We are slowly inching towards another possible war in Iraq. The next few weeks will test the world’s respect for international law, the credibility of the United Nations and the multilateral world order it stands for. They will also determine the resolve of the international community to arrive at peaceful resolutions of disputes within the prescribed limits of that law.

America cites that Iraq still possesses WMD capability, is culpable of non-compliance of UN resolutions, and considers the current minatory political regime in Baghdad cause enough to launch a preemptive offensive against it.

But any unilateral attack on Iraq by the US and its allies would constitute a grave breach of international law and the objectives of the UN Charter. A State can legally use force against another only when subject to an armed attack in individual or collective self-defense. Instances of such use of force in self-defence are to be reported to the Security Council and the right to independent action ends when the Council takes requisite steps. Nevertheless, the terms of Article 51 of the United Nations Charter demonstrate that the State community is cultivated on the assumption that the "inherent right" to self-defense is based on customary law.

However, even as far as the argument of self defense goes, under established principles of international law, specific conditions must be met to justify the need for a preemptive strike: there must exist an imminent threat of an armed attack against a state’s territory, its forces or nationals that warrants the defensive action. There is no alternative recourse, in addition to the conditions of necessity and proportionality.

In Nicaragua v. USA (1986), the International Court of Justice ruled that no State has the right to attack another on the basis of its own assessment of the situation; this right can be invoked only if the State is a victim of an armed attack. In other words, self-defense requires the existence of an armed attack. The events of 9/11 could make a case; however, with no convincing evidence of Iraqi involvement, arguments for a preemptive anticipatory attack hold no ground. Particularly because, the world court has also ruled: “acts of mere assistance to rebels in the form of the provision of weapons or logistical or other support are not to be included in the concept of an armed attack." Thus, even if Al-Qaeda or another terrorist network were provided such support, it would not warrant an armed attack under the existing legal framework. 

Under Article 39 (VII) of the UN Charter, only the Security Council, if satisfied that Iraq is a threat to international peace and convinced that the threat cannot be contained except through use of force, may give its assent to use of force; no individual state possesses the right to unilateral use of force.

Non-compliance of UN Security Council (UNSC) Resolutions should be dealt by the power vested with the Security Council under the Charter itself; previous resolutions of use of force are not a mandate for Member states to enforce them in the future, and there has to be an explicit UNSC authorization since the Security Council alone wields the right to decide on use of force. Thus, the assertion that Resolution 1441, especially considered in the light of prior resolutions, can properly be read to confer authority to use force, in reality, perverts the law – there is no “inherent” right of preemptive action, as international law requires that Treaty terms be interpreted according to their ordinary meaning.

The Security Council has already announced its determination to "secure full compliance" and recalled that it "has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." The Council, indeed, is the only body legally competent to deal with Iraq. Moreover, as the Blix-El Baradei report of 14 February 2003 confirmed, Iraq is cooperating with the inspectorate and WMDs have not been found in Iraq.  Further, the UN inspection teams have found no convincing evidence of Iraq’s abjuration of its obligations and commitments under Resolution 1441. Consequently, a war premised on Baghdad’s failure to comply with weapons inspectors in breach of UNSC resolution 678 (1990) calls for more compelling evidence.

If at all force is to be used against Iraq, it is certainly not the US’s prerogative, neither that of its allies, but of the collective wisdom of the Security Council alone. The Council now must rise up to the challenge and assert itself for its own credibility, the purposes and objectives of the UN Charter, and for the sake of the future international order.