Assessing the Legality of Invading Iraq

Georgetown Law Journal, Jan 2004 by Murphy, Sean D

I. INTRODUCTION

In March 2003, a small group of states led by the United States1 invaded Iraq. Determining the exact policy reason for invading Iraq is a somewhat complicated task; government officials offered a variety of policy justifications that both differed in their emphases depending on the audience being addressed and evolved over time.2 In some instances, U.S. officials expressed concern for U.S. national security, sometimes relating to the threat of terrorism.3 In other instances, U.S. officials asserted a need to protect Iraq's neighbors or the international community at large, including the need to uphold resolutions of the UN security Council ordering Iraqi disarmament of weapons of mass destruction (WMD).4 At times, attention was called to the welfare of the Iraqi people and the need to help them throw off a despotic and abusive ruler.5 Many commentators noted the importance of Iraq in a region from which the United States and the global community derive energy resources.6

As for the basis for the invasion of Iraq under international law,7 in the months leading up to March 2003, considerable attention was paid to the doctrine of "preemptive self-defense" expressed by the Bush Administration in its September 2002 report to the Congress on national security. That report, among other things, asserted an evolved right under international law for the United States to use military force preemptively against the threat posed by "rogue states" possessing WMD.8 The doctrine no doubt was attractive to the Bush Administration, as it resonated with the fears of many Americans-in the aftermath of the September 11, 2001, attacks by the terrorist organization Al Qaeda-that at some point WMD would be unleashed against the United States by uncontrollable states or organizations.9 Yet, ultimately, when explaining the legal basis for its action against Iraq, the United States did not assert that the invasion of Iraq was permissible under international law due to an evolved right of preemptive self-defense10 or that international law was irrelevant.11 Rather, the United States asserted that the invasion was lawful because it was authorized by the Security Council.12 That authorization was not issued in 2002-03, but rather in 1990, when the Security Council adopted Resolution 678,13 and thereby authorized a coalition of states to repel Iraq from Kuwait and to restore peace and security in the area. Although the 1990-91 war against Iraq ended with a UN-mandated cease-fire, Iraq violated its obligations under that cease-fire, which thus, according to the United States, amounted to a "material breach" of the cease-fire conditions that had the effect of "reviving" the earlier authorization to use force.14 The same legal theory was asserted by other members of the U.S.-led coalition.15

The U.S. decision not to adopt a legal doctrine of preemptive self-defense, and instead to adopt an alternative legal theory, was a very welcome development for maintaining public world order. Invoking a legal doctrine of preemptive self-defense could have invited an unraveling of norms on the use of force by creating a precedent for action by any number of states that purport to be threatened by acts of their neighbors that might occur in years hence. Had the United States relied on preemptive self-defense as its theory for invading Iraq, there is no easy answer why, as a legal matter, India could not invade Pakistan if India feels threatened by the potential future use of Pakistan's nuclear capability. By contrast, in emphasizing the myriad resolutions of the Security Council enacted to deal with Iraq, the United States was able to contain the precedent set by its invasion; in principle, the U.S. legal theory serves as a precedent only for future circumstances where an open-ended use of force authorization is issued by the Security Council and then stayed by a cease-fire resolution.

This Article demonstrates, however, that the legal theory actually deployed by the United States is not persuasive. The text of Resolution 678, and those resolutions that followed, along with the associated negotiating history and subsequent practice, individually and collectively demonstrate that the United States and its allies did not have Security Council authorization in March 2003 to invade Iraq. Moreover, regardless of whether one regards the U.S. legal theory as persuasive, the complexity of the theory (with its reliance on Security Council decisions taken years earlier to address different circumstances) and the clear resistance of a majority of Security Council members in March 2003 to the deployment of force against Iraq, combined to strip the invasion of Iraq of the collective legitimacy sought by the United States.

Nevertheless, the United States did invade Iraq, which raises serious questions about the efficacy of international norms on the use of force and the utility of the Security Council. If the United States proceeded without authority under international law, then is international law in this area really useful? If the United States proceeded in the face of opposition within the UN Security Council, then what use is the Security Council? This Article argues that international law and international institutions played a very important role in the events leading up to the invasion of Iraq, both as a means for discourse among relevant actors within the United States, and as a means for mediating a struggle for power between the United States and other members of the global community. Indeed, despite the popular perception that the United States has abandoned the Security Council and, more generally, flouted the norms of the UN Charter, the approach taken by the United States in 2003 and 2004, as well as certain repercussions to the United States from failing to obtain express Security Council authorization, may presage an enduring U.S. engagement with the United Nations and compliance with the international normative framework on matters of peace and security.