|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
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.
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
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
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
For more information on Iraq and the use of terrorism, see
Ties to Terrorism from the Council on
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
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:
which in 1990 authorized the U.N. to take military action against
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
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
Rights Watch both offer useful discussions of humanitarian law.
the United Nations. Chapter VII, Article 42 states that if
peaceful means have not succeeded in obtaining adherence to Security
Council decisions, the Security Council may take such action by air,
sea or land forces as may be necessary to maintain or restore
international peace and security. Chapter VII, Article 51 allows for
states to use force in self-defense.
Geneva Conventions and Additional Protocols. Parts of the
Conventions are also available
Security Strategy of the United States of America
Security Council Resolution 678 adopted November 29, 1990,
authorizing the U.N. to take military action against Iraq.
Security Council Resolution 687 adopted April 3, 1991, setting
the terms of the cease-fire at the end of the 1991 Gulf War.
U.N. Security Council Resolution 1284 adopted December 17, 1999,
U.N. Security Council
Resolution 1441 adopted November 8, 2002, calling for renewed
to the United Nations of November 13, 2002, accepting renewed arms
United States Code Title 50, Chapter 33, the War Powers
House Joint Resolution signed October 16, 2002, authorizing the
president to attack Iraq.
- British Attorney General Lord
Goldsmith’s March 17th
statement supporting the use of force against Iraq. This
statement is also available
- The Australian Attorney General’s
memorandum supporting the use of force against Iraq.
|ARTICLES AND COMMENTARY
- David M. Ackerman,
International Law and the Preemptive Use of Force Against Iraq,
Congressional Research Service Report for Congress, (September 23,
- David M. Ackerman,
Response to Terrorism: Legal Aspects of the Use of Military Force,
Congressional Research Service, (September 13, 2001).
- Thomas M. Franck, When, If Ever,
May States Deploy Military Force Without Prior Security Council
Authorization? 5 Wash. U. J.L. & Pol'y 51 (2001).
- Gavan Griffith,
Notes on the Legal Justification for the Invasion of Iraq and
Security Council Resolutions 678 and 1441, Sydney
Morning Herald, (March 21, 2003).
- Richard F. Grimmett,
Use of Preemptive Military Force, Congressional Research
Service Report for Congress, (September 18, 2002).
- Devika Hovell and George Williams,
Nowhere to Hide Behind the Letter of the Law (Sydney Morning
Herald, March 19, 2003).
International Humanitarian Law Issues in a Potential War With Iraq,
Human Rights Watch, (February 20, 2003).
Questions Regarding the Laws of War, Center for
Defense Information ‚ Terrorism Project, (March 18, 2003).
- Ali Khan,
and Beyond International Law: George W. Bush as the Austinian
Sovereign, JURIST ‚ University of Pittsburgh School of Law,
(March 31, 2003).
- Michael Kelly,
the New International Criminal Court try Americans for War Crimes in
Iraq?, JURIST ‚ University of Pittsburgh School of Law,
(March 17, 2003).
- Frederic L. Kirgis,
in Iraq, ASIL Insights, (March 18, 2003).
- Lawrence J. Lee, Mark R. Shulman et
Legality and Constitutionality of the Presidentís Authority to
Initiate an Invasion of Iraq, 41 Colum. J. Transnat'l L. 15,
- Mary Ellen O'Connell,
The Myth of
Preemptive Self-Defense, The American Society of
International Law Task Force on Terrorism, (August 2002).
Nations Charter and the Use of Force Against Iraq, Lawyers
Committee on Nuclear Policy, (October 2, 2002).
January 29, 2003; Last updated May 15, 2007.