This is most interesting…
[quote]The U.S.-Led 2003 Invasion of Iraq: The United States-led intervention in Iraq in
March, 2003 was perhaps the most important occasion on which the United States differed
vehemently from several of its traditional continental European allies over a vital question
of international law. The judgment of United Nations Secretary General Kofi Annan that
the intervention was unlawful because the United States had not obtained specific
authorization, in the form of a new Security Council Resolution, before beginning
hostilities, is shared by many independent legal experts and scholars.38 Nonetheless, this
episode hardly justifies European complaints that the United States has become heedless of
international law.39As is well known, Article 2(4) of the United Nations Charter requires Member
States to “refrain in their international relations from the threat or use of force against the
38 For Annan’s pre-war position, see Patrick E. Tyler and Felicity Barringer, “Annan Says U.S. Will Violate Charter if it Acts Without Approval,” The New York Times at A8 (March 11, 2003). After the war, in an interview on September 16, 2004 with the British Broadcasting Corporation, Annan repeated his view that the intervention was illegal. See “Excerpts: Annan Interview,” available at
news.bbc.co.uk/2/hi/middle__east/3661640.htm (“I have indicated it is not in conformity with the UN Charter, from our point of view and from the Charter point of view it was illegal.”).
39 See Jacques de Lisle, “Illegal? Yes. Lawless? Not So Fast: The United States, International Law, and theWar in Iraq,” Foreign Policy Research Institute (March 28, 2003), available at
fpri.org/enotes/20030328.ame … riraq.html
(“True, the United States and its handful of active partners in the coalition did not obtain the Security Council’s specific authorization for their use of force against Iraq, nor has the Bush administration articulated a credible claim that this is a case that falls within one of the few, narrow exceptions permitting the international use of military force without Security Council authorization. But, contrary to what much of the chorus of criticism asserts or assumes, unlawfulness is not the same as lawlessness. Eschewing or rejecting prescribed legal processes is not the same
thing as rejecting all legal principle. Not adhering to the international legal requirements set forth in the U.N. Charter does not lead ineluctably to the world of Thucydides’ Melian Dialogue in which the strong do whatthey wish and the weak do what they must.”).Hosted by The Berkeley Electronic Press 16 territorial integrity or political independence of any state.”40
Under the Charter, armed force may be used by one State or group of States against another only in two circumstances. First, Article 51 recognizes Member States’ “inherent right of individual or
collective self-defence if an armed attack occurs against a Member,” but the United States
and its coalition partners did not place their primary reliance on the argument that their
action against Iraq was lawful under that provision.41
Second, Article 42 of Chapter VII of the Charter authorizes the Security Council to “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security” in a troubled area. The United States’ original intervention against Iraq in January, 1991, following upon 40 On the background and meaning of the Charter clauses relating to international armed conflict, see, e.g., John F. Murphy, The United States and the Rule of Law in International Affairs 142-44 (2004). 41 To be more accurate: the United States made an Article 51 argument to the Security Council, but in somewhat sketchy and allusive terms; the United Kingdom and Australia did not make such an argument in that forum. See Helen Duffy, The ‘War on Terror’ and the Framework of International Law 197-98, 205-07 (2003).
Outside the United Nations, the United States did of course rely, sometimes quite heavily, on the
claim that preemptive action or even preventive war against “rogue states” and terrorists was compatible with international law. See generally The National Security Strategy of the United States of America, September 2002, available at whitehouse.gov/news/releases … 321-5.html (stating President’s
determination that further diplomatic efforts would “neither adequately protect the national security of the United States against the continuing threat posed by Iraq” nor “lead to the enforcement of all relevant United Nations Security Council resolutions regarding Iraq”). For a thoughtful evaluation of the United States’ position, see Alan M. Dershowitz, Preemption: A Knife That Cuts Both Ways 153-89 (2006). See also Ruth Wedgwood, “The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense,” 97 Am. J. Int’l L. 576, 582-85 (2003); Carl Bildt, “Pre-emptive military action and the legitimacy of the use of force: A European Perspective” (CEPS/IISS European Security Forum, Jan. 13, 2003), available at eusec.org/slocombe.html.
The British position specifically rejected the idea that military action against Iraq was legally justified
on the grounds of preemptive self-defense. See “Extract from Debate in the British House of Lords,” (Apr. 21, 2004) (remarks of Lord Goldsmith), reprinted in Mary Ellen O’Connell, International Law and the Use of Force 259-61 (2005). Instead Britain relied on the argument that Iraq’s material breaches of Security Council Resolutions authorized the resumption of hostilities. See Letter from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the President of the United Nations Security Council (Mar. 20, 2003), U.N. Doc. S/2003/350 (2003); see also Lord Goldsmith, “Legal Basis for
Use of Force Against Iraq,” (Mar. 17, 2003), available at guardian.co.uk/Iraq/Story/0, … 55,00.html.
law.bepress.com/expresso/eps/1744
17
Iraq’s invasion of Kuwait in 1990, had been authorized on precisely such a basis:
Resolution 678 of November 29, 1990, enacted “under Chapter VII of the Charter,”
expressly authorized “Member States co-operating with the Government of Kuwait . . . to
use all necessary means” to enforce earlier Security Council Resolutions relating to the
Kuwaiti crisis against Iraq in the event that Iraq failed to comply with them beforehand.The 1991 U.S.-led offensive came to a halt with the adoption of Security Council
Resolutions 686 of March 2, 1991 and 687 of April 8, 1991, which imposed a variety of
obligations upon the defeated Iraqi Government. Both before and more especially after
the terrorist attacks on the United States of September 11, 2001, the United States sought
to persuade the United Nations that Iraq remained a danger to regional, and world, peace
and security. Focusing on Iraq’s failure to permit United Nations inspectors immediate
and unrestricted access to verify its undertaking to rid itself of weapons of mass destruction,
President Bush made it clear, in a speech to the General Assembly on September 12,
2002, that the United States wanted and expected the Security Council to reauthorize
armed intervention in Iraq, but that the United States was prepared to act unilaterally in the
absence of such a Resolution (“We will work with the U.N. Security Council for the
necessary resolutions. But the purposes of the United States should not be doubted.”).42
As a result of the intense diplomatic activity that ensued, the Security Council, acting under
Chapter VII, adopted Resolution 1441 of November 8, 2002, which in part decided that
“Iraq has been and remains in material breach of its obligations under relevant resolutions,
including resolution 687 (1991).” Resolution 1441, however, unlike Resolution 678, did
not in terms authorize the United States or other Member States to “use all necessary
42 See “President’s Remarks at the United Nations General Assembly,” (Sept. 12, 2002), available at
whitehouse.gov/news/releases … 912-1.html. Hosted by The Berkeley Electronic Press 18 means” to bring Iraq into compliance. Rather, Resolution 1441 reflected a two-stage approach that had been advocated by France: disarmament through resumed inspections
or, if that failed, reconsideration by the Security Council of its options, including recourse
to force.43
Four months after the adoption of Resolution 1441, the United States and its
coalition partners tabled a resolution that would have provided specific legal authorization
to resume hostilities in Iraq.44 France, supported by Russia and China, announced publicly
that it would veto the draft resolution, which in any case had no chance of passage and was
withdrawn.45
In these circumstances, the United States took the legal position that Resolution
1441’s finding that Iraq had been and remained in material breach of Security Council
Resolution 687, coupled with Iraq’s subsequent failure to cure those and other breaches
after the adoption of Resolution 1441, authorized the United States and its coalition to
resume the concededly lawful hostilities that had been suspended eleven years earlier by
Resolution 687.46 Several prominent legal scholars agreed with the United States’ view.47
Others, of course, did not.48 43 See Remarks of M. Dominique Galouzeau de Villepin, Minister for Foreign Affairs of France, United Nations Security Council Fifty-eighth year, 4707th meeting Friday, 14 February 2003, 10 a.m. New York, U.N. Doc. S/PV.4707. 44 See Provisional Resolution --, March 7, 2003, U.N. Doc. S/2003/215.
In any event, Secretary of State Colin Powell had stated previously that, in the event of an Iraqi breach of Resolution 1441, the Security Council could “decide whether or not action is required,” but the United States would “reserve our option of acting” unilaterally and would “not necessarily be bound by what the Security Council might decide at that point.” Quoted in Michael J. Glennon, “How War Left the Law Behind,” The New York Times at A33 (Nov. 21, 2002).
45 See Ayman El-Amir, “A world united against war,” Al-Ahram Weekly Online: 20-26 March 2003 (Issue No. 630), available at weekly.ahram.org.eg/print/2003/630/sc2.htm. President Bush remarked that “some permanent members of the Security Council have publicly announced they will veto any resolution that compels the disarmament of Iraq . . . . The United Nations Security Council has not lived up to its responsibilities, so we will rise to ours.” “President George W. Bush Addresses the Nation on Iraq” (March 17, 2003), reprinted in Craig R. Whitney (ed.), The WMD Mirage 166, 167-68 (2003). 46 See Letter from the Permanent Representative of the United States of America to the President of the United Nations Security Council (March 20, 2003), U.N. Doc. S/200/350; see also William H. Taft & Todd F. Buchwald, “Preemption, Iraq, and International Law,” 97 Am. J. Int’l L. 557 (2003).
Mr. Taft wrote as Legal Adviser to the U.S. State Department, and Mr. Buchwald as Assistant Legal Adviser. law.bepress.com/expresso/eps/1744[/quote]
law.bepress.com/cgi/viewcontent. … t=expresso
Then there is this…
[quote]My purpose here is not to defend the United States’ legal position, nor even to
argue that it was a reasonable (if perhaps erroneous) one. Rather, I want only to make the
point that even if the United States (and Britain and Australia) were clearly in error about
the legality of using force against Iraq, the continental European governments that were
critical of the coalition’s position themselves had “dirty hands.” For the NATO Alliance’s
armed intervention in 1999 in Kosovo, which was designed to prevent Serbia from carrying
out its program of “ethnic cleansing” of that province, was certainly on no better footing
under international law than the U.S. coalition’s intervention in Iraq in 2003.49
Having themselves violated the very same constraints of the U.N. Charter only four years earlier,
the European governments involved in NATO’s Kosovo intervention could hardly claim
that the United States was an international scofflaw for having done so.
50
47See, e.g., Yoram Dinstein, “Comments on War,” 27 Harv. J. L. & Pub. Pol’y 877, 889-91 (2004);
Christopher Greenwood, “International Law and the Pre-Emptive Use of Force: Afghanistan, Al-Qaida, and Iraq,” 4 San Diego Int’l L. J. 7, 34-36 (2003); Ruth Wedgwood, “The Fall of Saddam Hussein: Security Council Mandates and Preemptive Self-Defense,” 97 Am. J. Int’l L. 576, 578-82 (2003); Ruth Wedgwood, “Legal Authority Exists for a Strike on Iraq,” The Financial Times at 19 (Mar. 14, 2003). For a sophisticated defense of the United States’ intervention (albeit one not keyed to the textual analysis of the relevant Resolutions), see Michael D. Ramsey, “Reinventing the Security Council: The U.N. as a Lockean System,” 79 Notre Dame L. Rev. 1529 (2004).
48 For a recent critique of the U.S. legal position, see Byers, supra n.–, at 44-45; see also Simon Chesterman, “Just War or Just Peace After September 11: Axes of Evil and Wars Against Terror in Iraq and Beyond,” 37 N.Y.U. J. Int’l L. & Pol. 281, 288-97 (2005). For a survey of some objections, see Helen Duffy, The ‘War on Terror’ and the Framework of International Law, supra n.–, at 201-02. 49 Many of the pertinent legal objections are summarized in David Chandler, From Kosovo to Kabul and Beyond: Human Rights and Humanitarian Intervention 127-39, 158-66 (2006). See also Michael Glennon, Limits of Law, Prerogatives of Power: Interventionism After Kosovo, ch. 1 (2001); John C. Yoo, Using Force, 71 U. Chi. L. Rev. 729, 735 & n.22 (2004); Dinstein, supra note --, at 881; Jules Lobel, Benign Hegemony? Kosovo and Article 2(4) of the U.N. Charter, 1 Chi. J. Int’l L. 19 (2000); Bruno Simma, NATO, the UN and the Use of Force: Legal Aspects, 10 European J. Int’l L. 1 (1999).
Despite setting out the legal case against intervention altogether flawlessly, Richard Falk attempts, unconvincingly in my view, to defend the legality of NATO’s actions under international law. See Richard Falk, “Humanitarian Intervention After Kosovo,” in Aleksandar Jokie (ed.), Lessons of Kosovo: The Dangers of Humanitarian Intervention 31-52 (2003). Other efforts to find justification – even if retrospective – for the Kosovo intervention under international law include Louis Henkin, Kosovo and the Law of “Humanitarian Intervention,” 93 Am. J. Int’l L. 831 (1999).
50 Moreover, it seems fair to point out that even if the United States did violate the U.N. Charter’s restrictions on the use of force (Article 2(4) in particular) by attacking Iraq, that infraction was hardly unique in the Charter’s history. In a classic article written thirty-six years ago, the international law scholar Thomas M. Franck pronounced Article 2(4) dead: “today the high-minded resolve of Article 2(4) mocks us from its grave Hosted by The Berkeley Electronic[/quote]
law.bepress.com/cgi/viewcontent. … t=expresso