US: Deaglán de Bréadún considers the legality of unilateral action against Iraq by a US-led 'coalition of the willing'
A senior US diplomat was reported as saying recently: "In good times your friends find out who you are; in bad times you find out who your friends are."
He was reflecting the mood of the Bush administration as it seeks, with British backing, to secure the minimum nine votes on the 15-member United Nations Security Council in support of a second resolution authorising war on Iraq. Recent events have revived memories of 1990, when Yemen voted against a council resolution authorising the first Gulf War. Immediately after the vote a US official was reportedly overheard telling Yemen's ambassador: "That will be the most expensive 'no' vote you ever cast." Shortly afterwards, the US withdrew a $70 million aid package to Yemen.
Even if the US and the United Kingdom get their nine votes, the resolution could still be vetoed by one or more of the other permanent council members: France, Russia and China. Only yesterday in London, the Russian Foreign Minister, Mr Igor Ivanov, refused to rule out using the veto. Much may also depend on this Friday's report from the chief UN weapons inspector, Dr Hans Blix.
The US could conceivably decide not to table a second resolution. Or the resolution could be defeated. In either event, there is thought to be a strong possibility of unilateral military action by a US-led "coalition of the willing". Given the presence of such vast military might in the Gulf, the momentum for war may be unstoppable. However, a debate has already started about the legality of such action.
The US and its supporters claim there is sufficient legal authority in existing council resolutions for military action. The latest of these, Resolution 1441, which was adopted on November 8th last, refers to the "serious consequences" for Iraq in the event of failure to comply with its disarmament obligations. The French and others point to recent examples of Iraqi co-operation with the weapons inspectors. However, the Bush administration is in no doubt that the Baghdad regime remains in "material breach" of its obligations.
This was the judgment reached by all 15 members of the council on November 8th, who included Ireland at the time. The US insists that the Iraqi position has not substantially changed.
Washington and London have consistently maintained that "serious consequences" means military action. In addition to the authorisation they say is provided under resolutions passed in the aftermath of the first Gulf War, they point out that Resolution 1441 describes Iraq's continued possession of weapons of mass destruction as a threat to international peace and security.
Can resolutions passed in the early 1990s provide a legitimate basis for war, more than a decade later? Opponents of unilateral US action say No. They also point out that Resolution 1441 does not authorise the use of "all necessary means" against Iraq, which they say is the standard euphemism for military force. The phrase was used in Resolution 678, passed in November 1990, which authorised the first Gulf War. In addition to the discussion as to whether existing UN resolutions provide a legitimate basis for war, there is a further argument about the use of the UN Charter's Article 51 as a basis for an attack.
Article 51 recognises "the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations".
The US and others argue that war is justified in order to forestall possible use of weapons of mass destruction by the Baghdad regime, its associates or agents.
In its September 2002 "National Security Strategy", the Bush administration points out that: "The US has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security . . . to forestall or prevent such hostile acts by our adversaries, the US will, if necessary, act pre-emptively." Proponents of the self-defence argument point out that the "9-11" attacks came without warning and the past history of Saddam Hussein amply justifies preventive action.
Opponents of pre-emptive war on Iraq point out that Article 51 specifically applies to occasions where "an armed attack occurs" and not to some anticipated event. Even if one accepts that an imminent attack would justify a defensive war, they say there is insufficient evidence for claiming that Saddam has either the capability or the intention to attack the US and/or its allies, at least in the short term.
But the situation may well have moved beyond cool consideration of the merits of different arguments. US prestige is very much at stake and President Bush shows no sign of ordering what his supporters would surely regard as a humiliating withdrawal of forces from the Gulf region. Some observers say the war has already begun, in effect, with the stepping-up of attacks in the no-fly zones. When the war-drums beat, logic is drowned out.