President Bush has said he wants a regime change in Iraq. In a simpler time, the U.S. might have declared war on Iraq. But wars are rarely formally declared any more. What impact does the fact of undeclared war have on what the U.S. can do militarily and diplomatically under international law? Here are thoughts from three sources. Feel free to contact any of them.
"This is a complex and controversial subject. The U.S. has not had a formally declared war since World War II, yet has engaged in numerous, sometimes lengthy and very bloody, armed conflicts such as in Korea, Vietnam, Desert Storm, and Afghanistan. There has evolved a process whereby the President informally consults with at least some in Congress as to his plans, and sometimes Congress passes some type of resolution expressing their collective sense about the armed conflict, but the formal dictates of the War Powers Resolution are rarely if ever followed. Customary international law, pursuant to the Hague Conventions of 1907, the Geneva Conventions of 1929 and 1949, and other sources, has recognized that a formal declaration of war is unnecessary to call into full force the usual rules of engagement, the law of armed conflict as to appropriate use of force, the treatment of POWs, minimization of collateral damage, and many other key legal principles. Declared or not, if it is armed conflict, all the usual rules apply." - John Kunich, professor of law, Roger Williams University in Bristol, RI.
"In the old days, of course, the U.S. regularly targeted leaders for elimination, and with the help of the CIA, was successful at least part of the time (although there were more failures than successes, such as the repeated attempts to get Fidel Castro). Then in the 1970s, the U.S. renounced the use of assassination as a legitimate means of foreign policy. Bush's decision to go after Osama bin Laden was considered by many a breach of what had been our policy, but the Administration tip-toed around the problem by arguing that bin Laden was not a head of state. Of course, this argument (which I find rather dubious anyway), is not available in the case of Saddam Hussein. The U.S. cannot go after him unless it is really willing to renounce its existing rules, which Bush seems willing to do. If he does, then it is probably legal for the U.S. to go after him under international law (and the UN Charter) because we would claim that we are acting in self-defense, which is a recognized justification for action. As to whether it is efficient to go after him, the answer is clearly no. It is very hard to kill a single individual, as the unsuccessful effort against bin Laden is reminding us. Indeed, it never was possible to kill Adolf Hitler (he took his own life), although we had many plans to do so. And as I say, we consistently failed to kill Castro. Moreover, by making the death of a single individual a stated goal, the U.S. falls into a serious trap: kill the individual and you make him a martyr; fail to kill him, and you make him a hero of mythic proportions. It therefore would be much better if the U.S. simply declared that it was working for a political change in Iraq and ignored the issue of Saddam Hussein altogether." - Robert Jarvis, professor of law, Nova Southeastern University in Ft. Lauderdale, FL.
"After WWII and the UN Charter, unilateral military action and formal declarations of war are not common because the use of force is prohibited under international law (Article 2(4), UN Charter) but for the following: (1) the UN Security Council has decided that there has been a breach of or a threat to international peace and security or an act of aggression (Article 39) (e.g., Saddam Hussein's invasion of Kuwait); (2)action by regional organizations (Chapter VIII) (such as NATO's in Kosovo; and (3)unilateral use of force in self-defense, permissible under Article 51 (possibly pre-emptive self-defense as well), such as US action in Afghanistan, which also had the Security Council's blessing. Under international law, the US could conceivably use unilateral force against Baghdad (unlike building a coalition for multilateral action, as in Afghanistan), only on the ground of pre-emptive self-defense. The argument would be that weapons of mass destruction that Baghdad is producing are likely to be used by terrorists (either falling into their hands, or being given by Iraq), and likely to harm the US and its interests." Ved Nanda, director of international legal studies at the University of Denver.
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