A Legal Appraisal of Military Action in Iraq
Terry, James P., Naval War College Review
The determination by the George W. Bush administration to enter Iraq and remove the regime of Saddam Hussein from power in early 2003 followed twelve years of Iraqi violations of United Nations security Council resolutions. Prior to the decision by the United States and its coalition partners to intervene in Iraq with military force, Saddam Hussein had done everything possible to avoid complying with the will of the international community. Of the twenty-six demands made by the security Council since 1990, Iraq had complied with only three. Equally significant, the regime's repression of the Iraqi people continued.
The 2 October 2002 joint resolution of Congress authorizing the use of all means, including force, to bring Iraq into compliance was merely one of a series of actions by Congress to address Baghdad's noncompliance with its international obligations.1 In 1998, for example, Congress passed a similar resolution declaring that Iraq's continuing weapons of mass destruction programs threatened vital U.S. interests as well as international peace and security; declaring Iraq to be "in material breach of its international obligations"; and urging President Clinton "to take all appropriate action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with its international obligations."2
These congressional and UN Security Council resolutions were not the only outcries for change. In the Iraq Liberation Act, passed in 1998, lawmakers expressed the sense of Congress that it should be the policy of the United States to support efforts to remove the Iraqi regime from power and to promote the emergence of a democratic government to replace that regime.3 The reasons for this strong congressional reaction to the Hussein regime rested not solely on Iraqi defiance of United Nations resolutions but also on Saddam Hussein's repression of the Iraqi people, his support for international terrorism, and his refusal to account for Gulf War prisoners or to return stolen property to Kuwait following the 1990-91 conflict, as well as the Baathist regime's efforts to circumvent economic sanctions.
FRAMEWORK AND CONTEXT
This article examines these Iraqi violations in the context of contemporary international law standards justifying intervention. More significantly, it examines the right of states to enforce mandates issued by the security Council and to redress violations of its edicts when the Council, as a body, refuses to do so. This is precisely what occurred when the Baathist regime refused to comply fully with the requirements of UN security Council Resolution 1441. Finally, the article examines the independent authority available to states, such as the right to intervene to address a threat to international peace and security under Article 51 of the Charter and to invoke the doctrine of humanitarian intervention, when the security Council cannot or will not act although its edicts have been clearly violated.
The intervention by the United States and its coalition partners in Iraq in March 2003 must be viewed as a significant historical precedent in the relationship of a major power to the security Council. Previously, in 1998 in Kosovo, the United States and a coalition largely made up of NATO partners had intervened to rescue and protect the threatened Albanian population from Serb aggression without specific security Council approval. While the military action in Kosovo could arguably be justified as a humanitarian intervention, the coalition entry into Iraq in 2003 was justified on the basis of repeated violations of UN security Council resolutions under Chapter VII (authorizing all necessary means) and of the threat to international peace and security in the region and the world community posed by the Saddam Hussein regime as a result thereof. As President Bush stated to the UN General Assembly on 12 September 2002:
Twelve years ago, Iraq invaded Kuwait without provocation. …