April 21, 2004
By Jonathan Granoff, Michael Doyle and Robert Grey Jr.
People make mistakes. We should not be too surprised or dismayed at the failure of intelligence regarding weapons in Iraq. We now know that blood and treasure is being spent based on speculation or evidence ignored. David Kay’s testimony that Iraq did not pose a threat to the US highlights why we must return to American values. Our founding fathers knew that because people make mistakes the inefficiencies of checks and balances must be legally mandated. We should be very alarmed that these restraints on action were and continue to be ignored with bravado.
John Adams repeated in so many ways that “jealousies and rivalries have been my theme, and checks and balances as their antidotes, till I am ashamed to repeat the words.” The Federalist essays written to flesh out the logic of the Constitution are an unparalled masterpiece of political insight on the dangers of unchecked quests for power. Its authors remind us that our human frail condition renders us “remote from the happy empire of perfect wisdom and perfect virtue.” Such warnings of the abuse of unbounded power were a staple of constitutional thought with roots in Aristotle, Polybius, and Cicero among the ancients, and by Locke, Montesquieu, and Bolingbroke among the moderns. We ignore this wisdom at our peril.
That is why when President Bush boasted in his State of The Union Address that “America will never seek a permission slip to defend the security of our people,” many who love America trembled. Our Constitutional checks and balances system is specifically designed to curb such arrogance of power and does indeed require permission slips. To start with, Article I of the Constitution declares that the president must have a permission slip from the Congress to declare war. But permissions do not stop there. Article VI of the Constitution makes treaties the Supreme Law of the Land. The UN Charter is such a treaty and not only our word and our honor require adhering to its terms, but the very basis of our system of government, the rule of law itself, requires adherence to its terms. Nothing can so erode confidence in the proper use of power by the strongest nation in the world than failure to adhere to the rules that that we have agreed should be binding on all states.
To the careful listener Bush tried to finesse recognition of the UN Charter by asserting that the Iraqi invasion enforced “demands of the United Nations.” One can only assume that this means that the United States and its coalition partners could enforce Security Council Resolutions without the prior agreement of the Security Council. This is simply not true. And, it is simply not legal nor for that matter is it prudent.
Under the United Nations Charter, which was drafted largely under American leadership and by Americans and which we subsequently ratified and is the law of the land, force is authorized only under Article 42 or Article 51 of the Charter.
Article 51 makes it clear that a nation or group of nations can use force in self-defense only in circumstances when the necessity for action is instant, overwhelming and leaving no choice of means, and no moment for deliberation. The American diplomats who drafted that article wanted to outlaw the specious claims made by Adolph Hitler and others of the Axis leaders that x or y or z constituted a potential threat to security that had to be prevented by a “defensive” war.
But the Charter does not require states to wait helpless until they are attacked. Article 42 permits the Security Council to take action to maintain or restore international peace once it determines that a threat to the peace, breach to the peace or act of aggression has occurred. The Charter rests on the view that the rule of law and a decent respect for the opinions of mankind require that states follow agreed procedures and convince the Security Council — legally entrusted with the responsibility to decide — that a genuine threat is present before they launch a preventive war, a war of choice.
The Bush Administration argues that existing Security Council Resolutions relating to Iraq justified action to enforce these Resolutions. This is not the case. Resolution 687, which required Iraq to end its long-range missile, chemical, nuclear, and biological weapons programs, reserved for the Council the power to make determinations on enforcement of the cease fire terms and made it clear that the Council remained seized of the matter. Subsequent Council Resolutions did not clearly and specifically authorize the use of force to achieve compliance. Indeed Resolution 1441 of November 8, 2002, did not specifically authorize the use of force and required returning to the Council before resorting to force.
The Charter is not a suicide pact. All states must take its principles to heart and the Security Council is obliged to determine whether a genuine threat to international security exists. No state or small coterie of states should arbitrarily veto a genuine case for preventive action. But the US failed to make such a case.
If other countries follow our example and decide that they also do not need permission slips to use force to enforce UN resolutions as and when they please anarchy will result. US leadership in advocating constitutional governance based on legal restraint will utterly fail and democracy as an institution will suffer. Can any country on its own whim and fancy declare who the bad guys are? Are only America and a few friends qualified to determine who the good guys are? Do we want the world to look like the Old West? That is the concern of the international community and of many Americans as well.
Michael W. Doyle is the Harold Brown Professor at Columbia University in both the School of International and Public Affairs and Columbia Law School; Jonathan Granoff is President of the Global Security Institute; Ambassador Robert Grey Jr. (ret) is Director of the Bipartisan Security Group in Washington, DC.
Jonathan Granoff is the President of the Global Security Institute, a representative to United Nations of the World Summits of Nobel Peace Laureates, a former Adjunct Professor of International Law at Widener University School of Law, and Senior Advisor to the Committee on National Security American Bar Association International Law Section.