U.S.-Led War Might Prevail In
Court Despite Backlash

ROBERT S. GREENBERGER and JESS BRAVIN / Wall Street Journal 20mar03

It would be tough to prove that a U.S. invasion of Iraq without United Nations approval violates international law—which lacks surefire penalties, in any event. But even in the absence of formal sanctions, the U.S. could suffer a backlash in the global arena.

President Bush argues that the confrontation is an effort to enforce a decade's worth of U.N. Security Council resolutions flouted by Saddam Hussein. Backing the U.S., Britain's attorney general issued a terse legal opinion citing Iraq's obligations to disarm under the Security Council resolution that ended the Persian Gulf War. "It is plain that Iraq has failed to so comply," Lord Goldsmith concluded, "thus, the authority to use force ... has revived and so continues today."

International law has always been an accommodation between countries rather than a binding code; it essentially has meant whatever powerful countries say it does. Nonetheless, the move by the U.S. and its "coalition of the willing" is seen by a fair number of the unwilling as a case of Mr. Bush's taking the law into his own hands.

Perspective, then, likely will prove more relevant than legality in how an attack is received around the world.

The war's "legitimacy will be questioned," warned U.N. Secretary-General Kofi Annan; New Zealand's prime minister called the U.S. legal position "highly debatable." And German Foreign Minister Joschka Fischer told the Security Council Wednesday that, "Under the current circumstances, there is no basis in the U.N. charter for a regime change with military means."

Most international-law scholars would agree, said Anne-Marie Slaughter, dean of Princeton University's Woodrow Wilson School of Public and International Affairs. "Eight out of 10 would hold it is illegal on the grounds that an explicit authorization from the Security Council is needed, and the United States has given a lot of weight to that argument by seeking such authorization," she said.

STANDING APART

The U.S. traditionally has been reluctant to let treaties or international bodies restrain its policies, despite criticism abroad. Some recent examples:

Treaty Comment Date/Comment

• U.N. Charter March 2003: U.N. Secretary General Annan says U.S.-led invasion of Iraq "not in conformity" with charter.
• Int'l Criminal Court May 2002: Bush "unsigns" treaty establishing permanent war-crimes tribunal, says it could be unfairly used against U.S. soldiers or officials.
• Geneva Convention January 2002: U.S. declares all Taliban and al Qaeda fighters held at Guantanamo Bay are "unlawful combatants" with fewer rights than prisoners of war.
• Kyoto Protocol March 2001: Bush tells senators he won't submit treaty on global warming for ratification, says it will harm U.S. economy.
• Land Mine Ban December 1997: Clinton declines to sign treaty, cites use of landmines in defending South Korea.

"Our belief is that it's neither legal nor illegal," said William Luers, a former U.S. diplomat and now president of the U.N. Association of the U.S.A. "The fact that we didn't take it to the U.N. Security Council to be voted down avoids the question of whether it's legal or illegal."

To many people, the U.S. decision to proceed under these ambiguous terms buttresses the widespread view that Mr. Bush ignores international principles when it is convenient to do so, and that could create tangible problems for Washington. Angry Europeans see Mr. Bush's stance as part of a pattern of ignoring the will of the international community. They cite Washington's refusal to move forward with ratification of the Comprehensive Test Ban Treaty, its decision to back out of the 1972 Anti-Ballistic Missile Treaty with Moscow, and refusal to submit the Kyoto Protocol on global warning for Senate ratification, among others.

As a result, they and others may reassess American motives and methods on a host of issues.

In an address last week, Chris Patten, the European Union's external-relations commissioner, warned: "Such decisions, and there have been many, send a dangerous signal about the value the U.S. places on international commitments." Although the EU could hardly restrain Washington, he said, the "dispute about the legitimacy of the military action" would make it "more difficult for the EU to cooperate fully and on a large scale ... in the longer-term reconstruction process" in Iraq.

"I think it affects reputation, and that's how it hurts the U.S.," says James Steinberg, deputy national security adviser in the Clinton administration. "The more it looks like we are pursuing parochial interests, the less we will be respected, and that may make countries more willing to disagree with us and more willing to challenge us."

In the end, Ms. Slaughter points out, the Security Council could well grant retroactive approval if an invasion succeeds quickly or is well-received by the Iraqi people. She cites the aftermath of the U.S.-led North Atlantic Treaty Organization intervention in Kosovo, which President Clinton ordered in 1999 after Russia blocked a council resolution authorizing force to stop atrocities in the Yugoslav province.

An independent commission concluded the campaign was "illegal but legitimate." While "illegal because it didn't receive prior approval" from the Security Council, the commission report concluded that "intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population" from "a long period of oppression."