Attack or Self-Defense?

[hiphop]

I?ve done some research on attack and self-defense, and it seems that US policy-makers are trying to define the term self-defense newly for the upcoming attack on Iraq.

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senrs.com/first_punch.htm

"Can the United States attack Iraq out of self-defense even before Iraq fires a single shot? The answer could rewrite the rule book for the rest of the world.

Anticipatory self-defense sounds like a political oxymoron and reads like ancient riddle: Can a person hit back before the first punch is thrown? In military terms, if a first strike is meant to defend, is it really a first strike?

These are just the questions the White House has to answer ? and not just for itself, but for the rest of the world.

While the United States looks for evidence that could link the al Qaeda terrorist network to Saddam Hussein, President Bush is demanding a "regime change" in Iraq and mulling the means to accomplish it.

The option championed by U.S. allies ? including, as of last week, Britain ? would be to reinstate U.N. weapons inspectors and oust Saddam through stronger sanctions.

But several scenarios for an invasion by U.S. forces have been reported in the last two months and on Monday the White House's lawyers made clear that Bush would not need Congress' approval to send in troops. Also on Monday, Vice President Dick Cheney told a gathering hosted in Nashville, Tenn., by the Veterans of Foreign Wars that Iraq's action and hostility created "an imperative for pre-emptive attack."

Legal scholars say the United States could attack Iraq out of self-defense, even before Iraq fires a single shot at U.S. troops, citing a pre-Civil War military definition that's found a second life in the war on terrorism.

"What we must not do is in the face of a mortal threat is to give in to wishful thinking or willful blindness," Cheney said. "We will not simply look away, hope for the best and leave the matter for some future administration to resolve."

Instant and Overwhelming

Famed American politician Daniel Webster defined "anticipatory self-defense" more than 150 years ago when he wrote that self-defense before an attack was justified if the danger was "instant, overwhelming, leaving no choice of means and no moment of deliberation."

Webster's words followed a 1837 naval skirmish called the Caroline incident, in which a U.S. ship called the Caroline was attacked by the British, just above Niagara Falls. The British said the ship's passengers supported a rebellion in Canada. Webster responded with a letter that laid out his definition. Webster's words were later reaffirmed after World War II during the Nuremberg Trials.

Though untested, scholars say there is room for Caroline decisions in the U.N. Charter, the treaty that still lays the largest groundwork for stability between states. The 1951 charter holds that one military can only fight another in self-defense against "an armed attack."

However, scholars point out that Webster's definition leaves several loopholes. The United States has been contemplating an attack on Iraq since Sept. 11, and in some ways for more than a decade, so there's been plenty of "deliberation."

Instead, the White House has used the term "pre-emptive" rather than "anticipatory." The difference is slight, but some say significant: Scholars argue it could blur the point where a threat of attack is considered "overwhelming."

The Point of No Return

At a West Point graduation ceremony in June, Bush talked directly about how the United States would approach enemies in the war on terror, which now could include Iraq: "The war on terror will not be won on the defensive. We must take the battle to the enemy, disrupt his plans, and confront the worst threats before they emerge."

Bush's speech signaled a shift in the doctrine of U.S. military intervention. Troops were sent into Afghanistan after Sept. 11 to prevent another attack on the United States. In 1991, the U.S. military fought Iraq on behalf of Kuwait with the support of Congress and the U.N. Security Council. An invasion of Iraq ? conceivably with only the White House's approval ? could violate the international laws that the United States has championed since World War II.

Critics warn that the evidence the United States needs to attack ? the point of no return ? has not been clearly defined, and has no precedent. Would the United States wait to invade until there was proof Iraq had built a chemical, biological or nuclear weapon? Or would Bush send in troops as soon as Iraq had all the components?

"The standards for invasion now are pretty cut-and-dry: If you're attacked, you can respond," said Sean Murphy, a professor of international law at George Washington University, "But if you make anticipatory self-defense the standard, you open an enormous Pandora's Box."

Rewriting the Rules

Because Webster's ruling has widely defined anticipatory self-defense, if the United States reinterprets its own standard, it could set a new precedent for the rest of the world.

"International law is largely based on custom, and those customs can change with time and circumstance," said Frederick Kirgis, a professor at Washington and Lee University. "It's all whether you can get other nations to acquiesce to your assertions."

The major precedent for pre-emptive military action is Israel's Six-Day War in 1967, fought against Egypt, Syria, Jordan and Iraq. Israel invaded its neighbors, citing the need to pre-empt an enemy invasion, but never provided full evidence or rationale for its actions.

The rest of the world ? led by the United Nations ? largely condemned Israel for the attacks. Israel faced criticism again in 1981 ? including from the United States ? when it destroyed an Iraqi nuclear facility, claiming it needed to defend itself from the plant's capabilities.

If the United States was to invade Iraq without a first strike, legal experts said the global community would expect a formal reason.

The White House is expected to lay out a larger definition of pre-emptive self-defense ? as well as several other defense initiatives ? in its annual National Security Strategy, which will be published and presented to Congress in September, according to National Security Council spokesman Michael Anton."

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"What Prevents U.S. Attack on Iraq
Dave Eberhart, NewsMax.com
Wednesday, Jan. 9, 2002
When Deputy Defense Secretary Paul Wolfowitz indicated to the New York Times this week that the U.S.-led War on Terrorism would bypass Iraq and concentrate on outlaw sanctuaries in Somalia, Yemen, Indonesia and the Philippines, he did not surprise students of international law.
The dilemma of what to do about Iraq has always sounded in the vagaries of what is recognized by the United Nations? Charter and international law as acceptable means of self-defense. At the heart of the conundrum are the nettlesome buzzwords "pre-emptory attack,? or "anticipatory self-defense.?

And as soon as these watchwords appear in the mix, the "Caroline standard? is never far behind.

In 1837 British subjects destroyed an American vessel, the Caroline, in a U.S. port, justifying the act because the ship had been used in past American raids into Canadian territory.

The British claimed self-defense, but ultimately the dispute was decided in favor of the Americans, thanks to the statesmanship of no less a figure than Daniel Webster.

Secretary of State Webster offered the British a definition of "self-defense? that they could not reasonably refuse:

"There must be a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. [The means of self-defense may involve] nothing unreasonable or excessive; since the act, justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.?

This has been a recognized rule in international law ever since ? a fact not lost on Secretary of State Colin Powell and the Bush administration.

Intrinsic in the rule: The more time that passes between the attack and the military response, the less it appears to be self-defense.

The most often-cited example of "anticipatory self-defense? and the application of the Caroline standard was Israel?s strike against an Iraqi nuclear reactor in 1981. Israel?s justification: Eventually, the materials and science developed at the reactor could have led to a nuclear-armed Iraq.

The U.N. Security Council condemned the attack because the threat to Israel, albeit foreseeable, was not "imminent.?

Despite the U.N. position, the matter was still gray enough to get mixed reviews from scholars of international law. A minority of experts maintained at the time and in hindsight that Israel indeed met the Caroline standard, because destroying the reactor may have been Israel?s last clear chance to avoid a nuclear attack.

Also complicating the Iraq equation is the recognition by Powell and the administration that the U.N. resolution announced in the wake of Sept. 11 did not give a green light to any means the U.S. chooses to take in ferreting out and destroying terrorists."

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august1.com/lectures/pil/lect-101/notes101.htm

3. Self-Defense

a. The UN Charter (Art. 51) allows states to use force for their own self-defense.

b. Definition of self-defense.

1) Not defined in the Charter.
2) The now generally accepted definition was first set out in the Caroline Case. It requires that a state claiming self-defense must show three things:

a) There must be "a necessity of self-defense": the action taken must be in response to some provocation and thusly justified.

1] UN Charter Art. 51 suggests that the right to self- defense may only be exercised after "an armed attack occurs."
2] The right to use self-defense in anticipation of another state?s attack has been claimed by some states.

Case 10-5. THE ENTEBBE INCIDENT

b) The provocation must have been "instant, overwhelming, leaving no choice of means, and no moment for deliberation."

1] A state claiming a right to self-defense must respond "promptly" to an armed attack.

Case 10-6. THE FALKLAND ISLANDS WAR

c) The action taken must be "proportionate to the seriousness of the circumstances: it must be "limited by that necessity, and kept clearly within it."

1] The principal of proportionality was succinctly defined in a 1927 report presented to the League of Nations: "Legitimate defense implies the adoption of measures proportionate to the seriousness of the attack and justified by the seriousness of the danger."


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www.atimes.com/atimes/Middle_East/DJ09Ak02.html

The case against preemption
By Peter Mark

The Bush administration threatens a preemptive attack on Iraq. It is important to ask what affect such an attack might have on the relationship of the United States to the rest of the international community. Almost without exception, America's closest allies have voiced opposition to a military attack against Iraq.

What might their response be if the US actually carries out its threats? In the light of widespread international opposition to the use of military force against Saddam Hussein's government, it is important for American citizens to ask: can such a preemptive use of military force against another nation be justified by international law?

Here, succinctly, are some elements of international law that relate to the situation between the United States and Iraq.

An important principle of international law is the avoidance of armed force. Article 2-4 of the United Nations Charter prohibits all recourse to military force, including war. The US is a signatory member of the United Nations and must therefore respect the charter.

Article 2 of the UN Charter: The Organization and its members, in pursuit of the purposes stated in Article 1, shall act in accordance with the following principles ... all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

Would the use of armed force against Iraq be compatible with the aims of the United Nation? Article 51 of the charter authorizes the use of armed force for legitimate self-defense, but this right is applicable only if a member of the United Nations is the object of an armed aggression.

Article 51 of the United Nation Charter:
Nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Armed intervention is justified under the following conditions:
1. The existence of armed aggression (the definition adopted by the UN General Assembly, Resolution 3314 of 1974): Aggression is defined as the use of armed force by one state, against the sovereignty, territorial integrity or political independence of another state.
2. The absence of necessary measures by the UN Security Council to maintain peace. Once the Security Council has taken these measures, the right to armed self-defense ceases. A state that takes measures of legitimate self-defense is obligated to inform the Security Council.
3. Legitimate defense only justifies "those measures proportional to the armed aggression that has occurred, and that are necessary for ending that aggression." (International Court of Justice, June 27, 1986 in re Nicaragua).

Self-defense only warrants "measures which are proportional to the armed attack and necessary to respond to it". It implies that the victim of aggression must not occupy the aggressor state's territory, unless strictly necessary.

The use of armed force may on occasion be justified as part of humanitarian assistance, but only in order to prevent human suffering and "to protect life and health and to ensure the respect of persons" (International Court of Justice, June 27, 1986 in re Nicaragua). Such intervention must not be discriminatory.

In each of these cases, it is clear that the United States does not have the right to intervene without the approval of the Security Council. Nevertheless, on several occasions the US has used the argument of Article 51 of the UN charter to justify attacks that do not fall within the domain of legitimate defense:
- In 1986 against Libya (to justify an attack that caused the death of 37 people, mostly civilians) in reprisal for the bombing of a Berlin disco that caused the death of an American soldier.
- In 1993 against Iraq (purportedly to prevent an assassination attempt against the US president orchestrated by Iraq).

The rationale of anticipatory self-defense has been invoked by Israel to justify attacks against Palestinian camps in Lebanon in 1975. Subsequently, UN Security Council resolutions have condemned this attack while contesting the idea of self-defense where there has been no armed intervention by the "aggressor".

The thesis of anticipatory self-defense is thus not an acceptable principle of international law today, because it is prone to arbitrary interpretation. A preemptive attack on another sovereign nation is counter to established and universally accepted standards of international law. This may help to explain the vehemence of opposition to a preemptive attack, among even our staunchest European allies.

 

[bonosloveslave]

Hi hiphop

I don't think anticipatory self-defense is an oxymoron, I think the idea parallels the laws here that allow a cop to shoot someone who is pointing a gun at them, even if they haven't shot yet

 

[Dreadsox]

Hip Hop.....

I am not the most knowledgeable person in the area of the UN Charter. I appreciate you posting this. It is one of the better things I have seen posted in a long long time. Thanks.

 

[hiphop]

If you?ve read all four articles in three minute plus posted your answer, you?re a very fast reader and thinker, bonosloveslave

Your comparison is ineffective, because the policeman has been chosen to secure there is less criminality. If you think the US is the worlds policeman, you may be right - but who chose the US to be the worlds policeman?

Plus, who is pointing a gun at the US? Don?t come to tell me its Saddam

 

[hiphop]

Hip Hop.....

I am not the most knowledgeable person in the area of the UN Charter. I appreciate you posting this. It is one of the better things I have seen posted in a long long time. Thanks.

Thank you for the compliment, Dreadsox.

 

[bonosloveslave]

If you?ve read all four articles in three minute plus posted your answer, you?re a very fast reader and thinker, bonosloveslave

Your comparison is ineffective, because the policeman has been chosen to secure there is less criminality. If you think the US is the worlds policeman, you may be right - but who chose the US to be the worlds policeman?

Plus, who is pointing a gun at the US? Don?t come to tell me its Saddam

Ok, you got me on the first one - I just posted my first impression after skimming a bit before I lost the thought

Yeah, I guess I'm not sure who voted us the world's policeman, seems like maybe we've just given ourselves the job......

 

[STING2]

HIPHOP,

Not one mention above of UN Security Council Resolution 678 or any of the other 16 Security Council resolutions passed under CHAPTER VII rules of the United Nations. No mention of the 1991 Gulf War Ceacefire Agreement and the conditions and rules laid out in it.

United Nations Security Council Resolutions 678:

"Authorizes member states to use all necessary means to uphold and implement Security council resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area"

Iraq from a, legal standpoint, is at war with the international community right now. Member States are obligated to enforce resolutions passed under Chapter VII rules with force if necessary. Any violation of the conditions of the 1991 Ceacefire Agreement is legally an act of war by Iraq. From a legal standpoint, even Saddam agrees with that because he signed the agreement. If other countries have a problem with this, they should not of approved it in 1991.

I don't think there has ever been a war that has had more laws and resolutions on the books justifying it than a potential war with Iraq.

 

[Dreadsox]

Sting:

Let's stop for a moment and look at the history of how cease fire agreements are handled by the UN.

Past precident is that once a cease fire has been established CHARTER Rules take priority specifically Article I and II.

*In 1956 Secretary-General Dag Hammarskj?ld ruled that "only the Security Council could decide that a case of non-compliance was a justification for self-defense [under] Article 51."

* In 1958, UN mediator, Count Bernadotte, working on a crisis between Israel and Arab leaders stated: "(1) No party may unilaterally put an end to the truce. (2) No party may take the law into its own hands and decree that it is relieved of its obligations under the resolution of the Security Council because in its opinion the other party has violated the truce."


Two examples of situations where clearly, it is up to the Security Council to decide if a CEASE FIRE agreement has been violated.

Let's look at 678 (2) that you quoted:

2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;


OK so it refers to paragraph 1

1. Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwil, to do so;


Which in turn refers to reolution 660:

1. Condemns the Iraqi invasion of Kuwait;

2. Demands that Iraq withdraw immediately and unconditionally all s its forces to the positions in which they were located on 1 August 1990;

3. Calls upon Iraq and Kuwait to begin immediately intensive negotiations for the resolution of their differences and supports all efforts in this regard, and especially those of the League of Arab States;

4. Decides to meet again as necessary to consider further steps with to ensure compliance with the present resolution.

Iraq met all of these requirements. Article 678 was written to remove Iraq out of Kuwait. It's authority expired with the Cease Fire Agreement.

 

[STING2]

Dreadsox,

That is incorrect, you forgot this part of 678:

"and all SUBSEQUENT relevant resolutions and to restore international peace and security in the area."

That refers to all the resolutions which have now been passed against Iraq(Under Chapter VII rules) since November of 1990 that Iraq is currently in violation of.

As to the Ceacefire Resolution, the Security Council already decided in 1991 the conditions and what would constitute a violation of those conditions. Iraq is currently in violation of these conditions.

 

[Dreadsox]

Nope...Did not forget it. Once a cease fire is established, the Security Council decides if it is violated. This has been the past practice of the United Nations since its formation. You cannot ignore this fact.

But, the cease fire itself gives the Security Council the power to decide what steps are necessary to take once the Cease Fire was agreed to:

33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990);

34. Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.

Once the formal Cease-Fire was established, Kuwaitt and the Allies were no longer operating under resolution 678. This is clear in section 34, where the COuncil has the authority to decide.

 

[Dreadsox]

ANother example of how the Security Council alone has the power to determine if a "Cease-Fire" has been violated is Korea.

Article 83 has very similar languae to Article 678 in regaurds to North Korea. It authorized the use of force to defend and "to restore international peace and security in the area."

It died when the "Cease-Fire Agreement" was signed. It's authority had expired.

South Korea twice claimed and argued at the UN that North Korea and China had violated the cease fire thereby reinstating ARTICLE 83. Not a single member of the defending force agreed in 1955, 1956, and in 1957 the 16 Nations reaffirmed the fact that only the Security Council could rule that a violation of the Cease-Fire had taken place.

This situation is very similar to the situation we are in today.

 

[STING2]

Dreadsox,

"and all SUBSEQUENT relevant resolutions and to restore international peace and security in the area."

This part of 678 refered to any future resolutions passed against Iraq under Chapter VII rules. SUBSEQUENT means after. This is the literal interpretation of 678. The US government has justified all military action against Iraq for the past 12 years under the grounds of 678.

The ceacefire does not cancel out 678s mandate that Iraq must comply with ALL SUBSEQUENT relevant resolutions including those passed since 1991. Member states are justified to use all necessary means to bring compliance with 678 as well as restoring peace and Security in the area.

Every Presidential Adminstration since 1991 as reaffirmed that Iraq has not fully complied with Resolution 678.

 

[Dreadsox]

The ceacefire does not cancel out 678s mandate that Iraq must comply with ALL SUBSEQUENT relevant resolutions including those passed since 1991. Member states are justified to use all necessary means to bring compliance with 678 as well as restoring peace and Security in the area.

Absolutely 100% it does. After a cease-fire agreement, the members of the UN operate under the Charter. As I mentioned in my other posts, you cannot escape the past history. Past history in which the United States has supported the fact that a UN Cease Fire can only be deemed violated by the United Nations. That is the RULE of law that has been followed.

The CEASE-FIRE itself gives the power to the Security Council as I posted above. It deems the mandate of 678 fulfilled in section 33, and in section 34 it gives the power to the Security Council.


It is rediculous to argue that 678 gives authority to resume the conflict. If article 678 did not give the authority to remove Saddam from power in 1990, it most certainly does not now. The whole premise for stopping the Gulf War in 1990 was that the coalition governements did not believe that the resolutions gave them this power. What were the resolutions at the time?

660
661
665
670
678

None of these resolutions gave any authority for the occupation of Iraq. That is why, 678 was intended specifically for the removal of Iraq from Kuwaitt.

Now if you wish to argue subsequent resolutions fine. I can accept that. Can you show me anywhere in a subsequent resolution where the authority is given for the invasion of Iraq? I am sure, that you can agree that if 678 did not give the power to remove Saddam in 1990, it most certainly does not give the authority today.

Peace

 

[STING2]

This is the key difference with article 83.

"all SUBSEQUENT relevant resolutions" Article 83 does not have references to the use of force in regards to violations of future resolutions passed under Chapter VII rules. Article 687 does.

 

[Dreadsox]

I agree with that. However, it does not nullify the fact that the United States along with 16 other nations twice in 1955 and 1956 reaffirmed the fact that only the Security Council could determine if a cease-fire had been violated.

Subsequent resolutions are irrelevant in this case.

 

[STING2]

If the only way to bring peace and security to the region in 1990/1991 and to complete the task of the removal of Saddam Hussein forces from Kuwait was in fact his removal from office, it would definitely have been justified under 678. Remember: "to use all means necessary" to push Iraq out of Kuwait. If Saddam had continued to fight in 1991, the US forces would have continued on in to Baghdad.

Resolutions, passed after 1991, in regards to the disarmament of Iraq are tied to Resolution 678. Members states are to use all necessary means bring Iraq into Compliance with all subsequent resolutions passed under chapter VII rules.

Any move into Iraq will be to disarm it in compliance, with UN security council resolutions. If removal from power of Saddam Hussein is the only way to achieve disarmament, then it is justified by passed UN security council resolutions. Just as if Saddam had continued to actively resist in March 1991, the coalition would have been justified to remove him from power.

678 obligates Saddam to comply with all Subsequent UN Security Council resolutions passed under chapter VII rules and Authorizes member states to use all means necessary to enforce those resolutions.

 

[STING2]

Subsequant resolutions are not irrelevant in regards to the current possiblity of the use of force against Iraq.

678 states that member states are authorized to use all necessary means to bring Iraq into compliance with all Subsequant resolutions.

The UN Security Council already laid down conditions for breaking the ceacefire which Iraq has broken several times.

 

[STING2]

In section 33 and 34 it does not actually say, "678 is fullfilled" or everything contained in 678 in regards to Subsequent Resolutions (meaning resolutions passed after 678) are no longer valid.

The Authorization for member states to use all necessary means against Iraq, applies to all UN resolutions passed under Chapter VII rules, after 678.

 

[Dreadsox]

Keep repeating the same thing. It does not change the facts:

#1 Past history including US Positions are that Un Cease Fire agreements can only be determined in breach by the Security Council.
#2 The Cease-Fire Agreement declared 678 accomplished and gave the Security Council the power to determine any future actions.
#3 That the President of the United States and his Administration stopped actions in 1990 because 678 and all of the other resolutions did not give them the authority to REMOVE SADDAM or Take over the Country of Iraq.
#4 No resolution since 1990 gives any authority to do so, as 678 was designed, specifically for the liberation of Kuwait as mentioned in paragraph #1.
#5 THe Security Council has yet to rule that the Cease Fire has been violated.

Now, further evidence that 678 is not the governing authority.

1993...France Britain and Germany asked for permission from the Security Council to begin operations against Iraq. Iraq was in violation of resolution 687 (CEASE FIRE AGREEMENT) not 678. The UN approved action, yet again, did not approve the removal of Saddam, nor an occupation of Iraq.

1996 - Present Great Britain and the US have tried a number of times to have the council declare Iraq in violation without any success.

1998 The United States speciafically in resolution 1154 requested the use of force if Iraq violated an agreement made with Kofi Annan. It was again reaffirmed at this time that the Security Council alone had the authority to determine what action was necessary. The use of force was resoundingly defeated.

Why would the United States request this from the security council? Two solid concrete examples above clearly demonstrate that our country BELIEVED that we did not have the authority to act without approval of the council. ARTICLE 678 clearly is not the governing resolution. ARTICLE 687 (CEASE FIRE) is and that is clearly evident in the actions of the US over the past 10 years.

 

[Dreadsox]

In section 33 and 34 it does not actually say, "678 is fullfilled" or everything contained in 678 in regards to Subsequent Resolutions (meaning resolutions passed after 678) are no longer valid.

The Authorization for member states to use all necessary means against Iraq, applies to all UN resolutions passed under Chapter VII rules, after 678.

I guess that is your interpretation. We can go back and forth as to what 33 means if you want.


It does not change the fact that it did not give the AUTHORITY to REMOVe Saddam in 1990 nor did it give permission to occupy Iraq. You and I both know that was the official position of the coalition.

If it did not give the authority in 1990 there must be a SUBSEQUENT resolution giving the authority for the up and coming invasion since it clearly did not give the authority in 1990 based on the coalitions actions.

As to paragraph 34...that is not debatable....it gives the Security Council the future authority for actions.

AS to the behavior of the United States over the past 10 years in 1993 they sought and received permission to act. Since 1993, there have been no approvals. Why have we sought approval if we had the authority? Makes no sense.

Heading to bed.


I am interested to see what others think since we clearly have reached the end of this argument.

 

[STING2]

Again,

678 gives the Authorization to use force in all Subsequent resolutions in regards to Iraq.

Paragraph 2

Authorizes Member States Co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660(1990) and ALL SUBSEQUENT RELEVANT RESOLUTIONS and to restore international peace and security in the area.

That refers to resolutions passed in the future, whether its in 1995, 1999, or 2003! It authorizes member states to USE ALL MEANS necessary to bring compliance with these future resolutions.

It has already been stated many times that the USA returns to the Security Council, despite its clear Authorization under 678 to use military force to bring Iraq into compliance, for political reasons and the desire to gain political support for military action, BUT not because it felt it was legally required to do so!

Bush set out a new resolution in October of last year, not because he felt he needed it legally to invade Iraq, but because he wanted to gain the support of allies to do that. From a strictly legal stand point, 678 has been all the legal authorization we have needed. We seek approval for political reasons, not because we feel it is legally required.

Take a careful look at page 369 and 370 of the THREATENING STORM by Keneth Pollack. Again, he lays down a similar case that I have.

 

[hiphop]

Great, interesting discussion, guys

STING2: No way out. Iraq is NOT at war with the international community at the moment. You should simply admit that the US wants to attack Iraq. Its not self defense.

Its not the most difficult thing in the world to admit that. You really sound more like a politician than like a proud member of the US Army.

 

[Dreadsox]

Again,

678 gives the Authorization to use force in all Subsequent resolutions in regards to Iraq.

Paragraph 2

Authorizes Member States Co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660(1990) and ALL SUBSEQUENT RELEVANT RESOLUTIONS and to restore international peace and security in the area.

That refers to resolutions passed in the future, whether its in 1995, 1999, or 2003! It authorizes member states to USE ALL MEANS necessary to bring compliance with these future resolutions.

We have debated this to death. I have listed points above on this. Pollack himself states on page 369 indicates that there is a split among the nations over the interpretation of this part of the resolution. Don't make out like all of the nations at the UN believe as you do. You cannot escape history.

The US has always, in the past, supported the position that the security council holds the power. Article 678 did not give the power in 1990 to invade and remove Saddam. The US actions clearly demonstrated that fact, and you are ignoring the fact that our own President Bush (DAD) has made statements of the same nature. There have been no Subsequent resolutions authorizing the United States the use of force. SO even if I agree with your interpretation, there is no further legality to go to war without the UN.

It has already been stated many times that the USA returns to the Security Council, despite its clear Authorization under 678 to use military force to bring Iraq into compliance, for political reasons and the desire to gain political support for military action, BUT not because it felt it was legally required to do so!

Bush set out a new resolution in October of last year, not because he felt he needed it legally to invade Iraq, but because he wanted to gain the support of allies to do that. From a strictly legal stand point, 678 has been all the legal authorization we have needed. We seek approval for political reasons, not because we feel it is legally required.

Sting, it may be stated by the United States Governement. Pollack clearly points out that not all have the same interpretation of 678 as the US does. Pollack himself starts this chapter saying:

"I am not a lawyer......I cannot offer a definitive answer on the legality of a US invasion of Iraq." (p. 367)

I am not a lawyer either. All I can say is that we have used force in 1993 with permission. We have actively sought permission for all of our actions since ARTICLE 687 (CEASE_FIRE) and you have also pointed out that we have sought permission in article 1441. There have also been numerous reports over the past week that indicate the Administration is looking for another resolution to authorize the use of force. History and actions speak louder than Pollack's interpretation of UN Resolutions. The US clearly has not held the belief that 678 authorises and invasion/use of force/or removal of Saddam.

You have failed to provide any evidence that Article 678 gives any more authority than it had in 1990 when President Bush stopped the assault on Iraq claiming that the United Nations did not give them the authority to remove Saddam.

Take a careful look at page 369 and 370 of the THREATENING STORM by Keneth Pollack. Again, he lays down a similar case that I have.

See above...Pollack himself indicates he cannot speak to the LEGALITY of an INVASION. He lays out the case very nicely. Unfortunately, he too is ignoring past history in regaurds to Cease-Fire Agreements.

The past history of Cease-Fire Agreements clearly demonstrates that only the Security Council can declare them voided. If Iraq invades Kuwait again, the Chapter VII rules apply. Since Material Breech has not been declared and Iraq has not yet invaded another country, the UN CHARTER rules apply. Not Chapter VII.



PEACE

 

[Dreadsox]

Oops...double post.

 

[Dreadsox]

Pollack also points out that:

There is no country on earth that benefits more from the system of international legal agreements than the United States...It would make the support of the American people firmer and the participation of our allies more likely. Consequently, it is important that the US actions conform to international law (p 368).

Pollack himself clearly indicates that this is a VERY important issue. Clinging to article 678 saying that it gives us the authority, despite past history and actions, is not GOOD. It undermines the security council. It gives other individual nations the right to interpret Security Council decisions on their own. It encourages other nations to decide when a cease fire agreement is nullified.

You are looking at potentially the end of the UN and the Security Council as we know it if the US does not support the Security Council as it has in the past.

 

[Scarletwine]

Pollack also points out that:

There is no country on earth that benefits more from the system of international legal agreements than the United States...It would make the support of the American people firmer and the participation of our allies more likely. Consequently, it is important that the US actions conform to international law (p 368).

Pollack himself clearly indicates that this is a VERY important issue. Clinging to article 678 saying that it gives us the authority, despite past history and actions, is not GOOD. It undermines the security council. It gives other individual nations the right to interpret Security Council decisions on their own. It encourages other nations to decide when a cease fire agreement is nullified.

You are looking at potentially the end of the UN and the Security Council as we know it if the US does not support the Security Council as it has in the past.

Thanks for the great research and debate.
You've stated my exact fears if Bush goes it alone. He needs to abide by the UN decisions. I think if people were more informed about the result of any attack without the UN, the polls would show a different result. As it is, they are still trending to a majority only with support of the UN.

 

[hiphop]

In fact the number 57% is only if there will be an UN Resolution for the attack. If there is no resolution, support drops to 37%.

Thanks for the disinformation, STING2.

 

[Dreadsox]

Well, I have done some more reading Sting. Pollack is NOT sure himself if 678 still gives the authority for the use of force now.

He states that one of the mistakes of the original sanctions is that:

As everyone has known but few would admit, military force was always going to be needed to beat back Iraq's challenges to the UN-based containment regime from time to time.

Key Part coming up:

However, a mistake of the original sanctions was not to have stipulated this up front. This mistake would need to be corrected, ideally in a new resolution authorizing member states to enforce the new sanctions by all necessary means-the original language of UNSC Resolution 678, which authorized the use of force before the Gulf War.

Very clearly here....he breaks down the major problem, which is that 678 authorized the use of force before the GULF WAR. Not after.

He continues:

Although the United States has long maintained that UNSCR 678 provides adequate justification for all military action against Iraq since then (and this MAY be correct from a legal standpoint), politically, few countries agree with us.

This does not sound like a ringing endorsement that 678 gives the authority. He says 'MAY BE CORRECT". He is also quick to point out that not many members of the UN disagree with the US on this.


Pollack continues to ride the fence on this in his next sentence:

Thus, for political and not necessarily legal reasons, if we are going to return to a multilaterala effort to contain Iraq, it would behove us to have a new resolution making such authorization plain in order to restore the international concensus on the use of force to compel Iraq's compliance with new sanctions.


STING, clearly the man you have based your arguments on in this thread and others, is not himself certain that 678 gives the UNITED STATES the authority to use force against Iraq.

For those of you listening at home....Kenneth Pollack wrote a book called "THE THREATENING STORM: The Case for INvading Iraq". The author Kenneth Pollack, has been on CNN quite a bit over the past few weeks as an analyst. The information I quoted above comes from page 225.


PEACE

 

[Dreadsox]

Here is an interesting letter from the New York Bar association dealing specifically with the UN Resolutions that Sting and I have been debating here.

http://www.abcny.org/currentarticle/abcny_%20Urges_No_US_Military.html


If you want to read the whole letter click on the link above.

Here is the part that contains the point I have been making:

Nevertheless, existing Security Council resolutions with regard to Iraq do not authorize the use of force by nations to enforce those resolutions. In November 1990, the Security Council adopted Resolution 678 to authorize the use of force against Iraq in response to the invasion of Kuwait. Resolution 678 expressly authorized member states to "use all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area." After the coalition forces and Iraq entered into a provisional cease-fire, the Security Council by Resolution 687 declared a formal cease-fire to be effective upon acceptance of the terms of such Resolution by Iraq. The Security Council affirmed prior resolutions, including Resolution 678, subject to this significant limitation: "except as expressly changed below [in this Resolution] to achieve the goals of this Resolution, including a formal cease-fire."

It remains the province of the Security Council to determine what enforcement action is necessary. Under Resolution 687, the Security Council "remain seized of the matter" and may determine "such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area." Subsequent resolutions have condemned Iraq's non-compliance and have imposed additional enforcement measures, but the Security Council has not reauthorized the use of military force under Chapter VII.



Peace to ALL

 

[STING2]

Dreadsox,

First of all, I did not base any arguement I have made on the United Nations Resolutions solely on what Kenneth Pollack had to say. I made the same arguements months ago before I even knew who Kenneth Pollack was. There are many people who have been apart of 4 different presidential administrations who agree that Resolution 678 gives member states the legal right to use all means necessary to enforce any subsequent resolutions after 678. WHAT do you think Subsequent means?

More importantly, I have read all of resolution 687, the one you say makes 678 null and void, or irrelevant. It in fact does the exact OPPOSITE! Look at Paragraph #1 of Resolution 687!

1. AFFIRMS ALL THIRTEEN RESOLUTIONS NOTED ABOVE, EXCEPT AS EXPRESSLY CHANGED BELOW TO ACHIEVE THE GOALS OF THE PRESENT RESOLUTION, INCLUDING A FORMAL CEACE-FIRE;

Having read all of 687, there is nothing in 687 that definitively changes anything in 678. There is not one Quote that says, "678 and its contents no longer apply to any resolutions". Because no changes were made to 678 in 687, and it is definitively AFFIRMED again, paragraph two of 678 continues to stand:

Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660(1990) and ALL SUBSEQUENT relevant resolutions and to restore international peace and security in the area;

#1 If 678 had said: All Subsequent relevant resolutions up to but not after 678, I'd agree that 678 could not be sited as a legal basis for further military action in Iraq.

#2 In addition if there is another UN resolution or document that undisputably states that "everything in 678 is no longer valid and does not apply to any resolutions passed after 678" I would agree that 678 cannot be used to legally justify military action in Iraq after 1991.

I have for years been well aware that there is disagreement among other UN members about what is legal and lawful in regards to this issue. I have acknowledge this often before as well. It does not change the fact that 678 as stated, gives members states the legal right to use all means necessary to enforce subsequent resolutions against Iraq. I have yet to see a UN document or resolution that comes after 678 that undisputedly states that 678 has no effect beyond 687. In fact, unlike what you had previously said, 687 actually affirms 678.

I'm not an international lawyer or even a student of international law. The point I have made mutiple times is not some original idea of mine or something that I created or pulled out of my ass. I've seen what I have been saying, stated often by many professionals in international law over the past few years. If 678 was never seen as a compelling legal basis for further military action against Iraq, we would not be having this debate.

The USA often does things for political reasons rather than legal necessity. That is why it has gone back to the UN on multiple occasions for approval. That is why it may go back to the UN in the next couple of weeks for a new resolution. For political reasons, not because it felt it needed such a resolution from a purely legal standpoint. Any international law expert in the administration will tell you that.

To the question of the possible overthrow of Iraq 1991, it is true that it was never the stated purpose of the Coalition to march into Baghdad and overthrow Saddam Hussien. But Authorization was given to Coalition forces to use all means necessary to expel Iraqi forces from Kuwait. IF expelling Iraqi forces from Kuwait required the overthrow of Saddam Hussien, such action would be justified. Remember, all means were justified to push the Iraqi Military out of Kuwait.

US forces fired hundreds of Cruise Missiles and other munitions at targets where they thought Saddam would be, which according to your interpretation was illegal. Also according to your interpretation, US invasion and occupation of 1/3 of Iraq was illegal. But these actions were legal because they were a means to an end. That end was the expulsion of Iraqi forces from Kuwait. US tanks that were within 150 Kilometers of Baghdad were ready to go there if Saddam had not agreed to the ceacefire. If the coalition had discovered that full and complete expulsion of Iraqi forces from Kuwait required capturing or destroying their leadership by moving into Baghdad, it had the clear legal basis to do so in order to accomplish its ultimate goal.

Any new military action in the coming weeks with Iraq will have the stated goal of disarming Iraq, not overthrowing the regime. UN resolutions with the backing of 678 justify all means to accomplish the goal of disarming Iraq. If to disarm Iraq and accomplish the goal of past UN resolutions, the overthrow of Saddam is required, then it is justified.