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Professor Marjorie Cohn
Thomas Jefferson School of Law
JURIST Contributing Editor

In 1990, George H.W. Bush 菟ersuaded the members of the Security Council to authorize Desert Storm by bribing them with cheap Saudi oil, new arms packages and development aid. But when Yemen refused to capitulate, a U.S. diplomat immediately warned, 鍍hat will be the most expensive 創o vote you ever cast. Indeed, the United States punished Yemen, the poorest country in the Arab world, by cutting off its entire U.S. foreign aid package of $70 million.

Twelve years later, George W. Bush's administration has used similar tactics to persuade members of the Security Council to sign onto Resolution 1441, dealing with Iraq. The current Security Council has attempted to save face by changing a few words, such as "or" to "and," and "restore" to "secure." Those changes made the resolution palatable for Russia and France. But in adopting the resolution, it seems certain the Security Council was ever mindful of Yemen's fate when it defied the United States in 1990. Members of the Security Council have opted to jump onto the speeding U.S. train rather than be crushed under its mighty wheels.

Bush the Younger has exercised power politics throughout his crusade to obtain authority to attack Iraq. Bush first threatened and cajoled a majority in Congress to declare Saddam Hussein Public Enemy Number One, despite Hussein's failure to attack any country for 12 years, and the absence of any evidence linking him to Al Qaeda. All that remained was to secure Security Council "authorization" to conduct Bush's new preemptive military strategy, change Iraq's regime and clinch U.S. corporate control of Middle East oil.

The passage of Resolution 1441 gives the Bush Regime the tools it needs to carry out that mission. Although couched as a means for disarmament, this resolution is really a 都et up that will be used to justify the U.S. military takeover of Iraq. Paragraph 8 states that . . . Iraq shall not take or threaten hostile acts directed against any representative or personnel of the United Nations or of any Member State taking action to uphold any Council resolution. Although the 渡o-fly-zones have never been sanctioned by the Security Council, under Paragraph 8, the U.S. could justify its use of military force against Iraq, if Iraq fired on a U.S. airplane which was unlawfully violating Iraq痴 airspace within these zones.

The resolution further declares that 吐alse statements or omissions in the declarations submitted by Iraq and 吐ailure by Iraq at any time to comply with, and cooperate fully with the implementation of this resolution shall constitute a further material breach of Iraq痴 obligations . . . The U.S. will, as it has in the past, take it upon itself to judge whether Iraq has complied with this provision, in spite of the Security Council痴 exclusive authority to declare when a country is in material breach.

Iraq responded to Resolution 1441 by denying it has weapons of mass destruction, indicating its intention to cooperate with the weapons inspectors, and stating it would later issue an analysis of why this resolution violates the United Nations Charter, prior Security Council resolutions, and other provisions of international law.

It would be very difficult for any sovereign nation to comply with Resolution 1441, which in effect authorizes the occupation of Iraq. A particularly onerous provision grants weapons inspectors the unrestricted right to interview all Iraqi officials and all other persons inside or outside Iraq. That provision would give inspectors power to act as de facto asylum officers and transport anyone, including high ranking Iraqi officials, with or without his permission.

Finally, in a direct invitation for non-compliance, the resolution sets a 30-day deadline for Iraq to declare not only its weapons programs, but all chemical, biological and nuclear programs unrelated to weapon production. Even Hans Blix, Executive Chairman of UNMOVIC, told the Security Council that this was an unrealistic deadline.

If Iraq misses this deadline, thousands of U.S. troops already poised at its border are likely to invade, resulting in the massive loss of Iraqi and American lives. The invasion is likely to occur without further authorization from the U.N. Indeed, Colin Powell said on CNN痴 鏑ate Edition, that if the U.N. isn稚 willing to authorize the use of 殿ll necessary means to disarm Hussein, 鍍he United States, with like-minded nations, will go and disarm him forcefully.

But only the Security Council can authorize the use of armed force. Since 1990, the Council has not authorized the use of force in Iraq. No country can unilaterally use military means to enforce a U.N. resolution without violating the U.N. Charter. It remains to be seen when and how the United States will unilaterally decide that Iraq has breached the terms of Resolution 1441, and use that as a pretext to strike. The lives of a quarter million U.S. soldiers and millions of Iraqi people are at stake.

Marjorie Cohn, an associate professor at Thomas Jefferson School of Law in San Diego, is executive vice president of the National Lawyers Guild.

November 21, 2002


JURIST Contributing Editor Marjorie Cohn is an associate professor at Thomas Jefferson School of Law in San Diego, where she teaches Criminal Law, Criminal Procedure, Evidence, and International Human Rights Law. A news consultant for CBS News and a commentator for Court TV, she has co-authored a book on cameras in the courtroom with former CBS News Correspondent David Dow. Professor Cohn has also published articles about criminal justice, international human rights, U.S. foreign policy and impeachment. She is executive vice president of the National Lawyers Guild, editor of the Guild Practitioner and is on the Roster of Experts of the Institute for Public Accuracy. A criminal defense attorney at the trial and appellate levels for many years, Professor Cohn was also staff counsel to the California Agricultural Labor Relations Board. She has lectured at regional, national and international conferences, and was a legal observer in Iran on behalf of the International Association of Democratic Lawyers.

Professor Cohn is a graduate of Stanford University and the University of Santa Clara School of Law.