International law experts dispute legality of invasion

By David G. Savage and Henry Weinstein
Los Angeles Times

WASHINGTON — Is it legal for the United States to invade Iraq?

Many experts in international law question the legal basis for war, since the United Nations has not authorized the use of force to oust Saddam Hussein, either in 1990 or last fall.

But other legal scholars say they agree with U.S. and British authorities that Saddam's failure to fully comply with the agreements that ended the first Gulf War justifies a new war to remove him from power.

The arguments turn on what was not said by the U.N. Security Council, then or now.

After Saddam's invasion of Kuwait, the United Nations authorized the use of "all necessary means" to drive out the Iraqis and to restore "the independence and territorial integrity" of Kuwait.

In April 1991, after the U.S.-led coalition succeeded in freeing Kuwait, the United Nations adopted Resolution 687, which required Iraq to "unconditionally accept the destruction, removal or rendering harmless under international supervision of all chemical and biological weapons."

No one believes Iraq truly complied with that demand during the 1990s.

In November, a frustrated U.N. Security Council unanimously adopted a new resolution that deplored Iraq's "failure to cooperate" with inspectors and to give a "full, final and complete disclosure" of its secret weapons.

Resolution 1441 pledged to "ensure full and immediate compliance" with the "disarmament obligations" set in 1991.

To get there, the resolution set nine "binding" steps that dealt with giving inspectors "the right to free, unrestricted access" to sites where secret weapons might be hidden. The resolution ended by warning Iraq that it would face "serious consequences" if it violated these obligations.

Yesterday, U.S. and British officials cited these past resolutions as authorizing war, even though the Security Council refused to take that step.

Lord Goldsmith, the British attorney general, told Parliament the "combined effect" of the series of resolutions meant "military action against Iraq was legal without a second resolution."

"The authority to use force (in 1990 and 1991) has revived and so continues today," he asserted, since Iraq has not fully complied with its obligations.

Secretary of State Colin Powell took the same view yesterday, saying Iraq's "flagrant violations of obligations that it entered into over the last 12 years" justify a war to remove Saddam.

But many legal experts dispute that analysis, since the United Nations did not authorize force to overthrow Saddam in 1990 and it has not declared him in violation of the new inspections regime this year.

"I think most international lawyers would say the use of force against Iraq is clearly unlawful without a second resolution," said American University law professor Robert K. Goldman. "The original resolution (in 1990) never authorized military action to remove Saddam. Bush's father (President George H. W. Bush) spoke quite clearly on that and said going to Baghdad would exceed the U.N. mandate."

U.S. and British officials have stressed that the November resolution speaks of Iraq's being in "material breach" of its duties. This implies that Iraqis have a duty to come clean or face "serious consequences."

But the French, Germans and other opponents of war say the resolution set up a process for inspections and disarmament, not a trigger for military action.

Had the Iraqis blocked the inspectors, "that would have given the U.S. the trigger" to undertake war without a follow-up resolution, said Duke University law professor Scott Silliman. While chief U.N. arms inspector Hans Blix had criticized the Iraqis, he did not pronounce them in "material breach" of the resolution, Silliman said.

"The whole key to which side you come down on on this issue is who becomes the arbiter of what is a material breach of 1441, and who has the authority to use force," said Silliman, a former Air Force attorney. It "takes us out on thin ice" to say the United States or Britain can decide unilaterally who is in violation of U.N. mandates, he said.

But supporters of the administration say the U.N. resolutions set out the demands that Iraq must meet and, thus, justify a military response for its failure to comply.

"Resolution 687 (calling for Iraq to rid itself of chemical and biological weapons) gives you plenty of legal authority to go into Iraq," said Yale University law professor Ruth Wedgwood.

For his part, President Bush largely sidestepped the debate over international law yesterday and said "the United States has the sovereign authority to use force in assuring its own national security."

As commander in chief and with the support of the U.S. Congress, Bush said he had all the authority he needed to order an invasion of Iraq.

But Bush also repeated the legal claim that the U.N. resolutions adopted in 1990 and 1991 were "still in effect" and authorized "the United States and its allies to use force in ridding Iraq of weapons of mass destruction."