Is the War on Iraq Lawful?

By MICHAEL C. DORF
Wednesday, Mar. 19, 2003

As of this writing, American and British forces are poised to attack Iraq. Questions of military strategy, geopolitics and morality loom large, but so do questions of law.

Is the war to disarm and dislodge Saddam Hussein justified under international law? Has it been adequately authorized under U.S. law, with proper Congressional approval?

It is doubtful that any court will ever address either question, but that may provide all the more reason to consider these issues in the court of public opinion.

The International Law Issue: Three Possible Grounds for War

Under international law, force is authorized in essentially two or, at most, three circumstances.

First, Articles 39 and 42 of the U.N. Charter permit the Security Council to "determine the existence of any threat to the peace, breach of the peace, or act of aggression" and to authorize the use of force "to maintain or restore international peace and security."

Second, Article 51 of the U.N. Charter recognizes "the inherent right of individual or collective self-defence" against "an armed attack."

Third, an international norm may be emerging that would permit nations to use military force to prevent genocide or other humanitarian catastrophes. However, while Saddam Hussein has, in the past, committed horrific acts against his own people, the U.S. has not argued that intervention is necessary to address ongoing crimes against humanity.

Do either of the first two grounds - based on U.N. Charter provisions - justify war?

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.

Self-Defense: The Second Possible Ground for War

The boldest argument for war is that the United States and other countries face the prospect of an "armed attack" by Iraq, thus justifying the sovereign right to use force in self-defense. But certainly Iraq was not about to invade the United States or even Kuwait, where thousands of American and British troops have patrolled the border since the Gulf War. Nor have Bush and Blair pointed to any information indicating an imminent threat; instead, they have rested their arguments primarily on the fear of Saddam's future direct or indirect use of weapons of mass destruction.

Thus, the argument for self-defense must be based on an expansion of that concept - from self-defense as repelling an ongoing or imminent attack, to self-defense as pre-emption of a feared future attack.

Under the pre-emption doctrine, touted by the Bush Administration, an enemy that is in the process of acquiring weapons of mass destruction can be attacked before using those weapons. The underlying concern is no doubt a serious one. The doctrine, however, remains outside of international law and could potentially prove quite dangerous.

Self-defense, as it traditionally has been understood under international law, is very much like self-defense in the law governing individuals. If an aggressor is in the midst of, or just about to, attack, one need not absorb the first blow before fighting back. The attack, however, must be imminent, if not already underway.

The imminence requirement is extremely important in international affairs. If the U.S. can take non-Security-Council authorized pre-emptive or preventive military action, then other countries can as well. Thus, regional powers fearing the rise of neighboring rivals could decide that it is better to act against their future enemies before the threat fully materializes.

Not every invocation of the doctrine of pre-emption will be justified. Some will be based on misjudgments, and others will simply be pretextual - justifying aggression under the guise of pre-emption. Ultimately, the doctrine allowing pre-emption of long-term threats has the potential to be enormously destabilizing.

Was War Constitutionally Authorized by Congress?

The international law arguments in favor of the war's legality, then, are weak at best. What about the war's legality as a matter of U.S. law? There, the question is closer.

The U.S. Constitution sets no limits on the reasons for which the United States may go to war. Its primary limit is procedural. While the President is the Commander-in-Chief of the armed forces, Congress alone has the power to declare war.

Congress has not formally declared war since World War II. As I explained in an earlier column, the failure to issue formal declarations of war partly reflects the fact that such declarations are antiquated. But Congressional equivocation also reflects Congressional ambivalence. Members of Congress do not want to have to take the heat for a war that goes badly, but they also want to appear supportive of our troops. Thus, they have a built-in incentive to sit on the fence.

Judged by the standards of recent American military actions, Congress provided President Bush with crystal clear authority to make war on Iraq. In October 2002, Congress passed a joint resolution authorizing the President "to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all United Nations Security Council resolutions regarding Iraq."

The constitutional problem with the Congressional authorization, if there is one, is not lack of clarity; it's that Congress passed the buck. A number of commentators and even some individual members of Congress have argued that Congress may not delegate to the President the power to declare war. The Constitution, on this view, puts the power to declare war in the hands of Congress so that members of Congress--who must stand for frequent re-election--will make the hard decisions themselves.

This objection would be a good one if Congress had delegated something approximating its entire warmaking power to the President. But under the circumstances, the delegation appears reasonable. If one believed that Saddam would only disarm under military pressure, then to make the threat of war credible, Congress had to delegate power to the President. It would have been premature for Congress actually to declare war back in October, before further planned diplomatic efforts were undertaken. The Constitution is best interpreted to permit Congress to use this type of carrot-and-stick tactic.

There is one further wrinkle under U.S. law. Article VI of the U.S. Constitution makes treaties into which the U.S. has entered "the supreme Law of the Land." The United States is a signatory to the U.N. Charter, and as discussed above, under the Charter, there is no clear legal authority for war on Iraq. Accordingly, if the war violates international law - as I have suggested it does - then it also thereby violates U.S. law.

That is not to say that any court will entertain a challenge to military action. U.S. courts have long treated such questions as committed to the political branches. And it is clear that Congress and the President have made their decision.

Does the Lawfulness of War Matter?

In the end, the question of whether war on Iraq is legally justified is less important than whether it is morally and practically justified. If the U.S. and its allies prevail in a relatively quick war with minimal loss of life, if further evidence of Saddam's malevolent intent surfaces, and if the Iraqi people welcome allied forces as liberators rather than conquerors, then quibbles about legality may be overlooked.

Nonetheless, one impact of a war of dubious lawfulness may be the continued erosion of respect for the United States as a nation committed to principles of justice under law. President Bush says that he is justified in using military might because his cause is just. To much of the rest of the world, however, it looks the other way around: that the U.S. and its allies act as they wish because, in the American view, might makes right.

In that respect, a bit of ancient history may be relevant. In Chapter Seventeen of his History of the Peloponnesian War (between Athens and Sparta in the Fifth Century B.C.), Thucydides recounted the reaction of the people of the small neutral island state of Melos to the invading Athenian navy. Before attacking Melos, the Athenians gave the Melians an opportunity to surrender. The Melians attempted to persuade the Athenians to leave them alone. According to Thucydides, the Athenians would have none of it. Questions of justice arise only among equals, the Athenians said, while the strong do what they will and the weak suffer what they must.

The Melians refused to surrender; the Athenians prevailed militarily; they killed the adult Melian males; and they sold the women and children into slavery. But ultimately with aid from Persia (modern-day Iran), Sparta defeated and conquered Athens, which never regained its glory.

Even as we hope that President Bush can bring the spirit of Athenian democracy to the cradle of civilization, we may fear that he has forged a different, and darker, connection to ancient Athens.


Michael C. Dorf is Professor of Law at Columbia University.

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