Introduction

On March 19 2003, the United States of America (US) and its allies invaded Iraq in the military campaign known as “Operation Iraqi Freedom.” President Bush stated that the goal of the operation was to “disarm Iraq, to free its people and to defend the world from grave danger.”[1] More than eight years later coalition forces show no sign of leaving Iraq and a fundamental question needs to be asked – was Operation Iraqi Freedom legal under international law?

To answer this question the US justifications of war require examination to determine whether they contradict international law. What will be found is that the invasion of Iraq was illegal under international law due to breaches of both customary law and the United Nations (UN) Charter. The analysis shall also examine what role international law plays today and whether the United Nations has lost legitimacy as a result of their inability to control the US.

The United Nations Charter

The most fundamental source of international law is the Charter of the UN. The first point of interest is the preamble with peace resolutions and the non-use of force in conflicts as key goals[2] Following is Article 1(1) which states the purpose of the Charter as “to bring about by peaceful means and in conformity with principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”[3] Continuing with the theme of peace is Article 2(3) which pushes nations to “settle their international disputes by peaceful means”[4]. Finally, Article 2(4) states that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”[5]
Article 2(4) has been described by the ICJ as a peremptory norm based on customary law, quite simply meaning that states are allowed no deviation from it.[6] In summary, the Charter strongly suggest that the use of force is not acceptable to resolve international disputes, and based on this alone, Operation Iraqi freedom, could only be perceived as illegal. There are however, some circumstances in which force is permitted which shall be examined below.        
          
Background: The First Gulf War and the 1990’s and the U.S Case for War

On 2 August 1990, the Iraqi military invaded Kuwait in a move found by the UN to have no legal validity[7]. The following day the UN Security Council (SC) adopted Resolution 660, the first of many resolutions condemning the actions of Iraq. Shortly after, with Iraq’s refusal to accept a diplomatic solution to the conflict, the UN adopted Resolution 678, giving Iraq until 15 January 1991 to obey Resolution 660. Under Resolution 678 states were allowed “to use all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area.”[8] Iraq did not comply with the 15 January deadline, and the next day, on 16 January 1991, “Operation Desert Storm” lead by the US and 34 allies, was initiated.[9] By 27 February 1991, Kuwait was free of Iraqi forces.

On April 3 1991, the UN adopted Resolution 687 which required Iraq to submit to weapon inspection and not to develop or acquire weapons of mass destruction (including Nuclear).[10] By April 6, 1991 Iraq had accepted the terms of the Resolution and a ceasefire began operation between Kuwait, Iraq and allied forces.

Throughout the1990’s the Iraq received multiple warnings from the UN regarding “clear violations” of Resolutions. In 1997 Resolution 1137 threatened “serious consequences” for “the continued violations by Iraq of its obligations under the relevant resolutions to cooperate fully and unconditionally with UNSCOM” [11]  (Weapon Inspections Committee). In February 1998, the UN Iraq agreed that it would resubmit to all SC Resolutions and allow weapon inspections, however by the end of October Iraq abruptly halted the process.[12] The SC responded by declaring the obstruction to weapon inspections as a “flagrant violation of Resolution 687”[13] In retaliation, US and British forces launched a seventy hour bombing campaign against over 100 Iraqi targets, however weapon inspections did not resume for the next four years.

After 9/11 the US again turned its attention towards Iraq and labeled them, along with Iran and North Korea as part of the “Axis of Evil”[14] In September 2002, President Bush appeared before the General Assembly and demanded Iraq to begin obeying previous resolutions else face the possibility of military action.[15] The UN’s response was Resolution 1441 which declared Iraq had breached its obligations under prior resolutions, and provided a final chance to comply else “face serious consequences.”[16]

In response, Iraq partially met some of its obligations such as the resumption of weapon inspections and the submission of a declaration, however generally failed to meet the majority of its obligations.[17] Hans Blix, the Executive Chairman of the weapons inspection committee states that Iraq had not come “to a genuine acceptance, not even today, of the disarmament which was demanded of it.”[18] On 5 February 2003, Secretary of State, Colin Powell, appeared before the SC and presented the U.S.’s arguments for war. These arguments were ultimately rejected by the SC and no authorization for the use of force was passed.  This is essential to consider throughout this paper, as without UN. authorization the use of force is not permitted. As stated by Former UN Secretary-General Kofi Annan, "From our point of view and the UN Charter point of view, it [the war] was illegal."[19]

 U.S. Justifications for War

When examining the U.S. purposes for going to war there are both the political reasons, and more importantly for this analysis, the legal justifications behind those political motivations. When considering political reasons, it is impossible to ascertain the 100% truthful reasons why Bush was so intent on an invasion. The three reasons provided to the public were as follows;

  1. To stop the development and use of Weapons of Mass Destruction. This is the ‘official’ reason provided to the public by the Bush administration, however in press conferences and other public discussions two other reasons were provided.
  2. To break the link between Iraq and terrorism following the 9/11 Trade Centre attacks.
  3. To create regime change and liberate the Iraqi people [20]

Accompanied with these reasons were legal justifications, which shall now be examined.

Resolution 687 and 1441

One of the US’s justifications for invasion was Iraq’s breaches of prior UN Resolutions, particularly 687 and 1441. The US argument is simply that Iraq was in a material breach of its international obligations. Based on the “all necessary means” to uphold international peace allowance of Resolution 687, the US justified their response as the “serious consequences” which had been threatened against Iraq on multiple occasions since the First Gulf War.[21] Quite simply, the US argued that Resolution 678 authorised the use of force against Iraq to maintain international peace and security.

Was This Legal?

This argument is based on the premise that previous Resolutions relating to the first Gulf War had no expiry time and that the events of Operation Iraqi Freedom, were merely a continuation of the First Gulf War, allowing the authorization to use force. Arguments exist however to the contrary, with the SC stating on prior occasions that if a ceasefire is ordered under a Resolution, then the time limit on such a resolution is infinite and no parties to the agreement are free to use force in a continuation of the dispute – simply put, Article 2(4) remains enforceable. [22]

Also of consideration is the wording of Resolution 687, which stated that it was the SC’s responsibility to “to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region”. This simply means that only the SC could authorize force - it was not the responsibility of member states. This was also specifically stated in 1998 when the SC rejected a proposition from the U.S to allow the use of force against Iraq future weapon inspection violations. Finally, even though Resolution 1441 provided Iraq with a “final opportunity to comply,”[23] China, France and Russia submitted a combined statement that the resolution “excludes any automaticity in the use of force” – it had to be authorized by the SC.[24]

Quite simply, the permanent ceasefire declared after the Gulf War in Resolution 678 ceased any authorization over the use of force by the US, and subsequent resolutions did not allow the use of force without authorization of the SC. This authorization was not obtained and therefore, the use of force was a violation of the charter and illegal under international law.

Preemptive Self Defense

Under Article 51 of the UN Charter, self defense is an acceptable means of using force if it is in response to an armed attack.[25]  As no armed attack had been deployed against the US by Iraq the Bush Administration justified Operation Iraqi Freedom through the notion of preemptive self defense.

The US government justified their view by stating the goals of terrorists and rogue states, the strength of possible weapons and the potential for many victims did not allow a purely reactive stance to be taken.[26] The US ‘National Security Strategy’ argued that due to the new threats posed by terrorism the prior notions of anticipatory self defense required expansion. This argument supported by evidence that in a post 9/11 world threats may be imminent, but not always evident.[27] As stated by Bush,

“Not only will the United States impose pre-emptive, unilateral military force
 when and where it chooses, but the nation will also punish those who engage
 in terror and aggression and will work to impose a universal moral clarity
 between good and evil”[28]

Was this Legal?

In determining whether preemptive self defense is legally justifiable, the notion of anticipatory self defense must also be examined and the distinction between the two recognised.

Prior to the UN charter anticipatory self defense was considered legal under international law, and as early as 1625 the right had been recognised.[29] In more recent times, Israel’s attack on Egypt and Jordan (beginning the Six Day War) has been seen as an example of legitimate anticipatory self defense.[30] For it to be valid however it must be in response to an imminent threat and be “instant, overwhelming, leaving no choice of means, and no moment for deliberation”[31] Even today however, there is debate amongst scholars as to whether the right to anticipatory self defense exists.[32]  

The notion of Preemptive self defense pushes this already debatable principle one step further, stretching international law “beyond breaking point.”[33] Quite simply the US’s position was that they were ‘preempting’ that one day they may be under an imminent attack by Iraq. Even if the anticipatory self defense argument was raised by the US it would probably fail as Iraq had not attacked the US and showed no signs of attacking the US. This was confirmed by the UK Intelligence Committee which stated that “Saddam Hussein was not considered a current or imminent threat.”[34] Furthermore, when considered using the tests of (a) proportionality, (b) necessity and (c) immanency the U.S. invasion fails is both the necessity and immanency categories.[35]  Furthermore, the U.S had not exhausted all possible alternatives to force (this falls under the necessity category) with a report from Hans Blix on 13 February 2003 that Iraq had been complying with recent inspection requests promptly and without limitations.[36]

Finally, the US failed to demonstrate that there was an on-going, clear link between the Iraqi government and terrorist organizations which would have justified the “new threats” which their preemptive strategy was based upon. In Afghanistan a clear link existed between Al Qaeda, terrorist attacks and the government – enough so to justify, with the support of the UN anticipatory self defense against the nation. In Iraq this link did not exist and the new threats posed by terrorism are therefore not relevant to Saddam Hussein’s Regime. For this reasons the preemptive strategy as proposed by President Bush is illegal.[37]

Quite simply, the notions of pre-emptive war have no legal basis, and lack support amongst most international lawyers.[38] The consequences of widely accepting such a notion could be disastrous and it can even be argued that under the US doctrine, Iraq would have had an equally as strong case for attacking the US. for ‘preemptive’ purposes.[39] The notion of preemptive self defense is therefore illegal under international law.

Humanitarian Intervention

Arguably, the key agenda of the UN is to maintain international peace and security and over recent times a link has been drawn between human rights abuses and this agenda.[40] Essentially, some argue that international law is gradually beginning to allow intervention to prevent humanitarian abuses. The 1999 NATO intervention in Kosovo is a good example of this and it has been said that it may signify the creation of “limited and conditional right of humanitarian intervention” in which force is authorized to protect at risk people.[41]  In terms of Iraq, the brutal nature of Saddam Hussein’s regime can not be denied with mass murders, persecution and discrimination all generally accepted as elements of his rule[42] The prevention of further abuse was yet another justification by Bush for the invasion of Iraq.

Was this Legal?

Although a very complex and emerging area of law to deal with, when the UN Charter is strictly examined, it does not appear to justify or allow the use of force for humanitarian intervention. [43] This issue raises complicated moral and legal issues, but the actions of NATO in Kosovo tend to demonstrate that international custom is developing to support this form of intervention. Regardless, the case of the US in Iraq has to be deemed illegal under international law due to the lack of UN support for the use of force. If the conflict had been authorized to prevent humanitarian crimes, then the use of force would have obviously been justified, but without the support of the UN the illegality of the US’s actions is not diminished.

 Where to Now?

One of the best things that can come from Operation Iraqi Freedom are the lessons available to the UN Flaws in regards to Iraq include the UN’s authorization of crippling economic sanctions against Iraq for over 12 years which affected the civilian population in devastating ways and the UN’s failure to “censure” the US and Britain for multiple attacks during this period[44]. Furthermore, the UN included numerous vague statements in their Resolutions such as “severest consequences” which open their interpretation up to legitimise force.[45] The most dramatic flaw of the UN’s however was their sheer inability to prevent the US going to war.

Based on the failure of UN to prevent or punish the US for illegally invading Iraq, there are some who argue that the US, and thus elements of International Law have lost their legitimacy. This is in fact far from the truth – in fact the war in Iraq has since been considered by most of the world as an extreme violation of international law and the actions of the US have not developed into precedent.[46] Furthermore, although the US invaded without UN permission, they are more increasingly coming to the realisation that UN support is needed for the reconstruction of Iraq.[47] Unsurprisingly, the U.S. is paying the price for acting against the UN and other global leaders, with international assistance difficult to find and a domestic economy crumbling due to (amongst other things) war expenditure.[48] Instead of the Iraq War negating the UN and international law; it has in fact had the opposite effect with much of the world rallying together behind the principles of the Charter and international law.[49]             

Conclusion

This paper has analysed ‘Operation Iraqi Freedom” and examined the three major justifications the US used for the campaign. These justifications include the re-enlivenment of prior UN Resolutions authorising the use of force, the notion of preemptive self defense and the notion of humanitarian intervention. For the first two justifications, this paper has demonstrated that the US reasoning was seriously flawed, and failed in authorising the use of force both legally and through SC acceptance. In terms of humanitarian intervention, although a case could be argued that a need existed, without the support of the SC, this justification is also considered illegal.

Finally, although some argue that the war has damaged the role of the UN and international law, the precedents set by the US have not gained acceptance, and instead most nations of the world are rallying behind the UN Charter in condemnation. Both domestically, and internationally, it is possible to see that the US is experiencing the consequences of their actions; with respect to their monetary strength and support in decline. There are many lessons which can be learnt by “Operation Iraqi Freedom,” but regardless how the war continues over coming years, it is undeniable that the US use of force against Iraq was illegal under international law. 

[1] Office of the Press Secretary (19/03/2003) Speech by President George W Bush - Operation Iraqi Freedom -  “President Bush Addresses the Nation” http://www.whitehouse.gov/news/releases/2003/03/20030319-17.html accessed 01/10/2008
[2] The Preamble of the Charter of the United Nations includes the following points ‘to save succeeding generations from the scourge of war’; ‘to practice tolerance and live together in peace with one another as good neighbors’, ‘to unite our strength to maintain international peace and security’ and ‘that armed force shall not be used, save in the common interest'
[3] Article 1(1) Charter of the United Nations
[4] Article 2 (3) Charter of the United Nations
[5] Article 2 (4) Charter of the United Nations
[6] Nicaragua v United States [1986] ICJ Reports 14, [190].
[7] Security Council resolution 662 – 09 August 1990
[8] Security Council resolution 678 – 29 November 1990
[9] CNN.com (2001) “The unfinished War – A Decade Since Desert Storm” http://edition.cnn.com/SPECIALS/2001/gulf.war/facts/gulfwar/ accessed 03/10/2008
[10] Resolution 687 required Iraq to (1) destroy all chemical, biological and ballistic weapons and submit to inspections; (2) not to acquire or develop weapons of mass destruction (WMD’s); (3) not acquire or develop nuclear weapons or their components and; (4)destroy nuclear weapons or related materials.
[11] Security Council Resolution 1137 – 12 November 1997
[12] John C. Yoo. (2004) “International Law and the War in Iraq” Public Law and Legal Theory Research Paper Series Paper No. 145,  University of California at Berkeley School of Law http://ssrn.com/abstract=492002 page 4, accessed 03/10/2008
[13] Security Council Resolution 1205 05 November 1998
[14] George W. Bush, State of the Union Address (29/01/2002), http://www.whitehouse.gov/news/releases/2002/01/20020129-11.html
[15] Office of the Press Secretary (12/09/2002) Speech by President George W Bush “President's Remarks at the United Nations General Assembly” http://www.whitehouse.gov/news/releases/2002/09/20020912-1.html accessed 02/10/2008
[16] Security Council Resolution 1441 – 8 November 2002
[17] John C. Yoo. (2004) “International Law and the War in Iraq” Public Law and Legal Theory Research Paper Series Paper No. 145,  University of California at Berkeley School of Law
[18] Dr. Hans Blix address to the U.N. Security Council (27 January 2003) http://www.unmovic.org
[19] BBC.CO.UK (16 September 2006) “Iraq War Illegal, Says Annan” http://news.bbc.co.uk/1/hi/world/middle_east/3661134.stm Accessed 04 October 2008
[20] All three reasons taken from Mirko Bagaric and James McConvill (2003) “THE WAR IN IRAQ: The Illusion of International law? Where to now?” Deakon Law Review 7 http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/DeakinLRev/2003/7.html#fn14 accessed 04 October 2008
[21] John C. Yoo. (2004) “International Law and the War in Iraq” Public Law and Legal Theory Research Paper Series Paper No. 145,  University of California at Berkeley School of Law accessed 03/10/2008
[22] Ronli Sifris (2003) “OPERATION IRAQI FREEDOM: UNITED STATES v IRAQ — THE LEGALITY OF THE WAR” Melbourne Journal of International Law 7 http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MelbJIL/2003/7.html#fn50
[23] Security Council Resolution 1441 – 8 November 2002
[24] Ronli Sifris (2003) “OPERATION IRAQI FREEDOM: UNITED STATES v IRAQ — THE LEGALITY OF THE WAR” Melbourne Journal of International Law 7
[25] Nicaragua v United States [1986] ICJ Reports 14, [190].
[26] The White House- National Security Strategy ( 1 October 2003 ) “The National Security Strategy of the United States of America (2002)” http://www.whitehouse.gov/nsc/nss.html
[27] Alex J Bellamy (2003) “Feature – Legality of the use of force against Iraq – International law and the war with Iraq” Melbourne Journal of International law 6  http://www.austlii.edu.au/cgibin/sinodisp/au/journals/MelbJIL/2003/6.html?query=^is%20the%20war%20in%20iraq%20legal? Accessed 04 october 2008
[28] Mike Allen and Karen DeYoung, ‘Bush: US Will Strike First at Enemies — In West Point Speech, President Lays Out Broader US Policy’, The Washington Post (Washington DC, US), 2 June 2002, A1. taken from Alex J Bellamy (2003) “Feature – Legality of the use of force against Iraq – International law and the war with Iraq” Melbourne Journal of International law 6  Accessed 04 october 2008
[29] Ronli Sifris (2003) “OPERATION IRAQI FREEDOM: UNITED STATES v IRAQ — THE LEGALITY OF THE WAR” Melbourne Journal of International Law 7
[30] Gerry Simpson (2003) “The War In Iraq and International law” Melbourne Journal of International law 7 http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MelbJIL/2005/7.html#Heading53 accessed 04 October 2008
[31] The Caroline, Letter from Mr Webster to Mr Fox (24 April 1841) (1841–42) 29 British and Foreign State Papers 1129, 1138. taken from Ronli Sifris (2003) “OPERATION IRAQI FREEDOM: UNITED STATES v IRAQ — THE LEGALITY OF THE WAR” Melbourne Journal of International Law 7
[32] The strict wording of Article 51 and the United Nations unanimous condemnation of the1981 Israeli bombing of an Iraqi nuclear plant (justified by arguing the plant could have made a bomb be used against Israel) is used by some to argue that in recent times the right to anticipatory self defense has diminished (Ronli Sifris (2003) “OPERATION IRAQI FREEDOM: UNITED STATES v IRAQ — THE LEGALITY OF THE WAR” Melbourne Journal of International Law 7
[33] Gerry Simpson (2003) “The War In Iraq and International law” Melbourne Journal of International law 7
[34] Lord Alexander of Weedon QC (Undated) “Iraq: the pax Americana and the Law” http://www.btinternet.com/~peter.hill34/alex.htm accessed 05 October 2008
[35] Ronli Sifris (2003) “OPERATION IRAQI FREEDOM: UNITED STATES v IRAQ — THE LEGALITY OF THE WAR” Melbourne Journal of International Law 7
[36] United Nations Security Council (14 February 2003), 58th Session, 4707th Meeting, “UN Doc S/PV.4707”
[37] Alex J Bellamy (2003) “Feature – Legality of the use of force against Iraq – International law and the war with Iraq” Melbourne Journal of International law 6  
[38] Gerry Simpson (2003) “The War In Iraq and International law” Melbourne Journal of International law 7
[39] Gerry Simpson (2003) “The War In Iraq and International law” Melbourne Journal of International law 7
[40] Ronli Sifris (2003) “OPERATION IRAQI FREEDOM: UNITED STATES v IRAQ — THE LEGALITY OF THE WAR” Melbourne Journal of International Law 7
[41] Ruth Wedgwood, ‘Editorial Comments: NATO’s Kosovo Intervention — NATO’s Campaign in Yugoslavia’ (1999) 93 American Journal of International Law 828, 828. taken from Ronli Sifris (2003) “OPERATION IRAQI FREEDOM: UNITED STATES v IRAQ — THE LEGALITY OF THE WAR” Melbourne Journal of International Law 7
[42] Ronli Sifris (2003) “OPERATION IRAQI FREEDOM: UNITED STATES v IRAQ — THE LEGALITY OF THE WAR” Melbourne Journal of International Law 7
[43] Ronli Sifris (2003) “OPERATION IRAQI FREEDOM: UNITED STATES v IRAQ — THE LEGALITY OF THE WAR” Melbourne Journal of International Law 7
[44] Richard Falk (April 19 2004) “The Iraq War and the Future of International Law” Nuclear Age Peace Foundation
[45] Gerry Simpson (2003) “The War In Iraq and International law” Melbourne Journal of International law 7
[46] Richard Falk (April 19 2004) “The Iraq War and the Future of International Law” Nuclear Age Peace Foundation http://www.wagingpeace.org/articles/2004/04/19_falk_iraq-war-law.htm Date Accessed 05 October 2008
[47] Richard Falk (April 19 2004) “The Iraq War and the Future of International Law” Nuclear Age Peace Foundation
[48] Gary Younge (September 4 1003) “Bush Asks U.N for help in Iraq” Guardian.co.uk http://www.guardian.co.uk/world/2003/sep/04/iraq.usa1 accessed 05 October 2008
[49] Richard Falk (April 19 2004) “The Iraq War and the Future of International Law” Nuclear Age Peace Foundation
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