Settling the Score with Saddam: Resolution 1441 and Parallel Justifications for the Use of Force against Iraq
McLain, Patrick, Duke Journal of Comparative & International Law
I. INTRODUCTION: HOW DO U.S. JUSTIFICATIONS FOR THE USE OF FORCE AGAINST IRAQ RELATE TO INTERNATIONAL LAW?
We have a vision of a new partnership of nations that transcends the Cold War. A partnership based on consultation, cooperation, and collective action, especially through international and regional organizations. A partnership united by principle and the rule of law.... A partnership whose goals are to increase democracy, increase prosperity, increase the peace, and reduce arms. (1)
Former President George H.W. Bush made this statement to the United Nations General Assembly as United States and coalition forces were gathering to push Saddam Hussein's Iraqi army out of Kuwait. Bush criticized Iraq's invasion of Kuwait as a clear violation of international law that required a response from the international community. (2) Over a decade after Desert Storm and in the aftermath of the terrorist attacks of September 11, 2001, a newly assertive United States has placed considerable strain on the existing international legal rules governing the use of force by resolving publicly to end the threat posed by Saddam Hussein's Iraqi regime and to do so unilaterally if necessary. (3) The United States has advanced a range of debatable legal justifications for military action against Iraq while, after much internal debate, it simultaneously engaged the United Nations Security Council. (4) The resulting Security Council measure, Resolution 1441, stops short of explicitly authorizing force, yet the United States maintained that such explicit authorization was unnecessary. (5) This latest confrontation between the United States and Iraq illustrates the great challenge faced by the international legal regime for the use of force. This regime faces the daunting task of providing effective restraints on the use of force for an international security environment in which a lone superpower perceives serious, undeterrable threats from terrorists and aggressive states wielding weapons of mass destruction (WMD). Despite this challenge, the continued relevance of international institutions and legal norms is illustrated by the U.S. decision to modify its approach to Iraq and work in conjunction with the Security Council despite the opposition of powerful figures in the Bush administration. (6)
This paper examines the validity of U.S. justifications for a large-scale use of force against Iraq in light of relevant international law. The United States is a founding member of the United Nations Charter. (7) The UN Charter proscribes the use of force except in cases of Security Council authorization or self-defense. (8) Both exceptions will be discussed along with other, less traditional theories as possible justifications for U.S. military action.
This paper concludes that the justifications for unilateral U.S. action are inconsistent with existing international law. That inconsistency is significant for two reasons. First, it means that largely baseless theories for unilateral force helped to influence the behavior of the Security Council. Second, the United States has maintained these theories even after the passage of Resolution 1441, sustaining their potential to change the laws governing the use of force. U.S. attempts to fashion new rules in response to a changing international security environment, while understandable, have not yielded a preferable alternative to the current legal regime governing the use of force. The U.S. arguments are unattractive because they are not characterized by any coherent limiting principle to protect the general prohibition on the use of force. There is, however, the possibility that no better alternative approach exists to alleviate the strain between international law and the altered imperatives of self-preservation.
Despite its recourse to the Security Council, the United States still claims it already has enough authority to unilaterally enforce existing Council resolutions and also a parallel right to act preemptively in self-defense. …