International Law vs. the Iraq War

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Introduction

A current hot debate in international politics is whether or not the United States-led war against Iraq is legal according to international law.   When the United States launched a military attack on the dictator-regime of Suddam Hussein in 2002, it sparked this discussion in the international community which continues to trouble  the United Nations as well as both the Bush administration and its opposition.  Those who oppose the Bush administration’s decision to take pre-emptive military action against Iraq argue that according to current international law, the intervention was not lawful.  The Bush administration maintains that their actions were legal due to their own interpretation of the Charter of the United Nations and resolutions made in regard to previous international altercations.  Who is right?  Current international law allows military action to be undertaken under two circumstances.  The first one is in unilateral or collective self-defence.  If a military strike is launched against a state, it has the authority to initiate its own attack in order to defend itself.  The assumption here is that a state will unilaterally defend itself until the United Nations Security Council can organize more support for them.  Secondly, a country may send military forces into another country in the case of a humanitarian intervention, but only in the case that it is rescuing its own nationals or it is invited in by the government of the country that needs the intervention.  In both cases, the UN Security Council must give the intervening state the authority to take military action.  Neither of these were the case in the United States-led attack on Iraq, and neither of these were even attempted to be used in the Bush administration’s legal justification of their invasion of Iraq.  In this fairly black and white argument, it is easy to show that the war in Iraq was launched in blatant disregard for international law by the United States and their allies.

Background

        In January of 2002, the Bush administration released their National Security Strategy, containing the Bush Doctrine of pre-emptive war, which promoted adapting the rules regarding the use of armed force in order to allow pre-emptive attacks against “emerging threats” posed by “rogue states” with weapons of mass destruction.  Ever since the release of the National Security Strategy, international law and where it does and should stand on the topic of pre-emptive attacks has been a hot topic in international politics.  

Then, on March 19th, 2003, in an attempt to remove Suddam Hussein from his dictatorship rule that was seen to the Bush administration as an extreme threat to the United States of America, the Americans launched a cruise missile attack on Baghdad.  When this attack failed to eliminate Hussein, the United States and its allies crossed the Kuwait/Iraq border with ground troops while stealth bombers and cruise missiles struck at other targets throughout the country.  They succeeded in removing Hussein from power within a few weeks.  But the legality of this strike was, and still is, hotly debated in the media and in the international forum.  As previously described, there are only two cases where the use of armed force is considered legal according to international law.  The Bush administration argues that according to their interpretation of the wording of the UN Charter and UN resolutions regarding Iraq and the precedent of the Korean War, their attack on Iraq was legal.  Laws and the UN Charter and its resolutions are written and carefully worded to make their purposes clear and meaningful in specific ways.  They are not open to any interpretation that a government requires from them to make them suit their needs.

The United States-led Strike Against Iraq Was Lawful

        After the Americans and their allies invaded Iraq, they argued that their actions were justified by earlier UN Security Council resolutions.  These resolutions had been passed in regards to the Iraqi invasion of Kuwait on August 2nd, 1990, not the current circumstances.  They also argued that since international law exists for the benefit of the USA as well as the other countries of the world, and that the United States should not be prevented from acting for its own security if it can make a reasonable legal justification for a strike.  This argument gives the premise that the United States should be above international law if it can come up with a good reason to invade another country that it perceives a threat, even if it is unprovoked or not in self-defence in reaction to an actual attack on the United States.

        The Bush administration began defending their actions by bringing to light Article 39 of the Charter which says that the Security Council may “determine the existence of any threat to the peace, breach of the peace, or act of aggression”.  The broad wording of this statement, the United States government argues, gives the Security Council the authority to determine that a threat short of an actual “breach of peace and security”, “act of aggression”, “attack against another country” exists.   They also argue that the open phrasing of Article 39 leaves room for the inclusion of terrorist groups, as well as the countries that sponsor them that don’t actually threaten other states.

        After determining a threat to or breach of international peace and security, the Security Council basically has two choices.  In Article 41, they are to decide which measures to take that do not include taking up arms in order to put their decisions into action.  In Article 42, the member states are to take “action by air, sea, or land forces as may be necessary to maintain or restore international peace and security”.  Under Article 42, the only constraint on the degree of force used against a threat is that only what is necessary to preserve or re-establish peace and security may be used.  The whole point of the authorization of using force against a threat is to alter the conduct of the state that is considered a threat to or in breach of international peace and security.  Occasionally, the force considered to be necessary to change the behaviour of a state will consist of restricted bombing directed at strategic military or political targets, but most often the destruction of a state’s entire military and political unit is crucial to the success of the operation.  

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        The United States government, and their international allies, argued that by combining articles 39 and 42 it is apparent that the use of force against Iraq was lawful in anticipation of a potential breach of international peace and security.  Article 39 implies that there doesn’t need to be an actual breach of the peace, but merely the threat of one, in order for the Security Council to begin deliberating on what action to take to remedy the threat to or breach of peace.  Article 42 authorizes the use of force against a threat to or breach of international peace and ...

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