Legalities on the Invasion of Iraq

Summary of the Facts

On March 20, 2003, the United States Government, under the leadership of George Bush, invaded Iraq to overthrow the government of Saddam Hussein.¹ The Bush administration used three main arguments for attacking Iraq; the first being the allegations that Saddam Hussein was connected to al Qaeda, the second allegation was the claims of Saddam Hussein had weapons of mass destruction and lastly, the Bush administration was facilitating for regime change in Iraq as its global ‘duty’ to spread democracy to countries ruled by dictators.

Bush defended the preemption mission on grounds that the United States had the right to self-defense and that Saddam’s regime was collaborating with al Qaeda which was responsible for the attacks on the United States of September 11, 2001. Before proceeding to the war, Bush changed the USA foreign policies and withdrew from some notable charters. On May 1, 2001, Bush withdrew from 1972, Anti-Ballistic Missile Treaty, marking the first time in modern history America was renouncing a major international accord.²

Five days later, the president went ahead to inform the United Nations that Washington would not ratify the Rome Statute of 1998, which had established the International Criminal Court with the power to try and to punish individuals for the most serious of international crimes. And on July 25, Bush representative of the UN-sponsored talks in Geneva said that he would not sign an international agreement banning the use or development of biological weapons.³ These events clearly showed that the USA was determined to turn back on decades of diplomacy.

The Security Council Resolution 1441 took effect in 2002 and was aimed at investigating and thwarting Iraq from developing weapons of mass destruction; indeed, the Bush administration believed that Iraq was one of the countries that were investing in the production of WMD. Iraq, in a gesture of willingness to comply with the UN resolution, agreed to these requirements, and the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), under the headship of Hans Blix, was mandated to carry out the exercise.

The terms of the resolution stipulated that, if Iraq obstructed the work of the body, Blix was to report immediately to the Security Council and the council would meet immediately to assess the situation and the need for full compliance. The resolutions also proposed serious consequences if Iraq did not cooperate.

In addition to the above, the USA and Britain decided to pass a second UN resolution aimed at forcing Iraq to play its part in the disarmament process. Russia, France, and China using their veto powers preferred to give the commission more time on the belief that the commission members were carrying out the job. On March 17, the USA prepared its proposal that gave ‘enough evidence’ and the legal support for military action against Iraq. Much of the proposal relied on resolution 1441 and the two other previous resolutions namely; resolution 678 and resolution 687. The justification was that Iraq had never obeyed nor respected the terms of the cease-fire and therefore the use of force was legal.

The international law setting and to a large extent, the United Nations argument concerning the use of military tends to fall under two circumstances as defined by the United Nations charter, and they include the collective or individual self-defense against an actual or imminent armed attack and direction of the Security Council following its determination that force is necessary as long as it amounts to a process of restoring international peace and security.

On March 17, 2003, George Bush issued a unilateral ultimatum to the Iraqi government, and two days later he announced the start of Operation Iraq Freedom.

Identification of Legal Issues

1. Did the United Nations as the custodian of the international charter give the authorization to use force and military action in accordance with Resolution 1441?
2. Did the Security Council satisfactorily found Iraq to be in material breach of Resolution 1441(2002) section 4 and that the breach posed a threat to international peace and security?
3. Did Iraq as a country pose a threat of an imminent armed attack against the United States of America or its allies and that military action was the resort to self-defense?

Discussion and application of law to the facts

In arguing that Iraq had persisted in violating resolutions of the United Nations Security Council by continuing to engage in the brutal repression of Iraq’s population and thereby threatening international peace and security in the region, the USA government was singularly expressing its position that the UN as an international body with Security Council organ had not conducted scrutiny to give truth to the claims.

The UN is bestowed with the responsibility of ensuring peace and security prevail; indeed, Article2 (3) states it clearly that peaceful means are crucial in the settlement of international disputes⁴, while the same is emphasized by Article2 (4) of the UN Charter which forbids the use or threat of force in international relations. Article2 (7) of the UN Charter protects the state in its domestic jurisdiction from intervention by the UN, except in the case of enforcement measures under Chapter VII of the Charter.

According to Article24 of the Charter, the Security Council is mainly concerned with the maintenance of international peace and security and it is empowered with various alternatives including the use of armed force in dealing with any threats to peace that may exist.

In defending the war, the UK attorney-general justified the war on the basis that the Security Council Resolution 678 authorized force against Iraq in a bid to ensure peace prevailed in Iraq as well as in Kuwait.⁵ Furthermore, the Security Council Resolution 687 restricted Iraq from producing weapons of mass destruction; however, though the resolution suspended the use of force, it did not explicitly abolish the same. Moreover, the AG stated that the Security Council Resolution 1441 had explicitly determined that Iraq had materially breached 687 and so it was provided that Iraq must be ready to abide by the requirement of stopping to produce WMD, otherwise action will be taken against Iraq.⁶

Generally, 1441 requires reporting of measures to the Security Council but does not require a further express Security Council to use force. Any references to Iraq’s breach of disarmament obligations leave the justification exposed to the results of factual investigations as to whether UN disarmament objectives had already been fulfilled through the UN inspection of Iraq’s weaponry.

My take is that any reference to Resolution 678 and 687 only related to Kuwait and the immediate aftermath of the Iraq-Kuwait conflict. Like in any criminal conviction the resolutions were done with and they relate to a situation that had lost its relevance over time. With Resolution 1441 it was as a result of intense politicking and that it did not provide authorization for the use of force however, much some individuals might argue. Resolution 1441 candidly provided for further UN inspections and that did not allow states to take enforce UN law unilaterally. To accept the USA and UK claims then we will be eliminating the need for explicit collective authorization of the use of force about specific crises.

However, the attack had some opposition from the majority of the UN Security Council members who viewed the attack as invalid since the resolution was still in effect. Moreover, the UN was on the card declaring that the attack violated international law mainly because it did not have the validation from UN Security Council resolution, and the use of force did not amount to an act of defense as provided in the UN charter.⁷

On the claims of self-defense, we may be obliged to ask questions such as; was there an imminent threat? How imminent was it? Was there capability and intention to carry through a threat? In the words of then, UK Prime Minister, Tony Blair, there was an element of sensing a menace or threat from the Iraq regime. He also talked about ‘strategic anxiety and the threat from the dirty radiological bombs and anthrax. All these claims only seem to be merely potential threats and the linkage is not yet conclusively demonstrated. The UN charter has guidelines in the event an armed attack occurs or if a state sends a terrorist or any other group onto the territory of another state then the right of self-defense may be properly invoked The USA concept of self-defense merely relied on anticipatory self-defense.

Brief Answers

1. NO. The United National through the Security Council established the UNMOVIC under Resolution 1441. Although the Resolution gave Iraq the final chance to comply with the Commission requirements, and that the failure to do so would invite ‘serious consequences’ the Security Council had instructed Hans Blix, UNMOVIC chairman to submit a report immediately if Iraq interfered with the inspection activities or refused to comply with the disarmament obligations. Neither evidence from the report nor did Hans Blix claim any interference by the Iraq government. Furthermore, the Security Council had not given any additional resolution that would have warranted any state to take any course of action. Also, the Iraqi government had written to the UN Secretary-General indicating their commitment and support to the Hans Blix commission.
2. NO. By the time Bush declared the war, the UNMOVIC team was still carrying out its activities in Iraq. The team had not submitted its report to the Security Council that would have shown that Iraq was in material breach of Resolution 1441. More so, the resolution did not permit the use of force in case of Iraq non-compliance. It had stated that the Security Council was to convene and consider the situation. The ‘consequences’ the commission had stated were to be deliberated by the Security Council and not any state.
3. NO. It is the responsibility of the UN to determine the existence of a threat to peace or acts of aggression as provided in Article 39, while measures to be taken or implemented to ensure international peace will be decided by the Security Council as per Article 41 and 42.⁸ USA claim that Iraq’s possession of WMD was untrue since no weapons were found and also the work of UNMOVIC of inspecting weapons and also destroying nuclear weapons was going on. There was therefore no indication that the Iraq government posed danger to international peace and security. Currently, under the UN charter on international law, unilateral prevention is illegal. Furthermore, multilateral prevention is not only legal but must be considered when a threat occurs by the Security Council.

Conclusion

By international law and the greater role of the UN as an international custodial of law, the actions of the USA and its allies in invading Iraq cannot be justified. The UN Security Council also stated that the invasion of Iraq was an illegal act and that the UN resolution never authorized invading Iraq. Furthermore, the Council stated that it was its mandate to approve or determine what the consequences would be for Iraq’s non-compliance with the earlier resolutions and the invasion was largely not in conformity with the Security Council and the UN Charter. In my opinion, under the Charter, the United Nations is the only substantial organ allowed to become involved in any dispute that may threaten international peace and security.

The Security Council is the authority that is responsible for sustainable peace and should therefore be in a position to establish whether the persistence of a dispute or situation has any adverse effect on international peace and security, through the institution of sound policies and procedures for conflict resolution. Indeed, any action that is viewed as potentially threatening should first be directed to the Security Council, and once passed to be harmful to international peace, the Security Council can dictate or advise on the necessary and most convenient mode of countering it. In this case, the USA and its allies should have relied on the position of the Security Council before endeavoring on their mission to invade Iraq.

Therefore, the invasion of Iraq by the USA and its allies was tantamount to an act of illegality in the sense that the Security Council under Chapter VII of the Charter, had not determined the existence of any threat to the peace, breach of the peace, or act of aggression and hence no recommendations and decisions to warrant sanctions; they did so in contravention of international law and without consultation.

Indeed, the claim of the existence of weapons of mass destruction was faulted since nothing of the sort was found during the whole of the period invasion took place. Nevertheless, it would be vital that all the nations in the world, whether powerful or otherwise, respect the international laws and abide by the regulations as provided by the Charter, as well as respecting the institutions bestowed with the authority and responsibility of endeavoring international peace.

Works Cited

Bagaric, Mirko and McConville, James. “The War on Iraq: The Illusion of International Law? Where to Now?” DeakinLawRw 7; 8(1) Deakin Law Review 147. 2003. Web.

Christopher, Greenwood. “The Legality Of Using Force Against Iraq,” Select Committee on Foreign Affairs Minutes of Evidence. 2002. Web.

Ehrenberg, John, et al. The Iraq Papers. NY, Oxford University Press US. 2010. Web.

Footnotes

1. Ehrenberg, John, et al. The Iraq Papers. NY, Oxford University Press US. 2010, p. 52.
2. Ehrenberg, John, et al. Ibid, p.52.
3. Ehrenberg, John, et al. Ibid, p. 52.
4. Bagaric, Mirko and McConville, James. “The War on Iraq: The Illusion of International Law? Where to Now?” [2003] DeakinLawRw 7; (2003) 8(1) Deakin Law Review 147, Para. 10. Web.
5. Bagaric, Mirko and McConville, James, Ibid. Para. 17.
6. Christopher Greenwood, “The Legality Of Using Force Against Iraq,” Select Committee on Foreign Affairs Minutes of Evidence. 2002. Web.
7. Bagaric, Mirko and McConville, James, Ibid. Para. 30.
8. Christopher Greenwood, Ibid, Para. 25.