International Law and the Invasion

International Law and the Invasion of Iraq

The invasion of Iraq by the United States prompted a debate about the type of force that was used without having explicit approval from the United Nations. Whether this show of force was truly legal and legitimate became a question that was considered by many individuals. The argument was made by some that there was implied authorization because a resolution that was created during the Gulf War still continued to authorize any type of force necessary to ensure that Iraq complied with the cease-fire that was created during that Gulf War. The United States government also argued that there was an imminent threat posed to many countries by Iraq and also to the security and peace of the international community. Because of this the United States decided to defend itself in a preemptive strike.

It is important to look at these claims in some depth on a legal basis and explore the background of the war in Iraq. Looking at whether there was implied authorization for the war is also vital to an understanding of the issue. Others argue against the United States having any right to start this type of war and they base this on the assessment and other statements of members of the Security Council and the suggestion that the resolutions that were created during the Gulf War were not intended to have any kind of subsequent use when it came to force or war with Iraq. Another resolution, passed in November of 2002, is also said to have not provided any type of implied authorization to allowing the United States to use force against Iraq. There is also some question about the self-defense argument that the United States made because there has been a great deal of testimony from the chairman of the United Nations and as has been noted in many different news programs there have not been any weapons of mass destruction located within Iraq.

These individuals that are against the war being acceptable under international law feel that the justifications that must be made to say that the war in Iraq would be valid and acceptable stretch legal principles so much that the principles themselves are quite likely undermined. Operation Iraqi freedom was begun on the 20th of March, 2003 when the United States along with Australia and the United Kingdom began missile attacks on Baghdad. This was aimed at removing the Iraqi leadership that was in place. After approximately three weeks of this type of activity American troops took control of Baghdad in a period of two days. On the second of May, 2003 President Bush announced that the coalition had achieved a victory in Iraq.

According to Bush, however, the battle that was being fought in Iraq was only a small victory in the war that had been waged on terrorism. This war allegedly began on the 11th of September, 2001 with the terrorist attacks on the United States. The coalition believed that it was necessary to eliminate any type of threat that Iraq was posing to the United States and other allies and those leaders of the coalition who spoke up about the war also stated that the lives of many people in Iraq would be improved. The argument was also made that humanitarian assistance could be delivered to Iraq much easier and Iraqis could create a peaceful and democratic state in which they could determine their own fates and lives without the need for an authoritarian leader such as Saddam Hussein.

It has been suggested by authoritative sources that between 7000-9000 thousand Iraqi civilians have been killed by coalition troops in Iraq. Even though this number is considered to be significant it is also deemed quite likely that the number of civilians actually killed is considerably much higher. Greenpeace and other organizations that work to promote peace and tranquility throughout the world state that the framework that comes from international law is being threatened by the United States because the United States will not accept the current international law and instead wishes to change it so that what it wishes to do appears to be acceptable.

Legal challenges are therefore present in the United States invasion of Iraq and their arguments both for and against the war. Some believe that these legal rules are there to stop the states or nations from acting in ways that are not easily justifiable. The invasion suggests to many that the United States is looking at international law as a purely instrumental device in order to validate the actions that they take. According to these individuals, there are ways to use international law and explain it so that it can validate and uphold almost any course of action that a nation wishes to take.

Investigating these claims is vital because there is still a strong debate about whether the war in Iraq was actually legal under international law. It appears at this point that most of the claims that were put forth by Australia, the United Kingdom, and the United States do not have any type of strong legal footing. However, rather than showing that those who believe international law can be used to uphold nearly anything are correct the paper seeks to show that international laws are very powerful frameworks that can allow for discussion between various nations regarding whether particular actions were legitimate or not. The United States and other members of the coalition apparently manipulated international law to some degree to benefit themselves strategically but they also made arguments that were generally not accepted by most of the individuals in the international community.

This is very significant because the principles that govern international law are stretched so strongly by the United States and its reasons for going to war that they almost appear as though they do not have any meaning any longer. The war was allegedly authorized by the Security Council of the United Nations but this appears to be stretching the interpretation of many of the resolutions that the Security Council has made in the past and therefore the intent of the Council is lost. Saying that the war was started in self-defense also stretches that particular term quite far and makes aggression and self-defense appear to be one and the same. There are no punitive powers with international law as there are with domestic law but it seems as though not being able to legally justify the war itself should damage to some degree how legitimate the actual war campaign is and some of those that instigated the war should have to pay those high costs.

Determining whether the invasion of Iraq by the United States and its allies was actually legal is extremely vital for evaluating not only the legitimacy of the war itself but the impact that this type of tissue may have in the future on the international community. International law is generally framed by the charter of the United Nations but it is not limited to what the U.N. Charter has to say. One article in the United Nations charter that deals with the use of force states that nations should refrain from using force or threat against any type of political independence or territorial integrity of other nations. This was intended to be interpreted very broadly and applicable in a general sense.

There are two exceptions to this rule within the United Nations charter. First it is indicated that measures created by the Security Council are binding on all nations and that the Security Council is allowed to authorize military force if it is necessary to restore or protect international security and peace. Second, an exception also indicates that all nations are allowed the right to utilize force if they are doing so in self-defense. The law that deals with governing any type of recourse to force within the international community is a very complex one but the general opinion of nations appears to be that the basic rules that are contained in the United Nations charter is customary for international law.

In general, most nations agree on the applicable law and what type of contents it carries. Applying this law to various facts or activities is where nations and individuals tend to start their disagreements. The basic rules mentioned above, however, are very important because they are largely what is at the heart of the debate about whether it is legal to use the type of force that the United States used in Iraq. The reason behind this is that the United States focused most strongly on the two exceptions that were created to this article. Even though some critics suggest that principals were disregarded, those who believe that the invasion of Iraq was justified will argue that the United States did not in fact disregard any type of international legal principles or attempt to rewrite any legal rules.

Instead of this, what the United States did was interpret the application of the law based on the facts that it was given and determine that it had the right to the invasion. The United States and the rest of the coalition members all argue that there was enough authority in the resolutions that already existed from the Security Council to justify using force for the invasion of Iraq. On the 10th of November of 2002, Secretary of State Colin Powell indicated that the United States believed that there were material breaches in the past, as well as new and current material breaches that necessitated enough authority to take action.

Iraq consistently violated many of the Security Council resolutions created by the United Nations and many of these dealt primarily with inspection of facilities and disarmament. Because Iraq continually violated these resolutions the rationale for military action came about largely from this issue. The fact that the terrorist attacks had taken place and there were possible links between Iraq and Al Qaeda also caused much of the tension. The disregard for these resolutions, however, was quite likely the strongest case when it came to legality and was much of the basis that was put forward by the United Kingdom and Australia when they argued before going to war against Iraq.

Several different resolutions were used for this argument and the first one was the fact that one resolution authorized a utilization of force not only to remove Iraqi troops from Kuwait but also for a restoration of security and international peace within that area. After Kuwait was liberated the same resolution outlined various terms that Iraq would need to accept in order for there to be a cease-fire. It required Iraq to accept unconditionally the removal, destruction, or rendering harmless of any type of biological or chemical weapons including all research facilities, subsystems, and any type of ballistic missiles that could be said to have a range that was greater than 150 kilometers.

There was a much more broad cease-fire package that included U.N. peacekeepers along the border and the return of property that was stolen from Kuwait during the time that Iraq occupied it. They were also required to repay foreign nationals and various corporations that dealt with strong financial losses due to the war. This cease-fire package was exceedingly broad and the disarmament was only a small part of it. Because of this, however, this particular resolution is seen as creating criteria that the United States and other countries utilized to judge whether peace and security had actually been restored to that region. If there is a breach of the particular resolution, it had argued that the use of force to fix that breach or repair it was authorized.

There were other resolutions created for the disarmament of Iraq and all of them passed. The United Nations eventually identified Iraq as being noncompliant and identified them also as a threat to international security and peace. Still more resolutions found Iraq was in a material breach of previous resolutions and indicated that there would be serious consequences if Iraq failed to comply. The public debate regarding what serious consequences meant was rather significant but those in Australia and the United Kingdom did not attach a great deal of significance to this particular phrase. Instead, they worked to emphasize another key point which was that the fact that Iraq was in a material breach to its obligations under a resolution indicated that the authority that other nations had to utilized force against Iraq had been revived and would continue until Iraq came under compliance.

Both the government of Australia and the government of the United Kingdom argued that the Security Council did indeed authorize a use of force and therefore the war that was waged on Iraq was completely legal under international law. In a contrasting move, the administration of the United States never outlined explicitly the legal case that it felt it had for war. The Secretary of State argued that many in the United States believed that there would probably be enough authority in the resolutions in order to take action if Iraq still continued to refuse to cooperate and comply. However, this was not a formal argument that was made by the United States and the Secretary of State clearly suggested that there was only probably enough authority.

When President Bush decided to order the invasion of Iraq and chose to tell the President of the Senate and the Speaker of the House of Representatives he made only a small reference to the resolutions of the Security Council as being any type of legal basis for the war. He insisted that the actions of the United States were taken to enforce any Security Council resolutions that might be relevant and the main thrust of this argument was directed somewhere else. The United States then developed specific legal arguments that they felt justified the war. First, President Bush agreed with both the Australian and United Kingdom governments that reviving the resolution provided authorization for going to war with Iraq. President Bush also emphasized, however, that the war that would be waged on Iraq was simply a continuation of what he called the war on terror that was continually been fought.

This was then allowed to suggest that self-defense was a strong legal argument because the United States needed to defend itself against any more terrorist attacks that might take place. Because of this, there were two specific types of legal justification for the invasion of Iraq. The first one of these, which was the only legal argument that was put forth by Australia and the United Kingdom, was that the secure Security Council resolutions that were in place provided enough authorization to legalize going to war. The second one, which was favored more strongly by the United States, was that the war was actually a representation of the continuing war against terror throughout the world and because of this it constituted an act of self-defense that must be considered to be legitimate.

There are many resolutions that involve Iraq and trying to detail them all out and give them all names and numbers can get quite confusing. However, the argument that one resolutions and its breach revives authority based on another resolution is an important point to be aware of here. Even though the argument for these resolutions and the breach that Saddam Hussein had made was very powerful the Security Council did not completely find it compelling. Enhancement of the legal case did come from statements from the United States and the United Kingdom that were made earlier but they did not indicate the will of the Security Council. Some evidence suggests that referencing the severe consequences that could take place did not intend the authorization of the use of force.

Others say that the evidence suggests that resolutions that were allegedly revived in order to make way for military action could not be so easily resurrected and were only used in that manner as a way for the United States to justify going to war. In 1998, when Operation Desert Fox was mentioned within the Security Council, it had very little support. Some nations saw it as being unprovoked and groundless and others insisted that the Security Council resolutions had no grounds for any type of action such as that. Other states that did not make specific comments about the issue backed up the states that felt there were no grounds in the resolution for that type of activity.

This would make it appear that the majority of those in the Security Council did not accept the argument that approval for Operation Desert Fox was seen in many of the resolutions that were in place. At the most, only six out of the 15 United Nations members appeared to have supported the position. Some of this is believed to have been influenced by the fact that all but one of these particular states was either a member of NATO or was an aspiring member and this may have influenced the decision that these individuals had about the issue. Reactivating a particular resolution, however, comes unraveled quite easily under study. The British ambassador had stated that authorization should only be resurrected if it appeared that the Security Council decides that a sufficiently serious breach of a resolution has taken place.

With Operation Desert Fox the Security Council did indicate Iraq as being in a breach of its specific obligations. However, it was not concluded that this breach was so serious that it had to warrant any type of use of force. It is significant to note that this British ambassador also expressed quite strongly that it was up to the Security Council and not up to individual nations in order to make a determination whether a sufficiently serious breach had occurred. The United States, the United Kingdom, and Australia looked directly toward this same resolution, Resolution 678, in 2003 in order to help justify using force in the invasion in Iraq. Because of the experience that was had with Operation Desert Fox, there are two specific reasons that can be utilized to suggest that an argument such as this is not actually valid.

First, there is no precedent or prior example of any nation successfully linking resolution 678 to any subsequent resolution that does not actually authorize force and the actual use of force that was dealt against Iraq. The United Kingdom hinted toward such an argument during Operation Desert Fox but it also accepted a view that the Security Council was the only one that was capable of reviving or resurrecting such authorization. Also, there are many valid reasons to suggest that resolution 678 was actually superseded by resolution 687 which would stop resolution 678 from being revived for any reason. It is important to understand why individuals believe that resolution 687 superseded resolution 678 if it is to make sense why it cannot be logically resurrected by the United States or other countries in the use of force in Iraq.

One paragraph in resolution 687 indicates that when Iraq accepts the relevant provisions of the resolution a cease-fire will be considered to be effective. This paragraph refers explicitly to a formal cease-fire as opposed to any type of cessation of hostilities. This is extremely important to recognize because Iraq would have been required to formally except the resolution that was created in order to end the hostilities that were taking place between it and other countries. Iraq did comply with this specific demand because a letter of formal acceptance of the cease-fire terms was provided to the Security Council. Resolution 687 also stated expressly that the Security Council would be the ones to make the decision whether or not Iraq was actually in compliance and if it was determined that Iraq was not in compliance what measures would be taken to correct this.

Quite likely the strongest and most compelling legal argument supporting the invasion of Iraq is the recourse to both resolutions 678 and 687. However, the international community has not widely embraced this particular argument. During Operation Desert Fox the United Kingdom and the United States were able to test this particular argument in the hopes of setting a precedent but this legal reasoning quite strongly failed to convince much of the Security Council. This is important because it came about despite the fact that both of the intervening nations indicated their beliefs that there was sufficient authority in order for them to use force to the Security Council at the time.

In 1998, the United Kingdom and the United States were both very restrained when it came to their abilities to justify the actions that they had taken when looking at them in terms of international law. Military action was therefore restricted only to air strikes and these had to be very limited in duration and scope. Even after the United Kingdom and United States concluded their particular campaigns there was still no agreement from Saddam Hussein to allow weapons inspectors into the country and it was almost four years before these individuals would return to Iraq. Because the United States and the United Kingdom were very aware of what type of weakness a legal case based on resolution 678 and resolution 687 actually had they made a proposition to the Security Council to create a resolution that would allow the use of force if Iraq still refused to comply.

The Security Council deliberated quite strongly but unanimously voted to adopt another resolution, 1441, in November 2002. There were three central components that came with this resolution. First, it indicated that Iraq had failed to provide accurate, final, complete, and full disclosure of ballistic missile capabilities and weapons of mass destruction and had obstructed inspectors from the examinations that they were expected to perform. This constituted a material breach of the obligations that were laid out in previous resolutions. Second, the Security Council indicated that Iraq would have a final opportunity to comply with ensuring that it had met its disarmament obligations and set up a regimen that would enhance inspection and would complete the disarmament process by a set schedule. Third, and finally, Iraq was warned about serious consequences if the country continued to neglect the obligations that had been set forth in the resolution.

There were many subsequent debates regarding the use of force when it came to Iraq and many questions were posed regarding resolution 1441. In particular the main question was what specifically would constitute a material breach or violation and who had the actual authority to declare this type of breach when it came to Iraq. Another question involved other resolutions and whether they would be needed if Iraq was actually seen to be in a material breach or whether the resolution that was already created would be sufficient to allow the use of force.

Self-defense was another one of the United States' main arguments when it came to the invasion of Iraq, and the idea of that type of preemptive self-defense strike had been around as early as June of 2002. At that period of time a senior official in the United States Defense Department indicated that Iraq had given every reason to the United States to utilize this self-defense right but the United States had not as yet chosen to do that. Saddam Hussein was seen at that period of time as being an imminent threat and the United States indicated that preemptive action was allowed by nations if they felt that they were facing a threat such as this. Self-defense rights that were allegedly in article 51 of the charter of the United Nations would be utilized against Iraq if the United States chose to take action.

When the terrorist attacks came in September of 2001 the United States felt that they had a successful argument toward self-defense and the interventions that took place in Afghanistan as part of Operation Enduring Freedom were generally accepted by the Security Council of the United Nations. The Council passed two specific resolutions that recognized this self-defense right in response to the attacks that took place. The North Atlantic Council of NATO also agreed that defense mechanisms were triggered by these types of attacks and that this use of force was necessary. It appears, however, that the fact that the self-defense argument for Operation Enduring Freedom was received so well by the Security Council made the United States feel as though the United Nation's charter that dealt with self-defense would also find using force against Iraq as legitimate.

Between June and September of 2002 the United States somewhat changed its position on this issue and attempted to award to itself a right of preemptive self-defense that widened the legitimate scope of force quite a lot. This became a bit of a problem because article 51 of the United Nations charter, that was utilized to allow for the attack on Afghanistan, quite clearly only allows for self-defense actions when an armed attack has already occurred. In other words, this was acceptable against Afghanistan because Al Qaeda had attacked the United States but was not acceptable against Iraq because Iraq had not specifically done anything to attack the United States or cause them personal difficulties.