Fitzgerald Investigation of Leak of Identity of CIA Agent

Since 1990 (UN Resolution 678)

OBill, If UN Resolution 678 was still effective, why did the Bush administration try to get the UN to approve another resolution to attack Iraq? If you disagree with the "legal experts," what is your source for the US actions other than your saying so?


Published on Monday, October 21, 2002 by the San Francisco Chronicle
U.S. Attack Leans on Shaky Legal Support
Previous U.N. Resolutions on Iraq No Blank Check for War, Experts Say

by Robert Collier

As the Bush administration continues its hard bargaining over Iraq with other members of the U.N. Security Council, it is making a not-so-veiled threat -- if the council fails to adopt a new resolution authorizing the use of force against Saddam Hussein, the United States may go to war anyway.

We don't really need your approval, the administration appears to be saying.

We already have it, so we can invade whenever we want.

The point has been made repeatedly, most recently Thursday, when Secretary of State Colin Powell said "the United States does not need any additional (U. N.) authority, even now, to take action to defend ourselves."

It's a powerful blank check, backed legally -- in the administration's view -- not only by the recently passed congressional resolution endorsing the use of force, but also by Security Council resolutions passed in 1990 and 1991 that authorized military action to remove Hussein's forces from Kuwait.

WASHINGTON WRONG

There's only one hitch. According to most members of the council and numerous U.S. legal scholars, Washington's interpretation is wrong.

Without a new council resolution explicitly authorizing war, the United States cannot act alone, they say.

While Washington has backed down somewhat from its earlier go-it-alone position by agreeing that the Security Council would first be consulted if Iraq is found in breach of new weapons inspections, it still insists it will not feel bound to wait for a U.N. decision before taking action.

POWELL CLAIMS 'AUTHORITY TO ACT'

Powell said Thursday that the congressional war authorization signed by Bush the day before "says that the president has the authority to act . . . in the best interest of the United States in concert with well-minded nations, whether the United Nations is active or not."

The congressional authorization directly echoes legal arguments made previously by the Clinton and Bush administrations. It cites Security Council Resolution 678 of November 1990, which authorized "member states . . . to use all necessary means to uphold and implement Resolution 660 (which ordered Iraq out of Kuwait) and all subsequent relevant resolutions and restore international peace and security in the area."

TRYING TO USE ORIGINAL RESOLUTION

According to Washington's view, the mandate of Resolution 678 is not limited to removing Iraq from Kuwait but refers indefinitely to all matters related to Iraq, such as disarmament, regional security and protection of Iraq's civilian population, as summarized in Resolution 687, which created the cease-fire to end the Gulf War in 1991.

The United States argues that Iraq is violating 687 and other resolutions, so the original authorization in 678 to use force still stands -- and can be used again.

Many international legal experts disagree. They say 678's mandate referred only to those resolutions related to Iraq's occupation of Kuwait. They also note that 687 and other Iraq resolutions after the Gulf War state the council "remains seized of the matter" -- legal jargon meaning that all further actions are to be decided by the council.

"This broad interpretation of Resolutions 678 and 687 is absolutely incorrect," said Jules Lobel, a law professor at the University of Pittsburgh who is a leading scholar of U.N. jurisprudence.

"The French, Russians, Chinese and most other countries of the world are correct that it's for the Security Council, not for the United States and Britain, to decide on any other actions to further enforce the resolutions."

Since the Gulf War, all other U.S. and British military action against Iraq -- imposition of the "no-fly" zones in northern and southern Iraq, and the December 1998 bombing of Baghdad -- has employed the same interpretation, which legal experts and other Security Council members say is equally invalid because Washington and London did not obtain explicit U.N. authorization.

BACKERS QUESTIONING POLICY

Even those who support the administration's policy say the U.S. case is far from solid legally.

Abraham Sofaer, a former State Department legal adviser to the Reagan and first Bush administrations who is a senior fellow at the Hoover Institution at Stanford University, said the current U.S. legal argument "isn't clear, it's controversial. I support the president, I think we should act even without explicit (new) authority from the Security Council. . . . But now, you just can't say you have a clear case."

Sofaer agreed that the problem isn't new. "It's a dilemma we faced in Kosovo (in 1999), where we didn't have explicit legal authority, but we went to NATO and said, 'Let's just do it.' "

This creates a dangerous precedent, some analysts say.

"No single nation has the right to decide enforcement of U.N. Security Council resolutions," said Stephen Zunes, a professor of politics and chair of the Peace and Justice Studies Program at the University of San Francisco.

"If that were the case, Russia could invade Turkey because of its violation of resolutions on Cyprus; Spain could invade Morocco because of the Western Sahara; Syria could invade Israel, and so on."

U.S. OFTEN BLOCKS ENFORCEMENT

Zunes recently carried out a study that found that since World War II, 91 council resolutions have been violated with no attempt to enforce them. In many cases -- such as resolutions critical of Israel -- the United States has blocked enforcement attempts.

Other scholars point out that because U.N. resolutions have the status of foreign treaties and thus are "the supreme law of the land," as described in the U.S. Constitution, they should trump any law passed by Congress.

Bruce Ackerman, a professor of constitutional law and political science at Yale University, said such high principles have been ignored by American courts.

"Under existing Supreme Court case law the courts will follow the congressional resolution even though the country is violating one of its solemn treaty obligations," said Ackerman.

Legal experts agree that the Bush administration's strongest card could be to cite the right to individual or collective self-defense, which is enshrined in the U.N. Charter. American officials have laid the groundwork for the use of force under what they call "pre-emptive self-defense," saying that Hussein supports al Qaeda and other international terrorist groups that might use chemical, biological or nuclear weapons against the United States.

But the administration has held back from making an explicit legal case, apparently because it lacks firm evidence that Iraq is giving such support or that an attack is imminent, as the Charter requires.

ARGUMENT COULD BACKFIRE

What's worse, the self-defense argument could boomerang. If the United States fails to get U.N. backing yet declares its intention to invade Iraq anyway, Baghdad could cite self-defense as justification to launch a pre- emptive attack on U.S. military forces in the gulf region.

In the end, the legal issues may simply be determined by the realities of the battlefield.

"If the United States invades and it's over in a week, this would be just another violation of the U.N. Charter, the Security Council would be powerless to do anything about it, and few people would pay any more attention," said Sobel of the University of Pittsburgh.

"But if U.S. troops get mired in combat in Baghdad, it would be very serious if they're doing it in contravention of the charter and Security Council wishes."

©2002 San Francisco Chronicle

Nope. The assassination plot against Bush I and Iraq's breaches of the ceasefire were never put forward as a reason why it was necessary to invade Iraq in 2003. Nobody would have taken such a position seriously, and certainly Bush II and his administration never advanced those grounds as reasons why it was necessary to launch a preemptive invasion.


You're sure about that?


But Resolution 687 is not a multilateral treaty. It's a UN Security Council Resolution. It's not even a bilateral treaty. Furthermore, even if Resolution 687 were a treaty, the Vienna Convention only applies to treaties between states: treaties entered into by international organizations are excluded from coverage of the Vienna Convention (.pdf).


That still doesn't make any sense. How is that at all relevant to the invasion in 2003?


Considering that the Vienna Convention doesn't apply in this case, that's a very weird position to take -- and to take so seriously. I considered it unlikely that you came up with that argument on your own, O'Bill, since you have, so far, demonstrated absolutely no competence in interpreting the law or legal documents. So I did some searching. Not surprisingly, it appears that the source of this error is Wikipedia. There, it says:

The Vienna Convention states that a party may invoke a "material breach" to suspend a multilateral treaty. Thus, the US and UK claim that they used their right to suspend the cease-fire in Resolution 687 and to continue hostilities against Iraq under the authority of UN Resolution 678 (1990), which originally authorized the use of force after Iraq invaded Kuwait. This is the same argument that was used for Operation Desert Fox in 1998.

That statement, in turn, cites two sources. The source on the 1998 action, however, doesn't support the argument that the US and the UK relied on the Vienna Convention to launch air strikes against Iraqi targets. Indeed, it doesn't mention the Vienna Convention at all.

The source for the contention that the US relied on the Vienna Convention in 2003 states that the term "material breach," as used in UNSC Resolution 1441, was "keyed" to the same language in the Vienna Convention, and further states:

When the Security Council asserted in paragraph 1 of Resolution 1441 that Iraq is in material breach of its obligations under relevant resolutions, including Resolution 687, it appears to have treated those resolutions as being sufficiently like multilateral treaties to be subject to Article 60 of the Vienna Convention.

That is a rather dubious proposition in itself (there is no reason to think that the UN Security Council would have placed one of its resolutions under the coverage of the Vienna Convention without some specific statement to that effect). Notwithstanding that, the article goes on to assert:

In any event, the terms of Resolution 1441, paragraph 4 (above), make it clear that a failure of Iraq to cooperate, if reported to the Security Council, [b]would not justify either the United States' or any other state's unilateral suspension of the cease-fire provision without giving the Security Council an opportunity to consider the situation and to act under paragraph 12[/b].

(emphasis added)

In sum, the Vienna Convention on the Law of Treaties is entirely irrelevant to the question of whether or not the US was justified in launching a preemptive invasion of Iraq. So, O'Bill, you wanna' try again?

The legal case for war with Iraq


As the US and UK appear set to pursue war in Iraq without a second UN resolution, Matthew Happold explains whether this course of action would be legal

Thursday March 13, 2003
Guardian Unlimited


Is war illegal without a second UN resolution?

The prohibition of the use of force is a foundational rule of international law. Only two exceptions are permitted: the use of force in self-defence, or with the express authorisation of the UN security council exercising its powers under chapter VII of the UN charter.

Iraq has not attacked the US, the UK or their allies, nor is there any evidence that it is about to do so. Force may only be used in self-defence in response to an actual or (according to some commentators) an imminent armed attack. Therefore any arguments based on self-defence fail. What the US national security strategy has advocated are pre-emptive attacks on countries which may threaten the US. The use of armed force in such circumstances is contrary to international law.

Na. I think I'll tag off to Georgeob1. If I can't trust wiki to lead me to appropriate sources; who can I trust?

At this point, if you now can't grasp that you're simply an apologist, [scrambling for any little tidbit of lie/lies to save you from drowning] then there's no hope for you, Bill.

The country's not so bad but you've gotta dig them bad apples out of the barrel and send them off to the Hague. When you provide unflagging support for this type of scum, well ...

Failing to overcome Joe in an argument about anything (let alone law), doesn't even constitute proof of wrongness.

Tico asked me to post this (Unphotoshopped)

could y'all get a pm thing going maybe?

Um, it's New Years not Halloween, Chrissee.

9.9 on Hot or Not.

You need help.

LOL

What is that, some service offered at nfb.org?

LOL I really struck a nerve. You guys are sooooo predictable.

Loving it!

You struck my optic nerve.

Yeah. I bet I did. All my gay men friends love my boobs so you are an anomaly. LOL

Why would anyone possibly care to know this?

you guys just like airing it in public, or your pm's don't work, or...?

Would you please stop encouraging her to PM me, snood?