As attack on Iraq begins, question remains: Is it legal?
The White House and British legal authorities say the war is justified under UN Resolution 1441.
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At a more fundamental level, however, critics charge that the war breaches Article 51 of the UN Charter, which asserts "the inherent right of individual or collective self defense if an armed attack occurs against a member of the United Nations." Otherwise the use of force requires UN Security Council approval.Skip to next paragraph
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Iraq has not attacked the US, and "I don't think America is coming under armed attack from Iraq," Arab League Secretary-General Amr Moussa said Wednesday. "I don't think anyone could say that the armed action they (the Americans) are going to take is within the frame of the UN Charter."
President Bush seemed to stretch the interpretation of Article 51 in his speech to the nation Monday, saying that the US "has the sovereign authority to use force in assuring its own national security. "Terrorists and terror states do not reveal these threats with fair notice, in formal declarations; and responding to such enemies only after they have struck first is not self-defense, it is suicide," the president added.
International law, and the way the UN Charter is interpreted, has evolved over the years. The 1999 intervention in Kosovo, for example, was seen as legitimate by Western powers - though it had no Security Council backing - because it was cast as a humanitarian intervention.
Interpreting Article 51 to suit a changed world, argues Martti Koskenniemi, an international-law professor at the University of Helsinki, Washington could justify a preemptive strike "if it is shown that the Iraqi leadership ... is in possession of some sort of weapon, plus a means to get it to the United States, plus actually imminently intending to do that. But otherwise not."
Though US officials have argued that Hussein has ties to terrorist organizations that he might supply with weapons of mass destruction, Secretary of State Colin Powell's attempts to convince his UN colleagues of this last month were greeted with widespread skepticism.
The war could be legitimized - even though it is illegal - "if we find all the things that we say we are going to find" such as chemical and biological weapons, argues Anne Marie Slaughter, dean of the Woodrow Wilson School of Public and International affairs at Princeton University. "But it is going to require that the US and Britain truly prove their case," she adds.
At the same time, she says, the past six months of diplomatic wrangling over Iraq show paradoxically that "the regime [of international law] regarding the use of force has never been stronger than it is right now." Though Britain and the US eventually dropped their effort to get a second resolution passed, the fact that they tried so hard, and that Mr. Bush justified military action in terms of earlier UN resolutions when he spoke to the American people on Monday, show that the Security Council has become more than the talking shop of the cold war years, Professor Slaughter says. "Even now, all sides are focusing on the UN. We've made it pretty clear that the UN is indispensable [to] what happens in the future in Iraq."
• Seth Stern in Boston contributed to this report.