Assessing the Legality of Invading Iraq

Georgetown Law Journal, Jan 2004 by Murphy, Sean D

Part II of this article briefly recounts the legal basis advanced by the United States. Part III critiques that basis by reviewing the language and background of the underlying Security Council resolutions and the subsequent practice of the Security Council with respect to those resolutions. While there are arguments to be made in support of the U.S. legal theory, the theory is not persuasive in the context of the invasion of 2003. Part III further suggests that the invasion may represent the "final straw" in decades of stretching the UN Charter to cover actions by the major powers in a manner not expressly contemplated in Chapter VII. Part IV considers whether the invasion of Iraq, if not done under UN authority, demonstrates the futility of international rules on the use of force and the ineffectiveness of the UN Security Council.

II. THE ASSERTED LEGAL BASIS FOR THE INVASION

The legal basis for the invasion advanced by the United States, as well as by its allies, can be described as follows.16

* First, in order to address Iraq's invasion of Kuwait of August 1990, the Security Council adopted Resolution 678 in November 1990, which authorized UN Member States to "use all necessary means" to uphold Security Council resolutions relating to Iraq and to "restore international peace and security in the area."17

* Second, after Iraqi forces were expelled from Kuwait, the Security Council adopted a "cease-fire" resolution-Resolution 687(18)-in April 1991, which "imposed a series of obligations on Iraq, including, most importantly, extensive disarmament obligations, that were conditions of the ceasefire established under it."19 Resolution 687 suspended the authorization to use force against Iraq, but did not terminate such authorization.

* Third, Iraq "materially breached" its disarmament obligations by failing to disclose, discontinue, and destroy WMD programs. The Security Council recognized that Iraq was in "material breach" of its obligations on several occasions, including in November 2002 when it unanimously adopted Resolution 1441. That resolution gave Iraq "a final opportunity to comply with its disarmament obligations" and warned Iraq of "serious consequences" if it failed to do so.20

* Fourth, a material breach of Resolution 687 "removes the basis of the ceasefire and revives the authority to use force under resolution 678 (1990)."21 The precedent for such revival of the authorization to use force may be seen in prior Security Council practice. For example, according to the U.S. legal theory, in January 1993, the Security Council recognized that a material breach of Resolution 687 by Iraq revives the authority to use force, as evidenced by the UN Secretary-General's public statement at that time that the coalition had received a mandate to use force from the Council.22

* Fifth, in light of all these factors, the use of force in March 2003 was necessary given Iraq's non-compliance over an extended period of time.23

III. ASSESSMENT OF THE ASSERTED U.S. LEGAL BASIS