UN Resolution or Not, This War Violates International Law

http://www.counterpunch.org/mahajan03122003.html
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
(http://www.nowarcollective.com)
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,"
(http://www.sevenstories.com/Book/index.cfm?GCOI=58322100353810)
published by Seven Stories. His first book, "The New Crusade:
America's War on Terrorism,"
(http://www.monthlyreview.org/newcrusade.htm)
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