A Figleaf of Legality

Finally, there is the broad principle of proportionality. Force used against Iraq in service of the U.N. resolutions “must have as its objective the enforcement of the terms of the [Gulf War] cease-fire [i.e., Resolution 687],” needed to be limited to achieving that objective, and had to be proportional to “securing compliance with Iraq’s disarmament obligations.” In other words, Goldsmith explicitly noted, “regime change cannot be the objective of military action.”

George Bush sought a congressional resolution authorizing force and secured it on Oct. 10, 2002. That resolution explicitly restricted the use of force to compelling adherence with “relevant United Nations Security Council resolutions,” and continuing threats from Iraq. This was not a blanket declaration of war. The resolution’s contingent authority evaporates if its conditions are not met.

We now know that Saddam Hussein had no weapons of mass destruction and very little in the way of programs to develop them. That is why the weapons inspectors, quite rightly, were not going to report a material breach — the inspectors could find no evidence of weapons. Iraq was in compliance with the Gulf War resolutions and had not invaded anyone — hence no threat to international peace and security. Washington’s assertion otherwise remained crucial to cover an aggressive war with a fig leaf of legality. That fig leaf has now disappeared.

A Figleaf of Legality

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