This diary isn’t adding anything new. It’s just for the record. The record is important.
It is common knowledge that Congress voted to pass the Iraq War Resolution. Yet the media hardly ever mentions that we are to bound the U.N. Charter, it is the law of our land, and thus I was never convinced that the United States of America had the legal authority to attack Iraq. I am not the only one, similar positions have been advocated by Juan Cole, Kofi Annan, Hans Blix, and also by neo-conservative Richard Perle.
Article VI of our Constitution states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding. (emphasis mine)
Although it is clear that we are bound to the U.N. Charter, framers of the war have argued that U.N. Resolution 1441 gave the United States the legal authority to invade Iraq. President Bush explains this argument:
Last September, I went to the U.N. General Assembly and urged the nations of the world to unite and bring an end to this danger. On November 8, the Security Council unanimously passed Resolution 1441, finding Iraq in material breach of its obligations, and vowing serious consequences if Iraq did not fully and immediately disarm.
Today, no nation can possibly claim that Iraq has disarmed. And it will not disarm so long as Saddam Hussein holds power. For the last four-and-a-half months, the United States and our allies have worked within the Security Council to enforce that Council’s long-standing demands. Yet, some permanent members of the Security Council have publicly announced they will veto any resolution that compels the disarmament of Iraq. These governments share our assessment of the danger, but not our resolve to meet it. Many nations, however, do have the resolve and fortitude to act against this threat to peace, and a broad coalition is now gathering to enforce the just demands of the world. The United Nations Security Council has not lived up to its responsibilities, so we will rise to ours. ( Guardian)
It is evident in this speech that President Bush is making the case that by invading Iraq the United States is following the protocol of U.N. Resolution 1441. The resolution does state: “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.” The administration’s justification may make sense intuitively. We signed a Security Council resolution that stated that there will be serious consequences if Iraq is found to be in material breech, and the administration claims Iraq had done so, hence the war has a legal basis. Yet such an interpretation does not account for the U.N. Charter, the constitution of the U.N. if you will.
Prior to the war, Marjorie Cohn, an associate professor at Thomas Jefferson School of Law, wrote:
“The invasion is likely to occur without further authorization from the U.N. Indeed, Colin Powell said on CNN’s “Late Edition,” that if the U.N. isn’t willing to authorize the use of “all necessary means” to disarm Hussein, “the United States, with like-minded nations, will go and disarm him forcefully.”
But only the Security Council can authorize the use of armed force. Since 1990, the Council has not authorized the use of force in Iraq. No country can unilaterally use military means to enforce a U.N. resolution without violating the U.N. Charter. It remains to be seen when and how the United States will unilaterally decide that Iraq has breeched the terms of Resolution 1441, and use that as a pretext to strike. The lives of a quarter million U.S. soldiers and millions of Iraqi people are at stake. (emphasis mine)(pitt.edu)
Professor Cohn’s position appears to be referring to a specific article in the U.N. Charter. Chapter VI of the U.N. Charter deals with issues of peace and aggression. Within this chapter, Article 39 states:
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.(U.N. Charter)
In other words, the Security Council as a whole must decide if a country is in material breech and on the measures which should subsequently be taken. It never did.
Works Consulted/ More Information