exam-time
Well I didn't really get round to write a lot - or anything over the last couple of weeks, because I had to do some revision for my exams and some course-work to do, and for the next couple of weeks I'll be on holiday.
But for the benefit of certain of my readers - or one reader, I don't think there are any more around - I do hereby publish my essay about the legallity of the Iraq war. Yet as i don't have much time I'll sort out the footnotes and the like at some other point.
Whoever is going to read this, enjoy!
Operation Iraqi Freedom & International Law:
Was the military Intervention in Iraq in 2003 in accordance with International Law or not?
Introduction
Evaluating the legality – jus ad bellum - of ‚Operation Iraq Freedom’, the military invasion of the sovereign country of Iraq, the ousting of the Saddam regime and the consequent and ongoing occupation by the ‘coalition of the willing’[1] is difficult for a variety of reasons. As there is no litigation by the International Court of Justice, in essence there is no ultimately accepted legal ruling but only a variety of different legal opinions. In addition as pointed out in Kritsiotis’s essay ‘Arguments of mass-Confusion’[2] the attempted justifications vary not only in between the different actors within the coalition, but were also morphed or completely replaced to adapt to reality, as certain claims – namely the alleged possession of WMDs by Iraq – were found to have been unjustified. Yet what has to be considered when dealing with these, is that they are not necessarily legal justifications but largely political arguments to win support among the electorate rather than among international lawyers. The key legal statements, that were handed in to the Security Council were based on the notion of ‘continuing authority’ of Security Council Resolution (SRC) 678 and 687 and Iraq’s breach of them. This is also the basis for the official legal explanation given to the parliament by Attorney General, Lord Goldsmith, on 18 march 2003[3]. The main part of this essay will therefore evaluate this argument and discuss whether such a decision could have been made by individual UN member states rather than the SC itself and in how far the stated outcome of regime change was mandated by SCR 678.
However as the Bush administration claims that other justifications were also legally valid they have to be taken into account. One of these ‘replacement justifications’ was the unilateral right to pre-emptive strike in self-defence, which had already be advocated before the war[4] and which was increasingly stressed afterwards as no ‘weapons of mass-destruction’ could be found and the argument of ‘continuing authority’ consequently lost its power, as Iraq, despite the appearance to the contrary, apparently hadn’t breached the armistice agreement (SRC 687).
Finally some more radical claims by members of the Bush administration, that question the legitimacy of international law in itself also need to be addressed at least briefly, because a full implementation of these theories would have devastating effects on international law as well as the international community.
Background
The origins of Operation Iraqi Freedom go back to the invasion and annexation of Kuwait by Iraq on 2 August 1990. The justification at the time was that Kuwait, or more precisely emir Jaber al-Sabah, had broken the agreed OPEC quotas and by overproduction of oil, according to Iraq, had started an economic war against Iraq[5]. In addition Iraq had historically claimed the territory of Kuwait. Although it might be argued that Saddam was lured into a trap by an American ‘green light’[6] it is undisputed that as Iraq had recognised Kuwaiti independence in 1963 the invasion was a clear breach of the UN Charter, which Iraq had signed after her independence. Clearly Iraq had not refrained “from the threat or use of force”[7] and consequently Kuwait was entitled to its ‘inherent’ (customary) right of individual or collective self-defence. Hence no SCR would have been needed to liberate Kuwait. Yet in an attempt to construct an international consensus the US sponsored a number of SCRs[8] all calling on Iraq to withdraw from Kuwait, establishing economic sanctions against Iraq (SCR 661) declaring the merger between Iraq and Kuwait ‘null and void’ (SCR 662) and finally as attempted negotiations failed[9], “authorises […] 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”(SCR 678). On January 16 1991 ‘Operation Desert Storm’ – the US led bombardment of Iraq by a multinational force – began and continued until February 24 when ‘Operation Desert Sabre’ – the ground offensive – started and led to the retreat of Iraqi forces from Kuwait. On February 28 a ceasefire was established between Iraq and the Coalition. Yet this ceasefire did not incorporate any clause calling on Iraq to destroy its WMD capacities, nor did it establish a inspections regime. This was included in the declaration of a ‘formal ceasefire’ established through SCR 687 on 3 April 1991 by the Security council. This is especially important, because the official legal explanation by the US and the UK argued that in 2003 they were merely continuing hostilities that were sanctioned by SCR 678, and that because no formal peace had been established this did not constitute a breach of Chapter 2 (4) of the UN Charter.
SCR 687 had established a number of conditions for the establishing of the formal ceasefire. Among others these included the ‘destruction, removal, or rendering harmless’ of ‘all chemical and biological weapons and all stocks of agents and all related subsystems and components’ as well as ‘all ballistic missiles with a range greater than one hundred and fifty kilometres’. Further it invited ‘Iraq to reaffirm unconditionally its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons’ and at the same time decided that ‘Iraq shall unconditionally agree not to acquire or develop nuclear weapons’. To monitor, verify and inspect that these conditions were met it also established a United Nations Special Commission (UNSCOM) for the WMD and missile related paragraphs and the IAEA was requested to inspect Iraq’s nuclear programs. Finally it decided that if these conditions were met, ‘upon approval by the Council’ the sanctions (established by SCR 661) against Iraq would be lifted.
The inspections continued with difficulties – they were frequently undermined by Iraq – until 1998 when Iraq expelled the Inspectors on claims of espionage[10], which resulted in the US and UK operation ‘desert fox’ – 3 days of bombing. SCR 1284 in 1999 then established UNMOVIC as successor of UNSCOM to finish the inspections. Yet until SCR1441 in 2002 inspections were not allowed to enter Iraq. By this time the US and the UK had started a massive military build up in Kuwait and made no secret that they were prepared and willing to invade Iraq. However the official explanations were not quite as harmonious as both of them frequently claimed, as the US had made it quite clear that unless a ‘regime change’ would take place in Bagdahd they would, if necessary unilaterally, precipitate it by military means. Britain on the other hand frequently stated that if Saddam would disarm he could stay in power. Despite the finding by the resulting Inspections, that a number of the alleged evidence, for Iraq possessing WMDs and consequently being in breach of the ceasefire, was factually wrong[11] on 18 March 2003 president Bush gave Saddam a final ultimatum of 48 hours to “go into exile or face war” [12]. On 20 March 2003 Operation Iraqi Freedom started with an attempted “decapitation attack”[13].
The legal Case
In general International law is straight forward in regard to the use of force. The United Nations Charter prohibits the use of force in Article 2(4). There are only two exceptions. First in article 51 the right to ‘individual and collective self defence’ is excepted. Second the Security Council can under Chapter 7 article 42 authorise the use of force to ‘maintain or restore international peace and security.’ Operation Iraqi freedom appears not to have been included in either of these two exceptions.
However on the day Operation Iraqi freedom started the US as well as the UK ambassadors to the UN send a letter, legally justifying their action, to the President of the Security Council[14]. In these letters both governments explained why their action against Iraq was in their view legally justified. Both of them used a fairly similar approach that was also outlined in Lord Goldsmith’s Statement to parliament on 18 March 2003[15].
The basic argument is a combination of SCR 678, 687 and 1441, which together would provide the necessary ‘continuing authority’ to use force. SCR 1441 declared Iraq to be in breach with SCR 687 and therefore in breach of the ceasefire agreement and hence the authority to use ‘all necessary means’ of SCR 678 would be revived. Indeed the military raids against Iraq in 1993 – officially justified by Secretary General Boutros-Ghali under SCR 678 - and to a lesser extend in 1998 – officially justified by the US and the UK as consequence of Iraqi non-compliance declared in SCR 1205 and authorised under SCR 678 - would clarify that no further resolution than SCR 687 and 678 would be needed. Michael Schmitt outlines this argument very convincingly[16], especially stressing that the ceasefire was declared between ‘Iraq and Kuwait and member States cooperating with Kuwait’(SCR 687). Hence the Coalition, as second party to the ceasefire, and not the UN Security Council had the right to decide how to react to a breach of it. The argument is that because Iraq had materially breached the cease-fire agreement, under the Vienna Convention, the Coalition were consequently no longer bound and could resort to hostilities. But one has to recall that there were indeed 2 ceasefire agreements. The reference in SCR 1441 that Iraq was found to be in ‘material breach’ of, clearly related to the conditions of the second ‘formal ceasefire’, which was ‘declared to be effective’ in paragraph 33 of SCR 687 by the Security Council. Even though between the two parties, if the Security Council had the authority to declare it to be effective, than it seems logic that the Security Council and not the parties which it involved, should declare it not to be effective anymore as well. One also has to recall that the first ceasefire, agreed on between the Coalition and Iraq on 28 February 1991, did not include any references to future disarmament but merely that both sides stopped firing at each other and that Iraq had to inform the Coalition about any dangerous material on the territory the Coalition had taken. Iraq had not breached this ceasefire.
If the final justification was already the legal opinion of the US and the UK when adopting SCR 1441 the claim that it did not provide an ‘automaticity’ would have been a deliberate misinterpretation of their own opinion. Goldsmith argues that it did ‘not revive the 678 authorisation immediately’, but that it had to be considered by the Security Council before. This is also consistent with the statement of the UK ambassador to the UN after the adoption of SCR 1441.
“There is no ‘automaticity’ in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in operational paragraph 12”[17]
Yet if the matter had to be referred to the Security Council that clearly implies that any decision – not necessarily a new resolution, but an agreed on decision as in 1993 – had to be taken by the Security Council as well. What other meaning could paragraph 12 have?
Indeed SCR 1441 was only adopted under the condition that it would not be used as a justification for possible future military action. Most Members of the SC had made this publicly clear. Yet in both official explanations SCR 1441 and its decision that Iraq ‘has been and remains in material breach’ is used at least in parts to justify Operation Iraqi Freedom. A slight contradiction? Goldsmith explains that with Iraq’s failure to use the ‘final opportunity’ provided by SCR 1441. He continues to explain that there was no disagreement about whether Iraq had complied with this or not, but that the Security Council only disagreed over the operational consequences. But if France – a country that has historically only used its veto power under exceptional circumstances – was prepared to veto a second resolution that cannot be explained with a disagreement over the consequences only. The continued insistence that ‘Inspections work’ clearly indicate a perception by France as well as by Germany and Russia that Iraq was not in breach of SCR 1441.
On the legal basis of the official justification, SCR 1441 would actually not have been necessary as Iraq had been declared to be in breach of SCR 687 before. If Operation Desert Fox was legal no further resolution had to be sought as the situation hadn’t changed. Yet the fact that the Us and the UK did seek another resolution indicates that neither the US nor the UK actually really regarded the situation in autumn 2002 as providing a sufficient legal basis to go to war. But did SCR 1441 really change the legal basis? It could be argued that SCR 1441 actually compromised the legality of the war more than it supported it, because while previous military actions had not required an explicit resolution, SCR 1441 explicitly gave Iraq one final opportunity to comply and if she did not the matter would go to the Security Council. But there was no evidence that Iraq didn’t comply after SCR 1441. Paragraph 11 ‘directs the Chairman of UNMOVIC’ to report ‘immediately to the Council any interference by Iraq’. Yet he never reported anything apart from the regular updates. Hence he obviously did not regard Iraq to be interfering and consequently there was no justification to stop inspections, which according to the chairman of UNMOVIC would have solved the question of whether Iraq did or did not posses WMDs within a few more month. But in spring 2003 however it seemed more and more likely that he might conclude that Iraq did not posses WMDs[18].
The US and the UK however had frequently expressed their opinion that Iraq’s denial of having any WMDs constituted a breach, because they had ‘evidence’ to the contrary. The fact that most of the evidence they made available to the inspections was proven to be incorrect did not lead to a reconsideration of their evaluation. Today we know that Iraq was not in breach of 1441 and also not in breach of paragraphs 8 – 13 (relating to disarmament and the condition for lifting the sanctions) of SCR 687 hence the ceasefire was in fact broken by the Coalition not by Iraq. But it has been said that any evaluation of the conduct of the US and UK can only be judged by their knowledge at the time. However their failure to re-evaluate their knowledge in the light of a changing reality cannot be ignored either. A simple claim does not make law. Just because the US and the UK claimed to have evidence is not enough to authorise a war, no matter under which authority. Unless they could actually proof Iraq to be in breach of 1441 it had to be assumed that she wasn’t. Otherwise the ‘final opportunity’ was only a propaganda tool. The fact that the US and the UK were nor prepared to accept any outcome but Iraq having WMDs, also leaves the strong impression that the real reason to go to war was something else. But if they had another reason why did they not use it in their official legal explanation? Obviously, as especially the British government had frequently stated that it would only act in accordance with international law, this reason must have been legal under international law. But why did they not mention it?
It is also of interest to what extent the authority to use force was provided by SCR 678. I has been argued that because it not only authorised all ‘necessary means’ to free Kuwait – ‘to uphold and implement resolution 660’ - but also to ‘restore peace and security in the region’ an extended mandate was given. But one has to recall that prior as well as subsequent resolution repeatedly affirmed the ‘commitment of all Member States to the sovereignty, territorial integrity and political independence’ (remarkably missing in SCR 1441) ‘of Kuwait and Iraq’(SCR 687). Yet Operation Iraqi Freedom was explicitly started for the purpose of ‘Regime Change’. This can be clearly deduced from the final ultimatum president Bush, before the war started, offered to Saddam, to go into exile or face the consequences. Clearly a resolution that explicitly stresses the political independence does not regard regime change as a means to establish peace and security. And indeed the subsequent chaos and violence within Iraq can hardly be interpreted as doing so.
Therefore even if one would accept that under the circumstances the Coalition was authorised to resume hostilities without a direct mandate by the security Council, the purpose of Operation Iraqi freedom was contrary to the original mandate and therefore illegal.
Alternative justifications
Besides the justification that had been sent to the President of the security Council a number of other justifications have been provided. These are however highly political explanations that often try to change international law rather than trying to justify why they are legitimate within international law. The most prominent justification was a pre-emptive strike to counter an imminent threat[19], arguably justified under article 51 of the UN Charter and the customs following the Carolina case. Article 51 states that ‘nothing shall impair the inherent right for individual or collective self-defence if an armed attack occurs’. There is actually very little space for pre-emption in this phrase. The ‘inherent right’ actually does hint at a customary law, but if it does, it is definitely restricted to a response on an attack. In regard to the usual reference to the Carolina case, one has to keep in mind that the UN Charter was signed long after. Under the law of treaties, a signed and ratified treaty, such as the UN Charter, is binding even if it does impair possible customs that might have existed before. And the idea of a pre-emptive strike during the Cold war outlines the dangers that such an approach might imply. Yet it does seem fairly incomprehensible how, if during the Cold war a possible strike that would have been utterly fatal was not enough to justify a first-strike, any possible threat today could be so urgent and imminent that international law has to change.
The argument that in an age of terrorism – although it might be questioned when exactly this ‘age’ started, as these threats are far from being new – one cannot wait till ‘a mushroom cloud’[20] arises. But even under the worst case scenario the capacity to respond would not be compromised by any terrorist attack. Yet to go even further and replace the necessary ‘imminence’ of a particular threat with a ‘growing danger’ would ultimately mean to dissolve article 2 (4) of the Charter completely. Because a growing danger could be absolutely everything.
However the Bush administration in its ‘war against terror’ has gone even further and started to question the very idea of international law. The claim that action on the international stage only needs to be in consistency with the US constitution and does not need an outside ‘permission slip’ by the security council is most stringently advocated by Mr. John Bolton.
“Our action, taken consistently with Constitutional principles, require no separate, external validation to make them legitimate. […] If treaties cannot legally ‘bind’ the United States, it need not detain us long to dismiss the notion that ‘customary international law’ has any binding legal effect either.”[21]
In essence this means that the United States of America are not legally bound by anything but her own constitution. The fact that the US has signed the United Nation’s Charter does not imply any legal obligations. “Put succinctly, the United States will decide what is legitimate and what is not and can do so because of its coercive power.”[22] This application of political Realism – a common concept within International Relation theories[23] – effectively eradicates the legal significance of the signature of the United States on any document and reduces it to a mere commitment at the discretion of the respective administration. Yet under these conditions the annexation of Kuwait by Iraq could not be called illegal either, as the overproduction of oil by Kuwait was in clear contradiction to the ‘national interest’ of Iraq. Practically the application of this philosophy eliminates the very concept of international law and replaces it with a system of international anarchy where “might makes right”[24] and hence any discussion about the ‘legality’ of Operation Iraqi Freedom is superfluous. But it also means that if this applies for the US it consequently also applies for all other countries and that any contract with for instance a US company can be cancelled at any time and American assets abroad could be seized if any government regards this as in its national interest. Given the amount of investment of US companies abroad and the threat to international peace and security that would result out of radical Realism on an international scale it actually seems questionable if the continued application of the philosophy of Realism can be regarded as in the national Interest of the US and therefore it could be argued that doing so is inconsistent with the US constitution. Therefore even to completely deny the existence of international law does not necessarily make Operation Iraqi Freedom legal.
Conclusion
Operation Iraqi Freedom was always legally questioned. One of the key questions was whether the claims made by the US and the UK were correct and Iraq did posses weapons of mass-destruction. Indeed, had they been found it would have been possible to argue that Iraq, or for that matter more precisely Saddam, given his history, did constitute a threat to Peace and Security in the region. But even then it would have stood on a questionable legal basis. The ‘continuing authority’ of resolution 678 did indeed exist, yet it seems more than obvious to me that it lay with the Security Council. I do not think a second resolution would have been necessary explicitly authorising force under Chapter 7 – that had already been done – but the decision as to when ‘the final opportunity’ for Iraq was over, could in my opinion not have legally been taken by anyone but the Security Council. The SC had declared it and therefore it was for the SC to declare it for over, no matter between which parties the ceasefire was. The war was therefore, irrelevant to the question as to whether Iraq had or had not WMDs, illegal.
However Operation Iraqi Freedom, apart from a huge number of dead people and a rather insecure situation within Iraq, has revealed that Iraq did not have such weapons, and therefore was not in material breach of SCR687, any conclusion that the war might have been legal[25] seems to me to be bending the law beyond its breaking point. Yes Iraq had been declared to be in breach of almost all Security Council resolutions relating to that matter, but as it turns out he did actually comply with the core demand of disarmament. For whatever reasons he did not make this more obvious, will probably remain for future historians to discuss.
Yet what Operation Iraqi Freedom did clearly show was the danger of the pre-emptive strike philosophy. Even though the official explanation did not rely on pre-emption, it did show that unilateral decisions to go to war, based on intelligence findings, can hardly be legally justified. In domestic law the rule is innocent until proven guilty. Why this should be different in international law is beyond my comprehension. The fact that had the two contradictive claims, the UK and US claiming that Iraq did posses WMDs and Iraq claiming that she did not, been balanced against each other and similar measures had been taken to verify them, an unnecessary war that was costly in lives, in financial terms and in international relations could have been avoided.
Evaluating the legality – jus ad bellum - of ‚Operation Iraq Freedom’, the military invasion of the sovereign country of Iraq, the ousting of the Saddam regime and the consequent and ongoing occupation by the ‘coalition of the willing’[1] is difficult for a variety of reasons. As there is no litigation by the International Court of Justice, in essence there is no ultimately accepted legal ruling but only a variety of different legal opinions. In addition as pointed out in Kritsiotis’s essay ‘Arguments of mass-Confusion’[2] the attempted justifications vary not only in between the different actors within the coalition, but were also morphed or completely replaced to adapt to reality, as certain claims – namely the alleged possession of WMDs by Iraq – were found to have been unjustified. Yet what has to be considered when dealing with these, is that they are not necessarily legal justifications but largely political arguments to win support among the electorate rather than among international lawyers. The key legal statements, that were handed in to the Security Council were based on the notion of ‘continuing authority’ of Security Council Resolution (SRC) 678 and 687 and Iraq’s breach of them. This is also the basis for the official legal explanation given to the parliament by Attorney General, Lord Goldsmith, on 18 march 2003[3]. The main part of this essay will therefore evaluate this argument and discuss whether such a decision could have been made by individual UN member states rather than the SC itself and in how far the stated outcome of regime change was mandated by SCR 678.
However as the Bush administration claims that other justifications were also legally valid they have to be taken into account. One of these ‘replacement justifications’ was the unilateral right to pre-emptive strike in self-defence, which had already be advocated before the war[4] and which was increasingly stressed afterwards as no ‘weapons of mass-destruction’ could be found and the argument of ‘continuing authority’ consequently lost its power, as Iraq, despite the appearance to the contrary, apparently hadn’t breached the armistice agreement (SRC 687).
Finally some more radical claims by members of the Bush administration, that question the legitimacy of international law in itself also need to be addressed at least briefly, because a full implementation of these theories would have devastating effects on international law as well as the international community.
Background
The origins of Operation Iraqi Freedom go back to the invasion and annexation of Kuwait by Iraq on 2 August 1990. The justification at the time was that Kuwait, or more precisely emir Jaber al-Sabah, had broken the agreed OPEC quotas and by overproduction of oil, according to Iraq, had started an economic war against Iraq[5]. In addition Iraq had historically claimed the territory of Kuwait. Although it might be argued that Saddam was lured into a trap by an American ‘green light’[6] it is undisputed that as Iraq had recognised Kuwaiti independence in 1963 the invasion was a clear breach of the UN Charter, which Iraq had signed after her independence. Clearly Iraq had not refrained “from the threat or use of force”[7] and consequently Kuwait was entitled to its ‘inherent’ (customary) right of individual or collective self-defence. Hence no SCR would have been needed to liberate Kuwait. Yet in an attempt to construct an international consensus the US sponsored a number of SCRs[8] all calling on Iraq to withdraw from Kuwait, establishing economic sanctions against Iraq (SCR 661) declaring the merger between Iraq and Kuwait ‘null and void’ (SCR 662) and finally as attempted negotiations failed[9], “authorises […] 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”(SCR 678). On January 16 1991 ‘Operation Desert Storm’ – the US led bombardment of Iraq by a multinational force – began and continued until February 24 when ‘Operation Desert Sabre’ – the ground offensive – started and led to the retreat of Iraqi forces from Kuwait. On February 28 a ceasefire was established between Iraq and the Coalition. Yet this ceasefire did not incorporate any clause calling on Iraq to destroy its WMD capacities, nor did it establish a inspections regime. This was included in the declaration of a ‘formal ceasefire’ established through SCR 687 on 3 April 1991 by the Security council. This is especially important, because the official legal explanation by the US and the UK argued that in 2003 they were merely continuing hostilities that were sanctioned by SCR 678, and that because no formal peace had been established this did not constitute a breach of Chapter 2 (4) of the UN Charter.
SCR 687 had established a number of conditions for the establishing of the formal ceasefire. Among others these included the ‘destruction, removal, or rendering harmless’ of ‘all chemical and biological weapons and all stocks of agents and all related subsystems and components’ as well as ‘all ballistic missiles with a range greater than one hundred and fifty kilometres’. Further it invited ‘Iraq to reaffirm unconditionally its obligations under the Treaty on the Non-Proliferation of Nuclear Weapons’ and at the same time decided that ‘Iraq shall unconditionally agree not to acquire or develop nuclear weapons’. To monitor, verify and inspect that these conditions were met it also established a United Nations Special Commission (UNSCOM) for the WMD and missile related paragraphs and the IAEA was requested to inspect Iraq’s nuclear programs. Finally it decided that if these conditions were met, ‘upon approval by the Council’ the sanctions (established by SCR 661) against Iraq would be lifted.
The inspections continued with difficulties – they were frequently undermined by Iraq – until 1998 when Iraq expelled the Inspectors on claims of espionage[10], which resulted in the US and UK operation ‘desert fox’ – 3 days of bombing. SCR 1284 in 1999 then established UNMOVIC as successor of UNSCOM to finish the inspections. Yet until SCR1441 in 2002 inspections were not allowed to enter Iraq. By this time the US and the UK had started a massive military build up in Kuwait and made no secret that they were prepared and willing to invade Iraq. However the official explanations were not quite as harmonious as both of them frequently claimed, as the US had made it quite clear that unless a ‘regime change’ would take place in Bagdahd they would, if necessary unilaterally, precipitate it by military means. Britain on the other hand frequently stated that if Saddam would disarm he could stay in power. Despite the finding by the resulting Inspections, that a number of the alleged evidence, for Iraq possessing WMDs and consequently being in breach of the ceasefire, was factually wrong[11] on 18 March 2003 president Bush gave Saddam a final ultimatum of 48 hours to “go into exile or face war” [12]. On 20 March 2003 Operation Iraqi Freedom started with an attempted “decapitation attack”[13].
The legal Case
In general International law is straight forward in regard to the use of force. The United Nations Charter prohibits the use of force in Article 2(4). There are only two exceptions. First in article 51 the right to ‘individual and collective self defence’ is excepted. Second the Security Council can under Chapter 7 article 42 authorise the use of force to ‘maintain or restore international peace and security.’ Operation Iraqi freedom appears not to have been included in either of these two exceptions.
However on the day Operation Iraqi freedom started the US as well as the UK ambassadors to the UN send a letter, legally justifying their action, to the President of the Security Council[14]. In these letters both governments explained why their action against Iraq was in their view legally justified. Both of them used a fairly similar approach that was also outlined in Lord Goldsmith’s Statement to parliament on 18 March 2003[15].
The basic argument is a combination of SCR 678, 687 and 1441, which together would provide the necessary ‘continuing authority’ to use force. SCR 1441 declared Iraq to be in breach with SCR 687 and therefore in breach of the ceasefire agreement and hence the authority to use ‘all necessary means’ of SCR 678 would be revived. Indeed the military raids against Iraq in 1993 – officially justified by Secretary General Boutros-Ghali under SCR 678 - and to a lesser extend in 1998 – officially justified by the US and the UK as consequence of Iraqi non-compliance declared in SCR 1205 and authorised under SCR 678 - would clarify that no further resolution than SCR 687 and 678 would be needed. Michael Schmitt outlines this argument very convincingly[16], especially stressing that the ceasefire was declared between ‘Iraq and Kuwait and member States cooperating with Kuwait’(SCR 687). Hence the Coalition, as second party to the ceasefire, and not the UN Security Council had the right to decide how to react to a breach of it. The argument is that because Iraq had materially breached the cease-fire agreement, under the Vienna Convention, the Coalition were consequently no longer bound and could resort to hostilities. But one has to recall that there were indeed 2 ceasefire agreements. The reference in SCR 1441 that Iraq was found to be in ‘material breach’ of, clearly related to the conditions of the second ‘formal ceasefire’, which was ‘declared to be effective’ in paragraph 33 of SCR 687 by the Security Council. Even though between the two parties, if the Security Council had the authority to declare it to be effective, than it seems logic that the Security Council and not the parties which it involved, should declare it not to be effective anymore as well. One also has to recall that the first ceasefire, agreed on between the Coalition and Iraq on 28 February 1991, did not include any references to future disarmament but merely that both sides stopped firing at each other and that Iraq had to inform the Coalition about any dangerous material on the territory the Coalition had taken. Iraq had not breached this ceasefire.
If the final justification was already the legal opinion of the US and the UK when adopting SCR 1441 the claim that it did not provide an ‘automaticity’ would have been a deliberate misinterpretation of their own opinion. Goldsmith argues that it did ‘not revive the 678 authorisation immediately’, but that it had to be considered by the Security Council before. This is also consistent with the statement of the UK ambassador to the UN after the adoption of SCR 1441.
“There is no ‘automaticity’ in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in operational paragraph 12”[17]
Yet if the matter had to be referred to the Security Council that clearly implies that any decision – not necessarily a new resolution, but an agreed on decision as in 1993 – had to be taken by the Security Council as well. What other meaning could paragraph 12 have?
Indeed SCR 1441 was only adopted under the condition that it would not be used as a justification for possible future military action. Most Members of the SC had made this publicly clear. Yet in both official explanations SCR 1441 and its decision that Iraq ‘has been and remains in material breach’ is used at least in parts to justify Operation Iraqi Freedom. A slight contradiction? Goldsmith explains that with Iraq’s failure to use the ‘final opportunity’ provided by SCR 1441. He continues to explain that there was no disagreement about whether Iraq had complied with this or not, but that the Security Council only disagreed over the operational consequences. But if France – a country that has historically only used its veto power under exceptional circumstances – was prepared to veto a second resolution that cannot be explained with a disagreement over the consequences only. The continued insistence that ‘Inspections work’ clearly indicate a perception by France as well as by Germany and Russia that Iraq was not in breach of SCR 1441.
On the legal basis of the official justification, SCR 1441 would actually not have been necessary as Iraq had been declared to be in breach of SCR 687 before. If Operation Desert Fox was legal no further resolution had to be sought as the situation hadn’t changed. Yet the fact that the Us and the UK did seek another resolution indicates that neither the US nor the UK actually really regarded the situation in autumn 2002 as providing a sufficient legal basis to go to war. But did SCR 1441 really change the legal basis? It could be argued that SCR 1441 actually compromised the legality of the war more than it supported it, because while previous military actions had not required an explicit resolution, SCR 1441 explicitly gave Iraq one final opportunity to comply and if she did not the matter would go to the Security Council. But there was no evidence that Iraq didn’t comply after SCR 1441. Paragraph 11 ‘directs the Chairman of UNMOVIC’ to report ‘immediately to the Council any interference by Iraq’. Yet he never reported anything apart from the regular updates. Hence he obviously did not regard Iraq to be interfering and consequently there was no justification to stop inspections, which according to the chairman of UNMOVIC would have solved the question of whether Iraq did or did not posses WMDs within a few more month. But in spring 2003 however it seemed more and more likely that he might conclude that Iraq did not posses WMDs[18].
The US and the UK however had frequently expressed their opinion that Iraq’s denial of having any WMDs constituted a breach, because they had ‘evidence’ to the contrary. The fact that most of the evidence they made available to the inspections was proven to be incorrect did not lead to a reconsideration of their evaluation. Today we know that Iraq was not in breach of 1441 and also not in breach of paragraphs 8 – 13 (relating to disarmament and the condition for lifting the sanctions) of SCR 687 hence the ceasefire was in fact broken by the Coalition not by Iraq. But it has been said that any evaluation of the conduct of the US and UK can only be judged by their knowledge at the time. However their failure to re-evaluate their knowledge in the light of a changing reality cannot be ignored either. A simple claim does not make law. Just because the US and the UK claimed to have evidence is not enough to authorise a war, no matter under which authority. Unless they could actually proof Iraq to be in breach of 1441 it had to be assumed that she wasn’t. Otherwise the ‘final opportunity’ was only a propaganda tool. The fact that the US and the UK were nor prepared to accept any outcome but Iraq having WMDs, also leaves the strong impression that the real reason to go to war was something else. But if they had another reason why did they not use it in their official legal explanation? Obviously, as especially the British government had frequently stated that it would only act in accordance with international law, this reason must have been legal under international law. But why did they not mention it?
It is also of interest to what extent the authority to use force was provided by SCR 678. I has been argued that because it not only authorised all ‘necessary means’ to free Kuwait – ‘to uphold and implement resolution 660’ - but also to ‘restore peace and security in the region’ an extended mandate was given. But one has to recall that prior as well as subsequent resolution repeatedly affirmed the ‘commitment of all Member States to the sovereignty, territorial integrity and political independence’ (remarkably missing in SCR 1441) ‘of Kuwait and Iraq’(SCR 687). Yet Operation Iraqi Freedom was explicitly started for the purpose of ‘Regime Change’. This can be clearly deduced from the final ultimatum president Bush, before the war started, offered to Saddam, to go into exile or face the consequences. Clearly a resolution that explicitly stresses the political independence does not regard regime change as a means to establish peace and security. And indeed the subsequent chaos and violence within Iraq can hardly be interpreted as doing so.
Therefore even if one would accept that under the circumstances the Coalition was authorised to resume hostilities without a direct mandate by the security Council, the purpose of Operation Iraqi freedom was contrary to the original mandate and therefore illegal.
Alternative justifications
Besides the justification that had been sent to the President of the security Council a number of other justifications have been provided. These are however highly political explanations that often try to change international law rather than trying to justify why they are legitimate within international law. The most prominent justification was a pre-emptive strike to counter an imminent threat[19], arguably justified under article 51 of the UN Charter and the customs following the Carolina case. Article 51 states that ‘nothing shall impair the inherent right for individual or collective self-defence if an armed attack occurs’. There is actually very little space for pre-emption in this phrase. The ‘inherent right’ actually does hint at a customary law, but if it does, it is definitely restricted to a response on an attack. In regard to the usual reference to the Carolina case, one has to keep in mind that the UN Charter was signed long after. Under the law of treaties, a signed and ratified treaty, such as the UN Charter, is binding even if it does impair possible customs that might have existed before. And the idea of a pre-emptive strike during the Cold war outlines the dangers that such an approach might imply. Yet it does seem fairly incomprehensible how, if during the Cold war a possible strike that would have been utterly fatal was not enough to justify a first-strike, any possible threat today could be so urgent and imminent that international law has to change.
The argument that in an age of terrorism – although it might be questioned when exactly this ‘age’ started, as these threats are far from being new – one cannot wait till ‘a mushroom cloud’[20] arises. But even under the worst case scenario the capacity to respond would not be compromised by any terrorist attack. Yet to go even further and replace the necessary ‘imminence’ of a particular threat with a ‘growing danger’ would ultimately mean to dissolve article 2 (4) of the Charter completely. Because a growing danger could be absolutely everything.
However the Bush administration in its ‘war against terror’ has gone even further and started to question the very idea of international law. The claim that action on the international stage only needs to be in consistency with the US constitution and does not need an outside ‘permission slip’ by the security council is most stringently advocated by Mr. John Bolton.
“Our action, taken consistently with Constitutional principles, require no separate, external validation to make them legitimate. […] If treaties cannot legally ‘bind’ the United States, it need not detain us long to dismiss the notion that ‘customary international law’ has any binding legal effect either.”[21]
In essence this means that the United States of America are not legally bound by anything but her own constitution. The fact that the US has signed the United Nation’s Charter does not imply any legal obligations. “Put succinctly, the United States will decide what is legitimate and what is not and can do so because of its coercive power.”[22] This application of political Realism – a common concept within International Relation theories[23] – effectively eradicates the legal significance of the signature of the United States on any document and reduces it to a mere commitment at the discretion of the respective administration. Yet under these conditions the annexation of Kuwait by Iraq could not be called illegal either, as the overproduction of oil by Kuwait was in clear contradiction to the ‘national interest’ of Iraq. Practically the application of this philosophy eliminates the very concept of international law and replaces it with a system of international anarchy where “might makes right”[24] and hence any discussion about the ‘legality’ of Operation Iraqi Freedom is superfluous. But it also means that if this applies for the US it consequently also applies for all other countries and that any contract with for instance a US company can be cancelled at any time and American assets abroad could be seized if any government regards this as in its national interest. Given the amount of investment of US companies abroad and the threat to international peace and security that would result out of radical Realism on an international scale it actually seems questionable if the continued application of the philosophy of Realism can be regarded as in the national Interest of the US and therefore it could be argued that doing so is inconsistent with the US constitution. Therefore even to completely deny the existence of international law does not necessarily make Operation Iraqi Freedom legal.
Conclusion
Operation Iraqi Freedom was always legally questioned. One of the key questions was whether the claims made by the US and the UK were correct and Iraq did posses weapons of mass-destruction. Indeed, had they been found it would have been possible to argue that Iraq, or for that matter more precisely Saddam, given his history, did constitute a threat to Peace and Security in the region. But even then it would have stood on a questionable legal basis. The ‘continuing authority’ of resolution 678 did indeed exist, yet it seems more than obvious to me that it lay with the Security Council. I do not think a second resolution would have been necessary explicitly authorising force under Chapter 7 – that had already been done – but the decision as to when ‘the final opportunity’ for Iraq was over, could in my opinion not have legally been taken by anyone but the Security Council. The SC had declared it and therefore it was for the SC to declare it for over, no matter between which parties the ceasefire was. The war was therefore, irrelevant to the question as to whether Iraq had or had not WMDs, illegal.
However Operation Iraqi Freedom, apart from a huge number of dead people and a rather insecure situation within Iraq, has revealed that Iraq did not have such weapons, and therefore was not in material breach of SCR687, any conclusion that the war might have been legal[25] seems to me to be bending the law beyond its breaking point. Yes Iraq had been declared to be in breach of almost all Security Council resolutions relating to that matter, but as it turns out he did actually comply with the core demand of disarmament. For whatever reasons he did not make this more obvious, will probably remain for future historians to discuss.
Yet what Operation Iraqi Freedom did clearly show was the danger of the pre-emptive strike philosophy. Even though the official explanation did not rely on pre-emption, it did show that unilateral decisions to go to war, based on intelligence findings, can hardly be legally justified. In domestic law the rule is innocent until proven guilty. Why this should be different in international law is beyond my comprehension. The fact that had the two contradictive claims, the UK and US claiming that Iraq did posses WMDs and Iraq claiming that she did not, been balanced against each other and similar measures had been taken to verify them, an unnecessary war that was costly in lives, in financial terms and in international relations could have been avoided.
References
[1] Consisting of at the time of the start of the operation 48 states, whose contribution ranged from political support over financial support to military contributions.
[2] Kritsiotis, D. Arguments of Mass-confusion. European Journal of International Law, Vol. 15 (2004) No. 2.
[3] Lord Goldsmith, ‘Attorney General Clarifies Legal Basis for the Use of Force Against Iraq’ (18 March
2003), www.fco.gov.uk.
[4] Compare: National Security Strategy of the United States of America 2002.
[5] Compare: Simons, G. (2004) Iraq: From Sumer to Post-Saddam.(3rd. ed.) Palgrave Macmillan. pp. 338-345.
[6] Ibid. pp. 345-361.
[7] Charter of the United Nations.
[8] SCR 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, 677.
[9] According to Simons, G. the failure of peace talks was as much a result of unwillingness by the US and Kuwait as of Iraq. Compare pp. 362-364.
[10] A claim that according to Hans Blix was not completely unjustified. Compare: Dr. Hans Blix in his lecture International Inspections in Iraq and elsewhere. Hersch Lauterpacht Memorial Lectures, Cambridge, 23/11/2004.
[11] Compare: http://www.unmovic.org/
[12] http://news.bbc.co.uk/2/hi/middle_east/2857789.stm
[13] http://www.cnn.com/2003/WORLD/meast/03/19/sprj.irq.main/
[14] UN Doc. S/2003/350 (21 March 2003) & UN Doc. S/2003/351 (21 March 2003)
[15] Lord Goldsmith, ‘Attorney General Clarifies Legal Basis for the Use of Force Against Iraq’ (18 March
2003), www.fco.gov.uk.
[16] Schmitt, M. N. The legality of Operation Iraqi Freedom under International Law. Journal of Military Ethics (2004) 3(2); pp. 82-/104.
[17]Quoted by Lord Justice Simon Brown, High Court Judgement CO/5429/2002 In Farebrother, G. & Kollerstrom, N. (2003) The Case against War. Legal Inquiry Steering Group, Hailsham. p 126.
[18] Compare: Dr. Hans Blix in his lecture International Inspections in Iraq and elsewhere. Hersch Lauterpacht Memorial Lectures, Cambridge, 23/11/2004.
[19] As outlined by: The White House, National Security Strategy of the United States of America (2002);
[20] Secretary of State, Condoleezza Rice, quoted in: Dr. Hans Blix in his lecture Iraq. Use of Force. Reform of the UN. Hersch Lauterpacht Memorial Lectures, Cambridge, 24/11/2004.
[21]Bolton, J. Undersecretary of state for arms control and international security in the State Department. Quoted by Dr. Hans Blix in his lecture The Use of Force in the International Community. Hersch Lauterpacht Memorial Lectures, Cambridge, 22/11/2004.
[22] Ibid.
[23] Compare: Smith, M. J. (1986) Realist Thought from Weber to Kissinger. Baton Rouge, Louisiana Sate University Press.
[24] Bolton, J. Quoted by Blix, H. 2004.
[25] As for instance taken by Schmitt, M. N. The legality of Operation Iraqi Freedom under International Law. Journal of Military Ethics (2004) 3(2); pp. 82-/104.
[1] Consisting of at the time of the start of the operation 48 states, whose contribution ranged from political support over financial support to military contributions.
[2] Kritsiotis, D. Arguments of Mass-confusion. European Journal of International Law, Vol. 15 (2004) No. 2.
[3] Lord Goldsmith, ‘Attorney General Clarifies Legal Basis for the Use of Force Against Iraq’ (18 March
2003), www.fco.gov.uk.
[4] Compare: National Security Strategy of the United States of America 2002.
[5] Compare: Simons, G. (2004) Iraq: From Sumer to Post-Saddam.(3rd. ed.) Palgrave Macmillan. pp. 338-345.
[6] Ibid. pp. 345-361.
[7] Charter of the United Nations.
[8] SCR 660, 661, 662, 664, 665, 666, 667, 669, 670, 674, 677.
[9] According to Simons, G. the failure of peace talks was as much a result of unwillingness by the US and Kuwait as of Iraq. Compare pp. 362-364.
[10] A claim that according to Hans Blix was not completely unjustified. Compare: Dr. Hans Blix in his lecture International Inspections in Iraq and elsewhere. Hersch Lauterpacht Memorial Lectures, Cambridge, 23/11/2004.
[11] Compare: http://www.unmovic.org/
[12] http://news.bbc.co.uk/2/hi/middle_east/2857789.stm
[13] http://www.cnn.com/2003/WORLD/meast/03/19/sprj.irq.main/
[14] UN Doc. S/2003/350 (21 March 2003) & UN Doc. S/2003/351 (21 March 2003)
[15] Lord Goldsmith, ‘Attorney General Clarifies Legal Basis for the Use of Force Against Iraq’ (18 March
2003), www.fco.gov.uk.
[16] Schmitt, M. N. The legality of Operation Iraqi Freedom under International Law. Journal of Military Ethics (2004) 3(2); pp. 82-/104.
[17]Quoted by Lord Justice Simon Brown, High Court Judgement CO/5429/2002 In Farebrother, G. & Kollerstrom, N. (2003) The Case against War. Legal Inquiry Steering Group, Hailsham. p 126.
[18] Compare: Dr. Hans Blix in his lecture International Inspections in Iraq and elsewhere. Hersch Lauterpacht Memorial Lectures, Cambridge, 23/11/2004.
[19] As outlined by: The White House, National Security Strategy of the United States of America (2002);
[20] Secretary of State, Condoleezza Rice, quoted in: Dr. Hans Blix in his lecture Iraq. Use of Force. Reform of the UN. Hersch Lauterpacht Memorial Lectures, Cambridge, 24/11/2004.
[21]Bolton, J. Undersecretary of state for arms control and international security in the State Department. Quoted by Dr. Hans Blix in his lecture The Use of Force in the International Community. Hersch Lauterpacht Memorial Lectures, Cambridge, 22/11/2004.
[22] Ibid.
[23] Compare: Smith, M. J. (1986) Realist Thought from Weber to Kissinger. Baton Rouge, Louisiana Sate University Press.
[24] Bolton, J. Quoted by Blix, H. 2004.
[25] As for instance taken by Schmitt, M. N. The legality of Operation Iraqi Freedom under International Law. Journal of Military Ethics (2004) 3(2); pp. 82-/104.
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