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Cases for and against war

By Kevin Drew
CNN.com Law Editor


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(CNN) -- The legal arguments for and against military action against Iraq are clear and concise, sharpening the gulf between opponents, analysts say.

Opponents say no resolution has been passed by the U.N. Security Council explicitly authorizing military action. That rule of international law has been an unwritten one since the inception of the United Nations and has rarely been violated.

The United States and its allies, however, say existing Security Council resolutions dating as far back as 12 years allow military action to be taken.

Additionally, President Bush has repeatedly pointed to the terrorist attacks of September 11, 2001, in justifying a military strike under the concept of "anticipatory defense," legal experts say.

The United Nations Charter allows nations to use military force under two broad categories:

• Authorization from the U.N. Security Council;

• Self-defense.

"Opponents and supporters [of military action] can point to both of these areas to justify their positions," said Michael Ramsey, professor of international law at the University of San Diego, California.

Supporters point to Iraqi violations

Under the U.N. authorization umbrella, the Bush administration points to three U.N. resolutions -- 678, 687 and 1441 -- as justification for military action. (Text on Resolution 1441)

The strongest legal argument is a U.N. Security Council motion passed more than 12 years ago, experts say. Passed November 29, 1990, U.N. Resolution 678 required nations to " ... restore the independence of Kuwait and restore peace and security to the region."

The United States and its allies can argue that Saddam Hussein continues to be a threat to peace in the region, said John Norton Moore, University of Virginia professor of law and an expert on national and international security issues.

"There was no time limit imposed on 678," Moore said. "It's still valid."

Supporters of military action also point to Resolution 687, passed after the conclusion of the Gulf War in the spring of 1991.

That measure laid down the cease-fire conditions after Operation Desert Storm -- including the establishment of no-fly zones and the destruction of Iraqi medium-range missiles and weapons of mass destruction.

Both of those resolutions, experts say, can be interpreted as having been violated by Iraq, such as the continued air skirmishes during the past decade between Iraq and the United States and Great Britain in the no-fly zones, Ramsey said.

"As soon as Iraq violated the cease-fire, then the U.S. was entitled to say this cease-fire no longer exists," Ramsey said. "There's no fair argument that Iraq hasn't violated the cease-fire."

The most recent Security Council resolution, 1441, passed last November, states that Saddam must disarm or "suffer serious consequences." That wording allows for military action, the Bush administration argues.

On Monday, Britain's top legal adviser said legal "authority to use force against Iraq exists." Attorney General Lord Goldsmith cited the "combined effect" of three U.N. resolutions -- 678, 687 and 1441.

"All of these resolutions were adopted under Chapter VII of the U.N. Charter which allows the use of force for the express purpose of restoring international peace and security," Goldsmith said.

Proponents of military action also use the self-defense argument --- Article 51 of the United Nations Charter.

The Bush administration says Saddam poses a threat to the United States because it says the Iraqi leader has banned weapons, including biological and chemical weapons.

A final legal case for military action is a humanitarian argument. Some British lawyers have argued that Saddam's treatment of minorities such as the Kurds in the north and marsh Arabs in the south constitute war crimes and genocide.

The conventional view among international law experts was that countries could not intervene in the affairs of sovereign governments.

International agreements on torture and on genocide, the British House of Lords judgment on Chile's Gen. Augusto Pinochet, cases of the ethnic conflict in Kosovo, the trial of Serbia's Slobodan Milosevic, have created precedents in international law to intervene for humanitarian reasons.

Ramsey discounted such an argument.

"At this point it looks like the United States is backing into that argument. There's a lot of ugly stuff going on there, but there's a lot of ugly stuff going on all over the world," he said.

Opponents say clear language needed

Opponents to military action say the same principles the Bush administration is relying on forbid military action.

The U.N. Charter's Article 51 -- the self-defense clause -- requires countries to use force as a response.

"Some say that Article 51 requires a country to take the first hit," Ramsey said. "That's clearly not the case here, and Bush has said he won't allow the U.S. to take the first hit with biological or chemical weapons."

Opponents of military action also cite resolutions 678, 687 and 1441 to support their argument.

Resolutions 678 and 687 were passed a long time ago, such opponents say. Once the cease-fire was in effect after the Gulf War, "it was then up to the Security Council to take [military] action," Ramsey said.

Additionally, Resolution 1441 does not explicitly say force will be the consequence of Iraqi noncompliance, Ramsey said. In the past, United Nations has passed explicit language about the use of force, such as in Kuwait and Haiti, he said.

"Is the United States required to go back and get a new [U.N.] resolution, or does the original resolution carry forward?" Moore asked.

The ambiguity in the interpretation of the various U.N. measures has fueled opponents. France, Russia and Germany continue to oppose military action against Iraq, saying a Security Council resolution must pass that clearly states force can be taken.

France and Russia, both veto-wielding permanent council members, as well as Germany, have argued that more time needs to be given to U.N. arms inspectors deployed under Resolution 1441.

Opponents to military action are found elsewhere. The president of the U.N. General Assembly, Jan Kavan of the Czech Republic, said earlier this month the United Nations would need to pass another resolution to sanction military action and make any strike legal under international law.

A legal opinion for the Campaign for Nuclear Disarmament and other antiwar groups released earlier in March said clear language must be approved to authorize war.

"In the present circumstances as known to us, if there is no further resolution clearly authorizing force, the U.S. and the U.K. would be acting in violation of international law if they were to attack Iraq," the opinion stated.


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