According to President Bush, though further Security Council authority would be “welcome,” there is already enough authority for a war against Iraq in Resolution 1441, passed last November. Our independent Canadian leaders seem to be saying the same thing. This is supposed to be a way of showing support for the United Nations.
But Resolution 1441 does not authorize war. Anyone with access to the Internet can read the resolution for themselves and see that it doesn’t even come close.
The resolution makes a lot of demands on Iraq but it doesn’t say or even imply that any state or group of states can attack the country for failing to comply. It doesn’t mention military force at all, not even with the usual euphemism “all necessary means”.
Resolution 1441 says that the Security Council “Decides ?to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime?” It also says that non-compliance “will be reported to the Council for assessment” and directs the Security Council “to convene immediately” on receipt of the weapons inspectors’ report “in order to consider the situation and the need for full compliance with all of the relevant Council resolutions.” Resolution 1441 further “Recalls, in that context, that the Council has repeatedly warned Iraq it will face serious consequences as a result of its continued violations of its obligations.”
That’s it. To anyone vaguely familiar with the English language this can only mean that it is the responsibility of the Security Council as a body
– all fifteen members including each of the Permanent Members with a veto
– to decide whether and to what extent there has been compliance and what to do about it. It’s not the American government or the Canadian government that has to be “convinced” according to 1441; it’s the Security Council.
All you have to do is compare Resolution 1441 with the one that launched the other Gulf War. Resolution 678 of November 29, 1990 also used the phrase “one final opportunity” but that’s where the similarity ends. It said the Security Council “Demands that Iraq comply full with Resolution 660 (1990) [withdrawal from Kuwait] and decides?to allow Iraq one final opportunity, as a pause of goodwill, to do so;”
But Resolution 678 added something very important. It specifically said that the Security Council “Authorizes Member States co-operating with the government of Kuwait, unless Iraq on or before 15 January fully implements? the above-mentioned resolution, to use all necessary means to uphold and implement” [it] ?and all subsequent resolutions and to restore international peace and security in the area;”
“Authorizes Member States to use all necessary means” ? that is the huge missing ingredient from 1441.
Are our governments suggesting this was a slip on the part of the Security Council? But who can forget the intense pressure from the United States to include “automaticity” and the way the Security Council resisted? When the resolution passed last November, even the US went no further than to say it didn’t specifically prohibit military force. And that’s undoubtedly correct. It doesn’t authorize it and it doesn’t prohibit it.
What prohibits military force is international law. The Charter of the United Nations allows war only where it fits within the narrow confines of the right of self-defence or where it is explicitly and validly authorized by the Security Council after all peaceful alternatives have been exhausted. That’s because the Charter regards war as a “scourge” and its main purpose was to ban it where it was not absolutely necessary and demonstrated as such to the lawfully constituted authority of the collectivity of states, namely the Security Council.
Without an explicit authorization from the Security Council, the mere violation of a resolution is not enough to entitle any state or states to use military force to enforce it. Israel has been in violation of numerous Security Council resolutions for thirty-five years, but none of them explicitly authorize the use of force. Are our governments saying that any state has the right to attack Israel to enforce compliance with these resolutions?
Why try to distort the plain meaning of Resolution 1441?
Is it because without real Security Council authority, and lacking any claim of self-defence beyond the delusional, a US war on Iraq would constitute what the Nuremberg tribunal called the “supreme international crime” the crime against peace? In fact, without valid Security Council authority, Canada’s very participation in this war would make Prime Minister ChrÃ©tien and his colleagues personally guilty of murder and other crimes against humanity. And this isn’t just “virtual” guilt. The US is not a party to the International Criminal Court – Canada is. The US doesn’t have a Crimes Against Humanity and War Crimes Act – Canada does. Bush got authority from Congress for this war ? ChrÃ©tien got no such authority from Parliament. Canada’s National Defence Act only authorizes war “by reason of an emergency, for the defence of Canada; or in consequence of any action undertaken by Canada under the United Nations Charter” or the NATO Treaty (which is also subject to the UN Charter).
Intentional killing without lawful justification or excuse is murder. When it’s premeditated, it’s first-degree murder. International Physicians for the Prevention of Nuclear War calculates that war against Iraq will result in the death of a minimum of 50,000 Iraqis, most of whom will be civilians. There are an awful lot of people serving life sentences in Canadian prisons for the murder of just one person. The law doesn’t care if the victim is a Canadian or an Iraqi, and it doesn’t care if the criminal is a Prime Minister or a pauper.
By letter to the Prime Minister dated January 23, Lawyers Against the War put the government of Canada on notice that we will “pursue prosecution of all responsible government officials on all appropriate charges, including murder and crimes against humanity, in both the Canadian and international criminal courts.” British and American lawyers made similar declarations to their governments. We mean it.
And if the Security Council should specifically authorize war? On the evidence as it stands, a Security Council authorization for war against Iraq would itself be a serious violation of the Charter of the United Nations — even if everything Colin Powell said at the Security Council on February 5 were true, and that’s quite a stretch. Because everything he said about Iraq is undoubtedly true, and many times over, about the US and Israel. Because having weapons of mass destruction and violating Security Council resolutions does not justify war, legally or morally, only aggression does. Despite his stern report, Hans Blix said in an interview last week that nothing he has seen justifies a war against Iraq. And according to all the polls, the world overwhelmingly agrees with him.
On the other hand, we know what enormous pressure the United States is applying to the members of the Council, almost all of whom are dependent on American economic goodwill. If the Security Council authorizes war, it’s a good bet it will do so because of American pressure, and not because the members believe it is justified in accordance with their mandate. If they do that, they’ll simply be authorizing aggression. Then we’ll have something worth calling “appeasement.” The Americans are a million miles from being Nazis, but allowing an American attack on Iraq would be a lot more like Munich in 1938 than allowing Saddam Hussein to remain in control of Iraq’s pathetic military potential. The Charter of the United Nations meant to prevent war and protect human rights primarily by guaranteeing borders against aggression. You may think that this was a mistake, but the remnants of Polish Jewry (one of ourselves included) can tell you that there would have been no Holocaust if Hitler had been opposed with force when he first tried to take over another country. Ninety-seven percent of the Jews slaughtered in World War II lived in the countries the Nazis invaded.
The United States has been threatening the United Nations with “irrelevance” if it doesn’t concede them the authority to make this war — Colin Powell repeated this mantra at the Security Council on February 5. What’s clear is that the precise opposite is true.
Michael Mandel and Gail Davidson are co-chairs of Lawyers Against the War, a Canadian based group of jurists with members in ten countries.