Lawyers Statement on UN Resolution 1441 on
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Bush administration claims that it does not legally need Security Council
authorization to attack Iraq if the United States concludes that Iraq breaches
its obligations to comply with UN Security Council Resolutions. As Professors of
Law and practicing attorneys, we believe that the administration's legal
position is incorrect and poses a grave danger for the future of international
law, the United Nations, and a peaceful international order.
Article 2(4) of the UN Charter prohibits any nation from using force. The
Charter contains only two exceptions: when such force is employed in
self-defense or when it is authorized by the UN Security Council. Thus far the
Security Council has been unwilling to authorize a U.S. attack against Iraq.
This refusal, reflecting the widespread international sentiment against war with
Iraq, makes any unilateral
U.S. attack on Iraq illegal under international law.
51 of the Charter sets forth the exception for self-defense. A nation can employ
self-defense only "if an armed attack occurs," or, as a number of
authorities have argued, in response to an imminent attack. None of the reasons
given by the Bush administration for attacking Iraq, including destruction of
claimed weapons of mass destruction or overthrowing Saddam Hussein, constitute
self-defense under the UN Charter. The Bush administration has presented no
evidence that Iraq currently presents an imminent threat of attack against the
the now more than decade-long dispute over Iraq's compliance with its
disarmament obligations under UN Security Council Resolution 687 which ended the
1991 Gulf War, a majority of both the Security Council- and a majority of its
permanent members- have consistently argued that it is for the Security Council
as a whole, and not individual states such as the U.S. or Britain, to decide how
to enforce its resolutions. For example, during the last crisis with Iraq over
inspections in 1998, a majority of the Security Council disagreed with the U.S.
position and argued that no existing Security Council resolution authorized the
U.S., Britain, or any other member state to enforce Iraq's disarmament
obligations imposed by Resolution 687. France, Russia, China and other nations
argued that only a new, explicit Security Council resolution authorizing force
against Iraq could provide a legal basis for such U.S./British action.
On November 8, 2002 after almost eight weeks of negotiation and tremendous
pressure by the United States, the UN Security Council unanimously adopted
Resolution 1441, which set a new timetable and a
new regime of inspections for Iraq. That Resolution does not authorize the
United States to use force against Iraq.
Resolution 1441 represents a compromise between the French/Russian view and the
American/British perspective. The Council acquiesced to the U.S. by deciding
that Iraq "was and remains" in "material breach" of prior
resolutions, and recalls that the Council has repeatedly warned Iraq that it
will face "serious consequences" as a result of its continued
violation of its obligations. Although, the "material
breach" and "serious consequences" language will be used by the
United States to argue that the Security Council has implicitly authorized the
use of force in response to any Iraqi non-compliance, that is not a legally
correct interpretation of the Resolution. Let us be clear: The Security Council
resolution does not change the decade-long position of the Security Council that
only it can decide how to enforce its own resolutions.
Although the resolution does not explicitly require another Security Council
vote on authorization of military force, it is significant that Paragraph 4 of
Resolution 1441declaring that any failure by Iraq to comply with the resolution
will constitute a "material breach" does require that such a breach
"will be reported to the Security Council for assessment in accordance with
paragraph 11 and 12" of the
resolution. Those paragraphs require the Chairman of the Inspection Team to
report to the Security Council, which will itself convene
"immediately" to consider the situation and decide what to do.
It is clear from the resolution that no individual member state is authorized to
use any violation by Iraq, whether very minor and technical or more serious, as
legal justification to attack Iraq. The resolution requires the Security Council
to meet immediately and decide what to do about an Iraqi violation--a
requirement inconsistent with member states taking unilateral action. Indeed,
France, Russia and China, which provided the critical votes to pass the
Resolution, issued a statement upon its enactment that "Resolution
1441...excludes an automaticity in the use of force" and that only the
Security Council has the ability to respond to a misstep by Iraq. Mexico's
Ambassador was explicit in casting his country's vote for the resolution. He
stressed that the use of force is only valid as a last resort, "with the
authorization of the Security Council."
As law professors and practicing lawyers, we are encouraged that the Security
Council has placed itself front and center for the resolution of this issue
concerning the disarmament of Iraq. The United Nations charter is a treaty
binding on the United States and is part of our supreme Law of the land, by
virtue of Article VI of the United States Constitution. We urge the Bush
administration to comply with the Constitution, to comply with the UN Charter,
and not unilaterally attack Iraq.
(Drafted by Jules Lobel, Professor of Law, University of Pittsburg, November 27,
(If you are a law professor or practicing attorney, please consider adding
your name to this statement. The statement, sponsored by Foreign Policy In
Focus, will be presented to Congress and the media on December 10. Send your
endorsement by December 8 to Erik Leaver <email@example.com>.)
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