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October 03, 2004

The libertarian case for war, part II

In the second part of this post, I'll explore the legality of the war in Iraq. Kofi Annan thinks the war was illegal. He's wrong.

International law, like federal, state, and local law, comes in two flavors: common and statutory. There were a number of international common law justifications for the United States to attack Saddam, to wit:

Saddam Hussein attacked American pilots. On an almost daily basis, Saddam’s armed forces took ineffectual potshots at pilots patrolling the no-fly zones. These pilots were engaged in lawful enforcement actions, and to attack another country’s servicemen is a casus belli.

Saddam Hussein plotted to assassinate George H. W. Bush. This is often brought up by the left as a glimpse into George W. Bush’s real motives for attacking Iraq, but the fact is that a plot to assassinate the dignitaries of another country is a casus belli.

Saddam Hussein provided safe harbor to terrorists. It’s a common meme among the left that antebellum Iraq was no haven for terrorists, but it’s false. Both Abu Nidal and Abu Abbas found refuge in Iraq. To provide shelter for the sworn enemies of another country is a casus belli.

Saddam Hussein repeatedly and flagrantly violated the terms of the cease-fire under which the first Gulf War ended. No treaty ended the first Gulf War. Instead, the parties agreed to a cease-fire. When a cease-fire is violated, it becomes void, and the other party is no longer obliged to abide by its terms. To violate a cease-fire is a casus belli.

Any one of these would be sufficient legal grounds for the United States to make war against Saddam Hussein. Truly, when searching for legal cover, there is an embarrassment of riches.

So much for common law. What about statutory law?

When speaking of international law, the equivalent of statutes are bilateral and multilateral treaties. The particular treaty that’s most often brought up by those who would question the legality of Operation Iraqi Freedom is the Charter of the United Nations. Well, let's take a look at what it says.

Chapter VI pertains to the peaceful resolution of disputes. It commits member states which are parties to a dispute to

seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.

Do any doubt that the Coalition adhered to this article? For twelve long years of negotiation, not to mention crippling sanctions, we attempted to bring Saddam Hussein to heel.

Chapter VII provides the United Nations's teeth. It empowers the Security Council to

decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.

Just to drive home the point, it goes on to say

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.

Now let's take a look at what the Security Council actually did.

In Security Council Resolution 660, the Security Council demanded that Iraq "immediately and unconditionally" withdraw from Kuwait.

Security Council Resolution 678 of 1990 was the authorization for the use of force against Saddam Hussein. It says

The Security Council, ... Acting under Chapter VII of the Charter, ... Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;

I emphasized the important part. Note that the Resolution did not merely authorize the use of force to boot Saddam from Kuwait, it authorized the use of force to enforce all subsequent relevant resolutions. Just to drive home the point: if Saddam Hussein was in violation of a subsequent relevant resolution, Resolution 687 legitimizes the use of force to bring him into compliance.

Then there's Security Council Resolution 687, following the liberation of Kuwait. This resolution formalizes and codifies the aforementioned oft-violated cease-fire.

The Security Council, ... Conscious of the need to take the following measures acting under Chapter VII of the Charter, ... Decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of:

(a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities;

(b) All ballistic missiles with a range greater than 150 kilometres and related major parts, and repair and production facilities;

Again, boldfaced an important word. Could anyone argue with a straight face that Iraq's compliance with the international supervision of the destruction, removal, or rendering harmless of the prohibited weapons has been "unconditional"?

Well, certainly the Security Council didn't think so. Resolution 1441, passed by a unanimous vote of the Security Council on November 8, 2002:

The Security Council, ... Acting under Chapter VII of the Charter of the United Nations, ... Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991)

There we have it. To sum up:

  • The Charter of the United Nations gives the Security Council authority to legitimize the use of military force.
  • The Security Council authorized the use of force against Iraq by Member States for the purpose of enforcing Resolution 660 and all relevant subsequent resolutions.
  • Resolution 687 is certainly a relevant subsequent resolution.
  • Saddam Hussein obviously violated 687, but just to drive the point home, the Security Council unanimously affirmed it.

Conclusion:

  • Member States were authorized by the United Nations Security Council, acting under Chapter VII of the Charter, to use force against Iraq.

The war in Iraq was legal. But this, just as the fact that the war was moral, did not obligate the Coalition to do anything. Next time, I'll tackle the toughest problem: was the war in our best interests?

October 3, 2004 in Current Affairs | Permalink

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Comments

I'm waiting for part III.

I'd love to see the libertarian justification for the monetary expense of "Shock and Awe".

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