Three bodies of law determine whether the planned war against Iraq is legal: U.S. domestic law, international treaty law, and fundamental norms of international law. The U.S. Constitution gives only Congress the power to decide when to go to war against another nation. The president must obtain Congress's consent before beginning a war. Bush obtained congressional consent last year in a resolution that mentions everything from Saddam Hussein's alleged plans to assassinate Bush's father to the Sept. 11 terrorist attacks. That congressional authorization of force violates the United Nations Charter, a U.S. treaty ratified by almost every other country in the world, which prohibits the use of force by one country against another except in two situations: where necessary for self-defense, or where approved by the U.N. Security Council.
The self-defense exception exists only in response to an armed attack or in response to one that is imminent. Iraq has not attacked the United States, and our own defense intelligence has determined that Iraq does not have the capacity to do so. None of the reasons given by the Bush administration or Congress, including destruction of claimed weapons of mass destruction or overthrowing Hussein, constitute self-defense under the U.N. charter. Nor is there U.N. Security Council approval for an attack on Iraq. Rather, the council ordered that inspections be conducted to determine compliance with its 1991 directive that Iraq surrender all its weapons of mass destruction. Only the council--not the United States--has the authority to decide the consequences should the inspections prove that Iraq has not complied with the 1991 resolution. When the Bush administration disregards that authority, it mars our integrity as a nation and estranges the United States from the international community. The United States cannot claim to be a nation for peace if it violates the very laws and procedures that exist to keep peace.
While it may be true that, under U.S. domestic law, Congress can override a treaty, Congress broke a fundamental rule of customary international law when it gave the President authority to start a war against Iraq. The prohibition against aggressive war, like that against slavery and torture, is a fundamental international law. In clear violation of this fundamental law, the Bush administration's radically new pre-emptive strike doctrine proclaims that the United States may use military force against any state it perceives to be hostile; any state that seeks to acquire biological, chemical or nuclear weapons; or any one that aids terrorism.
Illegal conduct has a price. The price in this case is fourfold: (1) Bush is destroying the international constructs that require pursuit of peaceful solutions, and setting a dangerous precedent that encourages countries to use military might to get what they want; (2) an illegal pre-emptive strike on Iraq will increase terrorism--something the Bush administration is acknowledging by calling up 256,000 reservists and National Guard members to try to protect us at home from the intensified threat; (3) money that our failing economy desperately needs is being spent on this illegal war, resulting in a deepening of the crisis in health care, education, housing, and employment here at home; (4) hundreds of thousands of fellow human beings will die.
If we allow this administration to rely on the power of violence rather than the rule of law, we the people will pay the price--not George Bush, Dick Cheney and the rest of the oil industry's elite. That fact alone justifies indictment of this administration.
Elizabeth Haddix is national vice president of the National Lawyers Guild, and is a civil rights and employment attorney in Raleigh.