Assessing the Legality of Invading Iraq

Georgetown Law Journal, Jan 2004 by Murphy, Sean D

On its face, the asserted legal basis for the invasion of Iraq seems plausible. The Security Council authorized a U.S.-led coalition to wage war on Iraq in 1991. That war ended with an agreement that Iraq would eliminate certain weapons of mass destruction. Iraq failed to do so from 1991 to 2003. Therefore, the prior authorization, having lain dormant, was reawakened so as to allow a new U.S.-led coalition to disarm Iraq.

The 1991 war with Iraq and the post-war conditions imposed on Iraq, however, occurred within the ambit of the strictures of Article 2(4) of the UN Charter,24 which generally prohibits the use of force by a state against another state, unless the state is acting in self-defense or under authorization by the Security Council. As such, unless the United States can demonstrate that the Security Council resolutions relating to Iraq authorized the use of force in 2003 against Iraq, then the use of force was not permitted. A close reading of those resolutions, the circumstances surrounding their adoption, and the subsequent practice of the Security Council with respect to those resolutions leads to the conclusion that the U.S. legal theory is unpersuasive.25

A. WHAT DID RESOLUTION 678 AUTHORIZE?

On the U.S. interpretation, Resolution 678 authorized the use of force for a material breach of Resolution 687. Certain aspects of Resolution 678, however, suggest that such an interpretation is unpersuasive. Resolution 678 begins by listing in its preamble the ten resolutions passed by the Security Council after Iraq's invasion of Kuwait, beginning with Resolution 660. The first two operative paragraphs of Resolution 678 then state that the Security Council:

1. Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwill, to do so;

2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, the foregoing resolutions, 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.26

The structure of Resolution 678 suggests that the resolution is focused on Iraqi compliance with the Security Council's resolutions adopted after Iraq's invasion of Kuwait but before November 29, 1990, the date of Resolution 678 itself. The phrase "all subsequent relevant resolutions" in paragraph one appears to be a reference back to the ten resolutions specified in the preamble.27 Further, the authorization in paragraph two only becomes effective if Iraq fails to comply with such resolutions by January 16. In other words, had Iraq complied with the obligations set forth under those ten resolutions-which related to Iraq's withdrawal from Kuwait, return of Kuwaiti nationals and property, and other matters, but which did not relate to weapons of mass destruction-on or before January 15, 1991, then the authorization contained in paragraph two would not be effective. Given that Iraq could not possibly comply by January 16 with resolutions that did not exist as of that date, the only reasonable interpretation of the language is that "all subsequent relevant resolutions" refers to the ten resolutions existing at the time Resolution 678 was adopted, and not resolutions adopted thereafter.28 Indeed, taken at face value, the U.S. interpretation presumably would authorize the use of force in perpetuity to uphold any Security Council resolution enacted under Chapter VII relating to Iraq, absent a further Security Council resolution terminating the authorization contained in Resolution 678. Such an interpretation is inconsistent with the careful manner in which the Security Council acted in authorizing the use of force in Resolution 678, whereby Iraq was provided "one final opportunity" to take specific actions that would forestall the resort to force. As such, the interpretation is not tenable.