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 security if the measures of Article 41 are not sufficient to remedy the problem. Basically, the United States argued that according to these two articles combined, pre-emptive strikes are considered legal provided that the UN Security Council has determined a threat to international peace and security exists, and has authorized action to be taken against that threat.
The question posed is “when exactly was this use of force authorized?” It certainly was not authorized directly before the March 19th, 2003, invasion. The Bush administration led its case with going all the way back to the Iraqi invasion of Kuwait in 1990 and the UN Security Council’s resolutions regarding Iraq at that time. The Security Council did not authorize any military force to be taken at the outset of the dispute, but since Kuwait had been attacked, it had a right to defend itself. The Security Council then passed Resolution 660, condemning the Iraqi invasion of Kuwait, demanding that Iraq withdraw completely and unconditionally, and that negotiations should begin to resolve the conflict in its entirety. The Security Council then passed Resolution 678 which demanded that Iraq should fully act in accordance with Resolution 660 and all subsequent resolutions that referred to the issue before January 15th, 1991. It also authorized Kuwait, and states that were cooperating with Kuwait, “to use all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area.” The United States argues that Resolution 678 was a declaration of war by authorizing the use of “all necessary means”, even if it was restricted to certain conditions. They also argue that this war did not end; the fighting stopped temporarily through a ceasefire, not through a peace treaty, and could resume again if the terms of the ceasefire did not continue to be met. The Gulf War ceasefire was enacted through resolutions 686 and 687.
Resolution 686 was a temporary ceasefire which stated that the terms of Resolution 660 and all subsequent resolutions regarding the issue are still to be complied with by Iraq, that all provocation and hostilities towards member states cooperating with Kuwait should stop, and that the aggressive combat roles of Kuwait and its allies should be suspended pending Iraqi compliance or non-compliance with the terms of the ceasefire. Resolution 687 was the formal ceasefire which welcomed the restoration of “sovereignty, independence and territorial integrity” to Kuwait and the return of its own rightful government, called for the states working in cooperation with Kuwait to end their military presence in Iraq as soon as possible, and reiterated the necessity of Iraq’s continued intentions to fully comply with the conditions of the ceasefire including the unconditional promise not to acquire, possess, construct, or use any type of weapon of mass destruction including biological, chemical, and nuclear weapons or the means to build any of these weapons. Iraq also had to agree to allow UN weapons inspectors to periodically visit the country and inspect sites to ensure compliance to this last condition.
Over a decade later, there were still debates over whether Iraq fulfilled its duties as outlined in the ceasefire. While the UN weapons inspectors had difficulty entering the country and confirming the presence or absence of weapons of mass destruction neither did the outside world receive any confirmation from the Iraqi government that they had met the disarmament requirement. The Americans argued that this lack of confirmation either way was a violation in the terms of the ceasefire and that it gave them the justification needed to launch an attack resuming their previous military occupation of Iraq. They argued that since the UN Security Council never made a Resolution stating that peace and security in the area had been restored, the war had not been ended and fighting could resume at any point when the terms of the ceasefire were violated.
In November of 2002, prior to the United States-led invasion of Iraq, the UN Security Council enacted Resolution 1441 to resolve their apparent lack of action in dealing with the lack of available confirmation on Iraq’s compliance with the terms of the ceasefire. Resolution 1441 stated that Iraq was in “material breach” of the terms of Resolution 687 through its failure to cooperate with the UN weapons inspectors, gave Iraq one last chance to meet the condition of disarmament, and outlined the processes that the UN would be undertaking to ensure Iraq’s cooperation. It concluded by stating that Iraq would face serious consequences if it failed to comply with all of the previously outlined conditions, but did not state what these consequences would be. The United States argues that the consequences were “obviously” military actions on behalf of the UN and its member states, and that Resolution 1441 reiterated the previously given authority to take military action against Iraq if it failed to comply with the terms of the resolutions. However, the UN and much of the international community argue that for military action to be legally taken against Iraq, another Resolution declaring this would have been necessary. The Secretary-General at the time, Kofi Annan, when asked whether he would consider an attack on Iraq without a second Resolution a breach of the UN Charter stated, “I think that under today's world order, the Charter is very clear on circumstances under which force can be used ... If the United States and others were to go outside the Council and take military action, it would not be in conformity with the Charter.”
It is also argued by the United States that the case of whether or not their attack on Iraq was legal should remain a political debate, not a legal one. The questions asked in this debate relate to the use of power, the best way to create a secure and stable international order, the control and regulation of weapons of mass destruction, the legitimacy of the use of force for human and political rights, the effectiveness of the UN Security Council’s resolutions, and the right of the United States to use its military independently of the UN and the rest of the world, and are argued by the United States to be political questions, not legal ones. They argue that since a logical and reasonable case supporting the invasion of Iraq under international law has been made on their part, in their opinion, their attack was justifiable by law. And even so, they argue that it should not be a question of legality, but a matter of politics. In this argument, they are only trying to argue that the law should be left out of the debate because they know their argument justifying their invasion of Iraq is a weak one completely dependent on their own interpretation and combination of certain UN resolutions which they know were written regarding specific situations, and not concerning the situation today.
The Invasion of Iraq Was a Breach of the UN Charter
Quite simply put, the UN Charter authorizes the use of military force under only two circumstances: in the case that a country is physically, militarily attacked by another in which case it is authorized to defend itself; and in the case of a humanitarian intervention, in which case outside militaries must be invited in by the country requiring the intervention unless it is merely rescuing its own nationals from within the borders. In the case of Iraq, neither of these was the case; the United States did not even pretend to use one of these as their reasoning behind their attack.
There were three possible routes that the United States could have chosen to use in defending their invasion of Iraq. The first was that it was the opinion of the United States that Iraq posed a legitimate threat to their security. However, the defense that the United States led the attack on Iraq as an act of self-defence or more realistically, pre-emptive self-defence, was only used on a political level and not as a legal justification for their actions. You might wonder why this was. In the case of actual self-defence after being attacked by another country, a state may act independently of the UN and its decisions as long as the state notifies the UN of the events unfolding and the actions they are responding with. In the case of Afghanistan in 2001, the United States had a legitimate case of self-defence when they struck in response to the attack on September 11th, 2001. In reference to Iraq, however, the United States could not make a case for self-defense even comparable to the one they had for the case of Afghanistan. There was no Iraqi attack on the United States, and one was not predictably imminent.
The United States also neglected to use their pre-emptive strike doctrine that they had endorsed in their National Security Strategy of 2002. There were concerns that it wouldn’t be able to set standards for guidance or constraints for independent assessments of what would be considered a large enough threat to warrant a pre-emptive strike in anticipation of a greater evil. The United Stated had also worried about this during the Cuban Missile Crisis (1962) which was why they avoided pre-emptive strikes at that time. In 2003, the international community expected that the United States would test their pre-emptive strike doctrine on the case of Iraq. It was true that they considered Iraq to be a “rogue state” suspected of possessing weapons of mass destruction as well as ties to global terrorist groups. But the United States did not use their treasured doctrine as a defense for the attack either. They had done all that they could to bring pre-emption into public and international acceptance by ruling that it should only be used out of necessity in the cases of imminent threats posed by countries or groups possessing weapons of mass destruction, and only once all other possible peaceful solutions had been exhausted. Three observations may be made concerning the United States’ refusal of this defence. First of all, it demonstrates the acknowledgement by the United States that pre-emptive strikes are considered to be illegal under current international law; secondly, it concedes the necessity to review the concept of an “emerging threat” and the criteria that needs to be met for a state or group to be considered one; and third, it illustrates that the United States government did not seem to think that their standards for a pre-emptive strike had been met in the case of Iraq to a sufficient point that they could use it as a test for their doctrine.
Another point to consider is that while the United States and Britain did put some emphasis on the liberation of the Iraqi people from a dictatorship rule, there was no attempt to make the case that the reason for their invasion of Iraq was a humanitarian intervention. The reason that they did not use this argument is that there is no solid legal basis for an individual state to intervene in another country on humanitarian grounds without permission from that country’s government. It is the general opinion of the international community that in extraordinary conditions, armed force may be used if it is the only way to stop an immediate, overwhelming humanitarian disaster such as genocide. When NATO intervened in Kosovo in 1999, it was one of these cases, but even then it was argued that the humanitarian intervention did not provide the legal grounds for the use of military forces. It shouldn’t be a surprise that the United States and Britain did not attempt to make a case for a humanitarian intervention for the people of Iraq to justify their military interference. There are very few cases in which a humanitarian intervention is justified, and Iraq simply did not fall into this category. While it is true that Iraq did repress and brutalize its people, it was not found to be an urgent humanitarian crisis requiring the immediate use of force, and it was never claimed to be by the Americans or the British in justifying their actions. As it turned out, the liberation of the Iraqi people from the brutal dictatorship rule of Suddam Hussein was merely a positive side-effect of the illegal invasion of their country, but this positive cannot turn the invasion into a legal one.
The argument that was given by the United States as a legal justification for their assault on Iraq involved resolutions made by the UN Security Council that authorized the use of force against Iraq during the Gulf War of the early 1990s. When Iraq invaded Kuwait on August 1st, 1990, the UN Security Council passed Resolution 660 which called for Iraq to “immediately and unconditionally” withdraw from Kuwait. When Iraq flatly refused, the UN went on to pass Resolution 678 which, along with reiterating Resolution 660 and other subsequent resolutions regarding the situation and pointing out Iraq’s failure to comply with them, authorized all Member States who were working in cooperation with Kuwait to use whatever means necessary to implement Resolution 660 and all subsequent resolutions to restore peace and security in the area. Resolution 678 lead to “Operation Desert Storm” on January 17th, 1991, and upon completion of the mission on March 2nd, 1991, Resolution 686 was passed providing an initial, temporary ceasefire. Resolution 687 followed soon after to provide a permanent ceasefire. It was dependent on Iraq’s complete and unconditional acceptance of the various terms of the ceasefire including complete disarmament and cooperation with UN weapons inspectors in particular.
In September of 2002, the United States government decided that they had had enough of Iraq’s non-compliance and decided it was time to put an end to a “decade of deception and defiance”. They called upon the UN Security Council to enforce the conditions of the ceasefire upon Iraq, even suggesting military action. When other Member States were reluctant to use military force, the UN Security Council came up with Resolution 1441 as a compromise. In Resolution 1441, the Security Council found Iraq to be in “material breach” of its responsibilities as agreed in Resolution 687 and gave them one more chance to comply with the disarmament obligations. Iraq’s continuing non-compliance would “constitute a further material breach” and would be reported to the Security Council for further assessment. Based on these reports, the Security Council would reconvene to examine the situation and which actions would be the best to gain the full compliance of Iraq to “secure international peace and security.” Resolution 1441 concluded by stating “that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations.”
Following Resolution 1441, the Security Council couldn’t agree on whether or not Iraq’s conduct required a military intervention and they never did pass a resolution specifically authorizing one. The United States and Britain have argued that such a resolution was not required, and the United States government also argued that Resolutions 678, 687, and 1441 provided all of the authority necessary to enforce Iraqi compliance.
The argument presented by the United States and Britain was that Resolution 678 authorized the use of force against Iraq for purposes that included restoring peace and security in that area. Resolution 687 suspended that authority, but did not terminate it, with the ceasefire relying on Iraq’s compliance with the conditions outlined in the Resolution. The United States argued that if Iraq did not comply with the terms set out, the authority to use force under Resolution 678 would be revived. Resolution 1441 then confirmed that Iraq was indeed in material breach of the terms of Resolution 687, and that this was required to be reported to the Security Council to be discussed, but it did not state that there would need to be an additional resolution in order to authorize force to be taken to ensure Iraq’s compliance.
The main problems with this stance on behalf of the United States and Britain are as follows. First of all, all UN Security Council resolutions are very carefully drafted and designed compromises meant to be interpreted in good faith against the most ordinary meaning of language. They are meant to be taken at their face value with clear and permanent definitions, and not interpreted to suit different countries purposes as they wish in accordance with different situations. Also, the UN Security Council has only authorized the use of armed force twice in the history of its existence. Given the past reluctance of the Security Council to authorize military action in volatile cases, it is difficult to envision how Resolutions 678, 687, and 1441 could be interpreted as an open ended authorization to use force against Iraq. Taking a closer look at these gives a better insight into why the United States approach to these resolutions is a weak argument.
When Resolution 678 authorized the use of armed force against Iraq, it was unmistakably focusing on the specific case of the invasion of Kuwait on behalf of Iraq. Its conditions related to Iraq’s compliance with the terms set out in Resolution 660 and the subsequent resolutions in regards to that exact situation, and not indefinite future resolutions regarding Iraq. The statement “restore peace and security” was carefully selected to limit the authority provided in regards to that situation.
The ceasefire outlined in Resolution 687 was dependent only upon Iraq’s acceptance of and compliance with the conditions set out in it. No where in the resolution does it say that it merely defers the authorization of the use of force or that the ceasefire would be terminated if Iraq failed to meet the standards laid out for them. There is a definite gap between this resolution and Resolution 686 which recognized the authorization of force was valid during the period that Iraq was given to comply with the terms of the provisional ceasefire. Either way, the termination of the ceasefire would ultimately be a decision for the Security Council to make, not an individual Member State or a coalition of Member States. Since the Council concluded these resolutions by “remaining seized of the matter,” they retained the right to make further decisions regarding what course of action to take should Iraq fail to comply with the conditions of the resolutions. Also, Resolution 687 refers explicitly to a ceasefire between Iraq, Kuwait, and the coalition of states that had pledged to assist Kuwait in defending itself. This coalition of states no longer exists, so it is not easy for the international community to see why the authority to use force against Iraq would continue to rest with the United States or Britain.
Finally, no where in Resolution 1441 can the authorization to use military force against Iraq be found. The resolution does talk of serious consequences for Iraq if it continued to defy its obligations. However, due to the debates leading up to the release of this resolution, it is impossible to see this resolution as an expression or even an implication of the authorization of force. Resolution 1441 was mainly a “placeholder” that allowed the process of the UN to advance on its own with the hope that further weapons inspections would resolve the issue before military action was needed. Resolution 1441 did not authorize the United States and Britain to take military action against Iraq. The legality of the issue rests upon whether or not the more than a decade old resolutions of 678 and 687 gave open-ended authorization to enforce the disarmament of Iraq, which they did not.
Conclusion
The ambitious goal of the UN to eliminate war throughout the world had not yet been accomplished, but the Charter rules on the use of military force have had significant implications. In many cases since they were put into effect, they have acted to restrict the option of using military force by states and have made a basis for justifying acts of war. In the case of Iraq, there are no justifications based on the given authority by the UN Security Council, on self-defence claims, or based on a humanitarian intervention that can be made. Any number of opinions can be held on whether or not the war was necessary or appropriate as well as whether or not international law should accommodate pre-emptive intervention. But the entire international community should be clear that under current, existing international law, the military intervention by the United States and Britain was illegal.
References
Brunnee, Jutta. “The Use of Force against Iraq: A Legal Assessment.” Behind the Headlines 59, no. 4 (Summer 2002): 1-8
“Charter of the United Nations,” Chapter VII, Articles 39, 42; available at:
“UN Security Council Resolutions Relating to Iraq,” Resolutions 660, 678, 686, 687, 1441; available at:
Wingfield, David. “Why the Invasion of Iraq Was Lawful.” Behind the Headlines 59, no. 4 (Summer 2002): 10-16