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| {{see also|Views on the 2003 invasion of Iraq|Opposition to the 2003 Iraq War}} | {{see also|Views on the 2003 invasion of Iraq|Opposition to the 2003 Iraq War}} | ||
| == The Legality of the 2003 Invasion == | |||
| The ] (by Article 39) determines what is a legal act of international aggression and what is not. Article 24-1 requires that UN "...Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf." The United Nations Security Council has considered the 2003 invasion, and has elected not to find any violation of international law. There are many members who disagree with this decision (including the ]) Article 25-1 requires that "the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter" once a decision is reached. The legitimacy of the 2003 invasion has been legally considered and settled by the Security Council decision to ignore the invasion, and by the ICC Prosecutor's Letter<ref>Luis Moreno-Ocampo Letter:Public reply with his conclusions allagations of war crimes during the invasion of Iraq in March 2003(PDF) 9 February 2006 </ref>. Significantly, not one ICC member-nation of the ICC found enough legal merit from for these claims, because none brought the legitimacy of this invasion to the attention of the ICC Prosecutor<ref>Luis Moreno-Ocampo Letter:Public reply with his conclusions allagationsof war crimes during the invasion of Iraq in March 2003(PDF) 9 February 2006 </ref>. Without any known pending UN or ICC investigations, from an international legal perspective the question of legitimacy seems settled. The Court of Public Opinion is still vigorously debating the legitimacy of this invasion and so the rest of the article is focused upon this unresolved public opinion debate. | |||
| A dispute exists over the '''legitimacy of the 2003 invasion of Iraq'''. The debate centers around the question whether the invasion was an unprovoked assault on an independent country that may have breached ] -- or whether the conditions set in place after the ] allowed the resumption if Iraq did not uphold to the ]. Those arguing for its legality often cite ] and previous ] resolutions, as well as ], stating these documents allow for military action. Those arguing against its legality also cite much the same sources, stating they do not actually permit war but instead lay out conditions that must be met before war can be declared. Critics often cite the ] as further proof the war was waged under misleading terms. The terms of the debate change depending on the subject of domestic or international law. | A dispute exists over the '''legitimacy of the 2003 invasion of Iraq'''. The debate centers around the question whether the invasion was an unprovoked assault on an independent country that may have breached ] -- or whether the conditions set in place after the ] allowed the resumption if Iraq did not uphold to the ]. Those arguing for its legality often cite ] and previous ] resolutions, as well as ], stating these documents allow for military action. Those arguing against its legality also cite much the same sources, stating they do not actually permit war but instead lay out conditions that must be met before war can be declared. Critics often cite the ] as further proof the war was waged under misleading terms. The terms of the debate change depending on the subject of domestic or international law. | ||
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The Legality of the 2003 Invasion
The United Nations Charter (by Article 39) determines what is a legal act of international aggression and what is not. Article 24-1 requires that UN "...Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf." The United Nations Security Council has considered the 2003 invasion, and has elected not to find any violation of international law. There are many members who disagree with this decision (including the UN Secretary General) Article 25-1 requires that "the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter" once a decision is reached. The legitimacy of the 2003 invasion has been legally considered and settled by the Security Council decision to ignore the invasion, and by the ICC Prosecutor's Letter. Significantly, not one ICC member-nation of the ICC found enough legal merit from for these claims, because none brought the legitimacy of this invasion to the attention of the ICC Prosecutor. Without any known pending UN or ICC investigations, from an international legal perspective the question of legitimacy seems settled. The Court of Public Opinion is still vigorously debating the legitimacy of this invasion and so the rest of the article is focused upon this unresolved public opinion debate.
A dispute exists over the legitimacy of the 2003 invasion of Iraq. The debate centers around the question whether the invasion was an unprovoked assault on an independent country that may have breached international law -- or whether the conditions set in place after the Gulf War allowed the resumption if Iraq did not uphold to the Security Council resolutions. Those arguing for its legality often cite Congressional Joint Resolution 114 and previous UN Security Council resolutions, as well as Resolution 1441, stating these documents allow for military action. Those arguing against its legality also cite much the same sources, stating they do not actually permit war but instead lay out conditions that must be met before war can be declared. Critics often cite the Downing Street memo as further proof the war was waged under misleading terms. The terms of the debate change depending on the subject of domestic or international law.
United Nations
Beginning from the end of the Gulf War in 1991, the Iraqi government agreed to Security Council Resolution 687, which called for weapons inspectors to search locations in Iraq for chemical, biological and nuclear weapons, as well as weapons that exceed an effective distance of 150 kilometres. After the passing of resolution 687, thirteen additional resolutions (699, 707, 715, 949, 1051, 1060, 1115, 1134, 1137, 1154, 1194, 1205, 1284) were passed by the Security Council reaffiming the continuation of inspections, or citing Iraq's failure to comply fully with them. On September 9, 1998 the Security Council passed resolution 1194 which unanimously condemns Iraq's suspension of cooperation with UNSCOM, one month later on October 31 Iraq officially declares it will cease all forms of interaction with UNSCOM.
The period between October 31, 1998 and the initiation of Operation Desert Fox, December 16, 1998, contained talks by the Iraqi government with the United Nations Security Council. During these talks Iraq attempted to attach conditions to the work of UNSCOM and the IAEA, which was against previous resolutions calling for unconditional access. The situation was defused after Iraq's Ambassador to the U.N., Nizar Hamdoon, submitted a third letter stating the position of the Iraqi government on October 31 was "void". After weapons inspections resumed, UNSCOM requested arms documents related to weapon usage and destruction during the Iran-Iraq War. The Iraqi government rejected this request because it was handwritten and did not fall within the scope of the UN mandate. The UN inspectors insisted in order to know if Iraq destroyed all of its weapons, it had to know "the total holdings of Iraq's chemical weapons." Further incidents erupted as Iraqi officials demanded "lists of things and materials" being searched for during surprise inspections.
On December 16, 1998, U.S. President Bill Clinton inititated Operation Desert Fox based on Iraq's failure to fully comply with the inspectors. Clinton noted the announcement made by the Iraqi government on October 31, stating they would no longer cooperate with UNSCOM. Also noted was the numerous efforts to hinder UNSCOM officials, including prevention of photographing evidence and photocopying documents, as well as prevention of interviewing Iraqi personnel.
Inspection teams were withdrawn before the Operation Desert Fox bombing campaign and did not return for four years. The no-fly zone enforced by the United States, United Kingdom and France - also legality disputed - became a location of constant exchange of fire since Iraqi Vice President Taha Yassin Ramadan instructed Iraqi military to attack all planes in the no-fly zone. In late 2002, after international pressure and more UN Resolutions, Iraq allowed inspection teams back into the country. In 2003, UNMOVIC was inspecting Iraq but were ordered out despite their pleas for more time. There is no credible evidence of WMD production(see Duelfer Report) and no WMDs have been found to date after 1991 (See below and WMD in Iraq). George W. Bush has since admitted that "much of the intelligence turned out to be wrong" .
Prior to invasion, the United States and the United Kingdom attempted unsuccessfully to secure a United Nations resolution explicitly authorizing force on the grounds that Iraq was allegedly in violation of various previous resolutions. As prior U.N. consent was not garnered, invasion of Iraq should be termed as a war of aggression led by the coalition forces. In addition to assertions regarding possible weapons of mass destruction, the United States and the UK also asserted that the use of pre-emptive military force was legal under the original U.N. resolution from the 1991 Gulf War.
The United States structured its reports to the United Nations Security Council around alleged intelligence from the Central Intelligence Agency and MI5 stating that Iraq possessed weapons of mass destruction. The U.S. claimed that justification rested upon Iraq's violation of several U.N. Resolutions, most recently UN Security Council Resolution 1441. U.S. president George W. Bush claimed Iraq's supposed WMDs posed a significant threat to the United States and its allies , but offered no evidence that Iraq had the intention or the means for delivering a WMD attack against the U.S. U.N. inspection team UNMOVIC, before completing its UN-mandate or completing its report was ordered out by the UN because the US-led invasion appeared imminent.
Weapons of Mass Destruction
In the past, Iraq had been supplied with chemical weapons and the technology to develop them by the United States, Germany, France and the United Kingdom. Saddam used these weapons against Iranian forces in the Iran-Iraq war, and against Kurdish civilians in the Iraqi town of Halabja. In 1990 during the Gulf War Saddam had the opportunity to use these weapons, but chose not to. One of the noted reasons is the Iraqi forces' lack of up to date equipment to protect themselves from the effects, as well as the speed with which the US forces traversed the open desert. From 1991-1998 UNSCOM inspected Iraq and worked to locate and destroy WMD stockpiles. The team was replaced in 1999 with the United Nations Monitoring Verification and Inspection Commission, UNMOVIC.
No militarily significant WMDs have been found in Iraq since the invasion, although several degraded chemical munitions dating to before 1991 have been. On June 21, 2006 a report was released through the United States Senate Select Committee on Intelligence, stating that since 2003, approximately 500 degraded chemical munitions have been discovered dating from before 1991 in Iraq, and "likely more will be recovered." The weapons are filled "most likely" with Sarin and Mustard Gas. However, the U.S. Department of Defense states that these weapons were not in usable condition, and that "these are not the WMDs this country and the rest of the world believed Iraq had, and not the WMDs for which this country went to war."
In January 2006, The New York Times reported that "A high-level intelligence assessment by the Bush administration concluded in early 2002 that the sale of uranium from Niger to Iraq was 'unlikely.'" The Iraqi government denied the existence of any such facilities or capabilities and called the reports lies and fabrications, which was backed by the post-war prima facie case that no WMDs were evident or found.
Former CIA officials have stated that the White House knew before the invasion that Iraq had no weapons of mass destruction, but had decided to attack Iraq and continue to use the WMD story as a false pretext for launching the war (Sydney Morning Herald, April 22, 2006 ). The leaked Downing Street Memo, an internal summary of a meeting between British defense and intelligence officials, states that Bush Administration had decided to attack Iraq and to "fix intelligence" to support the WMD pretext to justify it. A transcript of a secret conversation between President Bush and PM Blair leaked by a government whistleblower reveals that the US and UK were prepared to invade Iraq even if no WMD were found (NY Times, March 27, 2006 ; see also the Downing Street Memorandum). British officials in the memo also discuss a proposal by President Bush to provoke Iraq, including using fake UN planes, to manufacture a pretext for the invasion he had already decided on. (NY Times, March 27, 2006 ). Best evidence of that false intelligence has been Niger uranium story because on 14. march 2003 (before invasion) it has become public knowledge that president Tandja Mamadou signatory has been forgery
The WMD capability of Saddam Hussein is still under debate and is one of the most controversial political topics today, despite numerous investigations. Proponents of the invasion of Iraq cite the 2004 Butler Commission Report, which declares the importation of uranium from Niger was "well founded", the 2003 Iraqi Survey Group Report which found:
By 2000-2001, Saddam had managed to mitigate many of the effects of sanctions and undermine their international support. Iraq was within striking distance of a de facto end to the sanctions regime, both in terms of oil exports and the trade embargo, by the end of 1999. Saddam wanted to recreate Iraq’s WMD capability—which was essentially destroyed in 1991—after sanctions were removed and Iraq’s economy stabilized, but probably with a different mix of capabilities to that which previously existed. Saddam aspired to develop a nuclear capability—in an incremental fashion, irrespective of international pressure and the resulting economic risks—but he intended to focus on ballistic missile and tactical chemical warfare (CW) capabilities.
The 2003 Iraqi Survey Group found numerous signs of destruction of official Iraqi Regime documents and equipment. Supporters of the Iraqi War state that because of this, the full WMD capabilities of Iraq prior to invasion will never be known. Supporters also point to existing WMD infrastructure outline in the 2003 Iraqi Survey Group which found Saddam Hussein had the capability to produce weaponized anthrax within 3 weeks of UN sanctions being removed.
Former adviser to Saddam Heussien, General Georges Sada, maintains that many WMD-related materials were moved from Iraq to Syria before the 2003 invasion of Iraq in spite of the findings by theIraq Survey Group.
The final report on Iraqi weapons of mass destruction, issued by Charles Duelfer, head of the Iraq Survey Group, concluded in April 2005 that the hunt for weapons of mass destruction had "gone as far as feasible" and found nothing. Duelfer also concluded that "it unlikely that an official transfer of WMD material from Iraq to Syria took place," while noting that "ISG was unable to rule out unofficial movement of limited WMD-related materials" .
Human Rights Violations
The human rights violations of the Saddam Hussein regime stretch back even before the events of the first Gulf War. In 1988 the Al-Anfal Campaign took place in Iraqi Kurdistan, and was carried out by the cousin of Saddam Hussein, Ali Hassan al-Majid. A document signed by Ali Hassan al-Majid is quoted as stating, "all persons captured in those villages shall be detained and interrogated by the security services and those between the ages of 15 and 70 shall be executed after any useful information has been obtained from them". This target group covered any male of fighting age. The events of the Anfal campaign have often been compared with the events of the holocaust in their similarities of mass graves and concentration camps. In 1991 after the Iraqi forces were expelled from Kuwait, the regime of Saddam Hussein cracked down on uprisings in the Kurdish north and Shia south. It is stated between this time over 40,000 Kurds were executed and 60,000 or more Shi'ites.
In 2000, two human rights groups, International Federation of Human Rights Leagues and the Coalition for Justice in Iraq, released a joint report documenting the doctrination of children into a fighting force. These children as young as five were recruited into the Ashbal Saddam or Saddam's Cubs. The children would be separated from their parents and undergo military training. Parents objecting to this recruitment would be executed and children jailed if they failed to comply, these jails were later noted by Scott Ritter in an interview with Time magazine.
Countries supporting and opposing the invasion
Support for the invasion and occupation of Iraq included 49 nations, a group that was frequently referred to as the "coalition of the willing". These nations provided combat troops, support troops, and logistical support for the invasion. The nations contributing combat forces were, roughly:
Total 300,884 - 98% US & UK
The United States (250,000 83%), the United Kingdom (45,000 15%), South Korea (3,500 1.1%), Australia (2,000 0.6%), Denmark (200 0.06%), and Poland (184 0.06%), these totals do not include the 50,000+ soldiers of the Kurdish forces that assisted the coalition. Ten other countries offered small numbers of non-combat forces, mostly either medical teams and specialists in decontamination. In several of these countries a majority of the public was opposed to the war. For example, in Spain polls reported at one time a 90% opposition to the war. In most other countries less than 10% of the populace supported an invasion of Iraq without a specific go-ahead from the UN. . According to a mid-January 2003 telephone poll, approximately one-third of the U.S. population supported a unilateral invasion by the US and its allies, while two-thirds supported war if directly authorized by the U.N. .
Global protests expressed opposition to the invasion. In many Middle Eastern and Islamic countries there were mass protests, as well as in Europe. On the government level, the war was criticized by Canada, Belgium, Russia, France, the People's Republic of China, Germany, Switzerland, the Vatican, India, Indonesia, Malaysia, Brazil, Mexico, the Arab League, the African Union and many others. Though many nations opposed the war, no foreign government openly supported Saddam Hussein, and none volunteered any assistance to the Iraqi side. Leading traditional allies of the U.S. who had supported Security Council Resolution 1441, France, Germany and Russia, emerged as a united front opposed to the U.S.-led invasion, urging that the UN weapons inspectors be given time to complete their work.
Saudi Foreign Minister Prince Saud said the U.S. military could not use Saudi Arabia's soil in any way to attack Iraq. After ten years of U.S. presence in Saudi Arabia, cited among reasons by Saudi-born Osama bin Laden for his al-Qaeda attacks on America on September 11, 2001, most of U.S. forces were withdrawn in 2003. According to the New York Times, the invasion secretly received support from Saudi Arabia.
Legality of the invasion
International law
Main articles: UN Security Council Resolution 1441 and International lawResolution 1441, drafted and accepted unanimously the year before the invasion, threatened "serious consequences" to Iraq in case Iraq did not comply with all conditions and stated that the Security Council shall "remain seized of the matter." Russia, the People's Republic of China, and France made a joint statement claiming that this did not authorize the use of force but a further resolution was needed. On the day of the vote the US ambassador to the UN, John Negroponte, said that in the event of a "further breach" by Iraq, Resolution 1441 would require that "the matter will return to the Council for discussions" but that the resolution did not prevent any member state from acting "to enforce relevant UN resolutions and protect world peace and security. " The resolution did not authorize member states to use force, and by its terms had no effect on the UN Charter's prohibition against the use of force by UN member states against fellow member states.
Until a few days before the war, it was the position of the UK, the main U.S. ally in the war, that a further resolution would be desirable before the United Kingdom would go to war.
Most teachers of international law have said (16 International Law Professors "War Would Be Illegal," The Guardian, March 7, 2003) that the US and other coalition governments' invasion of Iraq was an unprovoked assault on an independent country which breached international law. In particular, the U.S. and members of the U.S.-led coalition have signed (and ratified in the case of the U.S.) the UN Charter and are therefore bound by it. Under Article 2, Number 4 of the UN Charter, "All Members shall refrain... from the threat or use of force against the territorial integrity or political independence of any state..." This is known as the "Prohibition of Aggression." Resolution 1441 was not intended by China, Russia and France to authorize war. The coalition formed around the USA argued that another understanding of the resolution is possible, although Kofi Annan expressed his opinion: "I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal."
The Bush administration argued that the UN Security Council Resolutions authorizing the 1991 invasion to liberate Kuwait from Iraqi forces, in addition to Resolution 1441, gave legal authority to use "all necessary means," which is diplomatic code for going to war. This war ended with a cease fire instead of a permanent peace treaty. Their view was that Iraq had violated the terms of the cease-fire because Iraq was allegedly developing WMD, and thus made the invasion of Iraq a legal continuation of the earlier war. Since Iraq had not re-invaded Kuwait, the 1990 resolution by its terms did not authorize force in 2003. If a war can be reactivated ten years after the fact, it would imply that any nation that has ever been at war that ended in a cease-fire (such as Korea) could face war for failing to meet the conditions of the cease-fire. Such is the purpose of using a cease-fire agreement in place of a peace treaty; the resumption of war is the penalty for, and thus deterrent of, engaging in the prohibited action(s). For instance, in WWII, the state of war with Germany did not end until 19 October 1951 and with Japan, not until 28 April1952 .
There was precedent for the Bush Administration's position regarding UN authorization to use force. In 1998, after Iraq was still uncooperative with UN inspection teams, the U.S. and the UK launched a bombing campaign against the country. The Bush Administration argued that President Bill Clinton took military action in 1998 based on the same basic WMD intelligence and under the same UN authority that was used to justify the action in 2003. In 1998, the U.S. Ambassador to the UN, Peter Burleigh stated, "Following Iraq's repeated, flagrant and material breaches of its obligations under resolutions 687, 707, 715, 1154, 1194, 1205 and others - in addition to its failure to fulfill its own commitments - the coalition today exercised the authority given by Security Council resolution 678 (1990) for member states to employ all necessary means to secure Iraqi compliance with the Council's resolutions and restore international peace and security in the area."
The United States and United Kingdom claimed, and continue to claim, that it was a legal action which they were within international law to undertake. Some in the media have called the good faith of the Security Council into question on this matter. One argument is that the United Nations itself, along with the three opponents of the Iraq War on the Security Council, France, Russia, and China, all benefited financially (in some cases, perhaps illegally) from transactions with the Saddam Hussein regime under the Oil-for-Food Programme; and that the leaders of these three countries, along with Kofi Annan, fought against a second UN resolution not out of higher principle but in order to keep these contracts. Nevertheless, opposition to the war was widely popular amongst the populace of nearly all nations except the United States. Additionally, the resistance of the Security Council and the UN as a whole to the invasion of Iraq has not only been attributed to legal challenges but also to Anti-Americanism and a resentment of the cultural and economic dominance of the USA. In the case of France, mostly US commentators have suggested it was an attempt to court the Arab world and its local Muslim population.
Further, some experts claim that since the US-led invasion was not a war to defend against an imminent threat of armed attack, it was a war of aggression. Under the Nuremberg Principles, such a war is the supreme international crime from which all other war crimes follow. For example, Benjamin Ferenccz, a chief prosecutor of Nazi war crimes at Nuremberg said George W. Bush should be tried for war crimes along with Saddam Hussein for starting "aggressive" wars--Saddam for his 1990 attack on Kuwait and Bush for his 2003 invasion of Iraq. Saddam Hussein was convicted and executed for crimes against humanity, and although charged, was never tried for starting wars of aggression. "There was no authorization from the U.N. Security Council ... and that made it a crime against the peace," said Francis Boyle, professor of international law, who also said the U.S. Army's field manual required such authorization for an offensive war. Under the principle of command responsibility it would make all policymakers involved in this alleged illegal war criminally liable for war crimes.
International Criminal Court investigation
Main article: The International Criminal Court and the 2003 invasion of IraqMany parties submitted complaints to the Chief Prosecutor of the International Criminal Court (ICC) alleging that the invasion of Iraq was an act of illegal aggression and that various war crimes had been committed.
In a letter dated February 9, 2006, the Prosecutor of the International Criminal Court, Luis Moreno-Ocampo wrote "the International Criminal Court has a mandate to examine the conduct during the conflict, but not whether the decision to engage in armed conflict was legal. As the Prosecutor of the International Criminal Court, I do not have the mandate to address the arguments on the legality of the use of force or the crime of aggression". — This is because member countries to the ICC cannot be tried for a war of aggression as it was agreed in the Rome Statute that a definition has to be agreed upon first. This is not to be expected before 2009 at the earliest. It would however be possible to obtain an advisory opinion by the International Court of Justice.
As regards the allegations of wilful killing or inhuman treatment of civilians, Luis Moreno-Ocampo concluded that there was a reasonable basis to believe that crimes within the jurisdiction of the Court had been committed, namely wilful killing and inhuman treatment. He explained that the information available did support a reasonable basis for an estimated 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment, totaling in all less than 20 persons. But the crimes did not have sufficient gravity to come under Article 8.1 and 53.1.a of the Rome Statute.
Luis Moreno-Ocampo also noted that "the available information provided a reasonable basis with respect to a limited number of incidents of war crimes by nationals of States Parties, but not with respect to any particular incidents of indirect participation in war crimes." This means he did not find a reasonable basis to proceed against nationals of States Party to the Rome Statute on the basis of complicity in any war crimes carried out by non state parties (The United States), but it is not, as such, a finding that war crimes were carried out by non state parties. Luis Moreno-Ocampo did not express a conclusion on that matter since that was not within his competence.
Germany
The German Federal Administrative Court on 21 June 2005 found that the war and Germany's involvement in it met with grave concerns in terms of the rules of public international law. However, the Court did not make it totally clear that, in its opinion, the war and the contributions to it by the German Federal Government were outright illegal.
United Kingdom
Opinion of the Attorney General
On 28 April 2005, the UK government published the full advice given by the Attorney General Lord Goldsmith on 7 March 2003 on the legality of the war. The publication of this document followed the leaking of the summary to the press the day before. In the document, Lord Goldsmith weighs the different arguments on whether military action against Iraq would be legal without a second UN Resolution. He said,
I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force... Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution
He concluded his analysis by saying that "regime change cannot be the objective of military action".
Downing Street memo
Main article: Downing Street memoOn 1 May 2005, a related UK document known as the Downing Street memo, detailing the minutes of a meeting on 26 July 2002, was apparently leaked to The Times. British officials did not dispute the document's authenticity, and UK Prime Minister Tony Blair's spokesman has called the document "nothing new." The document describing the full advice of Lord Goldsmith:
The Attorney-General said that the desire for regime change was not a legal base for military action. There were three possible legal bases: self-defence, humanitarian intervention, or UNSC authorisation. The first and second could not be the base in this case. Relying on UNSCR 1205 of three years ago would be difficult.
and states furthermore that
Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record. There was little discussion in Washington of the aftermath after military action..... It seemed clear that Bush had made up his mind to take military action, even if the timing was not yet decided. But the case was thin. Saddam was not threatening his neighbours, and his WMD capability was less than that of Libya, North Korea or Iran.
On 5 May, John Conyers and 89 members of congress asked George W. Bush, in a formal letter, to answer some questions about the document, including whether he or anyone in his administration disputes its accuracy. The Bush Administration has stated that they will not answer the questions. While neither the US or UK government has denied their authenticity, and high-ranking officials in the UK government have confirmed their veracity, critics of the memos contend that they cannot be authenticated. There was much dispute over the statement "intelligence and facts were being fixed around the policy" and critics of the Iraq War believe this to mean that instead of the policy being determined by an unbiased examination of the facts and intelligence, the facts and intelligence where being selectively used to justify a predetermined policy. However, defendants of the war interpret parts of the document as expressions of concerns regarding Iraq and WMD:
Regime change and WMD were linked in the sense that it was the regime that was producing the WMD...
For instance, what were the consequences, if Saddam used WMD on day one...
English court rulings
The Law Lords ruled in a case brought before them in March 2006 that the British Government had not broken English law when it took part in the invasion of Iraq. Nineteen anti-war protesters in Britain asked the Law Lords to set aside the conviction of 14 of the protesters for breaking the aggravated trespass law because they alleged that the Government had committed a crime of aggression under international law under section three of the Criminal Law Act 1967 and that their trespass was only an attempt to stop a larger crime. The five law lords unanimously dismissed the appeals. Lord Bingham – one of the five law lords – explained that the courts would not look at the prerogative powers of the Government in this area, because it was "very relevant" that Parliament had not considered whether the international law crime of aggression should be adopted into British law.
Flight Lieutenant Malcolm Kendall-Smith was court-martialled in June 2005 for refusing to serve in Iraq. He argued that the invasion had been illegal and therefore he was not permitted to obey an illegal order. The court ruled that the legality of the invasion was not relevant to this case as the tour in question was after the post-invasion Security Council resolutions that recognised the occupation, and that as a junior officer he could not personally be guilty of aggression as this is a command crime.
On 22 May 2005, the British government declined a request from the families of soldiers killed in Iraq for an investigation into the legality of the war. The families are now seeking a judicial review of the request.
Ireland
Five peace campaigners using an axe and hammers attacked a US navy plane in February 2003 as it was refuelling at Shannon airport, Ireland, on its way to Kuwait, where it would deliver supplies to be used in the impending war. The peace saboteurs caused $2.5m worth of damage to the plane. The jury decided that the saboteurs had a lawful excuse because they were acting to prevent an illegal war in Iraq and acquitted the saboteurs. (The Guardian, October 17, 2006, free archived version at http://www.commondreams.org/views06/1017-24.htm last visited 10/17/06).
United States
Under Article One, Section 8 of the United States Constitution, the right to declare war is given to the United States Congress, whereas the President is given the title of commander-in-chief and thus general authority over the armed forces. Congress has not authorized a declaration of war since World War II instead using "authorizations of force". In response to the Korean and Vietnam Wars, where the President authorized the use of military force without consulting Congress, however, Congress passed the War Powers Resolution stipulating (among other things) that the President had to seek Congressional approval to wage war.
Since the passing of the War Powers Act all Presidents have uniformly maintained that it is an infringement on the President's rights as commander-in-chief, but have nevertheless always requested congressional permission when required by the resolution; Congress, on the other hand, has largely maintained that it acted within its constitutional authority, but nevertheless has uniformly consented to all presidential requests under it. The Iraq War was no exception: in October 2002, the U.S. Congress passed the "Authorization for the Use of Military Force Against Iraq" , in response to presidential request under the War Powers Act. It stated that
The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to -
- (1) defend the national security of the United States against the continuing threat posed by Iraq; and
- (2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
The resolution goes on to say that the authorization "constitutes specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution." Section 5(b) says that
the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces.
On October 3, 2002, Rep. Ron Paul (R-TX) submitted to the House International Relations committee a proposed declaration which read, "A state of war is declared to exist between the United States and the government of Iraq." It was rejected, as all such suggestions since World War II have been. The first Circuit Court of Appeals stated that "...the text of the October Resolution itself spells out justifications for a war and frames itself as an 'authorization' of such a war." The Court of Appeals decision goes on to cite Massachusetts v. Laird stating "The court found that other actions by Congress, such as continued appropriations to fund the war ... provided enough indication of congressional approval" .
Article VI of the U.S. Constitution provides that treaties of the United States, along with federal law and the Constitution itself, are the supreme law of the land (U.S. Constitution). The UN Charter is a treaty ratified by the United States and is therefore the law of the land in the United States on equal footing with acts of legislation. The Supreme Court stated in Whitney v. Robertson, "By the constitution, a treaty is placed on the same footing . . . with an act of legislation. . . . if the two are inconsistent, the one last in date will control the other". The authorization to Use Military Force in Iraq was passed in 2003, many years after the UN Charter.
Opposition view of the invasion
Main article: Opposition to the Iraq WarThose who opposed the war in Iraq did not regard Iraq's violation of UN resolutions to be a valid case for the war, since no single nation has the authority, under the UN Charter, to judge Iraq's compliance to UN resolutions and to enforce them. Furthermore, critics argued that the US was applying double standards of justice, noting that other nations such as Israel are also in breach of UN resolutions and have nuclear weapons; this argument is not a black and white matter, , as some claim that Iraq's history of actually using chemical weapons (against Iran and the Kurdish population in Iraq) suggested at the time that Iraq was a far greater threat. Others claim, also, that this contradicts previous U.S. policy, since the US was one of many nations that supplied chemical weapon precursors, even when well aware of what it was being used for.
Giorgio Agamben, the Italian philosopher, has offered a critique of the logic of pre-emptive war.
Although Iraq was known to have pursued an active nuclear weapons development program previously, as well as to have tried to procure materials and equipment for their manufacture, these weapons and material have yet to be discovered. President Bush's reference to Iraqi attempts to purchase uranium in Africa in his 2003 State of the Union address are by now commonly considered as having been based on forged documents (see Yellowcake forgery).
Robert Fisk, who has been a British Middle East correspondent for 29 years, warns in his book "The great war for civilisation" that history is repeating itself. Fisk, in the Dutch TV news program Nova: "It is not just similar, it is 'fingerprint' the same". In 1917, the UK invaded Iraq, claiming to come "not as conquerors but as liberators". After an insurrection in 1920, "the first town that was bombed was Fallujah and the next town that was laid siege to was Najaf". Then, the British army intelligence services claimed that terrorists were crossing the border from Syria. Prime minister Lloyd George stood up in the house of commons and declared that "if British troops leave Iraq there will be civil war". The British were going to set up a democracy in Iraq. In a referendum, however, a king was 'elected'. "They decided they would no longer use troops on the ground, it was too dangerous, they would use the Royal Air force to bomb villages from the air. And eventually, we left and our leaders were overthrown and the Baath party, which was a revolutionary socialist party at the time - Saddam Hussein - took over. And I'm afraid that the Iraq we are creating now is an Iraq of anarchy and chaos. And as long as we stay there, the chaos will get worse."
Christian opposition to war
During the buildup to the war, a large group of Christian ethicists issued a statement condemning the war as morally unjustifiable. Their brief statement, which was published in the Sept. 23 edition of the , read as follows: "As Christian Ethicists, we share a common moral presumption against a preemptive war on Iraq by the United States." The group included scholars from a wide array of universities, including traditionally left-leaning Ivy League schools as well as more conservative institutions such as Lipscomb University, in Nashville, Lubbock Christian University, in Lubbock, Tex. (both affiliated with the Churches of Christ), and the Baptist Theological Seminary at Richmond.
See also
- At the Center of the Storm: My Years at the CIA
- Command responsibility
- Democide
- Invasion of Iraq
- Jus ad bellum
- Murder
- War crimes
- War of aggression
References
- Luis Moreno-Ocampo Letter:Public reply with his conclusions allagations of war crimes during the invasion of Iraq in March 2003(PDF) 9 February 2006
- Luis Moreno-Ocampo Letter:Public reply with his conclusions allagationsof war crimes during the invasion of Iraq in March 2003(PDF) 9 February 2006
- "Report: Hundreds of WMDs Found in Iraq". Fox News. June 21st, 2006. Retrieved 2006-04-29.
{{cite web}}: Check date values in:|year=(help)CS1 maint: year (link) - "De-classified Report" (PDF). House of Representatives Permanent Select Committee on Intelligence. June 21st, 2006. Retrieved 2006-04-29.
{{cite web}}: Check date values in:|year=(help)CS1 maint: year (link) - "Report: Hundreds of WMDs Found in Iraq". Fox News. June 21st, 2006. Retrieved 2006-07-26.
{{cite web}}: Check date values in:|year=(help)CS1 maint: year (link) - OneWorld.net, 25 August 2006
- The Seattle Times, 18 August 2006
- Luis Moreno-Ocampo Letter:Public reply with his conclusions allegations of war crimes during the invasion of Iraq in March 2003 9 February 2006
- Luis Moreno-Ocampo Letter:Public reply with his conclusions allegations of war crimes during the invasion of Iraq in March 2003 9 February 2006 Page 8
- Luis Moreno-Ocampo Letter:Public reply with his conclusions allegations of war crimes during the invasion of Iraq in March 2003 9 February 2006 Page 3, footnote 10
- Nikolaus Schultz Case Note – Was the war on Iraq Illegal? – The Judgment of the German Federal Administrative Court of 21 June 2005 in the German Law Journal No. 1 (1 January 2006), citation from sectin "D. Comments"
- War protesters' plea to Law Lords BBC 20 February 2006
- Anti-war protesters lose appeals BBC 29 March 2006
- Paul, U.S. Representative Ron, Office of (2002). Paul Calls for Congressional Declaration of War with Iraq. Accessed on June 06 2005.
- 124 U.S. 190 (1888)
- Whitney V. Robertson (edited) Page 2
- Sean D. Murphy. "United States Practice in International Law Volume 2, 2002–2004". Cambridge University Press.
- http://chronicle.com/daily/2002/09/2002092302n.htm
External links
- CIA’s final report: No WMD found in Iraq
- ProCon's examines if the War was justified
- Jan Frel (2006-07-10). "Could Bush Be Prosecuted for War Crimes?". AlterNet. Retrieved 2006-07-10.
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