The Legacy of the Iraq War: Impact on International Law

Proceedings of the Annual Meeting-American Society of International Law, Annual 2008 | Go to article overview

The Legacy of the Iraq War: Impact on International Law


This panel was convened at 9:00 a.m., Friday, April 11, by its moderator, Sean Murphy of George Washington University Law School, who introduced the panelists: Sandra Hodgkinson of the U.S. Department of Defense; James Ross of Human Rights Watch; Nicholas Rostow of the State University of New York; and Susan Breau of the University of Surrey. *

INTRODUCTORY REMARKS BY SEAN MURPHY ([dagger])

On March 19, 2003, U.S. B-1 bombers attacked the Dora Farms complex in Baghdad in an effort to kill Saddam Hussein. At the same time, dozens of cruise missiles struck Saddam's presidential command complex. Such shock and awe tactics were accompanied by a full-scale invasion of Iraq by U.S. and other military forces. By April 9, 2003, U.S. Marines had entered Baghdad and famously toppled the statue of Saddam in Firdos Square.

Today, almost five years later, what can be said about the legacy of the intervention in Iraq? Some positive results can be identified. Saddam's government, a despotic regime that perpetrated horrific human rights abuses, has been swept away. Saddam has been captured, tried and executed. In 2005, a new Iraqi government, predicated on a coalition of Shi'a, Sunni and Kurdish leaders, was established through democratic elections. Questions about the presence of weapons of mass destruction in Iraq have been resolved--they do not exist and did not at the time of the invasion.

At the same time, the intervention has been, and continues to be, controversial. Some 160,000 U.S. forces are deployed to Iraq, causing tremendous strains on U.S. military capabilities as well as strains upon the wellbeing of U.S. soldiers and their families. Yesterday, President Bush stated that an indefinite suspension of troop withdrawals was now in place. As of then, 4,030 members of the U.S. military had been killed in Iraq and many thousands more have been wounded. Other allied countries have suffered losses as well. Tens of thousands of Iraqis have been killed, with approximately another million living as refugees. The economic cost to the United States is in the neighborhood of $650 billion, with projections rising to $2 trillion, if the U.S. commitment in Iraq continues for another five years. Continuing violence among Iraqi factions and against U.S. forces has raised serious doubts about when, and if, an enduring reconciliation among Iraqis is possible.

The policies surrounding the intervention in Iraq have been controversial, but so have the legal issues. It is the legal issues that this panel will seek to address. Those issues are wide-ranging, and given the time we have, much will be unsaid. But let me at least suggest some of the most significant legal issues. The United States invaded Iraq in 2003 without clear authorization from the UN Security Council. In hindsight, should we take solace that the United States felt compelled to justify its actions largely based on prior Security Council resolutions, or should we view this incident as another example of the UN Charter being dead? In other words, should we celebrate the resiliency of the UN collective security mechanism in weathering this storm, or did the first Gulf War essentially launch a new world order that shipwrecked upon the shoals of the second Gulf War?

Does the intervention in Iraq provide confirmation that the doctrine of humanitarian intervention or the doctrine of preemptive self-defense is alive and well or confirmation that identifying new exceptions to Article 2(4) of the charter is a dangerous invitation to pernicious acts of coercion? In the aftermath of the invasion, was the Security Council's willingness to recognize the U.S./U.K. occupation as an ex post facto reality a legal acceptance of the invasion, or are such UN actions simply a demonstration of practical politics? Was the August 19, 2003 bombing of the UN headquarters in Baghdad, which killed UN Envoy Sergio Vieira de Mello, a setback for UN peacekeeping and peace-building? …

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