. In "Armageddon or Brave New World", Judge
C.G.Weeramantry, a distinguished international lawyer and former Vice President of
the International Court of Justice, gives no less than 36 reasons why this tortured
argument is preposterously unconvincing. I will cite only one here:

7. Before Resolution 1441 there was a clear understanding on the part of all
   Security Council members that a further resolution other than the 12 year old
   Resolution 687 was necessary in order to permit the use of force and hence
   followed the enormous (and eventually unsuccessful – PW) efforts to get such
   an authorization in 1441.

The United States therefore is left only with its newfangled doctrine of "preventive
wa"r, which not only lacks any foundation in international law, but undermines the
entire war-regulating structure of the United Nations Charter. What is more, as is
well known by now, this arrogant doctrine is based on a tissue of prefabricated lies.

Conclusions:

1. "While nuclear weapons" as Hans Blix says in "Disarming Iraq"1., "are routinely
lumped together with biological and chemical in the omnibus expression
‘weapons of mass destruction’, it is obvious that they are in a class by
themselves. The outside world’s concerns about Iraq’s weapons would never
have been a very big issue if it had not been for Iraqi initiatives to acquire
nuclear weapons capacity"1 and, one may add, if it had not been for the lies
told to the world by the Bush administration about these initiatives which, as
we now know, ceased as far back as 1995. It is therefore imperative to hold
the nuclear weapons powers to the "unequivocal undertaking" they gave to
the Nuclear Proliferation Treaty Review Conference in 2000 to "accomplish the
total elimination of their nuclear arsenals." For so long as nuclear weapons
exist, they will furnish the excuse for "preventive war", whether waged by the
United States or some other country posing as the world’s savior from what
the President of the World Court in the 1996 Nuclear Weapons Case called
"the ultimate evil", his words for nuclear weapons.

2.International Law, being the creation largely of governments and
government-appointed judges, is not a perfect scheme for the achievement of
peace and justice. But it is an incomparably better one than the regime of
imperialist anarchy propounded and followed by President Bush and his cabal
of Rasputins. The Iraq war is not the first imperial war in the history of the
United States. Indeed, a first-term Congressman made a rousing speech in
Congress in 1846 against the Mexican War, commenced by President Polk on
the basis of questionable intelligence and resulting in the annexation of
California, Arizona and New Mexico. It cost the Congressman his reelection
and it was not until ten years later that he returned to politics and delivered
another famous speech from this very rostrum. His name, as you have
probably guessed, was Abraham Lincoln. So, while imperial wars were not
invented by this administration, they have never until now been based so
shamelessly on a doctrine of "preventive strikes against gathering threats", a
doctrine which merely codifies the law of the jungle.

3. While the International Criminal Court is still struggling with a definition of
the crime of aggression, it should be clear that every war lacking in legitimacy
in terms of the UN Charter, as was the case with the Iraq war, is a war of
aggression and every person or group of persons instigating such a war is
guilty of the crime of aggression and should be tried for committing that
crime and for its consequences.

4. The drafters of the United Nations Charter had an idea worth pursuing by
anyone interested in providing true legitimacy for the use of armed force. It
calls for a Military Staff Committee – which has never been put in place - to
oversee peace making and peace keeping missions and is spelled out in
Chapter VII of the Charter, to which I have referred earlier. If the Beatles
were still together, they could do a number called "Give Chapter VII a
Chance." But, as part of UN Reform – if there ever is one – the Military Staff
Committee will have to be considerably expanded beyond its present
membership, which is limited to the five permanent, veto and nuclear
weaponswielding members.

5. Law, whether national or international, is useless if it does not reflect the
deepest aspirations of the people, or "the peoples", in the words of the UN
Charter. Therefore, the voice of the people must be heard in the land. That is
what the next part of this session is about.

Notes:

1. Hans Blix, "Disarming Iraq", Pantheon Books 2004, p.260

Peter Weiss, an international lawyer, is vice President of International Association of Lawyers Against Nuclear Arms; president of the Lawyers Committee on Nuclear Policy; vice President of Center for Constitutional Rights and member of the Executive Committee of Americans for Peace Now and of the Arab-Jewish Peace Group.