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Old 04-10-2004, 09:56 AM   #61
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Originally posted by BonoVoxSupastar


Weren't they shoveled the same bullshit that everyone here is.
I still hold them accountable. I do not believe they bought the bullshit. I believe many feared not voting for it because it was just before the election. Self PRESERVATION. Then they figured pin it on the administration or the CIA if it turned out false.

Yes, I have that high an opinion of them all.
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Old 04-10-2004, 01:14 PM   #62
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Originally posted by Dreadsox


I still hold them accountable. I do not believe they bought the bullshit. I believe many feared not voting for it because it was just before the election. Self PRESERVATION. Then they figured pin it on the administration or the CIA if it turned out false.

Yes, I have that high an opinion of them all.
I believe that to be true for many but not all.
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Old 04-10-2004, 06:43 PM   #63
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Originally posted by Dreadsox


Play again....this is your opinion(and that of the US).


The Security Council did not authorize the US to take action.
I do not feel like derailing this thread with yet another argument about the intent of the resolutions.

This is the first time a CEASE FIRE was broken and force not authorized by the SECURTIY COUNCIL.


The only reason that I supported the invasion was because the administration led me to believe we were in immediate danger, and I do not believe we need permission to defend ourselves from the Security Council. Now that were were clearly wrong, I wish a competant candidate had been chosen from the Democratic side, because I would vote for them.
The Security Council authorized member states of the United Nations to use all means necessary to bring about compliance with resolution 678 and ALL SUBSEQUENT resolutions. This was re-affirmed in resolution 687 and resolution 1441.

There has never been another war in history that has had more resolutions or legal documents supporting it than Operation Iraqi Freedom.

The Security Council gave authorization for force to be used if Iraq was in material breech of its obligations, with resolution 678, 687, and 1441. All of these resolutions are passed under Chapter VII rules of the United Nations.

It would be absurd to require Saddam to disarm but have no means to enforce that requirement if peaceful means failed. Saddam was told to disarm or face the use of military force to disarm him. Saddam failed to disarm and military force was used to remove him there by insuring he was disarmed.

In addition, the Security Council would never approve an occupation brought on through actions it did not approve and felt were illegal.

The administration central case for military action against Saddam was in line with US foreign policy against Saddam over the past 12 years. The United Nations determined that Saddam and his possession of WMD were an intolerable danger to the region and the world and required that Saddam be verifiably disarmed. Saddam's failure to verifiably disarm was Bush administrations central case for war. War was the only way to insure that Saddam was fully disarmed.

The United States or any country for that matter has never had intelligence capabilities of the level that many here seem to think in regards to WMD. It is nearly impossible to be sure with intelligence alone, that there are no labs or area's in Iraq that are producing Anthrax or Mustard Gas. Intelligence alone would never solve the issue of Saddam's failure to account for large stocks of WMD.

Intelligence in this regard has its limits which is why it was not used as the central case for military action. The international community could only be confident that Saddam was not in possession of any WMD either through his full cooperation with inspectors or his removal from power.

The fact that Saddam failed to Verifiably Disarm is not bullshit. Its a fact. The US and other member states responded to that fact and insured that a serious threat to the region and world was removed after having for 12 years to use other means to resolve the situation.
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Old 04-10-2004, 09:42 PM   #64
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Old 04-11-2004, 03:53 AM   #65
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STING many times you have preesnted this argument as to how the resolutions were breached. This is crystal clear. Actually it was understood the first time , but why do you think the UN then did not actively support the war right when it was about to start? I'm sure they are even more aware than you are of what resolutions they have passed and what they mean in every great detail, so why the lack of suport? Resolutions aside. Why is this do you think?
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Old 04-11-2004, 12:18 PM   #66
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It was supported there was one person from each country on the planet making it a coalition.
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Old 04-11-2004, 12:50 PM   #67
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Originally posted by Angela Harlem
STING many times you have preesnted this argument as to how the resolutions were breached. This is crystal clear. Actually it was understood the first time , but why do you think the UN then did not actively support the war right when it was about to start? I'm sure they are even more aware than you are of what resolutions they have passed and what they mean in every great detail, so why the lack of suport? Resolutions aside. Why is this do you think?
Resolution 1441 was passed in November by a 15-0 vote, just as 12 years earlier the resolution to remove Saddam's military from Kuwait was passed in November. In between the passing of those resolutions and the actual start of war, no more resolutions were passed either way. Resolution 1441 which authorized the use of military force to insure that Saddam was disarmed, had more support than even the resolution to remove Saddam's forces from Kuwait back in 1990. That vote was opposed by one member Yemen, and China abstained.

The UN's last official record on the issue of Iraq prior to war was resolution 1441. Following the invasion, the UN approved the occupation. There is simply no record of official opposition by the UN as a whole to the invasion of Iraq. You could argue forever about the way this country felt or that country felt, but when it comes to the votes and the resolutions which tells what the UN does or does not support, the UN comes down on the side of the administration who were the chief authors of resolution 1441. So in regards to the UN, I don't see any lack of support. I see 3 resolutions approving the use of force and 3 resolutions approving the occupation that came into being as a result of that use of force.

The same arguements that have been used to say that the UN did not support the use of military action against Saddam in 2003, could also be used to say that the UN did not support "military action" to remove Saddam's troops from Kuwait back in 1990/1991.
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Old 04-11-2004, 01:19 PM   #68
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Originally posted by STING2


The same arguements that have been used to say that the UN did not support the use of military action against Saddam in 2003, could also be used to say that the UN did not support "military action" to remove Saddam's troops from Kuwait back in 1990/1991.
This is a new take on it.
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Old 04-11-2004, 01:20 PM   #69
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Originally posted by Angela Harlem
Determining if war is necessary is kind of like asking how long a piece of string is. Asking if removing people like Saddam from power is necessary is easy to answer, as it is yes. To remove any chance of him using his stockpile of weapons, if he indeed has them, then yes. To be comfortable with the idea of a war being the means to this is harder for people to agree with. But then, they're military people. It's what our military do. They go and fight wars decided by other people, in this archaic and violent way. Its stupid you know, we teach our kids to not resolve fights in the school yard with their fists, but then our kids grow up and join the military and fight for their country for a 'disagreement' (for want of a better term) between 2/more nations or whatever.

There's no sense in the actions. Sense in the reasons, yes. Splitting hairs over semantics like the diference between grave and gathering, and imminent is really more of asking how long this piece of string is. To continually be saying those opposed to the war are opposed to the removal of Saddam is either really a case of not listening, or just...I dont know. Its not the case STING. I dont know how many ways people can say this, or how often it has to be repeated over and over and over again before it sinks in, but it is plain and simply NOT the case. Why is it not enough for people to say "I agree getting rid of him is a great thing, but the violence of war is something I can never like"? Why is THAT misconstrued to be some weird arsed approval and support of Saddam?

The use of force whether it be a policeman in your neighborhood, or on a national level with the FBI or other federal law enforcement groups then on up to the international level with the military, is necessery to protect lives and way of life. It is never archiac to use force to defend ones self when it is necessary. I do find something wrong though with those that do not act to defend themselves from others or attempt to defend others when they have the capability to do so.

In the case of Saddam, the only way to insure that he was disarmed given his failure to fully cooperate was through military force. Over the preceding 12 years, everything else short of full scale military action was tried and failed. The only way that Saddam's regime and its military of 400,000 could be removed was through military action.

I understand that those that were against the use of force to remove Saddam in 2003 are not supporters of Saddam. But its difficult to say one supports the removal of Saddam but is against the only action that will achieve that. In the case of Saddam there was only one way he could be removed do to his unique behavior and capabilities. The history of his regime proves that.

No one likes the violence of war, but war is sometimes necessary. Violence is sometimes necessary by police forces domestically to enforce law and order. Individuals must sometimes use violence to try and defend themselves. I cannot imagine you being against the actions of the people on the hijacked plane that crashed in Pennsylvania because the people saw what was happening and rose up to prevent further destruction and save their lives. They did not beg the hijackers to stop, they used force to attempt to take back control of the plane.

Without the use of force, those willing to use force would control the rest of us. Nazi Germany or the Soviet Union would control the world today if it was not for the use of military force or being well prepared to use military force.
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Old 04-11-2004, 01:24 PM   #70
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DID THE SECURITY COUNCIL'S RECENT IRAQ RESOLUTION VIOLATE THE U.N. CHARTER BY AUTHORIZING UNILATERAL FORCE?
And If So, What Are the Consequences?
By GEORGE P. FLETCHER
----
Wednesday, Nov. 13, 2002

On November 8, the U.N. Security Council voted 15-0 vote in favor of Resolution 1441, which concerns Iraq. Through its passage of the Resolution, the Security Council indirectly supported the U.S.'s threat to go to war against Saddam Hussein.

Some parts of the Resolution are unobjectionable. But others may violate the U.N. charter, and thus violate international law. If they do, what are the consequences?

Security Council Resolutions May Be Binding, But Nevertheless Illegal

It is important, to begin, to separate the question whether the Resolution is binding from the question whether it violates international law. The resolutions of the Security Council are implicitly binding on the member states of the United Nations - and thus so is Resolution 1441.

But the question remains: Is Resolution 1441 legitimate, and consistent with international law?

To see why the two questions are separate, consider a hypothetical court injunction against conducting a parade. The injunction, until and unless it is overrruled or stayed, is binding on the parade commissioner; he violates it at his peril. Yet it may also violate the First Amendment - as a later, higher court may subsequently pronounce.

Similarly, under Article 40 of the Charter, the Security Council can call on member states to comply with provisional measures "without prejudice to the rights, claims, or position of the parties concerned." Put another way, member states can be forced to comply with even those U.N. decisions they believe to be illegal under international law - but if they do comply, they do not give up their right to protest the decision.

Which Parts of Resolution 1441 Are Legal, and Which May Be Illegal

Part of Resolution 1441 is unobjectionable. It outlines a timetable for Iraq to comply with previous resolutions requiring inspections and disclosure of all programs to develop weapons of mass destruction, and of all long-range instruments of delivery (such as missiles). The clock starts running November 8. Within 7 days, Iraq must declare whether it will comply the resolution. Within 30 days, it must make full disclosure of its weapons supply. Within 45 days, rigorous inspections will start.

That's all fine. But a legal problem will arise if, for instance, Saddam Hussein makes what appears to be only partial disclosure of his WMD capability. The Resolution says that "false statements or omissions" will constitute a material breach of the Resolution (augmenting the finding that Iraq is in material breach of prior resolutions), and have "serious consequences." And everyone understands that the "serious consequences" would mean the use of military force to restore "international peace and security."

But who decides whether Iraq is in breach? And who decides if the use of military force under these circumstances is legal? There's the rub - and there may be the illegality.

The Import of the Special Chinese/French/Russian Proviso

Three of the fifteen states voting - China, France, and Russia - added a special proviso to the Resolution, stating that they do not understand it to authorize "automaticity in the use of force." Put another way, they do not believe the Resolution authorizes the U.S. and the U.K. to make an independent judgment that Saddam Hussein is in violation, and then use the Resolution as a warrant for going to war.

What force does this separate proviso have? The three states who wrote it expressly rely on declarations made by representatives of the U.S. and U.K. But these declarations are, if anything, incorporated into the Proviso - not the Resolution - and the Proviso was only joined by 3 of 15 Security Council members. Ten other states declined to join. As a result, one might conclude the Proviso has only the force of a concurring judicial opinion - expressing the reasoning of the three signatories, but not of anyone else, necessarily.

Indeed, one might read the other 10 states' decision not to join the Proviso as meaning that they believe the Resolution does in fact implicitly authorize "automaticity in the use of force." That is, we might think that, in the view of the 10, at least, the United States and its single ally, the United Kingdom, do indeed have the power, under the Resolution, to make a unilateral judgment that a material breach has occurred and impose "serious consequences" - namely, military force.

The Possible Illegality of the Resolution If Construed to Authorize the Use of Force

There are several problems with this. First, China, France, and Russia, as permanent members of the Security Council, have veto power over any use of force. They seem to be using this veto power through the Proviso - which makes clear that they do not read the Resolution to authorize the use of force, and are voting for it on that basis. Yet the Resolution, as read by the other 10 Security Council members, seems to take away this veto power by delegating to the two remaining permanent members - the U.S. and the U.K. - the right to decide whether to use force against Iraq.

One way to resolve this problem might be to adopt the narrower reading of the Resolution, which the Proviso offers. Like a concurring judicial opinion that is narrower than the opinion it augments, and necessary to establish a majority, the Proviso arguably operates to limit the scope of the Resolution. If three members do not believe they authorized force, and each of the three has veto power over such authorization, it is hard to contend that force has actually been authorized. In short, the 10 are wrong to view the Resolution as authorizing force.

Second, United Nations Charter Article 51 restricts the use of the force to cases of self-defense and only in response to an "armed attack." This is one of the basic principles of the Charter. But as I discussed in a previous column, it is difficult to contend that a U.S./U.K. invasion of Iraq would fit the bill.

Is a U.N. Resolution a Legislative Act, A Judicial Act, Or a Mix of the Two?

That leads to an interesting final question: Is a U.N. Security Council Resolution, or Proviso, like a judicial opinion in the first place? The Council itself has the qualities of both a legislative and a judicial body.

Like a judicial body, the Security Council is governed by a document: the Charter. But in reality, the Charter's principles are mostly too vague to provide much legal restraint, so that the Council operates quite freely, like a legislature.

Like a judicial body, it must make findings of fact, such as the finding that Iraq is in "material breach" of prior resolutions. Yet it has no trial-like mechanism for making these findings - all it can do, like a legislature, is hear submissions from its members.

The United Nations is torn, therefore, between some tight substantive principles, such as those on the use of force, and its loose procedural forms. Its principles, in theory at least, prohibit preventive or "preemptive" war by one nation against another. But its procedures permit the Security Council to enact policies like those expressed in Resolution 1441.

The result is a body of law that - ironically and disturbingly - is subject to violation by its own organs of interpretation and application. By comparison, it is as if U.S. court orders routinely themselves violated the Constitution.

It is no great surprise, then, a particular Resolution, such as this month's on Iraq, might violate the U.N. Charter, and yet have been enacted by the Security Council all the same. It may make one wish that like the U.S. government, the U.N. had, since its inception, always included a judicial branch.
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Old 04-11-2004, 01:25 PM   #71
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Originally posted by Dreadsox


This is a new take on it.
In late 1990, the Soviet Union objected to language in the resolution that specifically used the words "military action" to remove Saddam's military from Kuwait. The words were removed and the Soviet Union voted for the resolution. Because of that, the same arguements being used to discredit 1441 as a resolution supporting military action can also be used against the resolution back in 1990.
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Old 04-11-2004, 01:26 PM   #72
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IS IRAQ IN "MATERIAL BREACH" OF ITS OBLIGATIONS UNDER THE U.N. RESOLUTION?
A Geopolitical Question, Not Simply a Legal One
By MICHAEL C. DORF
----
Wednesday, Jan. 08, 2003

Later this month, senior United Nations weapons inspector Hans Blix will deliver his first full report on Iraq's compliance--or lack of compliance--with U.N. Security Council Resolution 1441.

The resolution was adopted on November 8 of last year. It states that "false statements or omissions in the declarations submitted by Iraq . . . and failure by Iraq at any time to comply with, and cooperate fully in the [resolution's] implementation" will be considered a "material breach of Iraq's obligations" under the resolution.

What is a "material breach"? Resolution 1441 does not define the term--and this ambiguity could prove important both for the questions of whether there will be war with Iraq, and if there is, whether that war will enjoy international support.

Based on how the term functions in other contexts, a material breach would appear to be, very roughly, a breach that is important, not trivial--and one that is important, in particular, to the purposes the breached instrument serves. But defining a material breach in the Iraq context may be as tricky as it is significant.

The Consequences of Material Breach, According to the Resolution

Before analyzing what "material breach" is, exactly, let us take a quick look at what happens, under the Resolution, if a material breach occurs.

The Bush Administration and the news media have sometimes suggested that a finding of a "material breach" will automatically trigger war with Iraq. But in fact, Resolution 1441 states that in the event of a material breach or other Iraqi interference or failures to comply with disarmament obligations, the Security Council will "consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security." That is, the resolution itself expressly considers material breach to be a trigger for further deliberation, not automatic war.

However, the resolution also "recalls that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." (There is evidence that prior U.N. resolutions were flouted.)

Resolution 1441 appears to speak out of both sides of its mouth because it is a compromise document. It was the result of protracted negotiations between, on the one hand, the United States and the United Kingdom, and on the other hand, other permanent members of the Security Council such as France and Russia.

Accordingly, Resolution 1441 may be seen as striking the following deal: The U.S. and U.K. agreed that before going to war against Iraq, they will return to the Security Council for a determination by that body of whether Iraq is in material breach. Meanwhile, the other Security Council members agreed that if a material breach is found, they will authorize military action to oust Saddam Hussein from power.

What is a Material Breach? Easy Cases and Hard Cases

With so much riding on a finding of "material breach," how should that term be understood? Even without a definition in Resolution 1441, common sense suggests the proper resolution of some obvious cases.

For example, if U.N. weapons inspectors find nuclear warheads stashed underneath Saddam Hussein's mattress, that fact--along with the Iraqi regime's prior failure to disclose the existence of these warheads--would constitute an obvious material breach.

Likewise, at the other extreme, if it turns out that some of the thousands of pages Iraq produced last month contain typographical errors (as they almost surely do), that would not constitute a "material breach." (Indeed, it probably would not constitute a breach at all.)

Of course, it is possible to imagine numerous scenarios in between these two extremes. Iraq may well have substantial stockpiles of weapons of mass destruction and an ongoing chemical and biological weapons research program, but U.N. inspectors, with only limited access to the most highly sensitive U.S. intelligence reports, may be unable to find direct evidence of the stockpiles and programs. If they only have circumstantial evidence, can they still conclude that a material breach has occurred? That may be the issue that, in reality, the inspectors, the Security Council states and, indeed, the world must confront.

Absent a smoking gun, when it reconvenes to consider the coming Blix report, the Security Council will have to decide whether Iraq's various omissions and misstatements (those that are more serious than typos, of course) are so grave as to constitute a material breach.

Understanding Material Breach--A Parallel in Contract Law

The term "material breach" was not invented in Security Council Resolution 1441. It is commonly used in contract law to denote a serious contract violation. An example illustrates the concept.

Suppose that a computer manufacturer signs a contract with another company for the latter to supply a thousand keyboards per month for three years. (This type of deal is called an "installment contract.") For five months, the keyboard maker complies with its obligations, but then in the sixth month it delivers the keyboards three days late. The delay could be costly to the computer manufacturer, and the keyboard maker would accordingly be obligated to compensate the computer manufacturer for its lost profits.

However, the delivery delay would not result in the contract's termination. The keyboard maker could continue to expect to supply keyboards at the contract price every month for the remaining two and a half years of the contract.

Put another way, the late shipment is a breach of contract but not a material breach. A material breach only occurs when one party so completely fails to hold up its end of the bargain that the other party is excused altogether from further performance under the contract.

Contracts sometimes spell out what counts as a material breach. For example, suppose that our computer manufacturer uses low-inventory "just-in-time" production methods, so that any delay is extremely costly. Its lawyers might then have written into the contract that "time is of the essence," or more precisely still, that a delay of more than one day shall constitute a material breach. In this way, a delay that might, in another context or another industry, have seemed relatively minor, is deemed by the parties, in this context, this industry, and this contract, to be material.

When a contract does not specify whether a particular term is essential to it (and hence whether a breach of that term is "material)", courts must adjudicate the question. They do so by referring to the general terms of the contract, standard industry practice, and the course of dealing between the parties. In the end, the determination whether a particular breach was material is often a judgment call.

Material Breach in Iraq? What the Security Council Will Have to Decide

The Bush Administration has already announced that it considers Iraq to be in material breach of Resolution 1441. However, it has not yet made public the evidence showing that Iraq's declarations to date are false.

Certainly there is considerable evidence of Saddam Hussein's past weapons programs--his horrific treatment of the Kurds being the most prominent example. But that is not the main concern of Resolution 1441, which focuses not on the past, but on the present.

Thus, if the Administration does not release further evidence, and if the Blix report is ambiguous, the Security Council will be left in the position of a judge trying to decide whether there has been a material breach of a contract. It will be required, that is, to make a judgment call.

At that point, it may be useful to recall one more feature of contract law: when one party to a contract is in material breach, the other party has the option of terminating the contract, but is not required to do so. If our computer manufacturer believes that future shipments from the keyboard supplier are still a good deal, then notwithstanding a time-is-of-the-essence clause, it can continue the contract in force.

If we are to continue the analogy, it becomes clear that the U.N. Security Council will really face two questions when it receives the Blix report: First, has there been a material breach? And second, if so, what should be done? Even in the event of a material breach, the Security Council could still decide to continue "dealing" with Iraq--sending in inspectors, trying to hold it to its obligations, and imposing sanctions other than all-out war.

Despite the implicit "deal" I described above between the U.S./U.K. sponsors of Resolution 1441 and the other Security Council members, Resolution 1441 does not actually commit the Security Council to authorize war in the event of a material breach. That decision remains to be made. Thus, like the computer manufacturer in my simple example, the Security Council may legitimately decide that continuing the relationship--here, continuing weapons inspections--is the more prudent course.

A Difficult Question, And Not Simply a Legal One

To be sure, one of the factors the Security Council must consider in deciding whether to resort to war in response to a material breach is its own credibility. At some point, continued warnings only serve to invite defiance.

The Bush Administration argues that we have already passed that point with Iraq, and perhaps that is so. But if it is, that must be because maintaining the credibility of the U.N.--and, let's face it, the U.S.--outweighs the factors that counsel against war.

At the end of the day, the question whether a material breach of Iraq's obligations under Resolution 1441 should trigger a war requires the Security Council (and the U.S., which might move forward unilaterally) to balance the benefits of war against its considerable, and largely unpredictable costs.

The benefits include not just the credibility of U.N. and U.S. threats but also the elimination of a dangerous dictator. The costs include the loss of lives of soldiers and perhaps civilians, in Iraq and possibly elsewhere as well.

Weighing these costs and benefits is profoundly difficult. And the issue is not, despite the legalistic language of "material breach," simply a question of legal interpretation. It is a moral, practical, and political question as well.
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Old 04-11-2004, 01:29 PM   #73
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Actually your new argument is quite not the same.

There was no Cease Fire Agreement in 1990. AS it has been since the beginning of the UN, only the Security Council can declare a Cease Fire ended. It has been such since the UN began. We could not wait because there was immediate danger as the administration has said repeatedly in the "cherry picked" quotes.

Kind of hard to violate the international law on cease fires in 1990 when there was none.
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Old 04-11-2004, 01:32 PM   #74
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Why The U.N. General Assembly Has Authority To Speak on the War on Iraq In the Event of Security Council Stalemate
By MARJORIE COHN
----
Thursday, Mar. 27, 2003

As was widely reported, the current war on Iraq followed on the heels of contentious deliberations among the members of the U.N. Security Council. The U.S. - along with the U.K. and Spain - tried to convince the Security Council to pass a resolution that would have authorized the use of armed force. But when France threatened to veto any such resolution, and their ability to get a majority seemed dicey at best, the U.S. and U.K. decided to start the war even without Security Council approval.

President Bush's claims that prior Security Council resolutions constituted sufficient authority for war are incorrect - as a prior column for this site by Michael Dorf explains. Accordingly, the war is a direct assault not only on Iraq, but also on the Security Council's authority.

Nevertheless, the Security Council has not acted further, since the war began. That's not surprising: The U.S. and U.K. would doubtless veto any resolution denouncing the war, or stipulating that the U.N. or its designee would be the entity to control post-war Iraq. (Interestingly, the deadlock goes both ways: France has said it will veto any proposed resolution that would give the United States and Britain--not the U.N. - the right to govern postwar Iraq.)

Does that mean the U.N.'s hands are tied - due to the U.S.'s and U.K.'s veto powers? Perhaps surprisingly, the answer is no.

The United Nations Charter confers on the Security Council primary responsibility to keep the peace. Yet when the Security Council is unable to act, there is a procedure for the General Assembly to fulfill this role in its stead. It is contained in the "Uniting for Peace Resolution," Resolution 377.

The Uniting for Peace Resolution

Under the Uniting for Peace Resolution, within 24 hours of a stalemate in the Security Council, the General Assembly can meet to consider the matter. Either seven members of the Security Council or a majority of the members of the General Assembly can invoke the Uniting for Peace Resolution.

Once the Resolution is invoked, the General Assembly can recommend collective measures to "maintain or restore international peace and security." Thus, even in the face of insoluble disagreement in the Security Council, the General Assembly could act to urge the U.S. and its allies to stop the war - or, for example, to mandate that after the war, the U.N. should be the one to keep the peace and determine what the new Iraq should look like.

The Origins and History of the Uniting for Peace Resolution

It was, ironically, the United States itself that spearheaded the passage of the Uniting for Peace resolution, in 1950. Even more ironically, the resolution's passage was prompted by the same situation that prompted the war on Iraq: Security Council deadlock due to the exercise or threatened exercise of veto power.

After North Korea invaded South Korea, the United States was unable to obtain Security Council approval for a U.S.-led military operation to invade North Korea, because of the Soviet veto. Thus, Secretary of State Dean Acheson secured the passage of the Uniting for Peace resolution.

The Uniting for Peace Resolution has been employed ten times since its enactment. In 1956, it was used by the United States when Britain and France attacked the Suez Canal after Egypt nationalized the canal. In the face of Security Council vetoes by Britain and France, the U.S. convinced the General Assembly to call for a cease-fire. Britain and France withdrew from the canal a week later.

Then, that same year, the U.S. used the Uniting for Peace Resolution to pressure the Soviet Union to halt its invasion of Hungary, after the Soviet Union had vetoed an anti-intervention resolution in the Security Council.

Now, countries opposed to the war in Iraq could likewise use the Uniting for Peace Resolution to de-legitimize the use of armed force, and call on Bush to halt it immediately. Many nations have requested the Security Council hold an emergency meeting to urge the U.S. and its allies to stop the war. Failing that, they are advocating the General Assembly convene and take action.

Though they are certain to lose in the Security Council, due to the threat of U.S. and U.K. vetoes, nations in favor of peace may well prevail in garnering a majority in the General Assembly.

The U.S.'s Attempt to Preempt The Use of the Uniting for Peace Resolution

Meanwhile, fearful of a resolution condemning its war in Iraq, the Bush administration has mounted a preemptive campaign to prevent the General Assembly from convening. The campaign is somewhat hypocritical, as the U.S. itself has recognized, in the past, that the Uniting for Peace Resolution is a useful outlet when veto powers deadlock in the Security Council - which is just what happened here.

Nevertheless, General Assembly President Jan Kavan has commented, "The United States is putting pressure on many countries to resist [a General Assembly meeting on the issue]." Indeed, the U.S. government has sent communications to several nations, stating, "Given the current highly charged atmosphere, the United States would regard a General Assembly session on Iraq as unhelpful and as directed against the United States."

The U.S.'s campaign is unlikely to succeed in the end. Just as many Security Council members refused to put their imprimatur on a resolution that would have authorized the war before it began, myriad countries will likely defy the United States and call for a cessation of the war.

The Need to Stay With the United Nations Process, Even Now

The General Assembly, the democratic body of the U.N., deserves the opportunity to speak the truth: This is an illegal war. The General Assembly also deserves the opportunity to do what it can at this point - ensure that the U.N. administers a peaceful postwar Iraq in the interests of its citizens.

The Bush administration has insisted that the United Nations validate its war on Iraq or risk becoming irrelevant. But the U.N., in truth, remains as relevant as it has always been. It is still the key to international peace and security. It must never abandon its mission, set forth in 1945, to "save succeeding generations from the scourge of war."
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Old 04-11-2004, 01:46 PM   #75
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DID THE SECURITY COUNCIL'S RECENT IRAQ RESOLUTION VIOLATE THE U.N. CHARTER BY AUTHORIZING UNILATERAL FORCE?
And If So, What Are the Consequences?
By GEORGE P. FLETCHER
----
Wednesday, Nov. 13, 2002

On November 8, the U.N. Security Council voted 15-0 vote in favor of Resolution 1441, which concerns Iraq. Through its passage of the Resolution, the Security Council indirectly supported the U.S.'s threat to go to war against Saddam Hussein.

Some parts of the Resolution are unobjectionable. But others may violate the U.N. charter, and thus violate international law. If they do, what are the consequences?

Security Council Resolutions May Be Binding, But Nevertheless Illegal

It is important, to begin, to separate the question whether the Resolution is binding from the question whether it violates international law. The resolutions of the Security Council are implicitly binding on the member states of the United Nations - and thus so is Resolution 1441.

But the question remains: Is Resolution 1441 legitimate, and consistent with international law?

To see why the two questions are separate, consider a hypothetical court injunction against conducting a parade. The injunction, until and unless it is overrruled or stayed, is binding on the parade commissioner; he violates it at his peril. Yet it may also violate the First Amendment - as a later, higher court may subsequently pronounce.

Similarly, under Article 40 of the Charter, the Security Council can call on member states to comply with provisional measures "without prejudice to the rights, claims, or position of the parties concerned." Put another way, member states can be forced to comply with even those U.N. decisions they believe to be illegal under international law - but if they do comply, they do not give up their right to protest the decision.

Which Parts of Resolution 1441 Are Legal, and Which May Be Illegal

Part of Resolution 1441 is unobjectionable. It outlines a timetable for Iraq to comply with previous resolutions requiring inspections and disclosure of all programs to develop weapons of mass destruction, and of all long-range instruments of delivery (such as missiles). The clock starts running November 8. Within 7 days, Iraq must declare whether it will comply the resolution. Within 30 days, it must make full disclosure of its weapons supply. Within 45 days, rigorous inspections will start.

That's all fine. But a legal problem will arise if, for instance, Saddam Hussein makes what appears to be only partial disclosure of his WMD capability. The Resolution says that "false statements or omissions" will constitute a material breach of the Resolution (augmenting the finding that Iraq is in material breach of prior resolutions), and have "serious consequences." And everyone understands that the "serious consequences" would mean the use of military force to restore "international peace and security."

But who decides whether Iraq is in breach? And who decides if the use of military force under these circumstances is legal? There's the rub - and there may be the illegality.

The Import of the Special Chinese/French/Russian Proviso

Three of the fifteen states voting - China, France, and Russia - added a special proviso to the Resolution, stating that they do not understand it to authorize "automaticity in the use of force." Put another way, they do not believe the Resolution authorizes the U.S. and the U.K. to make an independent judgment that Saddam Hussein is in violation, and then use the Resolution as a warrant for going to war.

What force does this separate proviso have? The three states who wrote it expressly rely on declarations made by representatives of the U.S. and U.K. But these declarations are, if anything, incorporated into the Proviso - not the Resolution - and the Proviso was only joined by 3 of 15 Security Council members. Ten other states declined to join. As a result, one might conclude the Proviso has only the force of a concurring judicial opinion - expressing the reasoning of the three signatories, but not of anyone else, necessarily.

Indeed, one might read the other 10 states' decision not to join the Proviso as meaning that they believe the Resolution does in fact implicitly authorize "automaticity in the use of force." That is, we might think that, in the view of the 10, at least, the United States and its single ally, the United Kingdom, do indeed have the power, under the Resolution, to make a unilateral judgment that a material breach has occurred and impose "serious consequences" - namely, military force.

The Possible Illegality of the Resolution If Construed to Authorize the Use of Force

There are several problems with this. First, China, France, and Russia, as permanent members of the Security Council, have veto power over any use of force. They seem to be using this veto power through the Proviso - which makes clear that they do not read the Resolution to authorize the use of force, and are voting for it on that basis. Yet the Resolution, as read by the other 10 Security Council members, seems to take away this veto power by delegating to the two remaining permanent members - the U.S. and the U.K. - the right to decide whether to use force against Iraq.

One way to resolve this problem might be to adopt the narrower reading of the Resolution, which the Proviso offers. Like a concurring judicial opinion that is narrower than the opinion it augments, and necessary to establish a majority, the Proviso arguably operates to limit the scope of the Resolution. If three members do not believe they authorized force, and each of the three has veto power over such authorization, it is hard to contend that force has actually been authorized. In short, the 10 are wrong to view the Resolution as authorizing force.

Second, United Nations Charter Article 51 restricts the use of the force to cases of self-defense and only in response to an "armed attack." This is one of the basic principles of the Charter. But as I discussed in a previous column, it is difficult to contend that a U.S./U.K. invasion of Iraq would fit the bill.

Is a U.N. Resolution a Legislative Act, A Judicial Act, Or a Mix of the Two?

That leads to an interesting final question: Is a U.N. Security Council Resolution, or Proviso, like a judicial opinion in the first place? The Council itself has the qualities of both a legislative and a judicial body.

Like a judicial body, the Security Council is governed by a document: the Charter. But in reality, the Charter's principles are mostly too vague to provide much legal restraint, so that the Council operates quite freely, like a legislature.

Like a judicial body, it must make findings of fact, such as the finding that Iraq is in "material breach" of prior resolutions. Yet it has no trial-like mechanism for making these findings - all it can do, like a legislature, is hear submissions from its members.

The United Nations is torn, therefore, between some tight substantive principles, such as those on the use of force, and its loose procedural forms. Its principles, in theory at least, prohibit preventive or "preemptive" war by one nation against another. But its procedures permit the Security Council to enact policies like those expressed in Resolution 1441.

The result is a body of law that - ironically and disturbingly - is subject to violation by its own organs of interpretation and application. By comparison, it is as if U.S. court orders routinely themselves violated the Constitution.

It is no great surprise, then, a particular Resolution, such as this month's on Iraq, might violate the U.N. Charter, and yet have been enacted by the Security Council all the same. It may make one wish that like the U.S. government, the U.N. had, since its inception, always included a judicial branch.
It was clear that member states of the UN already had authorization to use military force prior to passing 1441. 1441 restated the case and gave Saddam "one last chance which he failed". Any permanent member of the Security Council could have vetoed resolution 1441 if they now did not want to have military force be used to enforce the resolution if Saddam did not cooperate.

The issue of disarmament of Saddam is directly connected to his unprovoked brutal invasion and occupation of Kuwait. That is why the resolutions are consistent with the UN Charter.
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