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The War on Iraq: Legal Issues

After months of trying to rally international support for a war and a two-day ultimatum demanding that Iraqi President Saddam Hussein step down, the United States attacked Iraq on March 19, 2003. The goal, U.S. President George W. Bush said in a speech, was "to disarm Iraq, to free its people and to defend the world from grave danger."

Experts disagree as to whether the war was legal under international law. Under Chapter VII of the United Nations Charter, to which the United States is a party, a nation's use of force is authorized under only two circumstances: in individual or collective self-defense, as outlined in Article 51, or pursuant to a Security Council resolution, as outlined in Article 42.

Self Defense

Since it was not directly attacked by Iraq the United States did not have an obvious right to self-defense. The administration, though, argued that it had a right to defend itself preemptively against a future possible attack. In his speech to the United Nations on September 12, 2002, President Bush described Saddam Hussein's regime as "a grave and gathering danger," detailed that regime's persistent efforts to acquire weapons of mass destruction, and spoke of an "outlaw regime" providing such weapons to terrorists. For an extensive discussion of international law and the preemptive use of force, see the Congressional Research Service's Report for Congress of September 23, 2002.

While arguing for preemption, the administration also suggested that the United States had a right to self-defense on the grounds that the Iraqi regime was connected to Al Qaeda, the organization responsible for the attacks on the United States of September 11, 2001. In February 2003, Secretary of State Colin Powell told the United Nations Security Council that Iraq was harboring a terrorist cell led by Abu Musab Zarqawi, a suspected associate of Al Qaeda. Powell also said that senior Iraqi and Al Qaeda leaders had met at least eight times since the early 1990s. Ansar al-Islam, an Islamist militia group, was also suspected of ties to Al Qaeda, and was based in a lawless part of northeast Iraq, though it was not known to have cooperated with Saddam Hussein.

For more information on Iraq and the use of terrorism, see Iraqi Ties to Terrorism from the Council on Foreign Relations.

The Security Council

The 15-member United Nations Security Council did not authorize the March 19, 2003 attack on Iraq. It unanimously passed Resolution 1441 on November 8, 2002, calling for new inspections intended to find and eliminate Iraq's weapons of mass destruction. (The Arms Control Association provides a chronology of previous weapons inspections in Iraq.) Iraq accepted the renewed inspections, which were to be carried out by UNMOVIC and the IAEA. Under the terms of the resolution, if Iraq obstructed their work, the chief inspectors were to report promptly back to the Security Council, which would "convene immediately" to consider the situation and "the need for full compliance." The resolution also threatened "serious consequences" if Iraq failed to comply.

The United States, backed by Britain and Spain, began to seek a second U.N. resolution to declare Iraq in material breach of its obligation to disarm. Veto-wielding permanent members France, Russia and China, as well as a number of other members, preferred to give inspectors more time on the premise that inspections were working. Up against a deeply divided Council, the U.S. pulled its proposal on March 17.

The U.S. administration argued that it had enough legal support for its subsequent military action, based on resolution 1441 as well as two previous Security Council resolutions: 678, which in 1990 authorized the U.N. to take military action against Iraq, and 687, which set the terms of the cease-fire at the end of the 1991 Gulf War. Administration lawyers said that because Iraq never lived up to the terms of the cease-fire, the use force was now valid.

In answer to a question in parliament, Great Britain’s Attorney General Lord Goldsmith issued a March 17th statement supporting the use of force against Iraq. The Australian Attorney General’s Department issued a memorandum on March 18th, also supporting the use of force against Iraq.

Other Legal Issues

Nations at war are required to follow the law of war, also known as international humanitarian law. Based on the Geneva Conventions of 1949 as well as customary international law, the law of war regulates military operations in an attempt to protect civilians from the devastation of war. The Center for Defense Information and Human Rights Watch both offer useful discussions of humanitarian law.

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Written January 29, 2003; Last updated May 15, 2007.


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