September 5, 2002 | Executive Memorandum on Iraq
U.N. Authorization for War with Iraq Is Unnecessary
Americans, openly debating important security issues like the
necessity or timing of an invasion of Iraq is healthy. It helps
ensure that U.S. foreign policy and military planners are aware of
all possible ramifications of various actions and incorporate
criticisms in contingency plans.
There is a great difference, however,
between a legitimate debate on such concerns as the effects a war
would have on the region and dwelling needlessly on settled issues,
such as the need to obtain a U.N. Security Council resolution
before taking military action in Iraq--a known aggressor that
possesses ballistic missiles and pursues weapons of mass
French President Jacques Chirac and German
Chancellor Gerhard Schroeder are among those who claim that an
attack on Iraq would be justified only if the U.N. Security Council
approves it. But this assertion is a red herring for several
law confirms the right to self-defense . The right to
self-defense is codified in customary international law, which
recognizes that sovereign nations have the right to defend
themselves from attack, and the United Nations Charter, which
reflects that law. Article 51 states: "Nothing in the present
Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the
That right to self-defense also incorporates the centuries-old
principle of "anticipatory self-defense" in the face of an imminent
threat to national security. In the 16th century, the British
applied that principle when they attacked Spanish and Portuguese
ports in anticipation of an attack by the Spanish Armada. The
United States used it more recently in placing an embargo on Cuba
to prevent Soviet deployment of nuclear missiles there.
Iraqi dictator Saddam Hussein has stated publicly his intention to
engage in a war against the West, particularly Israel and the
United States. He seeks to develop biological, chemical, and
nuclear WMD and the ability to deploy them against his enemies. The
U.S. government has identified Iraq as an imminent threat,
justifying military action in anticipation of an attack.
America does not
need U.N. permission to use its armed forces.
U.S. Constitution, the authority to determine when it is
appropriate for the United States to invoke and exercise its right
to use military force in its own defense is vested in the
President, as Commander in Chief of the armed forces, and Congress,
which has authority to raise and support armies and to declare war.
No treaty, including the U.N. Charter, can redistribute this
authority or give an international organization a veto over U.S.
actions otherwise lawful and fully in accordance with the
- America has
permission to act through existing U.N. Security Council
resolutions. The Security Council has passed nearly 60
resolutions on Iraq and Kuwait since Iraq's invasion of Kuwait in
1990. The most relevant to this issue is Resolution 678, passed on
November 29, 1990. It authorizes "member states co-operating with
the Government of Kuwait...to use all necessary means" to (1)
implement Security Council Resolution 660 and other resolutions
calling for the end of Iraq's occupation of Kuwait and withdrawal
of Iraqi forces from Kuwaiti territory and (2) "restore
international peace and security in the area."
U.S.-led forces in the Persian Gulf War accomplished the first
objective swiftly, but the second has never been achieved. U.S. and
allied air forces have been in nearly constant conflict with Iraqi
forces since Iraq's aggression against Kuwait was repelled.
Resolution 678 has not been rescinded or nullified by succeeding
resolutions. Its authorization of the use of force against and in
Iraq remains in effect. Further, Iraq's refusal to allow U.N.
weapons inspectors to fulfill their mandate is a violation of its
1991 cease-fire agreement--a clear indication that peace has never
- America would be
acting in the interests of international peace and security, as all
U.N. members pledge to do. Article 1 of the U.N. Charter
states that the paramount purposes of the organization are to
"maintain international peace and security," "take effective
collective measures for the prevention and removal of threats to
the peace," and suppress "acts of aggression or other breaches of
the peace." Saddam Hussein is the single greatest threat to
stability in the Middle East. He started two wars in the region,
continues to support terrorism, and poses a clear and ongoing
threat to the United States and the region. He has shown no
compunction about using chemical weapons, either against his own
people or during the war with Iran. His willingness to use them in
the past illustrates the threat he poses should he gain access to
more devastating WMD and the means to convey them to his
Clearly, those who seek to constrain U.S.
military action in Iraq with arguments about the necessity for
obtaining yet another Security Council resolution ignore the facts
of the issue.
Conclusion. The Administration has the
legal authority under international law to take action to protect
U.S. interests. U.N. Security Council Resolution 678 authorizing
U.N. member states to "use all necessary means" to restore
international peace and security to the region remains in force.
Those who argue for more weapons inspections are in denial over
Iraq's refusal to observe existing resolutions mandating that U.N.
inspectors be permitted to operate freely in Iraq. Saddam has
frustrated every effort to conduct these inspections in the past,
and there is no reason to believe that future inspections will be
more successful. His most recent letter to the U.N. states that he
wants more discussion before resuming the inspections, which ended
four years ago over his intransigent obstruction.
Representative Tom DeLay (R-TX) stated on August 22, "Until Saddam
Hussein's regime topples, our national security will suffer an
unwise and unacceptable risk." There is room for legitimate debate
over the best means for accomplishing this goal, but the risk
Saddam poses to U.S. interests and peace and security in the Middle
East is obvious. Options for toppling him deserve the full
attention of the Administration, Congress, and America's allies.
Specious arguments on the necessity of obtaining U.N. authorization
for such action do not serve either U.S. interests or U.N. mandates
regarding peace and security. The United States may or may not
decide to attack Iraq, but it does not need a new Security Council
resolution to do so.
Schaefer is Jay Kingham Fellow in International Regulatory
Affairs in the Center for International Trade and Economics at The