International Law Expert Says U.S. Should Delay an Iraq Attack Until It Gains Security Council Backing

March 4, 2003

Interview
To help readers better understand the nuances of foreign policy, CFR staff writers and Consulting Editor Bernard Gwertzman conduct in-depth interviews with a wide range of international experts, as well as newsmakers.

Anne-Marie Slaughter, the dean of Princeton University’s Woodrow Wilson School of Public and International Affairs and co-chair of the Council on Foreign Relations Roundtable on Old Rules, New Threats, says that eight of 10 international law experts would say that a U.S. invasion of Iraq would violate international law if it took place without solid Security Council authorization. And even if the United States can make a valid claim for legal authorization without a new resolution, it would be preferable to wait a month or so and “hang in [at] the Security Council until we got approval.”

Slaughter, the current president of the American Society of International Law, says that a great deal of the worldwide opposition to the United States “could be reversed if we showed ourselves willing and able to stay with the multilateral process and to use it not only to go to war, but in the aftermath.”

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Slaughter was interviewed by Bernard Gwertzman, consulting editor for cfr.org, on March 3, 2003.

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In a January interview, Richard Butler, the United Nations’ former chief weapons inspector, said that a U.S. invasion of Iraq without a specific Security Council resolution would violate international law. What is your view on this?

I think it is certainly true that eight out of 10 international lawyers would say that would be a violation of international law. That view would also be supported by the legal advisers of most other countries in the United Nations. On the other hand, the United States has said from the beginning that it did in fact have authorization for the use of force, based on a string of resolutions going back to the original [Gulf War] ceasefire resolution in 1991.

And certainly it was clear in November under Resolution 1441 that we were reserving the right to act without a second Security Council resolution. The other members of the council were insisting that we should come back for a second vote. So this is an area in which the law is sufficiently undeveloped that I think you can reasonably agree to disagree. There’s no question, however, that many, many, many other countries-—the majority of other countries and certainly many of our European allies—-will not see a unilateral American-led attack as explicitly authorized by the Security Council.

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So, technically, a U.S. attack would fall within the rules of international law, but in practice it would be better to get Security Council authorization? And that’s why the administration is seeking one?

Exactly. The best evidence that we think that, although we have a case it is not a very strong one, is that we are indeed going back and seeking additional authorization. If we were so sure of our case, we wouldn’t even have needed Resolution 1441, much less an additional resolution.

In Resolution 1441, the administration settled for an ambiguous resolution that left open the question of force?

Yes, that’s right. And the law here is a fluid thing. We are operating within the framework of the United Nations charter, which is in itself an extraordinary phenomenon [and] which not enough people have noticed. We are facing an enormous threat to global peace and security and we are operating through the United Nations. The United Nations mandates a political process operating within general rules and according to resolutions, but obviously there is going to be a lot of ambiguity there, and there is going to be a number of cases in which there are valid but disputed, competing interpretations.

Let’s say the administration withdraws the second resolution because it doesn’t have the nine votes needed for approval, or the resolution passes but the French veto it. What will be the effect on the Security Council if the United States invades anyway?

It depends enormously on what the vote looks like. If the United States has a majority and the French vetoes, then the United States will go ahead and will have the better of the legal argument, assuming the war is as the United States predicts—-both short and successful. At that point, it will look as if the French thwarted a majority of the Security Council. If that is the scenario, I predict we will go ahead and the Security Council will then endorse what happened in the same way that it did after Kosovo in 1999, and the French will find a face-saving way to join that post-war consensus on the grounds that things were uncovered that they did not realize existed. That assumes we have a majority. If there is no majority, I predict that we will not actually let this resolution come to a vote.

What if you had the French and the Russians casting vetoes?

We are not likely to bring it to a vote on those terms either. I think we are quite confident with enough time we can both get a majority and have the Russians vote with us.

If we don’t have a majority and we go ahead into Iraq, the president will probably claim that the Security Council didn’t live up to its mandate. Do you agree with that?

No, and I am not sure I agree the president will actually say that. I think the administration will say the Security Council in the end could not agree but the Security Council will remain a player for us. But even if the president says it, I disagree. The Security Council and the United Nations, in general, are enormously important. We’ve been claiming their relevance is at stake. I think in September, Bush had a valid claim to make. The challenge to the Security Council then was: “If you’re going to keep passing those resolutions, you have to mean what you say.” And I think the Security Council did step up to the plate and pass a unanimous resolution with real teeth, insisting on inspections and insisting they make a difference. At this point, that kind of rhetoric by the president doesn’t ring nearly so true. What’s much more evident and important is that the United Nations will be a major player in the aftermath of any use of force.

We will go back to it and ask for some kind of United Nations force in the same way as we did after Kosovo in 1999, as we did after Afghanistan in 2001-02. All the United Nations agencies will be involved. It is unimaginable to think of doing this without the high commissioner for refugees, the high commissioner for human rights, all the expertise in peacekeeping and nation-building. We do not have that expertise-—the United Nations and the European Union do—-and we will need them both.

It seems a while since the United States had so few friends around the world. Do you agree?

We have been here before. Anyone who remembers being in Europe in 1982 with the massive, enormous demonstrations against the deployment of Pershing [tactical nuclear] missiles knows we have been through very bumpy times before. I think the stakes are higher now, precisely because this is unipolar rather than a bipolar system with the disappearance of the Soviet Union. There’s a greater danger of other nations genuinely coalescing against us, so that although that I don’t think it is unique—-having many nations very opposed to us—-I think the stakes are higher and we would do well to be more careful because a lot of the enmity and the political maneuvering could be reversed if we showed ourselves willing and able to stay with the multilateral process and to use it not only to go to war, but in the aftermath. So if we were to hang in [at] the Security Council until we got approval, which I think in another month we will get, we could do extraordinary things.

You never would have predicted in September that it would have taken until November to get Resolution 1441. If you remember that Secretary of Defense Donald Rumsfeld in August and Vice President Dick Cheney right before the president’s September 12 speech [to the United Nations] were saying “we’re going to go” after Saddam now, it was remarkable the president would go to the United Nations. But no one expected we would seriously negotiate for two months. If this takes another month, it is well worth it if we get a resolution.

The president has spoken recently as if we were definitely going to war. But how much of the president’s rhetoric is to scare the Iraqis into cooperating and how much is it because he actually means to go to war?

Everything he says sounds one way if you think his audience is the United States public and the Europeans and the rest of the United Nations community. It sounds a completely different way if you think his audience is Saddam Hussein and the Republican Guard. So when he says regime change is the objective, what he is saying is, if we go to war, you will not still be in office at the end of it. That is a very clear statement to both Saddam Hussein and his supporters. It sounds very different if the president is trying to put pressure on the Iraqis or to dictate to our European allies.

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