Was the War on Iraq Legal?
Created | Updated Jul 30, 2003
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Many allegations have been made about the recent war on Iraq. The purpose of this debate is to explore the credibility of just one of those allegations... that the United States and Britain violated international law when they invaded Iraq. Was a UN mandate necessary to legalize action, or did they already have authorization?
Was the war on Iraq legal? That is the question before the house.
YES - by U49720
Before we get into specifics, I'd like to talk a bit about how we end wars. We have three ways to end them:
A peace treaty, which ends the conflict permanently and resolves the issue under dispute.- An armistice, which can end conflict permanently or for a specified duration (usually years), but does not resolve the issue.
- A cease-fire, which only temporarily suspends conflict between hostile forces. Historical precedent shows us that whenever a side violates the conditions of a cease-fire agreement, that agreement is cancelled, and open hostilities may resume.
In 1990, Iraq invaded Kuwait. The UN Security Council passed many measures demanding the full removal of Iraqi troops, beginning with Resolution 660. They had no effect. So, under Chapter VII of the UN Charter, the Security Council passed Resolution 678.
Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;
Iraq failed to comply with 660 on the January 15th deadline, and the battle was joined. Coalition forces compelled Iraq to obey Resolution 660 and subsequent resolutions through use of force. When that was completed, the Security Council passed Resolution 687.
Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990);
The 'provisions above' refers to a long list of conditions imposed upon Iraq. They included a prohibition on the purchasing of 'arms and related materials of all types', an affirmation to destroy all nuclear, chemical, and biological weapons programs and materials, and to accept international supervision of this effort.
At this point in the history it is worth noting that 660, which authorized military force, has not been cancelled. It has merely been suspended, with conditions. The UN purposely left the option of further military action on the table.
Then came a 12-year drama, which culminated in Resolution 1441 on 7 November 2002. 1441 reminds the council of 678 authorizing force, and of 687 imposing additional conditions upon Iraq,
1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991);
2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council; and accordingly decides to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament
process established by resolution 687 (1991) and subsequent resolutions of the Council;
So Iraq was declared in material breach of the cease-fire agreement. Once declared in breach, the cease-fire is effectively cancelled, except that paragraph two resolves to give Iraq one final opportunity for compliance.
Then, on 27 January 2003, Hans Blix, the chief UN weapons inspector, delivered this message to the
Security Council: 'Iraq appears not to have come to a genuine acceptance, not even today, of the disarmament which was demanded of it.'
The nearly three month period that passed between Resolution 1441 and the delivery of this speech can be interpreted as a failure of Iraq to meet that 'final opportunity to comply', thus completely cancelling the cease-fire arrangement and freeing the Member States to do as they saw fit.
One last note, concerning the nature of the UN and its authority. In and of itself, the UN does not have the power to enforce anything. It must ask its member states to volunteer to enforce things on its behalf. For instance, it did not have the authority to compel any nation to assist in the 1991 Persian Gulf War, which is why US and UK
representatives were forced to canvass the globe for economic and military contributions to the cause. Likewise, no UN resolution was needed to compel the US and UK to carry out the latest war. The cancellation of the cease-fire, through Resolution 1441 and Blix's subsequent speech, freed them to use force as they thought best, under the international rules of war.
No - by U172039
International law, in the form of the United Nations Charter, was broken when the coalition led by the United States invaded Iraq. There are only two legal justifications for attacking another country: self-defense, or if the Security Council authorises you to do so. The former clearly is not the case, so the debated point lies within the realm
of UN Security Council Resolutions that pertain to Iraq. The Security Council did not authorise the military action in Iraq, and without its blessing the war was rendered illegal.
The UN Charter states:
Article 41:
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
Article 42:
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea,
or land forces of Members of the United Nations.
Since the Security Council authorised military action in the first Gulf War, and signed a ceasefire resolution at the end of it, any future decisions regarding the ceasefire must be made by the Security Council, not individual Member States. It is up to the Security Council to decide whether Iraq was in breach of the ceasefire AND whether the breach was serious enough to require the use of force. Because of the actions of the US-led coalition, it was unable to do either.
The Security Council assumed responsibility regarding Iraq; therefore it has to be the one making all the decisions. When it comes down to decisions regarding the use of force they have to be completely clear and unambiguous (the UN, remember, is a body set up to preserve peace). This is not the case here. Since 687 there has been no specific
threat of military action, the most recent Resolution, 1441, only stipulated 'serious consequences' and NOT military action. The 'serious consequences' were to be decided by the Security Council, in accordance with the UN Charter.
The UN has to, by its very nature, assume that war is avoidable and that peaceful means should be totally exhausted (Article 2 (3)). This is the case with Iraq, and that is another reason why the response to the ceasefire violations had to be decided on by the UN.
Citing a decade-old authorisation is simply not good enough. UN Security Council Resolutions 660, 678 and 687 were responses to the particular problems that the UN faced at that particular time, namely the occupation of Kuwait by Iraq. These resolutions dealt with the occupation of Kuwait and therefore no 'subsequent relevant resolutions' were necessary because Iraq did not reinvade Kuwait and international peace was maintained. To say that any given state that happened to be a member of a 12-year old coalition has the right to end a cease-fire is absurd. It's using the letter of the law against the spirit of the law, and the letter of the law is to be decided by, and interpreted by the
entity that wrote it, not any individual nation-states with their own agenda.
It's entirely possible to hastily assemble a legal argument that may appear to authorise force, but the real acid test is whether that argument would stand up in a court of law. The weak legal case presented by the Coalition of the Willing would certainly not. The fact that Bush was seeking a new Security Council Resolution showed that he
recognised the legal need for one, and that the current crop of resolutions did not authorise military action.
Finally, as well as the breaches of Articles 41 and 42, the USA prior to, and because of, the war in Iraq contravened the following Principles of Article 2 of the UN Charter:
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use 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.
The war in Iraq went against the spirit of the United Nations and contravened International Law by breaching numerous Articles of the UN Charter.
