At the time of the Gulf War, it is worth recalling that the US and its coalition partners, before launching the attack against Iraq, were careful to obtain authority from the UN Security Council in the form of a special resolution. The resolution that provided this authority is discussed in some detail in this paper.

This time, the US is taking the position that no such resolution is needed because the proposed military action would be justifiable on the basis of existing Security Council resolutions. Others take the view that authority for taking military action at this stage is totally absent.

By arguing that it already has authority to proceed by virtue of existing Security Council resolutions, the US appears to be acknowledging that it does in fact need at least some type of authority from the UN - whether it be clear and contemporaneous authority or implied by existing resolutions. On this point, the US is on solid ground. There is little doubt that, without valid authority from the Security Council, the US and its partners, if they take military action against Iraq, would be violating international law. Much therefore depends on whether the US is correct in asserting that it has the right to proceed without new authority from the Security Council.

It is sometimes argued that, even if the proposed military action cannot be justified on the basis of existing resolutions, it should be regarded as justifiable on the basis that the real purpose of the action is to uphold a UN Security Council resolution. This line of argument could be seen in the speech made by Canada's Prime Minister, Jean Chrétien, to the House of Commons during the debate that preceded Canada's announcement of support for the US military action. At that time, the Prime Minister said:

. . . Tonight I want to lay out clearly - before the people of Canada - why we believe their government should support military action if [Saddam] does not comply . . . Our allies, led by the United States, have asked that we support such a mission . . . it would mean that, when and if every other means fails, an action is taken to enforce the will of the Security Council, Canada will be counted . . . I believe it is a choice dictated by the responsibilities of international citizenship . . .[8]

It may seem ironic to some, but there can be no justification for using military force simply on the basis that its purpose is to uphold international law or a UN decree relating to peace and disarmament. International law does not permit countries to take the law into their own hands by administering punishment to those they consider to be violators - even when the fact of the violation is beyond doubt. Under the UN Charter, the right to take military action to quell a threat to international peace is reserved to the Security Council. No Member State is justified in using military force for the purpose of assisting the Security Council in enforcing compliance with its decrees, unless the Security Council requests such assistance. The only exception is a provision to the effect that a country is entitled to exercise a right of self-defence in order to deal with an armed attack.[9] Neither the US nor any of its partners is asserting a right of self-defence in this case.

Accordingly, any attack on Iraq at this time without valid authorization from the Security Council is prohibited by the UN Charter. Article 2 of the Charter reads as follows:

Art. 2 The Organization and its Members, in pursuit of the Purposes stated in Article I, shall act in accordance with the following Principles: . . .

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

It is clear that not only would the military action be a violation if it occurs; the US is already in violation of the Charter because of the various statements made by it to the effect that it intends to use military force; these statements are clearly threats.

On the other hand, it may be argued that in situations where the UN Charter obviously fails in its purpose to deliver peace, the Member States are justified in disregarding the Charter and taking matters into their own hands. This argument is considered in Section X of this paper.