International Law and the Invasion Term Paper

Excerpt from Term Paper :

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…

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