Shane HensingerIssues of Legality Surrounding the US-led Invasion of Iraq

International LawNew York University

Professor Veena Thadani

Introduction..........................................................................................................................3UN Resolutions, Charter and Laws.....................................................................................3Customary International Law – Interceptive/Anticipatory Self-defense...........................13Terrorism...........................................................................................................................15Conclusion.........................................................................................................................17Bibliography......................................................................................................................19

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Introduction

The 2003 US-led invasion of Iraq began in a fog of controversy over the issue of the

war’s legality, timing and rationale. Distinguished jurists, statesmen/women and others

around the globe have added their voices to the din surrounding the issue of legality vs.

illegality which today remains unanswered and without definitive conclusion.

This paper will explore the issues surrounding the legality of the invasion and will do so

using the IRAC format used in law school to answer questions with competing answers.

IRAC: I – Issue. R – Rule. A – Argument. C – Conclusion.

UN Resolutions, Charter and Laws

The United Nations Security Council had passed over 17 resolutions dealing with the

situation in Iraq prior to the US-led invasion in 2003. The first was resolution 660, which

dealt with the initial Iraqi invasion of Kuwait. The following resolution, 661, specifically

mentioned Chapter VII of the UN Charter, which states in part in Article 39:

The Security Council shall determine the existence of any threat to the

peace, breach of the peace, or act of aggression and shall make

recommendations, or decide what measures shall be taken in accordance

with Articles 41 and 42, to maintain or restore international peace and

security.

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The Security Council acting under its obligation to restore international peace and

security in the region, ordered a package of measures put in place including

comprehensive sanctions to force Iraq to withdraw from Kuwait.

Because Iraq did not withdraw from Kuwait and as a member of the United Nations was

in violation of international law the UN Security Council subsequently passed resolution

678, which again stated that the council acting under Chapter VII:

2. Authorizes Member States co-operating with the Government of

Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set

forth in paragraph 1 above, the above-mentioned resolutions, to use all

necessary means to uphold and implement resolution 660 (1990) and all

subsequent relevant resolutions and to restore international peace and

security in the area;

Following the successful ejection of Iraq forces from Kuwait the UN Security

Council passed resolution 687 which “welcomed the restoration to Kuwait of its

sovereignty, independence and territorial integrity.” The resolution also imposed

conditions on Iraq for ending the war, most of which concerned Iraqi obligations

to end its weapons of mass destruction (WMD) program. The relevant articles of

the resolution are as follows:

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8. Decides that Iraq shall unconditionally accept the destruction, removal,

or rendering harmless, under international supervision, of:

(a) All chemical and biological weapons and all stocks of agents and all

related subsystems and components and all research, development, support

and manufacturing facilities;

(b) All ballistic missiles with a range greater than 150 kilometres and

related major parts, and repair and production facilities;

Resolution 687 goes on to state:

33. Declares that, upon official notification by Iraq to the Secretary-

General and to the Security Council of its acceptance of the provisions

above, a formal cease-fire is effective between Iraq and Kuwait and the

Member States cooperating with Kuwait in accordance with resolution

678 (1990);

34. Decides to remain seized of the matter and to take such further steps as

may be required for the implementation of the present resolution and to

secure peace and security in the area.

Resolution 687, as stated above, finds that the UN Security Council “remains seized of

the matter” of Iraq’s compliance with all relevant UN Security Council resolutions and

the conditions imposed as a result of the passage of those resolutions. It also states that it

can “take such further steps” as are necessary “to secure peace and security in the area.

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Following a long period of low-level hostility between Iraq and the United States, acting

with Great Britain as the armed party responsible for enforcing UN resolutions regarding

Iraq, the US began pushing for an additional resolutions arguing that Iraq was in violation

of its obligations under previous UN Security Council resolutions, in particular those

named above (Hurd 6).

The result was UN Security Council resolution 1441, which stated the following:

Further recalling that its resolution 687 (1991) imposed obligations on

Iraq as a necessary step for achievement of its stated objective of restoring

international peace and security in the area,

1. Decides that Iraq has been and remains in material breach of its

obligations under relevant resolutions, including resolution 687 (1991), in

particular through Iraq's failure to cooperate with United Nations

inspectors and the IAEA, and to complete the actions required under

paragraphs 8 to 13 of resolution 687 (1991);

13.Recalls, in that context, that the Council has repeatedly warned Iraq

that it will face serious consequences as a result of its continued

violations of its obligations

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Supporters of the argument that the Iraq was legal tend to rely on UN Security Council

resolutions 678, 687 and the following resolution 1441 (Johnson). In particular the

arguments put forward, in public, by British Attorney General Lord Goldsmith, who

stated in a written parliamentary answer that the combined resolutions mentioned above

gave the US-led coalition authority under international law to invade Iraq. In his advisory

opinion he stated the following:

Authority to use force against Iraq exists from the combined effect of

resolutions 678, 687 and 1441. All of these resolutions were adopted

under Chapter VII of the UN Charter which allows the use of force for the

express purpose of restoring international peace and security

In resolution 687, which set out the ceasefire conditions after Operation

Desert Storm, the Security Council imposed continuing obligations on Iraq

to eliminate its weapons of mass destruction in order to restore

international peace and security in the area. Resolution 687 suspended but

did not terminate the authority to use force under resolution 678.

3. A material breach of resolution 687 revives the authority to use force

under resolution 678.

4. In resolution 1441 the Security Council determined that Iraq has been

and remains in material breach of resolution 687, because it has not fully

complied with its obligations to disarm under that resolution.

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5. The Security Council in resolution 1441 gave Iraq "a final opportunity

to comply with its disarmament obligations" and warned Iraq of the

"serious consequences" if it did not (Goldsmith).

These arguments, relying on the UN resolutions mentioned above, were echoed by the

legal experts representing the US government as well as that of Australia (Hurd 8). All

relied on the language of continuance emanating from resolution 687 and then buttressed

by UN Security Council resolution 1441, in particular the language of “material breach”

(Johnson)

Those against the war take issue with the arguments by the states and their defenders

arguing for the war in Iraq.

The “revival argument” states that a case can be made for war under existing UN

Security Council resolutions and specifically mentions resolutions 678 and 687. Lord

Goldsmith in his opinion marked “Secret” says the following regarding what is called

“the revival argument.”

Law Officers have advised in the past that, provided the conditions are

made out, the revival argument does provide a sufficient justification in

international law for the use of force against Iraq. That view is supported

by an opinion given in August 1992 by the then UN Legal Counsel, Carl-

August Fleischauer. However, the UK has consistently taken the view

(as did the Fleischauer opinion) that, as the ceasefire conditions were

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set by the Security Council in resolution 687, it is for the Council to

assess whether any such breach of those obligations has occurred.

I remain of the opinion that the safest legal course would be to secure the

adoption of a further resolution to authorise the use of force. I have

already advised that I do not believe that such a resolution need be explicit

in its terms. The key point is that it should establish that the Council has

conduced that Iraq has failed to take the final opportunity offered by

resolution 1441, as in the draft which has already been tabled (Goldsmith).

Lord Goldsmith goes on to state, regarding the issue of Iraq and whether a “reasonable

case” can be made for war:

“But a "reasonable case" does not mean that if the matter ever came before

a court I would be confident that the court would agree with this view”

(Goldsmith).

Looking further at UN resolution 1441 one can see clearly strong language used in this

resolution, including “material breach,” “final opportunity” and “full compliance.”

However unlike UN Security Council resolution 678, resolution 1441 does NOT mention

“all necessary means” anywhere or feature any text authorizing any UN member to use

force against Iraq. The resolution declares Iraq in “material breach” but then does not

anywhere provide a remedy to mend that “material breach” (Hurd 7). When a lawmaking

body, such as the UN Security Council, finds a party in breach it would then typically

assess a penalty for that breach. In the case of Iraq the United States and its coalition

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allies took it upon themselves to remedy that breach using the argument that older UN

Security Council resolutions authorized them to do so.

In late November 2003 Richard Pearle, a prominent neo-conservative and architect of the

Iraq war, said this in London:

"…international law ... would have required us to leave Saddam Hussein

alone", and this would have been morally unacceptable… I think in this

case international law stood in the way of doing the right thing."

Here you have an architect of the war, a member of the Pentagon defense review board

which advises the US Secretary of Defense, stating clearly that the war was illegal but

offering up the rationale that when international law is inconvenient a state can simply

break the law (Burkeman & Borger).

In 2004 UN Secretary-General Kofi Annan stated that the Iraq war was illegal under the

UN charter:

"I have indicated it was not in conformity with the UN charter. From our

point of view and from the charter point of view it was illegal" (Macaskill

& Borger)

While the Secretary-General is not a judge his opinion does carry weight internationally.

The United States and its coalition allies relied in many ways on the concepts of a “just

war” in stating that Saddam Hussein’s regime was a bad one and that it posed a danger to

peace and security in the area. But the idea of a “just war” disappeared more than 300

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years ago. As Shaw states, “States were sovereign and legal and no state could presume

whether another’s cause was just or not” (Shaw 1015). For the purposes of this report

“just war” is non-important, “legal war” is.

Further arguments in opposition to the war exist in a reading of the UN charter. Section 2

(3) and (4) state:

3. All Members shall settle their international disputes by peaceful

means in such a manner that international peace and security, and justice,

are not endangered.

4. All Members shall refrain in their international relations from the

threat or use of force against the territorial integrity or political

independence of any state, or in any other manner inconsistent with the

Purposes of the United Nations.

These principles, that a state must settle disputes peacefully first, are a matter of treaty

law to which all UN members ascribe when they sign and accept membership in the

United Nations. Furthermore the principle of settling disputes peacefully could be

considered to now be a rule of customary international law.

The 1970 Declaration on Principles of International Law states the following:

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The principle that States shall refrain in their international ~ relations from

the threat or use of force against the territorial integrity or political

independence of any State or in any other manner inconsistent with the

purposes of the United Nations

Every State has the duty to refrain in its international relations from the

threat or use of force against the territorial integrity or political

independence of any State, or in any other manner inconsistent with the

purposes of the United Nations. Such a threat or use of force constitutes a

violation of international law and the Charter of the United Nations and

shall never be employed as a means of settling international issues.

A war of aggression constitutes a crime against the peace, for which there

is responsibility under international law (Shaw 1019).

In its war against Iraq the US operated on the principle that Iraq should be punished

through use of force and specifically stated that its goal was to overthrow the regime of

Saddam Hussein. While the 1970 declaration is a UN General Assembly resolution

(2625) and not one from the UN Security Council it does add to the weight of

international opinion.

Under a reading of the UN charter and subsequent UN resolutions dealing with the

situation in Iraq the US-led attack against Iraq was illegal under international law. The

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US-led attack violated the UN charter section 2 (3) & (4). The US did not posses the

authority on it own to enforce UN Security Council resolutions regarding Iraq.

Customary International Law – Interceptive/Anticipatory Self-defense

The US claimed Saddam Hussein posed a “grave threat to peace” and thus could make a

claim that it was exercising its right to self-defense under Article 51 of the UN charter

and customary international law (White House, Oct 7, 2002). This theory would be

known as “interceptive self-defense” and would depend on the evidence shown of an

imminent threat.

The Caroline Affair of 1838 established as a rule of customary international law:

…the principle of "anticipatory self-defense" in international politics,

which holds that it may be justified only in cases in which the "necessity

of that self-defence is instant, overwhelming, and leaving no choice of

means, and no moment for deliberation” (Wikipedia)

Did the United States have a clear and compelling case for the use of interceptive or

anticipatory self-defense?

Arguing in the law journal of the International Law Department of the University of

Miskolic, law professor Louise-Phillipe Rouillard wrote the following:

The existence of a right to anticipatory self-defence can be established and

there certainly are clear and imminent dangers that must be pre-emptively

addressed. But they must be so addressed within the strict and narrow

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confines of the exhaustion of all alternative means, the necessity of its

actions being established by the immediacy of the danger, and must be

proportional to the threat. Regardless of the excuses given so far toward

the extension of this right, none have either been conclusive or even

remotely convincing. None have been accepted so far by the

international community and certainly none should be (Rouillard).

How, exactly, did Saddam Hussein present an “imminent threat” to the United States

when in July 2001 (then) National Security adviser Condoleeza Rice said the following:

“We are able to keep arms from him. His military forces have not been

rebuilt” (Lie by Lie).

Yet the evidence indicated, in statements from US administration officials and the memos

mentioned below, that the US had already decided to “go after” Saddam Hussein and Iraq

(Manning). Cleary the doctrine of “anticipatory” or “interceptive self-defense” do not

apply to a war that was years in the making before it was launched.

The US also violated customary international law by not seeking to settle its differences

with Iraq peacefully and by seeking to use the cover of the UN, which it ultimately did

not receive, to wage war against Iraq when it had already decided, on the basis of secret

memos published in the Sunday Times of London, to go to war against Iraq more than a

year before the actual invasion began.

Military action was now seen as inevitable. Bush wanted to remove

Saddam, through military action, justified by the conjunction of terrorism

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and WMD. But the intelligence and facts were being fixed around the

policy. The NSC had no patience with the UN route, and no enthusiasm

for publishing material on the Iraqi regime's record.

The Defence Secretary said that the US had already begun "spikes of

activity" to put pressure on the regime. No decisions had been taken, but

he thought the most likely timing in US minds for military action to begin

was January, with the timeline beginning 30 days before the US

Congressional elections (Manning).

These memos, which were notes sent between members of the UK foreign policy team,

clearly indicate that the US planned to take military action against Saddam Hussein’s

regime regardless of whether it received UN permission or not. The war was a

premeditated act of aggression unsanctioned by international law. The war was illegal.

Terrorism

The United States was struck on September 11, 2001 with a horrendous attack which

killed nearly 3,000 people. Understandably the United States government and its people

were traumatized by this attack and vowed to take all necessary measures to prevent

another attack from occurring.

Using this rationale could the fact that Saddam Hussein’s government had expressed

support for and glee about the attacks be used as a basis for attacking Iraq? Could the fact

that Saddam Hussein, in providing cash payments to Palestinian suicide bombers in the

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West Bank, Gaza and Israel in violation of UN Security Council resolution 687, Section

H (32) serve as a legal basis for the US-led attack on Iraq?

On September 16, 2001 Vice-President Dick Cheney, when asked of the US had any

evidence linking Saddam Hussein to the 9/11 attacks, said the following:

“No” (Lie by Lie).

There was no evidence linking Saddam Hussein to any attack on the United States

immediately after 9/11 or before the invasion of Iraq in March 2003. Nor has there been

any evidence presented since the invasion linking Iraq to 9/11 or any terrorist attack on

the United States or its citizens.

Saddam Hussein was in violation of his obligations under UN Security Council resolution

687 by vocalizing support for the September 11th attacks as well as providing support to

those carrying out terrorist attacks in Israel or the occupied territories. Nonetheless the

US was bound by customary international law in responding to these acts – specifically

the principle of proportionality.

The International Court of Justice (ICJ) ruled in the case Nicaragua vs. US there exists “a

specific rule whereby self-defense would warrant only measures which are proportional

to the armed attack and necessary to respond to it, a rule well established in customary

international law” (Shaw 1031)

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The attack on Iraq by the US-led coalition could never be justified using the rationale that

Saddam Hussein was supporting international terrorism. The US could show no direct

injury from this support and even if it could its response would be constrained by the

principle of proportionality, which is an established rule of customary international law

(Goldsmith 11). An invasion of Iraq using the rationale of Iraqi support for terrorism

would also be illegal under international law.

Conclusion

This report has focused on the legal basis for and against the US-led attack on Iraq in

2003. The issue of the non-discovery of Iraq’s WMD program has deliberately been left

out because that issue does not relate to illegality of the war, rather bad or forged

intelligence on the part of the US and its allies. Whether Iraq was in possession of

WMDs, which it was not, is inconsequential to the root issue of legality. As stated

previously – the US and its coalition did not posses the legal authority under the UN

charter or relevant UN Security Council resolutions to invade Iraq. Nor could a

persuasive and legally defensible case for invasion be made under customary

international law – specifically self-defense or using the doctrine of imminent threat. A

case for invading Iraq also does not exist under the threat of terrorism, pre or post 9/11.

In short – while defenders of the US invasion can muster imaginative and varied

arguments to support their case they are, at the heart of every argument, incorrect. The

Iraq invasion was not legal. Subsequent UN Security Council resolutions have authorized

coalition forces in Iraq but that does in no way change the fact that the war as carried out

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by the US-led coalition was illegal under both treaty law (UN charter) and customary

international law.

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Bibliography

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Hurd, Nathaniel. Security Council Resolution 1441 and the Potential Use of Force Against Iraq. Mennonite Central Committee. New York: None, 2002. 1-23. 21 Apr. 2008 <www.grassrootspeace.org/scr1441hurd.doc>.

Johnson, Ben. "Kohi Annan's "Illegal" War on Iraq." FrontPageMagazine.Com 20 Sept. 2004. 8 Apr. 2008 <http://www.frontpagemag.com/Articles/Read.aspx?GUID=3318CC94-9EE8-43CC-9E2A-7BFC4C93D796>.

"Legality of the Iraq War." Winkipedia. 14 Apr. 2008. Wikipedia Foundation. 23 Apr. 2008 <http://en.wikipedia.org/wiki/Legality_of_the_Iraq_War>.

"Lie by Lie." Mother Jones 14 Feb. 2008. 23 Apr. 2008 <http://www.motherjones.com/bush_war_timeline/>.

Lord Goldsmith. United Kingdom of Great Britain and Northern Ireland. 10 Downing Street. Tony Blair Archive. Legal Basis for Use of Force Against Iraq. 23 Apr. 2008 <http://www.number-10.gov.uk/output/Page3287.asp>.

Lord Goldsmith. United Kingdom of Great Britain and Northern Ireland. Office of Attorney General. British Attorney General's Advice to the Prime Minister on Legality of the Iraq War. London: None, 2003.

Macaskill, Ewan, and Julian Borger. "Iraq War Was Illegal and Breached UN Charter, Says Annan." The Guardian 16 Sept. 2004. 22 Apr. 2008 <http://www.guardian.co.uk/world/2004/sep/16/iraq.iraq>.

Manning, David. "The Secret Downing Street Memo." The Times of London 1 May 2005. 23 Apr. 2008 <http://www.timesonline.co.uk/tol/news/uk/article387374.ece>.

Rouillard[, Louis-Philippe. "The Caroline Case : Anticipatory Self-Defence in Contemporary International Law." Miskolc Journal of International Law os 1 (2004): 104-120. 23 Apr. 2008 <http://www.uni-miskolc.hu/~wwwdrint/20042rouillard1.htm>.

Shaw, Malcom. International Law. 5th ed. Cambridge: Cambridge UP, 2003. 1-1288.

Staff And Agencies. "Attorney General: War is Legal." The Guardian 17 Mar. 2003. 24 Apr. 2008 <guardian.co.uk>.

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