The US has no justification in unilaterally going to war against Iraq, believes Ivana Bacik, and Ireland, as a neutral country, must take a stand against such action
War on Iraq is discussed as if it were inevitable; as if bombs were already dropping on Baghdad. As if America had the right to use force unilaterally, whatever the arms inspectors' report, whatever the Security Council resolves.
This is simply not true. War is not inevitable. On tomorrow's international day of action, hundreds of thousands of people will be demonstrating worldwide to prevent it.
Nor is war justified legally under Resolution 1441. This establishes an enhanced inspection regime in order to complete the disarmament process in Iraq, but no time limit is stipulated for completion. Paragraph 4 states that failure by Iraq to co-operate will constitute a further material breach of its obligations, and the arms inspectors are directed to report any such failure immediately to the Security Council.
Under Paragraph 12, the council must then "convene immediately to consider the situation and the need for full compliance with all of the relevant council resolutions in order to secure international peace and security". In Paragraph 13, the council recalls that Iraq "will face serious consequences" as a result of continued violations.
It is clear from the text of the resolution that even if Iraq is found to be in material breach, this does not necessarily trigger war; no indication is given as to what "serious consequences" may follow. Indeed, Russia, China and France issued a joint statement shortly after the resolution was passed saying the text excluded "any automaticity in the use of force" against Iraq.
Some proponents of war have argued that military action by the US on foot of a breach, without further resolution, is authorised by the UN Charter. But military action may only be taken under Chapter VII, where "measures not involving the use of armed force" are inadequate to secure peace. The charter's preamble reminds us that the UN was established "to save succeeding generations from the scourge of war". Article 2(4) expressly prohibits the threat or use of force by any country. The overwhelming thrust of the document is to ensure that war is only a last resort.
Can America justify unilateral action in self-defence? This would stretch the concept unfeasibly. Self-defence is an emergency response to an actual "armed attack" under Article 51 of the charter, or in anticipation of an imminent attack, where the need to use force is "instant, overwhelming, and leaving no choice of means, and no moment for deliberation", a formula enunciated by US Secretary of State Daniel Webster in 1842. Nobody, not even Donald Rumsfeld, has suggested that Iraq is imminently about to attack the US. Self-defence arguments do not work.
Whether or not Iraq is in material breach, the US thus cannot attack legally without a further UN resolution. France, Germany and other countries have argued that insufficient time has been given to allow non-military measures to work in securing disarmament. They have argued for more time and a strengthened inspections regime. This is in keeping with the spirit of the UN Charter and with international law.
However, the US has already made known its contempt for the international legal order. Back in September, when George Bush first conceded he would work through the UN, he warned: "We will work with the UN Security Council for the necessary resolutions. But the purposes of the United States should not be doubted."
Just think of the terrible human consequences of war, the civilian deaths, the humanitarian castastrophe. What US purposes might possibly justify such outcomes? The Bush administration has given two main justifications for bringing about "regime change" in Iraq; to protect the human rights of Iraqi citizens, and to prevent Iraq working with al-Qaeda or other terrorist groups to attack US interests.
Let's look at these. Saddam Hussein is a brutal and dangerous dictator, but he has been for a very long time. Back in 1988, when he gassed the Kurds at Halabja, many of us marched in the streets of Dublin, London and Washington in protest, not just against this genocidal act, but also against our own governments, who were openly backing the Iraqi regime at the time, and supplying its weapons of mass destruction. Irish trade with Iraq remained strong during this period, and throughout the Iran-Iraq war, when we supplied the beef upon which Saddam's armies depended. At the end of the Gulf War, the uprising of Iraqi citizens was brutally put down by Saddam without any response from the West. So any claims to care for the human rights of Iraqi citizens ring hollow now.
THEN, there is the claim that Iraq is in league with al-Qaeda. There is no evidence of this; Saddam's ideology is anathema to the Islamic fundamentalism of Bin Laden. The much-vaunted military intelligence purporting to show links with al-Qaeda has been discredited; the British government's dossier, based largely upon an article in an obscure academic journal, has been ridiculed. Nor is there evidence of any planned attack by Iraq. The only country that has recently threatened America directly is North Korea, but strangely no war is planned there. It is both selective, and hypocritical, to choose only one regime from among the many, like Israel, that have acted in breach of UN resolutions over the years.
So what purpose would a war serve? The only logical conclusion can be that this is not about weapons of mass destruction, or terrorism, or human rights. It is about US self-interest. The economic interest in having a compliant regime in Iraq is very clear; to provide effective control of massive oil reserves. As Nelson Mandela and others have said, this is a war about oil.
It is also about unfinished business. Many of the people who acted as George Bush snr's advisers during the Gulf War are still in power. They may believe that Saddam has got away with challenging the US once, and that he cannot do so again. They may also believe that a war on Iraq would set an example to other countries with anti-American governments - if we don't like you, we'll change your regime.
This belief in the right to take unilateral military action is the real danger, the real reason why war must be opposed. If unilateral action is tolerated now, where will it end? The US, the world's only superpower, could attack any state it disapproved of. Might would be right. Military unilateralism is the very danger the UN was set up to prevent, and fatally undermines the entire international legal order. The anti-war movement is not for appeasement, it is against imperialism and for the rule of law.
As a neutral country, Ireland should be firmly aligned with the wise "old Europeans" in France and Germany who know the horrors of war, who urge more time for non-military means. It is vital at this critical time to support the anti-war demonstration tomorrow. Only by reminding the Government that public opinion is overwhelmingly against war can we ensure that our elected leaders get off the fence, and take a principled stance against this military madness, this headlong rush to arms.
Ivana Bacik is Reid Professor of Law at Trinity College Dublin