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The Embarrassment and Illegality of the No-Fly Zones

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President Bush’s “zero tolerance” for Iraqi violations of UN resolutions has apparently dropped to “two percent tolerance.” According to administration officials, Iraqi forces have once again fired on U.S. planes patrolling the no-fly zones in Iraq, which U.S. officials had previously claimed would constitute an immediate justification for invading Iraq, not only under the principle of “self-defense” but also for violation of the recently passed UN resolution.

The Bush administration, however, is backing off and so far is not using the shootings as a “self-defense” excuse to invade Iraq, and so far isn’t even taking the matter to the UN Security Council.

There’s a very good reason for the government’s decision: Despite their mild protestations to the contrary, U.S. officials know that the no-fly zones have been illegal from the get-go. And their decision not to use either “self-defense” or violation of the UN resolution as a justification for invading Iraq is an implicit acknowledgment of that illegality.

The no-fly zones were unilaterally established by the U.S. government after the Persian Gulf War, supposedly to enforce UN resolutions on Iraq. There was one big problem, however: The United Nations never authorized the no-fly zones to be established. U.S. officials have always claimed that the U.S. government, as a member of the United Nations, has the right to unilaterally enforce any resolution of the United Nations. Such a position, however, is patently fallacious. Enforcement of an organization’s rules and regulations belongs to the organization itself, not to each and every individual member of the organization.

Several years ago, the U.S. government knowingly, intentionally, and deliberately imposed an illegal embargo against Nicaragua. The case reached the World Court, which ruled in favor of Nicaragua and against the United States. As part of its judgment, the World Court awarded reparations to Nicaragua.

That official court judgment is still outstanding and remains unsatisfied. The U.S. government has continually refused to comply with the judgment and has even blocked attempts of the UN Security Council to enforce it.

Suppose Nicaragua unilaterally decided to enforce the World Court’s judgment by establishing a no-fly zone in the southern part of the United States, backed up with Nicaraguan planes. Suppose also that whenever U.S. radar sites locked onto the Nicaraguan planes, the pilots would fire missiles at the sites, which would occasionally kill American radar operators and nearby civilians.

What would be the response of the U.S. government? How would the American people react, both to Nicaragua’s “U.S. no-fly zone” and to the killings of U.S. citizens? Everyone knows the answer.

What does the illegality of the Iraqi no-fly zones say about the hundreds of Iraqi people who have been killed by the missiles that have been fired and the bombs that have been dropped as part of the U.S. government’s long-time enforcement of the zones, including 13-year-old Omran Harbi Jawair, whose head was torn off by a no-fly-zone missile while he was tending his sheep in May 2000? How does one morally justify the killings of people that arise out of an illegal act?

The Bush administration is correct in backing off from its “zero tolerance” policy for invading Iraq because it would be wrong to use Iraq’s response to an illegal act to justify such an invasion. The Bush administration will have to look elsewhere for its excuse to invade Iraq.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.