In the preparations leading up to the invasion of Iraq a significant number of legal concerns posed serious challenges to bringing humanitarian relief to the peoples of that region. Not only did three massive powers of the UN Security Council, France, Russia and China all hold firm in their opposition to military action, the UK also advanced opposing views. Major arguments centered around UN Security Council Resolution 1441, involving the threat of weapons of mass destruction, and the application of Article 51 of the UN Charter [1]. The crux of the dispute concerned whether the security concerns of the United States outweighed Article 2 of the Charter [2]. That debate failed to take into consideration a wide array of other factors that mitigated the reasons for invasion. Notwithstanding the strict interpretation of international law, the air of danger to the nation at the time and known humanitarian violations in Iraq, on a grand scale, elevated the considerations to perilous heights.
Some legal scholars have contended that Security Council Resolution 1441 tarnished the integrity of the organization. Historical consideration should also take into account that the Security Council repeatedly declined to issue an explicit authorization to invade Iraq while at the same time refusing to decide whether UN articles had been violated. The Security Council refused to agree to the invasion in small part due to worry about future matters and the wisdom of action rather than the actual basis for it. The refusal focused more largely on whether the United States could meet the burden of proof.
Michael Reisman argued that overthrow in Iraq would give the people the ability to choose their own destiny. Oscar Schachter taught law at Columbia University for more than 28 years and worked diligently on legal issues involving the United Nations. He countered Reisman that it would set a precedent to destabilize countries unpopular with their own people. Arguments that conditions in the case of events in Iraq negated Article 2 have since been thoroughly debunked.
Two of the primary supporters of intrusive action in Iraq, Lee Feinstein and Anne Marie Slaughter, believed our country had a duty to act preemptively against a nation already in the official channels of the UN Security Council. They hoped Iraq would allow the United States wider leeway in controlling nations deemed pesky. The unspoken narrative nodded at winning a lost battle of the past, oil profits, the defense industry and a stepping stone to a United States empire. Human rights violations surely existed, but, by the authors' own admission, much of the worst of it had taken place during the 1980's. The premise that supporters of military force felt threatened by the nation simply does not hold water.
Iraq had refused to allow weapons inspectors until 1999, following bombardment during Operation Desert Fox. By December, 2002, their obligations to provide full disclosure of weapons in the nation fell short by the UN's estimation. Hans Blix, UN chief inspector for chemical and biological weapons, balked at supporting action against Iraq and favored giving Hussein's regime more time. Few people in favor of action suspected the government of that nation might simply be telling the truth.
Proponents of unilateral use of force were frustrated by the Security Council's slow pace in taking action. They raised the issue of Iraq exporting weapons of mass destruction to nations like Iran and North Korea, and pointed to the impossibility of sending weapons inspectors into Iraq en masse. Slaughter and Feinstein did qualify their arguments for military action, that is to say, they wrote and spoke of keeping military action minimal. Their idea that minimal military action could cow a nation thought to be keeping weapons of mass destruction can only be described as deceptive.
Eventually the United States disregarded the UN Security Council's official authority as the agency in charge of authorizing force as a collective measure. Our invasion of Iraq went against the UN Charter and bypassed legal channels. There were reasons for the action beyond the WMD's that in ways justified the course. Strictly speaking, however, the United States had set off down a cumbersome path. Public and scholarly opinion reviled the decision after the reality of war set in. [From Iraq and the "Fog of Law" by James F. Murphy. The next part will look at legal issues during the occupation.]
1. UN Charter, Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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-defense 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.
2. 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.
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