On What Authority Would the U.S. Act?

Flipping from channel to channel these days or scanning the newspapers, it’s easy to hear the echo of a few eerily familiar phrases from a previous time. “Our Saudi allies”. . . “international condemnation of Saddam”. . . “limited air strikes”. . . . Will “collateral damage,” accompanied by devastating pictures of a major Mideast war, be next?

We are two of the lawyers who, during the last episode of war hysteria, forced the president of the United States to contain his political grandstanding and obtain congressional approval before launching into war against Iraq.

President Bush, although he had support for his attack from the U.N. Security Council, was reluctant to ask Congress for authorization. Our victory in the case, brought by California Rep. Ron V. Dellums, upheld the wisdom of the Constitution’s framers, who insisted that taking our country to war was a decision so grave it should never be in the hands of a single individual.

Now, just seven years later, a different president is unleashing a new round of anti-Saddam rhetoric, and once again legality is taking a back seat to expediency. This time the situation is reversed: The president is likely to obtain congressional authority for a war, but he will not have the legally necessary go-ahead from the Security Council.

Just as our Constitution requires the explicit authorization of Congress to commit to war, so do the U.N. Charter and Security Council resolutions require the support of a world council to initiate warfare. U.S. officials, although unwilling to articulate specific legal authority, claim that past Security Council resolutions confer the right of the United States and one or two of its friends to attack Iraq. But in fact those resolutions show that once again an American president is attempting to go it alone.

Washington is not supported by U.N. Resolution 687, the cease-fire resolution from the last war, which provides that Iraq permit on-site inspection of its biological, chemical and missile capabilities. But there is no provision for a member state on its own initiative to use force if Resolution 687 is violated. This is explicit in the resolution: Only the Security Council may take “further steps as may be required for the implementation of the resolution.” The United States knows this. It would like to push Resolution 687 aside and argue that a previous resolution, 678, obtains instead. But laws cannot just be ignored, and 687 remains operative as the governing resolution.

However, even if the United States could magically revert the law to Resolution 678, it still would not have the authority to attack Iraq without approval from the Security Council. Resolution 678, passed before the Gulf War, says that member states cooperating with the government of Kuwait “can use all necessary force” to oust Iraq from Kuwait. This has been done; Iraq is out of Kuwait. Resolution 678’s more general call to “restore international peace and security in the area” cannot be invoked again, seven years after the war ended and peace was successfully restored, to launch new attacks unrelated to the original intent of the resolution. Resolution 678 cannot authorize the use of force by the United States in 1998 to enforce a weapons-inspection agreement that was not in existence or even anticipated when the resolution was written in 1990.

In the past, the United States has also cited the U.N. Charter’s “right to self-defense” to justify military actions against Iraq not authorized by the Security Council. But this right of self-defense cannot avail if Iraq is not attacking another country. International law does not permit a military strike to remove a claimed potential threat, even if it involves the development of biological or chemical weapons.

Given the language and intent of the resolutions on Iraq, along with the charter’s presumption that ambiguities are to be read always in favor of peaceful solution of conflict, there is clearly no legal authority for a United States attack upon Iraq. Only the Security Council can authorize such force, and since Russia, China and France are unwilling to do so, the United States must refrain from acting unilaterally.