Unilateral attack by US 'illegal'

by ALAN ELSNER

A United States-led war against Iraq without United Nations authorisation would be seen by many nations and legal experts as a violation of international law.

That is one of several reasons the US is working so hard to secure a new UN Security Council resolution authorising a war. However, President George W. Bush has made it clear he would feel free to launch the war anyway if it proves impossible to win such a vote.

"Absent a new resolution, this war will be perceived by many states around the world as not just legally illegitimate but also lacking in political legitimacy," said Steven Ratner, who teaches international law at the University of Texas.

"It will cause many to say this is an illegal war and an unjust war and it will be quite politically damaging for the Bush Administration," he said.

The Administration has argued it has all the authority it needs to wage war under previous UN resolutions dating back to 1991 demanding that Iraq give up all its unconventional weapons. More fundamentally, the United States gives primacy to US law and the Constitution, under which Congress declares war and the President acts as Commander in Chief.

"The President is not subsidiary to the United Nations and the ambassador of Cameroon does not decide what he can or cannot do," said Danielle Pletka of the conservative American Enterprise Institute.

In a recent discussion at the Council on Foreign Relations, Anne-Marie Slaughter, dean of Princeton's Woodrow Wilson School of Public and International Affairs, said eight out of 10 international lawyers would consider a US attack without a new resolution as a violation of international law.

"That view would also be supported by the legal advisers of most other countries in the United Nations," she said. "There's no question that many, many other countries - the majority of other countries and certainly many of our European allies - will not see a unilateral American-led attack as explicitly authorised by the Security Council."

Russia's UN ambassador Sergei Lavrov said this week that a US-led invasion of Iraq would be a clear violation of international law. He also said no country had the right to send its troops into the territory of another state to achieve "regime change" - which Bush has stated would be one US war aim.

Going to war without a new resolution could dramatically weaken the political position of some key US allies, notably British Prime Minister Tony Blair who is battling strong anti-war sentiment in his own Labour Party and among the public.

Pletka said that was the sole reason Washington was working so hard to secure a resolution. "Tony Blair really wants it and he's been such a loyal and helpful friend," she said.

A resolution might take some of the wind out of the sails of an international anti-war movement that is rapidly gaining strength. Conversely, going to war without a resolution would boost anti-war and anti-American sentiment to new heights.

Even in the United States, polls show a majority of voters would much prefer to go to war with the authority of a new resolution. Support for war without such a resolution falls below 50 per cent in some polls.

A war not blessed by the UN would also weaken the authority of the United Nations and could complicate US efforts to secure international co-operation for efforts to reconstruct Iraq after the war.

"If the US abandons the UN and goes sailing off in its own direction, it would be setting aside the international framework that has governed the way wars should be fought for half a century," said Jeffrey Laurenti of the UN Association of the United States.

Under the UN charter, states are authorised to use military force only in self-defence or when specifically approved by the world body.

Since few experts would regard a preventive attack such as Bush is contemplating as self-defence, the Administration's best claim for international legality comes from arguing that it is authorised to wage war under a long series of previous UN resolutions on Iraq.

Resolutions passed before and after the 1991 Gulf War, and most recently by Security Council resolution 1441 which was unanimously adopted last November, set out a series of disarmament demands that the Bush Administration says Iraq has failed to meet.

Resolution 1441 stipulated that Iraq was in material breach of some 15 previous Security Council resolutions and gave Baghdad one last chance to give up all weapons of mass destruction. If Iraq refused to comply completely, the United States agreed only to consult with the Security Council but it did not commit itself to seeking a new resolution.

- REUTERS