The Legality of the United States Attack on Iraq

31 Jan

iraq war

Introduction

On 19th March, 2003, the United States launched a full-scale military attack against the sovereign state of Iraq. Following the September 11th attack on United States, one could, if one believes American allegations about the perpetrators (though there has been no investigation), make a case for its use of force in Afghanistan as an exercise of the right of self-defence.

However, the US attack on Iraq could not be so defended. Iraq had neither attacked the US, nor was it in the final stages of preparing for such an assault. Thus, for the first time in the 214-year history of US, it has waged a Preemptive War by leading the world in a war of aggression, shattering lives and dehumanizing its victims. The illegal use of force in Iraq threatens to return us to a world in which the law of the jungle prevails over the Rule of Law.

Undoubtedly, a new world paradigm in the international armed conflicts is evolving and has given rise to different approaches and policies in the observance of international law. If the US creates a precedent through its practice, that precedent will be available, like a loaded gun, to other States. The preemptive use of military force would establish a precedent that the US has worked against since 1945.

It is pertinent to note that preemptive self-defense would provide legal justification for Pakistan to attack India, for Iran to attack Iraq, for Russia to attack Georgia, for North Korea to attack South Korea, and so on. Any State that believes another regime poses a possible future threat regardless of the evidence, could cite the US invasion of Iraq. The invasion of Iraq would do grave damage to the norms of restraint, in a highly equivocal situation that simply does not demand a revolutionary change of the rules.

Were the US justified under international law to wage war against Iraq? The answer turns very largely on the interpretation given to Resolutions passed by the Security Council, which inevitably leads one to the United Nations Charter. The United Nation was born out of war and in the aftermath of the Second World War as a determined effort to reduce wars and human sufferings, has since then become a pale version of its idealistic original, distorted by the economic-military interests of western powers. When representatives of fifty countries assembled in San Francisco in 1945 to draw up the UN Charter, modern threats of terrorism such as those posed by the Al Qaeda terrorist network were not yet known.

The devastation caused by the September 11th terrorist attacks on the US would not, however, have been an unfamiliar spectacle to the survivors of World War II. However, with the founding of the United Nations, the legitimacy of the use of force by individual states under international law has been substantially narrowed. The UN Charter states, in its Preamble, that the UN is established to save succeeding generations from the scourge of war. Its substantive provisions obligate Member States of the UN to settle their international disputes by peaceful means.

As use of force is now prohibited since World War II under international law with restricted exceptions, the legality of the US attack on Iraq cannot be lawfully substantiated on any exceptional grounds. The United States, as a member state of the United Nations, is bound by this legal regime. In fact, the US was a primary proponent of the U.N. Charter at the end of World War II. In its military action in Iraq, the US purported to act within the constraints imposed by the UN Charter. Discourse from the Bush administration has focused on the legality of pre-emptive action stemming from the imminence of an Iraqi nuclear, biological or chemical attack on the US, with minimal empirical evidence to support that assertion.

As a law student, I admit that the attack could protect the US citizens from future attacks, but I firmly submit that the US attack on Iraq is illegal due to the illegal exercise of preemptive self-defence, illegal use of force without authorization by UN, and the prohibition of killing of innocent people according to Islamic teachings.

Argument 1: The attack by the United States was not justified by pre-emptive self-defence.

The US is relying on the doctrine of preemptive self-defence to justify its invasion of Iraq. It alleged that Iraq was in possession of weapons of mass destruction and that it intended to unleash against the US at some future date. Alternatively, it argued that Iraq intended to sell these weapons to terrorists and enemies of the West.

Nevertheless, Byers (2006) propounds that the doctrine of preemptive self-defence is a blatant violation of international law. It seeks to give to some powerful States the right to use military force against States that are seen as hostile. Article 51 of United Nation Charter states:

“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.” (p.5).

It is universally acknowledged that a State may use force in its own defence, if necessary to protect itself, pending collective action by the United Nations Security Council to provide that protection. However, the self-defence concept, if read too broadly, may eviscerate the prohibition against the use of force. Literally, Article 51’s articulation of the right seems to preclude the preemptive use of force by individual states or groupings of states and to reserve such uses of force exclusively to the Security Council. Measures in self-defense, in this understanding, are legitimate only after an armed attack has already occurred.

The definition of ‘armed attack’ is broad, as established in the case of Nicaragua v USA (1986), where the International Court of Justice held that the concept covers the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries and a state’s substantial involvement therein. So could the Iraq’s possession of weapons of mass destruction satisfy the Nicaragua definition of ‘armed attack’? It is therefore logical to suggest that the US was not a victim of ‘armed attack’ within the meaning of Article 51.

Thus, the right enshrined in Article 51 does not authorize preventive and preemptive self-defence. The reason is that if these two are also included within folds of the right of self-defence, there will be no end to it and many aggressive acts will be attempted to be justified in the guise of this right.

Even if preemptive self-defence is legal, the question was whether the United States was under armed attack when it commenced armed action against Iraq on 18th March, 2003. Under Art 51 of U.N. Charter, the armed attack to which a State responds must be occurring or be so imminent as to be obvious. In a much-cited exchange with Britain in 1842, U.S. Secretary of State, Daniel Webster, said that force might be used in self-defence only if the need is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation” (A Digest of International Law, p. 412).

Presently, the majority of the international community is convinced that the US has failed to show that Iraq poses an ‘imminent’ threat to the US. The US has failed to provide tangible empirical evidence that Iraq poses such a threat. Since large amount of weapons of mass destruction have not been found, the Bush’s argument that it was urgent to attack quickly to protect the US has been found to be fallacious. It now appears to the world that US attacked Iraq to gain control of Iraq’s oil. Hence, preemptive self-defence is illegal under international law and violates the UN Charter. Even if a preemptive self-defence is legal, Iraq did not pose a sufficiently immediate threat to the US and thus the invasion was a preventive war, which clearly violates international law.

Argument 2: The attack was not expressly authorized by the United Nation Security Council.

Article 2 (4) of the UN Charter enshrines the principle of prohibition of the use of force as a cornerstone of peaceful relations among the States. Moreover, Article 51 requires that states inform the Security Council of any measures they will take in self-defence, and that once the Security Council has acted to resolve the matter, any measures taken must cease. Thus, only genuine collective self-defence authorized by the UN Security Council of binding enforcement mechanism pursuant to Article 42 of UN Charter which can turn the use of force into an approximation of an international police action (Dinstein, 2005).

Members of the Bush administration have relied on UN Security Council Resolution 1441 which provides that the Security Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations in order to argue that force against Iraq has been authorized.

Although the Security Council has passed a series of resolutions concerning Iraq over the past 12 years, but only Resolution 678, passed on Nov 29, 1990, arguably, authorizes the use of force. UN Resolution 678 (1990) authorized member states to “use all necessary means to uphold and implement Resolution 660, passed on Aug 2, 1990 which demanded that Iraq withdraw from Kuwait and all subsequent relevant resolutions and to restore international peace and security in the area” (p. 16).

However, the question that arises was whether the United Nations Security Council has authorized the US attack on Iraq? When US planned to invade Iraq regardless the UN authorization which would require significant further weapons inspections, many writers and Muslim countries criticized its effort as unwise, immoral, and illegal.

United Nations Secretary-General Kofi Annan, put a sharper point on Cook’s objection, stating in September 2004 that, “From our point of view and the UN Charter point of view, the war was illegal” (Washington Post, September 17, 2004).

Apart from the fact that the US would be left with no alternative but to place reliance on previous resolutions ending with resolution 1441, they would also have to explain their conduct from 24 February 2003 to 17 March 2003 in unsuccessfully seeking a second resolution – which is the best evidence of their own position that a further resolution was needed because previous resolutions were inadequate.

Besides that, upon discovering that the second resolution could not be passed by the Security Council, US decided to withdraw it and proceed to war. Such conduct would amount to estoppel in common law which would well apply in the international sphere in these peculiar circumstances. It may also constitute bad faith. Accordingly, the language used in Resolution 1441 cannot be interpreted to give the US the right to use force against Iraq.

It is pertinent to note that the UN Charter’s drafters specifically designed the Security Council to meet threats to peace, preserving the right of a state to act unilaterally only in cases of armed attack. In cases lacking objective evidence of an armed attack, the UN Charter requires multilateral decision-making. Permitting pre-emptive self-defence at the sole discretion of a State is fundamentally at odds with the UN Charter’s design. It is an exception that would overthrow the prohibition on the use of force in Article 2(4) and thus the very purposes of the UN.

The history of Article 51 of UN Charter suggests that the article should safeguard the right of self-defence, not to restrict it. Furthermore, it is a restriction (no right of anticipation) which bears no relation to the realities of a situation which may arise prior to an actual attack and call for self-defence immediately if it is to be of any avail at all. Bowett (1999) advocates that “no state can be expected to await an initial attack that may well destroy the State’s capacity for further resistance and so jeopardize its very existence” (p. 193). Beard (2002) and O’Connell (2002) suggest that a State may use force in self-defence, even if it cannot give details as to the expected attacks. Hence, Article 51 should not be construed so narrowly and that it would be a travesty of the purposes of the Charter to compel a defending state to allow its assailant to deliver the first and perhaps the fatal blow (Waldock, 1999).

On the other hand, US has also relied on UN Security Council Resolution 1441 which provides that the Security Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations in order to argue that force against Iraq has been authorized.

Even if the UN Security Council Resolution 1441 did not expressly authorize the use of force against Iraq but a previous authorization, accorded in 1990 had been revived as a result of Iraq’s material breaches of the 1990 ceasefire resolution.

In addition, when a State commits cruelties and persecution of its nationals in such a way that deny their fundamental human rights and to the conscience of mankind, intervention in the interest of humanity is legally permissible. The US based its attack on the support of the Iraqi people who wanted to get rid of the regime by whatever means possible in the name of modern American democracy.

Furthermore, the US attack was to destroy the terrorist link to al-Qaeda and to promote its image and functions as the world Samaritan in countering global terrorism. This rationale was espoused by the United States, beginning in 1986, as a way in which States might lawfully use force in their own defence (Harris, 1998).

The US Department of State, under George Schultz, developed a legal rationale for responding to State-sponsored terror attacks, whereby a State may use force in self-defence if it had reason to believe that a State that had already used force is planning to do so in the near future (Bernard Gwertzman, 1986). Under this rationale, the US bombed Libya in 1986. The idea was that one can consider that an armed attack is occurring if some force has already been used and other force is anticipated. Although it did not specify dates, the United States asserted that Libya planned terrorist attacks in the future, and it claimed to know the identity of particular US installations that were to be targeted.

Refutation: The US attack could not be justified on any grounds.

Nonetheless, pre-emptive self-defence is not a thriving doctrine of international jurisprudence. Indeed, Henkin (1998) has argued that a right of pre-emptive self-defence did not exist when he propounded:

“Nothing in drafting of UN Charter suggests that the framers of the Charter intended something broader than the language implied. It is precisely in the age of the major deterrent that nations should not be encouraged to strike first under pretext of prevention or pre-emption” (p. 897).

Art 51 of the UN Charter permits member states to defend their sovereignty and to exercise the inherent right of self-defence if an armed attack occurs. However, Iraq did not and has not attacked the US. In fact, there is no credible evidence that Iraq has any connections with Al-Qaeda terrorists or has possession of weapons of mass destruction (New Straits Times, March 28, 2003). Since weapons of mass destruction have not been found, the Bush’s argument that it was urgent to attack quickly to protect the US has been found to be fallacious. It now appears to the world that US attacked Iraq to gain control of Iraq’s oil.

While U.S. military planners may have made a strategic miscalculation by underestimating the will of Iraqis to resist their war of liberation and to wage a protracted guerrilla-style war, Washington’s political leaders may also have underestimated the amount of militant opposition the war has ignited throughout the Muslim world.

Apparently, Egypt’s President, Hosny Mubarak (2003) warned that if the war in Iraq drags on, it will fuel Islamic militancy worldwide and if there is one Osama bin Laden now, there will be 100 Osama bin Ladens in the future.

To make matter worse, the protests from Rabat in Morocco to Peshawar in Pakistan and the streets of Jakarta in Indonesia have rattled the Islamic world as most of its 1.3 billion Muslims reject US and British claims that they have invaded Iraq to liberate the Iraqi people (National Post Canada April 3, 2003).

Evidently, there appears to be no justification in the view that humanitarian intervention with support of Iraqi people was established in customary international law because there was no widespread and consistent State practice in support of it. Even if it was so, it could not survive Article 2 (4) of the UN Charter where all members shall refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any State (Murphy, 2002).

Ostensibly, the terrorists’ network of Al-Qaeda did not have sufficient nexus with Iraq nor the alleged harboring of al-Qaeda activists by the Iraq qualified the brutal attack on Iraq. Even if it was true, a failure to extradite a suspect does not render a State responsible for the acts of such an individual. In fact, it was not clear that capturing Al-Qaeda operatives in Iraq would protect the United States, given that Al-Qaeda apparently recruited primarily outside Iraq and maintained groups of operatives in other countries.

Islamic Perspective: Islam is against terrorism.

The name “Islam” comes from the Arabic word “salama that means peace. Thus, Islam is a religion based on achieving peace through total submission to Allah (Iman) and to moulding human lives according to the guidance of Allah bestowed through the Qur’an and Sunnah (Qur’an, al-Hijr: 1-3; an-Nahl: 90).

Islam does not subscribe to violence and terrorism, and in fact, prohibits them. Adherents of Islam who have adopted the path of terrorism in the name of jihad are in fact on the wrong path. Jihad is not a holy war and should not be considered a synonym of “crusade”. It means striving or struggling in the way of God. As such, Muslims have been ordained to defend Islam only when the community of faith is under attack.

Therefore, Islam is a religion of peace and tolerance that summons individuals to compassion and justice. It prohibits extremism, the use of force and oppressive acts that are not in conformity with the Islamic teachings. Surah al-Maidah: 32 states that a person who kills even a single person, unless it is in retaliation for someone else, commits a crime as if he had murdered all mankind on earth. Thus, the illegal use of force by the US is prohibited in the eyes of Islamic teachings. Surah Yunus: 25 says that God calls to the Abode of Peace and He guides whom He wills to a straight path.

Pragmatically, if we continue to penalize the community, as America is doing by retaliating against every act of terrorists, the sense of hatred and revenge will escalate in the community to which the terrorists belong. For this reason, God in the Qur’an has prohibited penalizing the whole community indiscriminately for the wrong of some of its community members. The Qur’an admonishes those who oppress others and transgress the bounds of what are right and just (Harun Yahya, 2002).

Terrorism is undoubtedly an international phenomenon. It cannot be identified with any particular community, race or religion. Unfortunately, many people in the West unthinkingly and disparagingly have identified terrorism with Muslims and Islam.

This might create a Clash of Civilizations and might be counterproductive. This situation has to be defused. Islam, in its true sense, is a religion of peace, tolerance, and respect for human life. When it is properly understood, and its true percepts are followed, it offers a path to enlightenment, harmony, a stable and responsible government, progress and prosperity.

Conclusion: The role of the United Nations and the international community.

While this conclusion may, to some, seem harsh against the United States, the countervailing considerations must be taken into account. Self-defence is a doctrine which, while critical to the international legal order, holds the potential to undermine the prohibition on the use of armed force between States. Unless self-defence is kept within appropriate bounds, the prohibition against use of force will become meaningless. What Henkin (1987) wrote remains the case today that:

“It is not in the interest of the United States to re-construe the law of the Charter so as to dilute and confuse its normative prohibitions. In our decentralized international political system with primitive institutions and underdeveloped law enforcement machinery, it is important that Charter norms—which go to the heart of international order and implicate war and peace in the nuclear age—be clear, sharp, and comprehensive; as independent as possible of judgments of degree and of issues of fact; as invulnerable as can be to self-serving interpretations and to temptations to conceal, distort, or mischaracterize events. Extending the meaning of ‘armed attack’ and of ‘self-defense,’ multiplying exceptions to the prohibition on the use of force and the occasions that would permit military intervention, would undermine the law of the Charter and the international order established in the wake of world war (p.69).

Essentially, measures for preventive military action should be put to the UN Security Council which can authorize such action if it chooses to. In order to give meaning to the law in question, the UN must not sweep the wrongful acts of the aggressors under the carpet but instead make a thorough investigation and bring the culprits to justice for otherwise it would serve a bad precedent for the future international conflicts. Similarly, UN must not act like a tiger without its teeth. If the war is prolonged, it could unite a wide variety of militant Muslim groups, including Osama bin Laden’s terrorist network, al-Qaeda, rallying them to a single cause: To stop what they see as U.S. aggression in a Muslim nation. The former US ambassador to Iraq, Zalmay Khalilzad (2007) explains that UN needs to intervene in Iraq as the UN possesses certain comparative advantages for undertaking complex internal and regional mediation efforts despite helping internationalize the effort to stabilize the country. Having said that, the inner constraints of Article 51 of UN Charter have not served as barriers to the US from an illegal invocation of that provision.

In terms of whether international law is still valid in governing the use of force and self-defence, it is clear that there is disagreement about the precise interpretation of both Article 2 (4) and Article 51. Franck (1970) and Martyn (2002) have further argued that international law on this matter is too ill defined and that there is a need for the International Law Commission to codify exactly what are the principles applying to self-defence and use of force given the changed realities of the post war quarter century with the threat of ‘terrorism’. By the same token, the US has no right to invade another state because of speculative concerns about that State’s possible future actions. The current international order does not support a special status for the US a singular right to exempt itself from the law. To maintain a legal order that restrains other States and to uphold the Rule of Law, the US should continue its conservative commitment to limits on the unilateral use of force, and reject a reckless doctrine of pre-emptive self-defense.

In short, the US attack cannot be justified in international law as it was not authorized by the UN Security Council and the international community as a whole. The US attack on Iraq was a fundamental breach of international law that would seriously threaten the integrity of the international legal order that has been in place since the end of the Second World War.

© Copyright reserved by Ng Boon Siong. This article was published in the IIUM Student Yearly Law Journal 2008.

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