ABSTRACT

The legality and the legitimacy of the military operation jointly carried out by the US (United States) and UK (United Kingdom) against the Saddam regime in March 2003 was broadly discussed by international law scholars. More than two and a half years have passed since then, and the international community is now concerned about the re-development issues and the problem of terrorism in Iraq. Thus, doctrinal debates regarding whether the invasion was legal seem to be forgotten. However, it is a fact that; although a considerable time has passed since the invasion of Iraq, the debates concerning the legality of the war and its implications on the international legal regime regulating the recourse to use force have remained uncompleted. In this regard; in the light of the relevant UN Security Council Resolutions, their different interpretations, the international community’s attitude on the matter and the debates on the controversial concept of pre-emptive self-defense; it is difficult to argue that the developments prior to, and in the course of the invasion have transformed the legal system of the use of force.

INTRODUCTION

The American-British military intervention to Iraq in spring 2003 has caused many controversies and discussions over the legitimacy of the operation, the validity of international law system regulating the use of force and the future of this system.

The Gulf War (1991) was characterized by a general consent reached in the United Nations Security Council for the materialization of an enforcement action aiming to end the Iraqi occupation in Kuwait with a series of resolution reaching finally a clear authorization for use of force. However, the war in 2003 lacked such an accord within the Council and an authorization for a military enforcement campaign in order to force Iraq to comply with its obligations settled by the Resolution 687 after the Gulf War. 

The invasion of Iraq and its preparation process intensified the debate on the theories of implied use of force and of pre-emptive self defense, which are already controversial by their challenge against the limits of United Nations system regulating the use of force. On the other hand, the weapons of mass destruction (that have been cited as the main reason of the war by the US and the UK within the context of pre-emptive self-defense) haven’t been found in post-war Iraq yet. Moreover, following the collapse of Ba’th regime, Iraq has became a ‘heaven’ for transnational terrorism under the American-British occupation, despite the fact that the invasion was materialized as a part of ‘war against terrorism’.

The political facts cited above increase the importance of legal aspects of the pre-war process of 13 years; including dozens of UN Security Council decisions beginning with the Resolution 660 (1990) demanding the Iraqi withdrawal from Kuwait, and also concerning the ‘orthodox’ rules of UN Charter governing the use of force and new doctrines challenging these rules by claiming a wider scope for the concept of use of force.

In this respect, this essay will begin with examining the traditional UN system of use of force. Then, after studying the Gulf War as an example of act of enforcement, legal and political background (between 1991 and 2003) of the latest war will be analyzed. Finally, the legality of the invasion in 2003 will be analyzed in the light of the theory of implied use of force (or the revival of authorization to use force) and of the concept of pre-emptive self-defense allegedly related to Iraq’s capacities of weapons of mass destruction and to the allegations that it might have links with international terrorism.

THE UN SYSTEM REGULATING THE USE OF FORCE

The Prohibition of Use of Force in Article 2(4) of UN Charter

The failure of legal rules established before the Second World War -within the framework of League of Nations and Kellogg-Briand Pact- regarding the prevention of use of war as an instrument of international politics gave rise to a relatively concrete prohibition of use of force in United Nations (UN) Charter.[1]

Article 2(4) of the UN Charter does not prohibit only "use of force”, but also "the threat” of force, "against the territorial integrity or political independence of any state or in any other manner inconsistent with the Purposes of the United Nations”[2]. Malcolm N. Shaw states that "This provision is regarded now as a principle of customary international law and as such is binding upon all states…”.[3] However, due to the fact that the use of force is not defined in the Charter, two questions have arisen about the content and the limits of this concept: Does article 2(4) only prohibit use of armed force?[4] and Should the definition ‘against the territorial integrity or political independence of any state’ be interpreted in a restrictive manner or do they point to a general and absolute prohibition of use of armed force?[5]

In the light of article 2(4), "the legal regime envisaged by the United Nations Charter”, and the decision of International Court of Justice (ICJ) regarding the Nicaragua Case, which declared that economic sanctions do not constitute "a breach of the customary-law principle of non-intervention”; it is possible to state that the prohibition concerns only the use of armed force.[6]

As to the second question, by taking into consideration the 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States, the 1970 Declaration on Principles in International Law and the decision of ICJ in the Corfu Channel Case; it is almost obvious that the definition in question is to be interpreted in a manner which reinforces the prohibition in question.[7]  

The Legal Framework of the Exceptions of the Prohibition of Use of Force

Self-defense

The article 51 of UN Charter defines the right of self-defense, which constitutes the major exception of the prohibition of recourse to force, as an inherent right[8]. However, like the interpretation of article 2(4), the scope of self-defense also provokes some controversies between states and between scholars.[9]

The division between scholars concerning the scope of this right is that; whether it can be used only if an armed attack happens, or an anticipatory action of self-defense also can be materialized in case of an imminent threat of aggression.[10]

The supporters of a wide right of self-defense, which includes "the right to anticipatory self-defense and of protection of nationals abroad”, base their point to the following argument: Self-defense has a value of custom which is wider than article 51.[11] On the other hand, J. de Arechega, who opposes to this view, argues that; "These arguments do not seem convincing nor in accordance with the cannons of treaty interpretation agreed at the Vienna Conference on the Law of Treaties…” Arechega also explains that the "so-called” right to self-defense did not exist in customary international law prior to UN Charter, but it was rather a "political excuse for the use of force”.[12] The majority of scholars state that an armed attack is necessary for the use of force within the framework of self-defense, so they deny the existence of the right to preventive self-defense.[13]  

However, although the Charter does not have any provision regarding the self-defense against terrorism, there have been some developments in this domain within the UN framework since the September 11 terrorist attacks. In this respect, it’s possible to cite the Security Council’s (SC) Resolution 1368 adopted on 12 September 2001, condemning the attacks and recognizing the right of self-defense, and Resolution 1373 passed on 14 November 2001, recognizing "the right to use force in self-defense against terrorist action”.[14]  

The Use of Force Under Chapter VII of UN Charter

The Use of Force as an Instrument of Enforcement for the Collective Security

The major organ in UN system being responsible to the protection of international peace and security is the SC. Articles 39, 41, 42 and 43[15] of the Charter regulate the measures that can be taken by the SC when a threat to international peace emerge. According to article 39, the SC can decide whether a threat or an aggression against international peace occur, and may make recommendations or decide what measures would be taken in the light of articles 41 and 42. Article 41 consists of enforcement measures apart from the use of armed force.[16]

On the other hand, if article 41’s measures are considered inadequate by the SC, it may take other measures under article 42, involving the (armed) air, sea or land forces of member states.[17]

However, in UN practice of collective use of force since the intervention to Korea in 1950, the mechanism of decision-making designed by the Charter has never been applied properly: The ‘agreement or agreements’ that shall be concluded between UN and member states for the formation of collective armed forces, cited in article 43, have never been materialized, instead, there have been many cases that the SC authorized groups of states to undertake military operations for restoring international peace and security.[18] As Kaczorowska explains; "It is considered that this kind of authorization is implied in the Security Council’s general competence to maintain international peace and security under Chapter VII…”[19]    

Kaczorowska also points to the fact that; the SC has authorized many military operations after the end of the Cold War.[20] As Dixon and McCorquodale qualify; this fact is the consequence of the "cooperation between the Permanent Members on the Council”, resulting "in a revival of the Council’s enforcement role…”[21], which was blocked during the Cold War era due to the struggle between Eastern and Western Blocks that made the application of veto by permanent members of SC a usual practice.

The intervention to Iraq in 1991 -that is considered one of the most comprehensive examples of collective use of force in UN framework- will be studied in the next section.

An Act of Collective Use of Force Under Chapter VII: Intervention to Iraq (1991)

Iraqi army invaded its southern neighbor Kuwait on 2 August 1990, claiming that its territory belonged to Iraq and drove the Al Sabah family -which had been ruling the country- out of Kuwait.[22]

Over the next three months after this invasion, the SC adopted 10 resolutions, that the most important of which were Resolutions 660(condemning the Iraqi occupation), 661(imposing economic sanctions against Iraq), 662(declaring that the annexation of Kuwait by Iraq was not recognized), 665(establishing a naval blockade against Iraq) and 678(urging Iraq to withdraw from Kuwait and expressing that a military operation would be undertaken otherwise).[23]

The SC condemned the occupation of Kuwait by Resolution 660, in which the Council clearly expressed that it was acting in the framework of the articles 39 and 40 of the Charter.[24]

In his article published in 1991, Weston criticized Resolution 678 by causing the "unilateralist determination and orchestration of world policy, coordinated and controlled… by the US”.[25] Another criticism of unilateralism, which is based on a more concrete fact, emerged before the adoption of Resolution 665: After the adoption of Resolution 661 stating that "all states should prevent trade with Iraq”, "the US believed that it could… institute a naval blockade of Iraq and Kuwait to enforce the ban on trade with Iraq”, however, "other members of the Security Council and the Secretary-General of UN disagreed”, because "they believed that only the Security Council could decide about a blockade”.[26] The use of force by Britain and the US against Iraq in 2003 would also be targeted by the criticisms of unilateralism more intensively, because of materializing a military operation without the approval of the Council.

 Weston’s another critical argument regarding Resolution 678[27] is that; the article 42 of the Charter does not constitute the legal basis of the resolution, "because of the article’s dependent relationship with article 43”.[28]  

The deadline established by Resolution 678 passed and anti-Iraqi coalition’s military operation (called Desert Storm) began on 16 January 1991. At the end of the following month, Iraq announced that it would accept all relevant UN resolutions beginning from Resolution 660 and coalition’s operations ended on 28 February 1991. Then, the SC passed Resolution 687 about the conditions and modalities of the cease-fire between the coalition and Iraq.[29]

In his article published in 1991, Rostow argues that; "One of the important factual considerations in the decision of the US and many other countries to resist the Iraqi conquest of Kuwait was that Iraq is known to have chemical and bacteriological weapons and is far advanced in its efforts to build nuclear weapons”.[30] Before the invasion of Iraq in Spring 2003, the US and Britain cited the same reason of weapons of mass destruction (WMD) to justify the military operation, by arguing that Iraq failed to disarm in the light of Resolution 687 and that it made some efforts to obtain nuclear weapons.

THE USE OF FORCE AGAINST IRAQ

The UN Security Council Resolutions on Iraq since 1991: Political and Legal Background of the American-British Invasion of Iraq in 2003

After the adoption of Resolution 687, the UN Security Council passed a dozen resolutions regarding post-Gulf War Iraq[31], until the acceptance by unanimity of Resolution 1441 in November 2002, which was considered only by the US and Britain -amongst the five permanent members of the Council- as a legal basis ensuring an implied authorization of use of force against Iraq.

With the Resolution 687, the SC required that Iraq shall destroy "all chemical and biological weapons…, all ballistic missiles with a range greater than one hundred and fifty kilometres…”, and also "not to acquire or develop nuclear weapons…”, and to not to have any relation with terrorism.[32] Iraq formally accepted them, but as Greenwood explained; these requirements were binding upon Iraq "not because of Iraq’s acceptance of the resolution”, but "because of the obligations imposed on Iraq by Article 25[33] and Chapter VII of the UN Charter…”.[34] 

Even after the establishment of the cease-fire between the anti-Iraqi coalition and Iraq, the stability couldn’t be achieved in the region. The Kurds living in the north of Iraq and the Shiites living in the south started an uprising against the Ba’th regime towards the end of the war, but they soon failed and began to be oppressed by government forces. In order to protect them, the SC passed Resolution 688. This resolution condemned the repression of Iraqi Kurds and Shiites by the Saddam regime, and also, Iraq was demanded to stop repressing them and to allow international humanitarian organizations to operate in the region. Although this resolution was not adopted directly within the framework of Chapter VII; US, Britain and France based their point on it for establishing no-fly zones over the south and the north of Iraq.[35]

American and British military aircrafts attacked many times Iraqi air defense facilities from the declaration of no-fly zones until the final invasion of Iraq in 2003. As Erkmen states; following these events, the US and Britain used to point to the self-defense of patrolling aircrafts rather than discussing the legality of the zones in question.[36]

Patrick McLain explains that; "The US used pre and post-cease-fire Security Council resolutions to justify the majority of its military interventions in Iraq over the next decade. To legitimize these interventions, the US claimed that the various Security Council resolutions gave rise to implied authorizations for the use of force.”[37] According to McLain, apart from the cruise missiles attack to Baghdad on 26 June 1993 as the retaliation against a failed Iraqi attempt to assassinate former US President George Bush, it’s possible to classify US military interventions to Iraq into two groups: "(1) those justified as penalizing Iraqi non-compliance with Resolution 688…” and "(2) those justified as penalizing Iraqi non-compliance with Resolution 687…”.[38] In this context, it’s possible to state that the Operation Desert Strike undertaken in September 1996 is a part of group (1), and the Operation Desert Fox commenced on 16 December 1998 is an example for group (2).[39]

In August 1996, Iraqi government intervened to the clashes between two major Kurdish groups -the Kurdish Democratic Party (KDP) and the Patriotic Union of Kurdistan (PUK) - operating in the north of Iraq, on the side of the KDP, and Iraqi troops entered into areas controlled by PUK and Iraqi National Congress. These actions obviously violated the Resolution 688; however the American reaction was not about protecting Kurds from Iraqi repression: The US materialized a cruise missiles attack against some targets in the south of Iraq, furthermore, the US and Britain declared that the southern no-fly zone was extended from 32^nd to 33^rd parallel.[40]  In this respect, the US-British actions in the south of Iraq can be qualified as an abuse of the Resolution 688.

Of the Security Council members, the Great Britain was the only permanent member supporting these attacks and there were only three states[41] amongst the non-permanent members offering support to the actions. France -withdrawing soon from the patrolling activities over the no-fly zones- and Russia strongly opposed to the US-British attacks.[42]

Iraq’s compliance with Resolution 687, which created the UN Special Commission (UNSCOM) for the purpose of monitoring Iraqi disarmament process, was a condition for lifting the economic sanctions imposed on it by Resolution 661. However, UNSCOM argued very often that Iraq was hiding its weapons, although the Iraqi government repeatedly declared that it was complying with its disarmament obligations.[43]

Although Iraq’s compliance with the disarmament obligations was a matter under UN’s responsibility, the US used to consider itself responsible for the application of relevant SC resolutions, and to threaten Iraq or to use force against it in this context.[44]

On 2 March 1998 the SC adopted Resolution 1154 "explicitly linking weapons inspection compliance with fulfillment of Resolution 687 and threatening the most severe consequences for continued non-compliance”, on the other hand, despite the threat of severe consequences; China, France, and Russia declared that this resolution did not authorize force.[45]

The Council passed Resolution 1205 demanding the Iraqi compliance again as Iraq continued to obstruct the inspections. Iraq responded to this resolution by ceasing all cooperation with weapons inspectors and then Operation Desert Fox had been materialized. Although the US claimed that this military operation was authorized by existing resolutions, during the SC debates, the majority of states rejected the legality of the American-British operation.[46]

Patrick McLain criticizes unilateral use of force by Britain and US based on the theory of material breach which allegedly activate the provision "all necessary means” of Resolution 678 (referred also by Resolution 687[47]) in case of Iraqi non-compliance, by stating that; according to the language of Resolution 687, "…the Security Council seems to act as an intermediary between the Gulf War antagonists… the last paragraph of Resolution 687 vests the authority for its enforcement in the Security Council”.[48]

The SC passed finally Resolution 1441 on 8 November 2002, recalling Resolution 678 and deploring the Iraqi non-compliance with Resolution 687.[49]

‘Legality’ of the Invasion of Iraq

A Question of ‘Implied Authorization of Force’: Do Resolutions 687 and 1441 Authorize the Use of Force Materialized in 2003?

Christine Gray explains the concept of implied authorization of force by saying that; "States seeking legitimacy for their use of force but unable or unwilling to obtain a Chapter VII resolution have tried to rely on implied authorization. Thus, the USA and UK in using force against Iraq in the decade after the cease-fire of Security Council Resolution 687 have claimed that Iraq’s violations of the cease-fire regime justify them in using force under Chapter VII.”.[50] The formulation of the theory of implied authorization of force in the context of use of force against Iraq is the alleged revival of authorization provided by SC to the coalition which fought Iraq in the Gulf War (1991). 

Christopher Greenwood, pointing to the passage "… and to restore international peace and security in the area” of Resolution 678 (authorizing use of force for the implementation of Resolution 660 demanding the Iraqi withdrawal from Kuwait, and which would also be referred by Resolution 687 later), argues that; "… (the) authorization was not limited to the liberation of Kuwait but included an authority to use all necessary means for the purpose of restoring peace and security in the area.”.[51]

Furthermore, Greenwood states that "One of the goals (of Resolution 687)… was the restoration of peace and security in the area, something that had not been brought about simply because Kuwait had been liberated”[52], explains that "The Council recalled (in the Resolution 1441) that resolution 687 had stated that "a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein” ”[53], and argues that UN weapons inspectors’ chief Dr. Hans Blix’s report showed that Iraq was still in non-compliance with its obligations of disarmament[54]. According to this cumulative interpretation of UN resolutions, linking the authorization of use of force provided by Resolution 678 (1990) firstly to Resolution 687 (1991) and finally to Resolution 1441 (2002) in case of Iraqi non-compliance, it seems that the use of force against Iraq was lawful.

However, Patrick McLain strongly criticizes this view, first of all by stating that Resolutions 687 and 688 were not sufficient for authorizing American military interventions to Iraq (prior to the final invasion in 2003), and that Resolution 1441 -which is "notable for its deliberate ambiguity”- joined them too.[55]

Secondly, McLain argues that Resolution 687 created a permanent cease-fire which came into force by Iraq’s acceptance of the accord and was not conditional to Iraq’s compliance, so that the expression "all necessary means” used in Resolution 678 could not constitute a point for using force against Iraq.[56]

Another point which can be added to McLain’s criticisms may be about the meaning of the expression "… and to restore international peace and security in the area” mentioned in Resolution 678. It is important to interpret correctly what it foresees, because as seen in Greenwood’s arguments recently, this provision may be interpreted in a context allowing the use of force in case of alleged revival of Resolution 678 (which was referred by following resolutions including 1441) due to the Iraqi non-compliance with its obligations of disarmament. However, it is a fact that there has never been a consensus again in SC for using force against Iraq after Kuwait’s liberation. Moreover, there was no indication that the purpose of restoring international peace and security in the area was commonly interpreted by the Security Council -which was holding the authority for the enforcement of Resolution 687[57]- as the necessity of use of force against Iraq in 2003, event though the argument of revival of Resolution 678 is admitted.

Regarding the scope of the authorization of use of force provided by Resolution 678, McLain states that the provision to restore international peace and security in the area was unlikely "intended to authorize force after the liberation of Kuwait for an indefinite period until Iraq complied with obligations that were not yet in existence.”[58] Moreover, as Vaughan Lowe explains that (after stating that Resolution 1441 is not a sign of revival of authorization ensured by Resolution 678); "… there is no known doctrine of the revival of authorizations in Security Council resolution, on which some implied revival could be based.”.[59]  

Another interesting comment which may have effects on the question of whether a revival of authorization is possible; is that the Resolution 678 is about the collective self-defense, so that it is not an enforcement decision of SC. Eugene V. Rostow, expressing this view, says that; apart from the word authorizes, this resolution is adopted obviously for supporting the collective self-defense, and he argues in addition that this word cannot convert a military operation with the purpose of collective self-defense into an enforcement campaign.[60] Once this argument is admitted, there is no point to argue that the Resolution 678’s authorization can be revived due to Iraqi non-compliance, because of its scope which is only limited to Kuwait’s liberation.

In terms of Resolution 1441’s provisions; although it decides that Iraq was still in violation of its disarmament obligations, that a "final opportunity” would be ensured to Iraq for its compliance with these obligations, and "that it will face serious consequences as a result of its continued violations of its obligations”;[61] it still didn’t authorize the use of force against Iraq[62], which is a fact even acknowledged by the US Permanent Representative to the UN John Negroponte[63].

Was the Invasion of Iraq an Act of ‘Pre-emptive Self-defense’?   

The concept of pre-emptive self-defense as claimed by some states such as the USA, the UK and Israel is so controversial that; such demands of right have been infrequent and the relevant UN General Assembly resolutions, the decision of ICJ regarding the Nicaragua Case and even the SC resolution condemning the Israeli attack to an Iraqi nuclear reactor -that was materialized as a pre-emptive act in 1981- do not concern any regulation about the doctrinal aspect of the matter.[64] However, the dominant tendency amongst the legal writers is to acknowledge a narrow scope of self-defense rather than a wide one.[65]

After the September 11^th terrorist attacks, Iraq became a target of the US for a military operation, but despite the doubtful ‘allegations’ that one of the supposed hijackers met Iraqi intelligence agents in Prague in 2001 before September 11^th, the US has never been able to prove the Iraqi involvement neither in these attacks, nor in the anthrax mail attacks occurred in US in the same year.[66]  

On the other hand, although there wasn’t any connection between Iraqi government and the September 11^th attacks, in order "to justify its policy toward Iraq and other hostile states”, the Bush Administration announced a new doctrine after these attacks, aiming to materialize "preemptive or preventive strikes against terrorists, states that support terrorists and hostile states possessing WMD”.[67] It is possible to say that the alleged threat caused by Iraq’s WMD capabilities was the major reason mentioned for justifying the US-British invasion in March-April 2003.

Before the invasion, both President George W. Bush and Ambassador Negroponte expressed that in case of UN Security Council’s failure to enforce Iraq to comply with its obligations, the US would be able to react for enforcing the resolutions in order to defend itself.[68] This fact clearly shows that the framework of the military operation against Saddam regime was the pre-emptive self-defense.

However, as Christine Gray stated before the latest war, unless there are evidences of Iraq’s (and Democratic People’s Republic of Korea, and Iran Islamic Republic as well) involvement in September 11^th terrorist attacks or in any plan of imminent terrorist attacks, using force against them would be "stretching pre-emptive self-defense to an extreme”.[69] It is a fact that UN weapons inspectors’ chief Dr. Blix announced -in the SC meeting on 14 February 2003- that his team did not find any WMD in Iraq after almost three months of inspection activities and that a "definite progress” had been made on the issue although some serious questions still remained.[70]

During the same meeting; French, Russian and Chinese ministers of foreign affairs said that more time should have been given to inspectors in order to complete their task, while only Spain and Bulgaria -amongst the ten non-permanent members- were in favor of a military operation, apart from the US and the UK.[71]

As Vaughan Lowe says, "There is no arguable case that the US and the UK were acting in self-defense in invading Iraq.”.[72] Among the other things, the absence of WMD in post-war Iraq can be also considered to be strengthening Lowe’s argument.

CONCLUSION

If the question ‘Has the military action against Iraq in spring 2003 fundamentally transformed the system of law governing the use of force?’ is asked regarding the legality of this action, the matter should be discussed in different aspects.

Firstly, for being able to talk about a transformation, it is necessary to analyze whether a new custom in international law -which goes beyond the limits of the framework built by the current treaties and conventions- is about to emerge or not. In terms of acts of unilateral use of force, especially for those targeting Iraq[73], it is possible to argue that there is neither an opinio juris (because of the repeated objections of some permanent members of the SC and the lack of support in the Council for the military actions occurred in 1996, 1998 and 2003), nor a sufficient state practice for a new custom of use of force based on the theory of implied authorization and which can be materialized without the Council’s approval.

Secondly, arguing that the authorization given by Resolution 678 (that the main objective was to liberate Kuwait from Iraqi occupation) could be revived in case of Iraqi non-compliance with the provisions of Resolution 687 seems to be an unreasonably flexible and wide interpretation, or in other words, an abuse of these resolutions.

Finally, it’s doubtful that the operation against Iraq was an example of pre-emptive self-defense, which is already a controversial issue in public international law.

In sum, the military action that targeted Iraq in spring 2003 is likely to be described as a breach of the system of law regulating the use of force, rather than a transformation of this system.