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International Law and the War in Iraq

Published online by Cambridge University Press:  27 February 2017

John Yoo
John Yoo*
Affiliation:
University of California at Berkeley School of Law, Deputy Assistant Attorney General, Office of Legal Counsel, U.S. Department of justice
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Extract

In his speech before the United Nations (UN) in September 2002, President George W. Bush characterized the possible use of force against Iraq as necessary to enforce existing Security Council resolutions and to eliminate a dangerous threat to international peace and security. The Security Council responded by adopting Resolution 1441, which found Iraq to be in material breach of previous Security Council resolutions and threatened serious consequences for further intransigence. When Iraq refused to fully comply with these resolutions, the United States led an ad hoc “coalition of the willing” that invaded Iraq on March 19,2003, quickly defeated Iraq’s armed forces, and ended the regime of Saddam Hussein and the Ba’ath party. On May 1,2003, President Bush announced that major combat operations in Iraq had ended. At the time of this writing, the United States has assumed the position of an occupying power that is responsible for rebuilding Iraq, as recognized by the Security Council in Resolution 1483.

Type
Agora: Future Implications of the Iraq Conflict
Information
American Journal of International Law , Volume 97 , Issue 3 , July 2003 , pp. 563 - 576
Copyright
Copyright © American Society of International Law 2003

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References

1 Bush, George W., UN General Assembly in New York City Address (Sept. 12, 2002)Google Scholar, 38 Weekly Comp. Pres. Doc. 1529 (Sept. 16,2002), available at<http://www.whitehouse.gov/news/releases/2002/09/20020912–l.html> [hereinafter Bush UN Address].

2 SC Res. 1441 (Nov. 8, 2002).

3 See SC Res. 660 (Aug. 2,1990). See also SC Res. 661 (Aug. 6,1990) (establishing oil embargo and sanctions regime against Iraq and Kuwait); SC Res. 662 (Aug. 9,1990) (deciding that Iraq’s annexation of Kuwait has no legal validity); SC Res. 664 (Aug., 18, 1990) (demanding that Iraq permit and facilitate the immediate departure from Kuwait of third-party nationals); SC Res. 665 (Aug. 25,1990) (calling upon allied nations to use necessary measures to enforce embargo established in SCRes.661);SC Res. 666 (Sept. 13,1990) (implementing sanctions regime and the humanitarian needs exception); SC Res. 667 (Sept. 16,1990) (demanding that Iraq immediately protect safety of diplomatic and consular personnel and premises in Kuwait); SC Res. 669 (Sept. 24,1990) (relating to Jordan’s request for relief from effects of implementing oil embargo and sanctions regime); SC Res. 670 (Sept. 25,1990) (regulating aircraft transporting cargo to Iraq or Kuwait and reaffirming Iraq’s liability for grave breaches of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War); SC Res. 674 (Oct. 29,1990) (condemning Iraqi mistreatment of Kuwaiti and third-party nationals and inviting collection of materials to bring charges against Iraq for its violations of international law); SC Res. 677 (Nov. 28,1990) (condemning Iraqi attempts to destroy demographic composition of Kuwait and Kuwaiti civil records).

4 SC Res. 678 (Nov. 29, 1990).

5 Id.

6 SC Res. 687 (Apr. 3, 1991).

7 Toward the end of the Gulf war, Iraq brutally suppressed Kurdish insurrections in Iraqi Kurdistan, causing the flight of hundreds of thousands of civilians to Iran and Turkey. In response, the Security Council adopted SC Res. 688 (Apr. 5,1991), which condemned “the repression of the Iraqi civilian population” and found that the consequences of such repression caused “a massive flow of refugees towards and across international frontiers and... cross-border incursions” that threatened international peace and security in the region. To aid the refugees who had fled northern Iraq, the coalition established a no-fly zone prohibiting Iraqi military aircraft from flying north of the 36th parallel. Due to further repression of the civilian population in 1992, British, French and U.S. coalition forces established an additional no-fly zone south of the 32nd parallel.

8 SC Res. 707 (Aug. 15,1991).

9 SC Res. 1060 (June 12,1996).

10 SC Res. 1115 (June 21, 1997).

11 SC Res. 1137 (Nov. 12, 1997).

l2 SC Res. 1205 (Nov. 5, 1998).

13 SC Res. 1284 (Dec. 17,1999).

14 I have discussed the domestic legal authority for the war in Afghanistan elsewhere. See Delahunty, Robert J. & Yoo, John C., The President’s Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them, 25 Harv. J.L. & Pub. Pol’y 487 (2002)Google Scholar.

15 Bush, George W., State of the Union Address (Jan. 29, 2002)Google Scholar, 38 Weekly Comp. Pres. Doc. 125,135 (Feb. 4, 2002), available at <http://www.whitehouse.gov/news/releases/2002/01/iraq/20020129–ll.html>.

16 Bush UN Address, supra note 1.

17 See SC Res. 1441, supra note 2, at 1.

18 Id. at 3.

19 Id. at 5.

20 On February 28,2003, UNMOVIC Executive Chairman Dr. Hans Blix stated that the declaration contained “little new significant information . . . relating to proscribed weapons systems.” Annex of the Twelfth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in Accordance with Paragraph 12 of Security Council Resolution 1284, para. 7, available at <http://www.un.org/depts/unmovic/documents/2003–232.pdf>. On January 27, 2003, Dr. Blix stated that the Iraqi declaration did not contain “any new evidence that would eliminate” the “many open disarmament issues.” Update on Inspection to the UN Security Council (Jan. 27,2003), at 3. On March 7, 2003, Dr. Blix repeated his conclusion that, “It was a disappointment that Iraq’s declaration of 7 December did not bring new documentary evidence.” Oral Introduction of the Twelfth Quarterly Report of UNMOVIC, at 2.

21 Iraq failed to provide access to all officials for interview by inspectors; intimidated witnesses with threats; undertook massive efforts to deceive and defeat inspectors, including cleanup and transshipment activities at nearly thirty sites; failed to provide numerous documents requested by UNMOVIC; failed to list any WMD personnel beyond a period ending in 1991 or to include many of those identified previously by UNSCOM; and failed to account for seventeen empty chemical warheads subsequently discovered by weapons inspectors, as well as over 2000 pages of Iraqi documents regarding past uranium enrichment programs. The Bush administration’s more detailed description of Iraq’s refusal to comply with relevant Security Council resolutions can be found in 149 Cong. Rec. H1957–60 (daily ed. Mar. 19, 2003) (Report in Connection with Presidential Determination Under Public Law 107–243).

22 U.S. Secretary of State Colin Power Addresses UN. Security Council(¥eb.5,2003), available at <http:/ /wwm.whitehouse.gov/news/releases/2003/02/20030205–l.htm>.

23 The Security Council: 27 January 2003: an Update on Inspection (as delivered) by Executive Chairman of UNMOVIC Dr. Hans Blix, available at <http://www.unmovic.org>.

24 See SC Res. 678, supra note 4, para. 2.

25 See, e.g., SC Res. 1031 (Dec. 15,1995), at 3 (Bosnia) (deciding that “the authority to take certain measures conferred upon States by [various UN Security Council resolutions] shall be terminated”); SC Res. 954 (Nov. 4,1994), at 3 (extending the mandate for the U.N. Mission in Somalia (UNOSOM II) for a “final period” until March 31,1995); SC Res. 929 (June 22, 1994), at 2 (Rwanda) (specifying that “the mission of Member States cooperating with the Secretary-General will be limited to a period of two months following the adoption of the present resolution,” if not earlier).

26 See, e.g., SC Res. 1031, supra note 25; SC Res. 954, supra note 25.

27 See SC Res. 940 (July 31, 1994) (Haiti) (deciding “that the multinational force will terminate its mission . . . when a secure and stable environment has been established . . . [as determined] by the Security Council, taking into account recommendations from the Member States of the multinational force”).

28 See SC Res. 1441, supra note 2, para. 2.

29 Id., para. 1.

30 Id., para. 4.

31 Id., para. 13.

32 See Vienna Convention on the Law of Treaties, Art. 60(2) (b), opened for signature May 23, 1969, 1155 UNTS 331 [hereinafter “Vienna Convention”].

33 See id., Art. 60(2) (c).

34 See SC Res. 687, supra note 6, para. 33.

35 See, e.g., Bush UN Address, supra note 1. Immediately after the cease-fire, Iraq refused to cooperate with UNSCOM and the IAEA. On August 15,1991, after the adoption of SC Res. 687, the Security Council stated that Iraq’s “serious violation” of its disarmament obligations “constitutes a material breach of the relevant provisions of [SC Res. 687] which established a cease-fire and provided the conditions essential to the restoration of peace and security in the region.” SC Res. 707, supra note 8. Over the next two years, the President of the Security Council issued six different statements reiterating that Iraq’s refusal to cooperate with UNSCOM and the IAEA qualified as material breaches of SC Res. 687. See the following: Note by the President of the Security Council, UN Doc. S/25970 (June 18, 1993); UN Doc. S/25091 (Jan. 11, 1993); UN Doc. S/25081 (Jan. 8, 1993); UN Doc. S/24240 (July 6, 1992); UN Doc. S/23663 (Feb. 28,1992); UN Doc. S/23609 (Feb. 19,1992).

36 See Wedgwood, Ruth, The Enforcement of Security Council Resolution 687: The Threat of Force Against Iraq’s Weapons of Mass Destruction, 92 AJIL 724, 726 (1998)Google Scholar [hereinafter “Wedgwood”]; cf Vienna Convention, Art. 60, supra note 32 (one party may suspend a multilateral treaty with respect to itself).

37 See Wedgwood, supra note 36, at 726 (Iraq’s breach of the terms of the cease-fire in 1997–1998 “allowed the United States to deem the cease-fire in suspension and to resume military operations to enforce its conditions”).

38 Regulations annexed to the Hague Convention on the Law and Customs of War on Land, Oct. 18,1907, Art. 36, 36 Stat. 2277,2305 [hereinafter “Hague Regulations”]. See also Dinstein, Yoram, War, Aggression and Self-Defence 50 (3d ed. 2001)Google Scholar (“A labelling of Resolution 687 as a ‘permanent cease-fire’ is a contradiction in terms: a cease-fire, by definition, is a transition-period arrangement”) [hereinafter “Dinstein”].

39 Hague Regulations, Art. 40, supra note 38; see also U.S. Army Field Manual ¶ 493, available at <http:/ /wwvi.adtdl.army.mil/cgi-bin/atdl.dll/fm/27–10/Ch7.htm> (hostilities may be resumed only with “convincing proof of intentional and serious violation of [the armistice’s] terms by the other party”). The Hague Regulations do not contain any explanation of what might qualify as “urgency,” but the U.S. Army’s Field Manual sheds some light on the question. According to the Army Field Manual, warning must be given to the other side, unless “the delay incident to formal denunciation and warning seems likely to give the violator a substantial advantage of any kind.” Army Field Manual ¶ 493; cf. See also 2 L. Oppenheim, International Law, A Treatise: Disputes, War, and Neutrality 556 (Lauterpachted, H., 7th ed. 1952)Google Scholar (“since the terms ‘serious violation’ and ‘urgency’ lack precise definition, the course to be taken is in practice left to the discretion of the injured party”) [hereinafter “Oppenheim, Vol. 2”]. In addition to permitting the resumption of hostilities in response to a serious violation of an armistice, the laws of armed conflict permit the United States to resume hostilities at its discretion–provided that warning is given to Iraq. Hague Regulations, Art 36. If the parties have not made any stipulation regarding notice, it may be provided at anytime, and hostilities may recommence immediately after notification. See Army Field Manual ¶ 487; Oppenheim, Vol. 2, supra at 556; see also Howards. Levie, , The Nature and Scope of the Armistice Agreement, 50 AJIL 880, 893 (1956)Google Scholar (although armistices generally do not specify the period of advance notice required, under customary international law, “good faith requires that notice be given of the intention to resume hostilities”) (internal quotations and citations omitted).

40 Dinstein, supra note 38, at 50–51. Whether or not required under international law, warnings were given. See generally UN Doc. S/25091, supra note 35; UN Doc. S/25081, supra note 35; Letter to Congressional Leaders Reporting on Iraq’s Compliance With United Nations Security Council Resolutions (Jan 19,1993), 2 Pub. Papers of George Bush 2269–70 (1993) [hereinafter “Bush Letter, Jan. 19,1993”]; President’s Radio Address (Dec. 19,1998), 2 Pub. Papers of William J. Clinton 2197 (1998) [hereinafter “Clinton Papers (1998)”].

41 As noted, the Hague Regulations provide either that Iraq must be warned or that such a warning may be avoided because it would be likely to give Saddam Hussein a substantial advantage. There is a good argument that Iraq was warned of a resumption of hostilities by SC Res. 1441. SC Res. 1441 cautions that Iraq’s continued violation of its international obligations will result in “serious consequences.” See SC Res. 1441, supra note 2, para. 13. Twice before, military force against Iraq has followed warnings by the Security Council that Iraq’s continued intransigence would result in serious consequences. On January 8 and 11, 1993, the president of the Security Council warned Iraq that “serious consequences” would follow if it failed to comply with its international obligations. See UN Doc. S/25091, supra note 35; UN Doc. S/25081, supra note 35.

42 See, e.g., Letter to Congressional Leaders Reporting on Iraq’s Compliance With United Nations Security Council Resolutions (Sept. 16,1991), 2 Pub. Papers of George Bush 1164–65 (1991) (explaining—after the adoption of SC Res. 687—that the United States was willing to take military action to implement SC Res. 678’s call for the restoration of international peace and security to the region); Legal Authority for the Possible Use of Force Against Iraq, 92 ASIL Proc. 136,142 (1998) (“In the U.S. Government’s view, there is a continuing right to use force [to respond] to such [material] breaches regardless of whether there is further [Security Council] authorization to respond.”) (Michael Matheson, Principal Deputy Legal Adviser, Department of State). SC Res. 687 itself explicitly reaffirmed SC Res. 678, as did UN Security Council Resolutions 686 and 949. See SC Res. 949 (Oct. 15, 1994); SC Res. 686 (Mar. 2, 1991).

43 Gellman, Barton & Devroy, Ann, Military Action Against Iraq Signaled by Administration, Wash. Post, Jan. 14, 1993, at A1 Google Scholar (quoting President Bush); see also Statement by Marlin Fitzwater, United States Mission to the United Nations Press Release USUN-1 (93) (Jan. 13,1993) (“[T]he Government of Iraq should understand that continued defiance of U.N. Security Council resolutions and related coalition demarches will not be tolerated.”) .

44 See Bush Letter, Jan. 19, 1993, supra note 40.

45 See Letter to Congressional Leaders on the Military Strikes Against Iraq (Dec. 18,1998), in Clinton Papers (1998), supra note 40, at 2195.

46 Id. at 2195–96.

47 See UN Security Council Press Release, Security Council Meets to Discuss Military Strikes Against Iraq; Some Members Challenge Use of Force Without Council Consent (Dec. 16, 1998), UN Doc. SC/6611, at 1–2, 7. International support for the 1998 airstrikes was reflected by the offers of Argentina, Australia, Canada, the Czech Republic, Denmark, Germany, Hungary, the Netherlands, New Zealand, Portugal, Spain, and the United Kingdom to contribute facilities, equipment or forces to the U.S. military effort, and of Kuwait for the use of its air facilities. Aldiough Britain and Japan spoke in favor of the strikes, the Russian Federation labeled them as “violating] the principles of international law and the principle of the [UN] Charter.” Id. at 4. Of the Security Council members at the time, China, Costa Rica, Sweden, Brazil, Gambia, Kenya, and Gabon also spoke against the 1998 strikes—some preferring the peaceful settlement of disputes and some criticizing the unilateral use of force. Id. at 5–10.

48 UN Charter Art. 51.

49 See, e.g., Ian Brownlie, International Law and the Use of Force by States 275–80 (1963); Louis Henkin, How Nations Behave: Law and Foreign Policy 141 (2ded. 1979).

50 See McDougal, Myres S., The Soviet-Cuban Quarantine and Self-Defense, 57 AJIL 597, 599 (1963)Google Scholar (“There is not the slightest evidence that the framers of the United Nations Charter, by inserting one provision which expressly reserves a right of self-defense, had the intent of imposing by this provision new limitations upon the traditional right of states.”); Schachter, Oscar, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1634–35 (1984)Google Scholar; Sofaer, Abraham D., International Law and Kosovo, 36 Stan. J. Int’l L. 1, 16 (2000)Google Scholar; Franck, Thomas M., Recourse to Force: State Action against Threats and Armed Attacks 97–99 (2002)CrossRefGoogle Scholar; see generally Gray, Christine, International Law and the Use of Force 84–119 (2000)Google Scholar.

51 Memorandum for the Attorney General, from Norbert A. Schlei, Assistant Attorney General, Office of Legal Counsel, Re: Legality under International Law of Remedial Action Against Use of Cuba as a Missile Base by the Soviet Union (Aug. 30, 1962), at 2, reprinted in 6 Green Bag 2d 195, 196 (2003).

52 See Letter from Daniel Webster, U.S. Secretary of State, to Henry Fox, British Minister in Washington (Apr. 24, 1841), in 29 British and Foreign State Papers 1840–1841, at 1138 (1857).

53 See Letter from Lord Ashburton to Daniel Webster, U.S. Secretary of State (July 28,1842), in 30 British and Foreign State Papers 1841–1842, at (1858), also available at <http://www.yale.edu/lawweb/avalon/diplomacy/britain/br-1842d.htm>.

54 See International Military Tribunal (Nuremberg)—Judgment and Sentences, 41AJIL172,205 (1947) (“preventive action in foreign territory is justified only in case of ‘an instant and overwhelming necessity for self-defense, leaving no choice of means, and no moment for deliberation’”) (quoting the Caroline case); see also Bowett, D. W., Self-Defence in International Law 142–43 (1958)Google Scholar.

55 See Dinstein, supra note 38, at 208–12, 219–20; see also McDougal, supra note 50, at 597–98.

56 See Webster’s Third New International Dictionary (unabridged) 1130 (1993).

57 See Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), 1997 ICJ Rep. 7 (Sept. 25).

58 See Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion), 1996 ICJ REP. 95, at 1 36 (July 8).

59 See Proclamation 3504: Interdiction of the Delivery of Offensive Weapons to Cuba (Oct 23,1962), Pub. Papers of John F. Kennedy 809, 810 (1962); White House Statement on Soviet Proposals Relating to International Security (Oct. 27, 1962), id., at 813.

60 See Radio and Television Report to the American People on the Soviet Arms Buildup in Cuba (Oct. 21, 1962), id. at 806–07. It should be noted that while the Department of Justice may have believed the quarantine to be a lawful exercise of self-defense, the official justification offered diplomatically relied upon authorization by the Organization of American States.

61 See Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the United States Air Strike Against Libya (Apr. 16, 1986), 1 Pub. Papers of Ronald Reagan 478 (1986).

62 See UN Doc. S/PV. 2682 (Apr. 21, 1986).

63 See Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the United States Military Action in Panama (Dec. 21,1989), 2 Pub. Papers of George Bush 1734 (1989) (“The deployment of U.S. Forces is an exercise of the right of self-defense recognized in Article 51 of the United Nations Charter and was necessary to protect American lives in imminent danger . . . .”).

64 UN Doc. S/21048 (Dec. 22,1989); UN Doc. S/PV. 2902 (Dec. 23, 1989).

65 See Letter to Congressional Leaders Reporting on Military Action Against Terrorist Sites in Afghanistan and Sudan (Aug. 21,1998), in Clinton Papers, supra note 40, at 1464 (1998) (“These strikes were a necessary and proportionate response to the imminent threat of further terrorist attacks against U.S. personnel and facilities. These strikes were intended to prevent and deter additional attacks by a clearly identified terrorist threat”).

66 See Letter to Congressional Leaders on the Strike on Iraqi Headquarters (June 28, 1993), 1 PUB. Papers of William J. Clinton 940 (1993).

67 See Address to the Nation on the Strike on Iraqi Intelligence (June 26, 1993), id. at 938 (1993). Similarly, the January 17, 1993, strike on a nuclear facilit)’ in Baghdad, while primarily designed to encourage Iraq to comply with its obligations under UN Security Council resolutions, was undertaken in part to prevent the facility from being used again to support Iraq’s nuclear weapons program. See Bush Letter, Jan. 19, 1993, supra note 40, at 2269–70.

68 See SC Res. 487 (June 19, 1981) (unanimously “condemn [ing]” the Israeli strikes as a “clear violation of the Charter of the United Nations and the norms of international conduct.”).

69 Bush, George W., Commencement Address at the United States Military Academy in West Point (June 1, 2002)Google Scholar, 38 Weekly Comp. Pres. Doc. 944,946 (June 10, 2002), available at<http://www.whitehouse.gov/news/releases/2002/06/20020601–3.html>.