Law experts debate legality of America's war

When President George W. Bush said he could strike Iraq without UN approval, he set off a sharp legal debate, with a few experts finding license in UN resolutions and many others saying the move flouts the UN and tramples on the U.S. Constitution.

"I think the U.S. action will skirt on the edge of legality," said David Scheffer, senior vice president of the United Nations Association of the USA, a center for policy research and public outreach on the UN and multilateral issues. "It's not a clear yes or no issue."

Scheffer, an international law expert and former ambassador at large for war-crimes issues in the Clinton administration, said the legality of the war, or at least world opinion of it, might be determined after the fact. If troops unearth hidden arsenals of banned weaponry, for example, or find new evidence of human rights violations by Iraq's leaders, that will play well for the United States. If not, condemnation may balloon.
But other legal experts see the military action against Iraq as clearly outside the law.

UN Secretary General Kofi Annan said he considers the attack on Iraq without UN backing to be "not in conformity with the UN charter," or against international law. The UN charter, the supreme document for the conduct of member nations, authorizes force if a state is under actual or imminent attack or if the Security Council approves it to maintain peace.

"It is unequivocally illegal," said Roger Normand, executive director of the Center for Economic and Social Rights, a Brooklyn-based research and advocacy group that in January completed a fact-finding mission in Iraq. "It's an illegal war, and it's almost impossible to argue."

Normand's group released a report Tuesday outlining what it considers the weak legal grounds for the president's new foreign policy doctrine of the "preventive" strike. The doctrine holds that in a post-Sept. 11 world, the United States may strike first at countries it believes may at some time attack it.

Normand's report said a similar doctrine was outlawed in 1946 during the Nuremberg trials of Nazi aggressors. The tribunal declared: "To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

But at least one legal drive to stop the war, based on the constitutional provision that gives only Congress the authority to declare war, was blocked Tuesday by a federal court.

A lawsuit filed by three soldiers, the families of servicemen and women and 12 members of Congress, was all but ignored by a Boston court that declined to decide the case on its merits. The three-judge panel said there would have to be a dispute between Congress and the presidency in order for the case to be heard.

"If Congress did authorize this war, it did so only on the condition of UN approval," said John Bonifaz, lead attorney in the case. "And the president is proceeding without UN approval. This decision means the court is standing on the sidelines as the president proceeds to trample on the Constitution and lead this nation into an illegal and unconstitutional war."

But Columbia University law professor Richard Gardner, a former ambassador to Italy and Spain, argues that a strict reading of the law makes the action technically legal, saying resolutions passed around the time of the Gulf War cease-fire make the legal case, to a point.

"I take the view that we have the authority under [previous resolutions], including Resolution 1441," which gave Iraq a "final opportunity" to comply, he said. "Since Saddam has violated the terms of the cease-fire agreement which terminated the Desert Storm war, we return to the original resolutions authorizing force."

He said since Iraq was found in Resolution 1441 to be in material breach of those resolutions, which were the terms that governed a cease-fire, the firing may legally begin anew. But Gardner said that position is weakened by the fact that UN weapons inspectors and many members of the Security Council felt that Hussein had begun to comply with the terms of 1441 by disarming.

"I think the legal case is there," he said. "That doesn't mean I am in favor of what we're doing. I think to go to war without more support is a dangerous thing to do."