posted on Mar, 21 2003 @ 12:39 AM
Rather a grey area is this: there isnít actually any ìUN Lawî, rather there is International Law which tends to take the UN Charter as a starting
point but it is not wholly based on UN resolutions, and ignoring the distinctions can lead to great confusion.
What makes it all rather silly at times is the issue of sovereignty: when all else fails the law depends upon somebody having a big stick. The UN
doesnít and can therefore only be effective against smaller weaker nations which makes it, if anything, a travesty of legality.
However, in this case, there have been some interesting developments. Speaking broadly (other than with specific UN authorization) war is possible if
it is in self-defence (UN Article 51).
Originally, international law suggested that you actually had to be punched on the nose before you could legally hit back; this changed to giving
the right to fight if there was imminent danger: the stick was in the air, as it were. It was so close that there was no time to think or
Plainly, Iraq has not actually attacked the US nor could anyone demonstrate that an attack is imminent.
However, in an age of WMD it is not unreasonable to suggest that these categories are no longer of much use: if the nukes are already in the air,
attacking will not help very much.
So the Bush administration has been developing the idea of ìpre-emptiveî self-defence. This is largely the basis for the US claim to legality: they
insist that Saddam would have attacked, given time, and that the weapons would have been such that America would have been gravely threatened if it
had waited until the attack was ìimminentî.
Iím not sure that that is entirely unreasonable; however, it certainly does not square with Article 51 as it stands. ( let us skip over whether or
not there are WMDís or whether or not Saddam was going to attack the US).
Consequently, the US has also found itself pursuing another avenue: the authorisation of force to protect international peace and security. With
regard to Iraq, one resolution may be relevant: Resolution 678, which was passed on Nov. 29, 1990, and which authorised member states to "use all
necessary means to uphold and implement Resolution 660 (1990) ñ that demanded Iraqís withdrawal from Kuwait - and all subsequent relevant resolutions
and to restore international peace and security in the area." A later resolution (687) also included full co-operation with weapons inspectors,
destruction of WMDís etc.
The Bush administration has claimed that Iraq has not done this and that ìall necessary meansî are, therefore justified.
This incidentally is essentially the thinking behind the ìno fly zonesî.
Again, itís difficult: one could argue that it is not for individual states but for the UN Council to make such decisions. The UN itself appears to
have been unable to make up its mind on this one.
The US (last November) tried to get this issue resolved (given that it already claimed authority under previous resolutions and International Law,
this was probably unwise) in Res. 1441 which established the weapons inspections and sought to clarify consequences of non-compliance. The French,
notoriously, said theyíd veto anything but a process which left it to the UN ñnot individual nations ñto decide what non-compliance was.
And thatís about where we now are.
On balance, it probably is ìillegalî but then, as Dickens told us, it may well be that ìthe law is an assî.
A more fruitful question would be whether or not the war is ìconstitutionalî: do Bush and Blair have the authority under their own
constitutions/domestic law? Blair ñ I think ñdoes, after the recent vote. Some would suggest that itís not quite so clear-cut for Bush2.
Thus spake Estragon ñ apologies for the length