US attack on Iraq would be illegal, say experts

NEW DELHI: In the absence of explicit authorisation by the United Nations Security Council (UNSC), any unilateral attack on Iraq by the US would be an act of aggression, say international law experts.
"Military action taken against Iraq on the basis of unilateralism will not have any legitimacy in international law", said Prof V S Mani of Jawaharlal Nehru University.
Under the UN Charter, a country may use force against another only under two circumstances: in self-defence against an ongoing or imminent attack, or if the UNSC formally approves action under Chapter VII. However, the US and Britain are today neither in a position to invoke the right to self-defence or to claim the sanction of the Security Council.
Indeed, mindful of the need for a legal basis to their impending attack, the US, Britain and Spain had initially moved a new resolution declaring Iraq in "material breach" of its disarmament obligations and authorising member states to take military action. But when it became clear the draft would not attract the necessary nine votes, let alone stave off a veto by France or Russia, the three decided to withdraw their resolution. After all, attacking Iraq after being explicitly denied authorisation would have made the US look too much like an outlaw.
Their plans for a war resolution scuttled by international opposition, the US and Britain are now arguing that existing UN resolutions themselves provide a basis for military action. Britain''s attorney general, Lord Goldsmith, has specifically mentioned three resolutions: 678 (passed after Iraq invaded Kuwait in 1990), 687 (the Gulf war cease-fire resolution) and 1441, passed last November, giving Iraq a "final chance" to disarm. But international law experts reject this logic. UN resolutions are not an open-ended affair delegated to member states to implement as and when they like, said Mani. "In any case, 678 and 687 pertain to a different time, their aim was to eject Iraq from Kuwait, not invade the whole country and change its regime".
As for 1441, said Prof B S Chimni of JNU, the resolution does not authorise force. "The debate during the voting makes it clear countries had reservations about the use of force", he said. "The resolution got unanimous support precisely because members said the text did not authorise force". Indeed, Russia, France and China had issued a statement along with the resolution stating, "Resolution 1441 ... excludes an automaticity in the use of force".
Although 1441 declared that any failure by Iraq to comply with its disarmament obligations would constitute a "material breach", it also stated any such breach "will be reported to Security Council for assessment". Not only has no such assessment been made, the UN weapons inspectors, Hans Blix and Mohammed el-Baradei themselves have presented reports to the Security Council noting the progress they had made in their disarmament work.
By attacking Iraq without UN sanction, the US will have completed the circle of aggression started by Iraq when it invaded Kuwait illegally in 1990. The option for the international community, said Chimni, would then be to introduce a resolution condemning the US in the Security Council. Though this would be vetoed, Chimni suggested that countries opposed to the US aggression could seek to censure Washington through a special meeting of the UN General Assembly, convened under the aegis of the `Uniting for Peace'' resolution of 1950.
This empowers the General Assembly to resolve a crisis caused by a deadlock in the UNSC. The US used this route to launch the Korean war. The resolution can be invoked by either seven members of the UNSC or a majority of the UN membership.