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Legality of the Iraq War

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The legality of the Iraq War has been widely debated since the United States, Great Britain, Italy and several other countries launched the 2003 invasion of Iraq.There is a heated debate if this invasion was launched with the explicit authorization from the United Nations Security Council. The Government of the United States believes that the invasion was explicitly authorized by Security Council Resoultion 678 and thus complies with international law. There is no debate that UNSC Resolution 678 authorizes UN Member States "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." , just debate about what that means. U.S. and U.K. officials argued that U.N. resolutions related to the first Gulf War and also to the 2003 invasion (660, 678) and to the subsequent inspections of Iraqi weapons programs (1441) authorized the invasion. Critics of the invasion have challenged both of these rationales, arguing that an additional Security Council resolution would have been necessary to specifically authorize the invasion, that the legality of preemptive wars is highly questionable under international law, and that even if such wars were legal, the Hussein regime did not present a sufficiently imminent threat to justify military action. These critics have thus argued that the invasion amounted to a war of aggression, which the post-World War II Nuremberg Tribunal called "the supreme international crime." The authority of the Nuremburg Tribunal presently rests only with the UN Security Council (UN Charter Article 39), so the 2003 inconclusive legal debate before that body remains the defining legal authority on this question.

While politicians, journalists, and academics have extensively discussed questions about the war's legality, the World Community has decided that there need be no formal proceedings to address the issue. No nation-member of the International Criminal Court has expressed the desire to have the International Criminal Court rule on the war's legality., the ICC does have jurisdiction over alleged war crimes and has issued the opinion that all known war crimes are being addressed by national authorities. The U.N. Security Council, as outlined in Article 39 of the U.N. Charter, has the ability to rule on the legality of the war, but because both the United States and Great Britain are permanent members of that body with veto power, action by the Security Council is highly improbable. The UN Charter permits the UN General Assembly to take action is this case, but it has elected not to do so. Although the legal questions would seem to be settled by the decions of the UN Security Council and General Assembly to act, vigorous debate in the court of public opinion continues.

Notwithstanding the lack of formal proceedings, many legal experts, along with British, U.S., and international leaders have publicly argued that the war was illegal. Former Secretary General Kofi Annan said in September 2004 that "From our point of view and the UN Charter point of view, it (the war) was illegal." The Secretary General's opinion is legally irrelevant as he has no role within the United Nations for such matters (under Articles 39-42).

International law

United Nations Charter

Article 25 of the U.N. Charter: "The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter." This means that the 2003 UNSC decision to take no action is legally binding upon all UN members, unless reversed.

Article 39 of the U.N. Charter: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security." This provision gives the Council the ability to determine whether a military action constitutes an unauthorized "war of aggression" in international law terms, there is no other legal authority with such jurisdiction. The UN Security Council met in 2003 for two days and decided that it was "seized of the matter", and did not exercise it's authority to order the invasion of Iraq to be illegal aggression.

Article 51 of the U.N. Charter: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

International Criminal Court

United Nations Security Council

Principal legal rationales

It is claimed that the invasion was fully legal . International legal experts, including the International Commission of Jurists (but not the United Nations), a group of 31 leading Canadian law professors, and the U.S.-based Lawyers Committee on Nuclear Policy have denounced both of these rationales.

U.N. resolutions

Resolution 1441

U.N. Resolution 1441 was passed unanimously on November 8, 2002 to give Iraq "a final opportunity to comply with its disarmament obligations" that had been set out in several previous resolutions (Resolution 660, Resolution 661, Resolution 678, Resolution 686, Resolution 687, Resolution 688, Resolution 707, Resolution 715, Resolution 986, and Resolution 1284).

The resolution strengthened the mandate of the UN Monitoring and Verification Commission (UNMOVIC) and the International Atomic Energy Agency (IAEA), giving them authority to go anywhere, at any time and talk to anyone in order to verify Iraq’s disarmament."

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. "

Resolutions related to First Gulf War and also the 2003 Invasion

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.

United Nations Security Council Resolution 678 (1990) authorizes the use of all necessary means to enforce United Nations Security Council Resolution 660 (1990) and subsequent relevant resolutions and to compel Iraq to cease certain activities that threaten international peace and security, including the development of weapons of mass destruction and refusal or obstruction of United Nations weapons inspections in violation of United Nations Security Council Resolution 687 (1991), repression of its civilian population in violation of United Nations Security Council Resolution 688 (1991), and threatening its neighbors or United Nations operations in Iraq in violation of United Nations Security Council Resolution 949 (1994).

Criticisms

In March 2003, Elizabeth Wilmshurst, then deputy legal adviser to the British Foreign Office, resigned in protest of Britain's decision to invade without Security Council authorization. Wilmshurst also insinuated that the British Attorney General Lord Goldsmith also believed the war was illegal, but changed his opinion several weeks before the invasion. Richard Perle, a senior member of the Bush Administration's Defense Policy Board Advisory Committee, conceded in November 2003 that the invasion was illegal but still justified.

Russia, the People's Republic of China, and France made a joint statement that U.N. Resolution 1441, did not authorize the use of force and that a further resolution was needed.

The legal right to determine how to enforce its resolutions lies with the Security Council alone (UN Charter Aricles 39-42), not with individual nations. Critics have also pointed out that the statements of U.S. officials leading up to the war indicated their belief that a new Security Council Resolution was required to make an invasion legal, but the UN Security Council has not made such a determination, despite serious debate over this issue. For example, to secure Syria's vote in favor of U.N. Resolution 1441, Secretary of State Powell reportedly advised Syrian officials that "there is nothing in the resolution to allow it to be used as a pretext to launch a war on Iraq."

These critics have also pointed out that the statements of U.S. officials leading up to the war indicated their belief that a new Security Council Resolution was required to make an invasion legal.

The United States structured its reports to the United Nations Security Council around alleged intelligence from the Central Intelligence Agency and Secret Intelligence Service (MI6) 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.

Preemptive war

Domestic law

United States

Further information: ]

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 authority of commander-in-chief. In October 2002, the U.S. Congress authorized military force under the "Authorization for the Use of Military Force Against Iraq". 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.

Doe v. Bush

Further information: ]

In early 2003, the Iraq Resolution was challenged in court to stop the invasion from happening. The plaintiffs argued that the President does not have the authority to declare war. The final decision came from a three-judge panel from the US Court of Appeals for the First Circuit. Judge Lynch wrote in the opinion that the Judiciary cannot intervene unless there is a fully-developed conflict between the President and Congress or if Congress gave the President "absolute discretion" to declare war.

Supremacy Clause

See also: Ehren Watada

Critics argue that if the invasion of Iraq was a violation of the U.N. Charter, it also was a violation of US law. According to the Supremacy Clause in Article VI of the U.S. Constitution, Senate-ratified treaties such as the U.N. Charter are "the supreme Law of the Land." Obligations under international law that the US has agreed to, such as the prohibition of a war of aggression, Geneva Conventions, prohibition of genocide, UN Convention Against Torture, and others under ratified treaties, are legally binding under US law. The Constitution gave Congress the power to declare war and assigned the President as Commander in Chief, and there has been no amendment to pass these powers to the UN. Also, in order to have domestic legal force in the United States under US common law, treaties must be "self-executing" or must have been passed into law by both houses. The UN Charter was not passed by both houses. US courts have ruled that "lthough the Charter of the United Nations has been ratified by the United States, it is not self-executing". If these precedents were affirmed in this case, the invasion would be legal under US law.

United Kingdom

Opinion of the UK 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 memo

On 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.

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.

In this minor criminal case the court decided not to convict a Major in the German Army of the crime of refusing duty that would advance the Iraq war. It had nothing to do with the legality of the war - nor may the German Government usurp the legal authority of the UN Security Council under Articles 39-42 if it wished to do so. It's decion impacts domestic German criminal law only.

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).

In this minor criminal case the jury decided not to convict vandals of crimes. The decion had nothing to do with the legality of the war - nor may the Irish Government usurp the legal authority of the UN Security Council under Articles 39-42 if it wished to do so. It's decion impacts domestic Irish criminal law only.


See Also

References

  1. http://fpc.state.gov/documents/organization/9043.pdf
  2. http://www.state.gov/p/io/rls/fs/2003/18850.htm
  3. "Iraq war illegal, says Annan". BBC News. 16 September, 2004. Retrieved 2006-05-25. {{cite news}}: Check date values in: |date= (help)
  4. O'Connell, Mary Ellen (November 21, 2002). "UN RESOLUTION 1441: COMPELLING SADDAM, RESTRAINING BUSH". Jurist. Retrieved 2006-05-25. {{cite web}}: Check date values in: |year= (help)CS1 maint: year (link)
  5. Taylor, Rachel S. "International Law - War in Iraq - United Nations - Iraq". World Press Review Online. Retrieved 2006-05-25.
  6. Cohn, Marjorie. Aggressive War: Supreme International Crime. Truthout.org, November 9, 2004. Retrieved on May 29, 2007.
  7. UN Charter Article 39 http://www.un.org/aboutun/charter/
  8. ^ Luis Moreno-Ocampo Letter:Public reply with his conclusions allegations of war crimes during the invasion of Iraq in March 2003(PDF) Cite error: The named reference "Letter_2006-02-09" was defined multiple times with different content (see the help page).
  9. "Iraq war illegal, says Annan". BBC News. 16 September, 2004. Retrieved 2006-05-25. {{cite news}}: Check date values in: |date= (help)
  10. United Nations Charter
  11. http://www.state.gov/p/io/rls/fs/2003/18850.htm
  12. http://www.state.gov/p/io/rls/fs/2003/17926.htm
  13. http://www.robincmiller.com/ir-legal.htm
  14. http://www.commondreams.org/headlines03/0321-10.htm
  15. http://www.icj.org/news.php3?id_article=2770&lang=en
  16. United States Department of State: Fact Sheet, February 25, 2003 http://www.state.gov/p/io/rls/fs/2003/17926.htm
  17. Wilmshurst Resignation Letter. BBC.com, March 24, 2005. Retrieved on May 29, 2007.
  18. "Iraq Resolution 1441" (PDF). Number-10.gov.uk. March 7, 2003. Retrieved 2006-05-26. {{cite web}}: Check date values in: |year= (help)CS1 maint: year (link)
  19. Burkeman, Oliver (November 21, 2003). "Invasion right but 'illegal', says US hawk". The Age. Retrieved 2006-05-26. {{cite news}}: Check date values in: |date= (help)
  20. Oliver Burkeman and Julian Borger (November 20, 2003). "War critics astonished as US hawk admits invasion was illegal". The Guardian. Retrieved 2006-05-26. {{cite news}}: Check date values in: |date= (help)
  21. http://www.un.org/aboutun/charter/
  22. "Iraq war illegal, says Annan". BBC News. 16 September, 2004. Retrieved 2006-05-25. {{cite news}}: Check date values in: |date= (help)
  23. O'Connell, Mary Ellen (November 21, 2002). "UN RESOLUTION 1441: COMPELLING SADDAM, RESTRAINING BUSH". Jurist. Retrieved 2006-05-25. {{cite web}}: Check date values in: |year= (help)CS1 maint: year (link)
  24. Taylor, Rachel S. "International Law - War in Iraq - United Nations - Iraq". World Press Review Online. Retrieved 2006-05-25.
  25. Wintour, Patrick and Brian Whitaker. "UK Expects Iraq to Fail Arms Tests". The Guardian, November 11, 2002. Retrieved April 6, 2007.
  26. Wintour, Patrick and Brian Whitaker. "UK Expects Iraq to Fail Arms Tests". The Guardian, November 11, 2002. Retrieved April 6, 2007.
  27. Paul, U.S. Representative Ron, Office of (2002). Paul Calls for Congressional Declaration of War with Iraq. Accessed on June 06 2005.
  28. Doe v. Bush Opinion by Judge Lynch 3/13/2003 Pages 3,4,23,25,26. Retrieved 8/7/2007.
  29. Thank You Lt. Ehren Watada Retrieved 9/5/2007.
  30. "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Article VI, Clause 2 of the United States Constitution.
  31. Is the President Bound by the Geneva Conventions? by DEREK JINKS, University of Texas School of Law, and DAVID SLOSS, Saint Louis University School of Law, Cornell Law Review, July 17, 2004
  32. US Constitution: Article 1 Section 8; and Article 2 Section 2, respectively.
  33. ^ The Trail: The Watada Case And The Legality Of The Iraq War Weinberger, Seth. 4/20/2007. (Also available at Seth Weinberger's blog Retrieved 9/6/2007.)
  34. Flores v. Southern Peru Copper Corp., 343 F.3d 140, 157 n.24 (2d Cir. 2003). Page 24. (See Also: Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (DC Cir., Oct. 14 1988))
  35. 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"
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