No Evidence to Merit US Enforcement of UN Resolutions

On March 20th, the State Department told the UN that they were attacking Iraq because Iraq’s disarmament obligations needed to be enforced:

Coalition forces have commenced military operations in Iraq. These operations are necessary in view of Iraq’s continued material breaches of its disarmament obligations under relevant Security Council resolutions, including 1441 (2002).

Now the question of the moment is "Will the CIA inspections report tomorrow provide any evidence to actually substantiate that Iraq was not disarmed when the US commenced military action?"

If they haven’t found any chemical or biological weapons , then doesn’t that indicate that there probably wasn’t any weapons to be disarmed?

There was no evidence of reconstituting their nuclear weapons program outside of the widely discredited aluminum tubes and bogus Niger claims.

My guess is that the CIA has looked around Iraq for over a year and a half trying to come up with a lot of strained evidence that Saddam was trying to violate the sanctions regime some time in the near future.

Is this really a valid threshold to invade a country and overthrow its government?

It is pretty clear that Saddam didn't immediately and actively comply with UN security council resolution 1441, but does the degree of this breach merit the response of the United States?

International Lawyer Sean Murphy doesn’t think so. He assumes that the United States’"revival" theory is legitimate and still finds that the US used a disproportionate amount of force to enforce Iraq's disarmament obligation and non-compliance

Murphy writes on page 51 of "Assessing the Legality of Invading Iraq":

The third problem with the "revival" theory concerns the objectives for which the revived use of force may be used. If a material breach of Resolution 687 is the trigger for using force under the authority of resolution 678, then presumably that use of force is limited to what is necessary and proportionate in addressing the material breach.(73)

Thus—assuming the "revival" theory is valid—an Iraqi failure to allow weapons inspectors to visit a particular site might result in a use of force to compel acceptance of those inspectors, or the Iraqi construction of a WMD site might be destroyed by a missile attack. Yet, by contrast, material breaches of that type would not seem to warrant a state or group of states invading and occupying Iraq, and toppling its government.

If this isn’t enough to convince you and you want some legal references, then go track down the information in Murphy’s 73rd footnote:

Although the legal theory is cast in terms of "material breach" of Security Council resolutions, the resort to force in response to that breach is still governed by international rules applying to the use of force. It is generally accepted that customary international law requires that the use of force—whether based on self-defense or on authority of the Security Council under Chapter VII of the Charter—be necessary to address, and proportionate to, the threat that gave rise to the right to use force. See, e.g., 1 THE CHARTER OF THE UNITED NATIONS 753 (Bruno Simma, ed., 2d ed., 2002) (noting the language in UN Charter Article 42 that the Security Council may decide on forcible measures "as may be necessary" to maintain or restore international peace and security); see also Legality of the Threat or Use of Nuclear Weapons, 1996 ICJ Rep. 226, para. 41 (Advisory Opinion of July 8); Judith Gail Gardam, Proportionality and Force in International Law, 87 AM. J. INT’L L. 391, 391 (1993). Similarly, the rules relating to "counter-measures" under the law of state responsibility (which concern measures by one state against another state whose acts impair the international rights of the first state) call for such counter-measures to be proportionate, meaning "commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question." See JAMES CRAWFORD, THE INTERNATIONAL LAW COMMISSION’S ARTICLES ON STATE RESPONSIBILITY: INTRODUCTION, TEXT, AND COMMENTARIES 294 (2002) (quoting Article 51 of the International Law Commission’s articles on state responsibility); see also FRANCK, supra note 35, at 132-34 (asserting that UN practice offers some latitude for states to resort to forcible counter-measures, but that such acts are assessed in accordance with principles of necessity and proportionality).