The legality of theIraq War is a contested topic that spans both domestic and international law. Political leaders in the US and the UK who supported theinvasion of Iraq have claimed that the war was legal.[1] However, many legal experts and other world leaders have argued that the war lacked justification and violated theUnited Nations charter.
In the UK,John Chilcot, chairman of theIraq Inquiry, concluded that the process of identifying the legal basis for the invasion of Iraq was unsatisfactory and that the actions of the US and the UK undermined the authority of the United Nations.John Prescott, Deputy Prime Minister toTony Blair, has also argued that the invasion of Iraq lacked legality.[2] In a 2005 paper, Kramer and Michalowski argued that the war "violated the UN Charter andinternational humanitarian law".[3]
Russian PresidentVladimir Putin stated that the war was unjustified.[4] In a televised conference before a meeting with the US envoy to Iraq, Putin said that, "The use of force abroad, according to existing international laws, can only be sanctioned by the United Nations. This is the international law. Everything that is done without the UN Security Council's sanction cannot be recognized as fair or justified."[5][4][6]
US and UK officials have argued that the invasion was already authorized under existingUN Security Council resolutions regarding the1991 Gulf War, the subsequentceasefire (660,678), and later inspections of Iraqi weapons programs (1441).[7]
Critics of the invasion have challenged these assertions. They argued that an additional Security Council resolution, which the US and UK failed to obtain, would have been necessary to specifically authorize the invasion.[8][9][10] In September 2004, then-United Nations Secretary-GeneralKofi Annan stated, "I have indicated that it is not in accordance with the UN charter. From our point of view and the UN Charter point of view, it [the war] was illegal."[8][11]
The UN Security Council, as outlined in Article 39 of the UN Charter, has the ability to rule on the legality of the war. It has yet not been asked to do so by any UN member nation. Given that the United States and the United Kingdom haveveto power in the Security Council, action by the Security Council is highly improbable even if the issue were to be raised. Despite this, theUN General Assembly (UNGA) may ask theInternational Court of Justice (ICJ)—"the principal judicial organ of the United Nations" (Article 92)—to give either an 'advisory opinion' or 'judgement' on the legality of the war.
A dispute exists over thelegitimacy of the 2003 invasion of Iraq. The debate centers around the question whether the invasion was an unprovoked assault on an independent country that may have breachedinternational law, or if the United Nations Security Council authorized the invasion (whether the conditions set in place after theGulf War allowed the resumption if Iraq did not uphold to theSecurity Council resolutions).[12] Those arguing for its legitimacy often point toCongressional Joint Resolution 114 andUN Security Council resolutions, such asResolution 1441 andResolution 678.[13][14] Those arguing against its legitimacy also cite some of the same sources, stating they do not actually permit war but instead lay out conditions that must be met before war can be declared. Furthermore, the Security Council may only authorise the use of force against an "aggressor"[15] in the interests of preserving peace, whereas the 2003 invasion of Iraq was not provoked by any aggressive military action.
There are ongoing debates regarding whether the invasion was launched with the explicit authorization of theUnited Nations Security Council. The Government of the United States asserts that the invasion was explicitly authorized bySecurity Council Resolution 678 and thus complies with international law.[16] The Security Council Resolution 678 authorizes UN Member States to "use all necessary means to uphold and implementResolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area",[17] however there exist different interpretations of its meaning. The only legal jurisdiction to find "aggression" or to find the invasion illegal rests with the Security Council underUnited Nations Charter Articles 39–42. The Security Council met in 2003 for two days, reviewed the legal claims involved, and elected to be "seized of the matter".[18][19] The Security Council has not reviewed these issues since 2003. The public debate, however, continues. FormerUN Secretary GeneralKofi Annan expressed his opinion that the invasion of Iraq was "not in conformity with the UN charter [...] from the charter point of view, [the invasion] was illegal".[20]
While in power, Saddam Hussein invaded Iran in 1980 and began theIran–Iraq War, which lasted until 1988.[21] Iraq's invasion wasbacked by the United States who funneled over $5 billion to support Saddam's party and sold Iraq hundreds of millions of dollars' worth of military equipment. During the war, Hussein used chemical weapons on at least 10 occasions, including attacks against civilians.[22] In 1990, Iraq invaded Kuwait and began thePersian Gulf War. After theceasefire agreement was signed between Saddam and the UN in 1991, which suspended the hostilities of the Gulf War, Iraq repeatedly violated 16 differentUNSC resolutions from 1990 to 2002.[23] TheIraq Survey Group interviewed regime officials who stated Hussein kept weapon scientists employed and planned to revive Iraq's WMD program after the inspections were lifted, including nuclear weapons.[24] UnderUN Resolution 1441, he was given a "final opportunity" to comply, and he again violated the resolution by submitting a false report toUNMOVIC inspectors and continually preventing them from inspecting Iraq's WMD sites.[25][26]
During the Gulf War, Iraq took foreign civilians hostage on an unprecedented scale.[27] Hussein attempted to use terrorism against the United States during the Gulf War and against former PresidentGeorge H.W. Bush in Kuwait in 1993 for leading the Gulf War against him.[28] He had a long history of supporting fighters in Palestine by giving money to families of suicide bombers[29] and gave refuge to other fighting groups against neighboring states in the region.[30]
In 2000, two human rights groups,International Federation of Human Rights Leagues and the Coalition for Justice in Iraq, released a joint report documenting the indoctrination of children into a fighting force. These children as young as five were recruited into theAshbal Saddam or Saddam's Cubs. The children would be separated from their parents and undergo military training. Parents objecting to this recruitment would be executed and children jailed if they failed to comply. These jails were later noted byScott Ritter in an interview withTime magazine.[31]
Vice President Cheney stated in 2006 that the U.S. would still have invaded Iraq even if intelligence had shown that there were no weapons of mass destruction. He said Hussein was still dangerous because of his history of using WMD, and taking him out of power "was the right thing to do".[32]
According toDonald Rumsfeld, Saddam Hussein was giving $25,000 to the families of suicide bombers who were aggressive toward Israel.[33]
In the past,Iraq had been supplied with chemical weapons and the technology to develop them by Germany, France, United States and the United Kingdom.[34] Saddam used these weapons against Iranian forces in the Iran–Iraq War, and against Kurdish civilians in the Iraqi town ofHalabja. In 1990 during theGulf War Saddam had the opportunity to use these weapons, but chose not to. One of the noted reasons is the Iraqi forces' lack of up to date equipment to protect themselves from the effects, as well as the speed with which the US forces traversed the open desert.[35] From 1991 to 1998UNSCOM inspected Iraq and worked to locate and destroy WMD stockpiles. The team was replaced in 1999 with the United Nations Monitoring Verification and Inspection Commission,UNMOVIC.
In 2002,Scott Ritter, a formerUNSCOM weapons inspector, heavily criticized the Bush administration and the news media for relying on the testimony of alleged Iraqi nuclear scientist and defectorKhidir Hamza as a rationale for invading Iraq.
We seized the entire records of the Iraqi Nuclear program, especially the administrative records. We got a name of everybody, where they worked, what they did, and the top of the list, Saddam's "Bombmaker" [Which was the title of Hamza's book, and earned the nickname afterwards] was a man named Jafar Dhia Jafar, not Khidir Hamza, and if you go down the list of the senior administrative personnel you will not find Hamza's name in there. In fact, we didn't find his name at all, because in 1990 he didn't work for the Iraqi Nuclear Program. He had no knowledge of it because he worked as a kickback specialist forHussein Kamel in the Presidential Palace.
He goes into northern Iraq and meets up withAhmad Chalabi. He walks in and says, "I'm Saddam's 'Bombmaker'." So they call the CIA and they say, "we know who you are, you're not Saddam's 'Bombmaker', go sell your story to someone else." And he was released, he was rejected by all intelligence services at the time, he's a fraud.
And here we are, someone who theCIA knows is a fraud, the US Government knows is a fraud, is allowed to sit in front of theUnited States Senate Committee on Foreign Relations and give testimony as an expert witness. I got a problem with that, I got a problem with the American media, and I've told them over and over and over again that this man is a documentable fraud, a fake, and yet they allow him to go onCNN,MSNBC,CNBC, and testify as if he actually knows what he is talking about.[36]
No militarily significant WMDs have been found in Iraq since the invasion, although several degraded chemical munitions dating to before 1991 have been. On 21 June 2006, a report was released through theUnited States Senate Select Committee on Intelligence, stating that since 2003, approximately 500 degraded chemical munitions have been discovered dating from before 1991 in Iraq, and "likely more will be recovered".[37] The weapons are filled "most likely" with Sarin and Mustard Gas.[38] However, theU.S. Department of Defense states that these weapons were not in usable condition, and that "these are not the WMDs this country and the rest of the world believed Iraq had, and not the WMDs for which this country went to war".[37]
In January 2006,The New York Times reported that, "A high-level intelligence assessment by the Bush administration concluded in early 2002 that the sale of uranium from Niger to Iraq was 'unlikely'."[39] The Iraqi government denied the existence of any such facilities or capabilities and called the reports lies and fabrications, which was backed by the post-war prima facie case that no WMDs were evident or found.
Former CIA officials have stated that the White House knew before the invasion that Iraq had no weapons of mass destruction, but had decided to attack Iraq and continue to use the WMD story as a false pretext for launching the war.[40] The leakedDowning Street Memo, an internal summary of a meeting between British defense and intelligence officials, states that Bush administration had decided to attack Iraq and to "fix intelligence" to support the WMD pretext to justify it. A transcript of a secret conversation between President Bush and PM Blair leaked by a government whistleblower reveals that the US and UK were prepared to invade Iraq even if no WMD were found.[41] British officials in the memo also discuss a proposal by President Bush to provoke Iraq, including using fake UN planes, to manufacture a pretext for the invasion he had already decided on.[41]
In 2004 theButler Commission Report concluded that, "on the basis of the intelligence assessments at the time", statements by the British Government "on Iraqi attempts to buy uranium from Africa" were "well-founded". Opponents however consider the Butler Review awhitewash which lacked cross-party support (the panel was appointed by, and reported directly to, the Prime Minister).[42]
TheIraq Intelligence Commission rejected claims that the Bush administration attempted to influence the intelligence community's pre-war assessments of Iraq's weapons programs, but it did not investigate whether the administration misled the public about the intelligence.[43]
The Commission found no evidence of political pressure to influence the Intelligence Community's pre-war assessments of Iraq's weapons programs. As we discuss in detail in the body of our report, analysts universally asserted that in no instance did political pressure cause them to skew or alter any of their analytical judgments.[44]
Paul R. Pillar, a 28-year veteran of theCIA, wrote inForeign Affairs that the method of investigation used by [these] panels—essentially, asking analysts whether their arms had been twisted—would have caught only the crudest attempts at politicization:
The actual politicization of intelligence occurs subtly and can take many forms. … Well before March 2003, intelligence analysts and their managers knew that the United States was heading for war with Iraq. It was clear that the Bush administration would frown on or ignore analysis that called into question a decision to go to war and welcome analysis that supported such a decision. Intelligence analysts … felt a strong wind consistently blowing in one direction.[45]
Pillar holds that intelligence was "misused to justify decisions already made".[46]
Regimedocuments captured inside Iraq by coalition forces are reported to reveal Saddam's frustration with weapon inspections. Meeting transcripts record him saying to senior aides: "We don't have anything hidden!" He questions whether inspectors would "roam Iraq for 50 years". "When is this going to end?", he remarks. He tells his deputies in another: "Don't think for a minute that we still have WMD. We have nothing."[47]
Former General Georges Sada maintains the Iraqi leadership ordered the removal of WMD from Iraq to Syria before the 2003 invasion, in spite of the findings by theIraq Survey Group, citing an unnamed Iraqi airline captain said to be involved with the operations.[48] On an episode ofThe Daily Show, Sada reiterated these claims.[49] The final report on Iraqi weapons of mass destruction, issued by Charles Duelfer, concluded in April 2005 that the hunt for weapons of mass destruction had "gone as far as feasible" and found nothing. However, Duelfer reported though that the search for WMD material turned up nothing that his team was "unable to rule out unofficial movement of limited WMD-related materials".[50]
Support for the invasion andoccupation of Iraq included 49 nations, a group that was frequently referred to as the "coalition of the willing". These nations provided combat troops, support troops, and logistical support for the invasion. The nations contributing combat forces during the initial invasion were, roughly:
Total 297,384 – 99% US & UK
TheUnited States contributed 250,000 forces (84%), theUnited Kingdom 45,000 (15%),Australia 2,000 (0.6%),Denmark 200 (0.06%), andPoland 184 (0.06%); these totals do not include the 50,000+ IraqiKurdish soldiers that assisted the coalition. Ten other countries offered small numbers of non-combat forces, mostly either medical teams and specialists in decontamination. In several of these countries a majority of the public was opposed to the war. For example, inSpain polls reported at one time a 90% opposition to the war. In most other countries less than 10% of the populace supported an invasion of Iraq without a specific go-ahead from the UN.[51] According to a mid-January 2003 telephone poll, approximately one-third of the U.S. population supported a unilateral invasion by the US and its allies, while two-thirds supported war if directly authorized by the U.N.[52][53]
Global protests expressedopposition to the invasion. In many Middle Eastern and Islamic countries there were mass protests, as well as in Europe. On the government level, the war was criticized byCanada,Belgium,Chile,Russia,France, thePeople's Republic of China,Germany,Switzerland, theVatican,India,Iraq,Indonesia,Malaysia,New Zealand,Brazil,Mexico, theArab League, theAfrican Union and many others. Although many nations opposed the war, no foreign government openly supported Saddam Hussein, and none volunteered any assistance to the Iraqi side. Leading traditional allies of the U.S. who had supported Security CouncilResolution 1441,France,Germany andRussia, emerged as a united front opposed to the U.S.-led invasion, urging that the UN weapons inspectors be given time to complete their work.
Saudi Foreign MinisterPrince Saud said the U.S. military could not use Saudi Arabia's soil in any way to attack Iraq.[54] After ten years of U.S. presence in Saudi Arabia, cited among reasons by Saudi-bornOsama bin Laden for hisal-Qaeda attacks on America on 11 September 2001, most of U.S. forces were withdrawn in 2003.[55]
Those who opposed the war in Iraq did not regard Iraq's violation of UN resolutions to be a valid case for the war, since no single nation has the authority, under theUN Charter, to judge Iraq's compliance to UN resolutions and to enforce them. Furthermore, critics argued that the US was applying double standards of justice, noting that other nations such asIsrael are also in breach of UN resolutions and have nuclear weapons.[56]
Giorgio Agamben, the Italian philosopher, has offered a critique of the logic ofpreemptive war.
Although Iraq was known to have pursued an active nuclear weapons development program previously, as well as to have tried to procure materials and equipment for their manufacture, these weapons and material have yet to be discovered. President Bush's reference to Iraqi attempts to purchaseuranium in Africa in his 2003State of the Union address are by now commonly considered as having been based on forged documents (seeYellowcake forgery).
Robert Fisk, Middle East correspondent forThe Independent, comments in his bookThe Great War for Civilisation that history is repeating itself. Fisk, in the Dutch TV news programNova: "It is not just similar, it is 'fingerprint' the same." In 1917, theUK invaded Iraq, claiming to come "not as conquerors but as liberators". After an insurrection in 1920, "the first town that was bombed wasFallujah and the next town that was laid siege to wasNajaf". Then, the British army intelligence services claimed that terrorists were crossing the border fromSyria. Prime ministerLloyd George stood up in the house of commons and declared that "if British troops leave Iraq there will be civil war". The British were going to set up ademocracy in Iraq. In a referendum, however, a king was 'elected'. "They decided they would no longer use troops on the ground, it was too dangerous, they would use the Royal Air force to bomb villages from the air. And eventually, [...] we left and our leaders were overthrown and theBa'ath party, which was a revolutionary socialist party at the time—Saddam Hussein—took over. And I'm afraid that the Iraq we are creating now is an Iraq of anarchy and chaos. And as long as we stay there, the chaos will get worse."
PopeJohn Paul II spoke out against the war several times, and said that a war with Iraq would be a "disaster" and a "crime against peace". During the build-up to the war, a hundred Christian scholars of ethical theory issued a statement condemning the war as morally unjustifiable. Their brief statement, which was published in the 23 September edition of the [Chronicle of Higher Education], read as follows: "As Christian Ethicists, we share a common moral presumption against a preemptive war on Iraq by the United States." The group included scholars from a wide array of universities, including traditionally left-leaning Ivy League schools as well as more conservative institutions such as Lipscomb University, in Nashville, Lubbock Christian University, in Lubbock, Texas (both affiliated with the Churches of Christ), and the Baptist Theological Seminary at Richmond.[57] Other scholars of thejust war theory asserted that war with Iraq could be justified on the grounds of defense of a "helpless other". This position is based on the position that war could be justified on the grounds of liberating a helpless people being victimized by a tyrannical ruler.[58]
TheInternational Court of Justice is the principal judicial organ of theUnited Nations.[59] TheGeneral Assembly or theSecurity Council may request that the International Court of Justice provide an advisory opinion on any legal question. Any organ or agency of the UN so authorized by the General Assembly may also request the ICJ for an advisory opinion.[60]
TheUnited Nations Charter is the foundation of modern international law.[61] The US and its principal coalition allies in the 2003 invasion of Iraq have all ratified the charter and are thus legally bound by its terms. Article 2(4) of the UN Charter generally bans theuse of force by states except when carefully circumscribed conditions are met, stating:
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.[62]
According toLouise Doswald-Beck,Secretary-GeneralInternational Commission of Jurists, this rule was "enshrined in the United Nations Charter in 1945 for a good reason: to prevent states from using force as they felt so inclined".[63] Therefore, in the absence of an armed attack against the US or the coalition members, any legal use or threat of force against Iraq had to be supported by a UN Security Council resolution.[61]
However, underArticle 51 of the UN Charter, the US and its coalition allies reserved the right toself-defense even without a UN mandate. The US cited the 1993assassination attempt on former US PresidentGeorge H. W. Bush and the firing on coalition aircraft enforcing the 1991 Gulf War ceasefireno-fly zones over Northern and Southern Iraq. The US also cited Iraq's major offensive against the city ofIrbil inIraqi Kurdistan in violation ofUNSC Resolution 688, prohibiting repression of Iraq's ethnic minorities. In retaliation, the US conducted thebombing of Iraq in June 1993 andagain in 1996.
The US and UK governments, along with others, also stated that the invasion was entirely legal because it was already authorized by existingUnited Nations Security Council resolutions. They characterized the invasion as a resumption of previously temporarily suspended hostilities rather than awar of aggression, as the US and UK were acting as agents for Kuwait's defense in response to Iraq's 1990 invasion.[64][65][66] Some international legal experts, including theInternational Commission of Jurists, the U.S.-basedNational Lawyers' Guild,[67] a group of 31 Canadian law professors, and the U.S.-basedLawyers' Committee on Nuclear Policy, have found this legal rationale to be untenable and are of the view that the invasion was not supported by UN resolution and was therefore illegal.[68][69][70]
As part of the1991 Gulf Warceasefire agreement, the Iraqi government agreed toSecurity Council Resolution 687, which called for weapons inspectors to search locations in Iraq for chemical, biological and nuclear weapons, as well as weapons that exceed an effective distance of 150 kilometres.[71] After the passing of resolution 687, thirteen additional resolutions (699,707,715,949,1051,1060,1115,1134,1137,1154,1194,1205, 1284) were passed by the Security Council reaffirming the continuation of inspections, or citing Iraq's failure to comply fully with them.[72] On 9 September 1998, the Security Council passed resolution 1194 which unanimously condemns Iraq's suspension of cooperation with UNSCOM, one month later on 31 October Iraq officially declares it will cease all forms of interaction with UNSCOM.[73]
The period between 31 October 1998, and the initiation ofOperation Desert Fox (16 December 1998), contained talks by the Iraqi government with the United Nations Security Council. During these talks Iraq attempted to attach conditions to the work of UNSCOM and theInternational Atomic Energy Agency, which was against previous resolutions calling for unconditional access. The situation was defused after Iraq's Ambassador to the U.N.,Nizar Hamdoon, submitted a third letter stating the position of the Iraqi government on 31 October was "void".[74] After weapons inspections resumed, UNSCOM requested arms documents related to weapon usage and destruction during theIran–Iraq War. The Iraqi government rejected this request because it was handwritten and did not fall within the scope of the UN mandate. The UN inspectors insisted in order to know if Iraq destroyed all of its weapons, it had to know "the total holdings of Iraq's chemical weapons".[75] Further incidents erupted as Iraqi officials demanded "lists of things and materials" being searched for during surprise inspections.[76]
On 16 December 1998, U.S. PresidentBill Clinton initiatedOperation Desert Fox based on Iraq's failure to fully comply with the inspectors. Clinton noted the announcement made by the Iraqi government on 31 October, stating they would no longer cooperate withUNSCOM. Also noted was the numerous efforts to hinder UNSCOM officials, including prevention of photographing evidence and photocopying documents, as well as prevention of interviewing Iraqi personnel.[77][73]
Inspection teams were withdrawn before the Operation Desert Fox bombing campaign and did not return for four years. The United Nations no-fly zone enforced by the United States,United Kingdom andFrance—also legality disputed—became a location of constant exchange of fire since Iraqi Vice PresidentTaha Yassin Ramadan instructed Iraqi military to attack all planes in the no-fly zone.[79]
A memo written by US Secretary of Defense Rumsfeld dated 27 Nov 2001 considers a US invasion of Iraq. One section of the memo questions "How start?", listing multiple possible justifications for a US-Iraq War, one scenario being "Dispute over WMD inspections—Start thinking now about inspection demands".[78] In late 2002, after international pressure and more UN Resolutions, Iraq allowed inspection teams back into the country. In 2003,UNMOVIC was inspecting Iraq but were ordered out.[80][81] There is no credible evidence of WMD production (seeDuelfer Report) and no WMDs have been found to date after 1991 (see below andWMD in Iraq).George W. Bush has since admitted that "much of the intelligence turned out to be wrong".[82]
The United States offered intelligence from theCentral Intelligence Agency and BritishMI5 to theUnited Nations Security Council suggesting that Iraq possessedweapons of mass destruction. The U.S. claimed that justification rested upon Iraq's violation of several U.N. Resolutions, most recentlyUN Security Council Resolution 1441.[83] U.S. presidentGeorge W. Bush claimed Iraq's WMDs posed a significant threat to the United States and its allies.[84][85] An inspection teamUNMOVIC, before completing its UN-mandate or completing its report was ordered out by the UN because the US-led invasion appeared imminent.
The thenUnited NationsSecretary-GeneralKofi Annan said in September 2004 that, "From our point of view and theUN Charter point of view, it [the war] was illegal."[8][86]
The political leaders of the US and UK at the time argued that the war was legal, and that existingUN Security Council resolutions related to the firstPersian Gulf War and the subsequent ceasefire (660,678), and to later inspections of Iraqi weapons programs (1441), had already authorized the invasion.[87]Critics of the invasion have challenged both of these assertions, arguing that an additional Security Council resolution would have been necessary to specifically authorize the invasion.[88][89][90]
UNSC Resolution 1441 was passed unanimously on 8 November 2002, to give Iraq "a final opportunity to comply with itsdisarmament obligations" that had been set out in several previous resolutions (resolution 660,resolution 661,resolution 678,resolution 686,resolution 687,resolution 688,resolution 707,resolution 715,resolution 986, andresolution 1284). According to the US State Department, "The resolution strengthened the mandate of theUN Monitoring and Verification Commission (UNMOVIC) and theInternational Atomic Energy Agency (IAEA), giving them authority to go anywhere, at any time and talk to anyone in order to verify Iraq's disarmament."[91]
The most important text of Resolution 1441 was to require that Iraq "shall provide UNMOVIC and the IAEA immediate, unimpeded, unconditional, and unrestricted access to any and all, including underground, areas, facilities, buildings, equipment, records, and means of transport which they wish to inspect".[92] However, on 27 January 2003,Hans Blix, the lead member of the UNMOVIC, said that, "Iraq appears not to have come to a genuine acceptance, not even today, of the disarmament that was demanded of it." Blix noted that Iraq had failed to cooperate in a number of areas, including (1) the failure to provide safety toU-2spy planes that inspectors hoped to use foraerial surveillance, (2) refusal to let UN inspectors into several chemical, biological, and missile sites on the belief that they were engaging inespionage rather than disarmament, (3) submitting a 12,000-page arms declaration in December 2002, which contained little more than old material previously submitted to inspectors, and (4) failure to produce convincing evidence to the UN inspectors that it had unilaterally destroyed its anthrax stockpiles as required by resolution 687 a decade before 1441 was passed in 2002.[93] On 7 March 2003, Blix said that Iraq had made significant progress toward resolving open issues of disarmament but the cooperation was still not "immediate" and "unconditional" as called for by UN Security Council Resolution 1441. He concluded that it would take "but months" to resolve the key remaining disarmament tasks.[94] The US government observed this as a breach of resolution 1441 because Iraq did not meet the requirement of "immediate" and "unconditional" compliance.[95]
On the day Resolution 1441 was passed, the US ambassador to the UN,John Negroponte, assured the Security Council that there were no "hidden triggers" with respect to the use of force and that, in the event of a "further breach" by Iraq, resolution 1441 would require that "the matter will return to the Council for discussions as required in paragraph 12". However, he then added, "If the Security Council fails to act decisively in the event of further Iraqi violations, this resolution does not constrain any Member State from acting to defend itself against the threat posed by Iraq or to enforce relevant United Nations resolutions and protect world peace and security."[96]
At the same meeting, UK Permanent Representative SirJeremy Greenstock KCMG used many of the same words and stated, "If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in Operational Paragraph 12."[97]
On 17 March 2003, theAttorney General for England and Wales,Lord Goldsmith, agreed that the use of force against Iraq was justified by resolution 1441 in combination with the earlier resolutions 678 and 687.[98]
According to an independent commission of inquiry set up by the government of the Netherlands, UN resolution 1441 "cannot reasonably be interpreted as authorizing individual member states to use military force to compel Iraq to comply with the Security Council's resolutions".[99][100]
As part of the1991 Gulf War ceasefire agreement, the Iraqi government agreed toUN Security Council Resolution 687, which called for weapons inspectors to search locations in Iraq forchemical,biological, andnuclear weapons, as well as for weapons that exceeded an effective distance of 150 kilometers.[101] After the passing of resolution 687, thirteen additional resolutions (699,707,715,949,1051,1060,1115,1134,1137,1154,1194,1205,1284) were passed by the Security Council, reaffirming the continuation of inspections or citing Iraq's failure to comply fully with them.[102] On 9 September 1998, the Security Council passedResolution 1194, which unanimously condemned Iraq's suspension of cooperation with UNSCOM. One month later, on 31 October, Iraq officially declared that it would cease all forms of interaction with UNSCOM.[103]
Resolution 678 (1990) allows the use of any means necessary to enforce resolution 660 (1990) and subsequent relevant resolutions in order to force Iraq to stop certain activities that threaten international peace and security, such as making weapons of mass destruction and refusing or obstructing United Nations weapons inspections in violation of United Nations Security Council Resolution 68.
The commission of inquiry by the government of the Netherlands found that the UN resolution of the 1990s provided no authority for the invasion.[100]
The legal right to determine how to enforce its own resolutions lies with the Security Council alone (UN Charter Articles 39–42)[104] and not with individual nations.[8][89][105] On 8 November 2002, immediately after the adoption ofSecurity Council resolution 1441, Russia, the People's Republic of China, and France issued a joint statement declaring that Council Resolution 1441 did not authorize any "automaticity" in the use of force against Iraq and that a further Council resolution was needed if force were to be used.[106] Critics pointed out that statements from US officials leading up to the war indicated their belief that a new Security Council resolution was required to make an invasion legal. They also pointed out that the UN Security Council had not made such a determination despite serious debate over this issue. To secure Syria's vote in favor of Council Resolution 1441, Secretary of State Powell reportedly advised Syrian officials that "there is nothing in the resolution to allow it to be used as a pretext to launch a war on Iraq".[107]
The UN Security Council, as outlined in Article 39 of the UN Charter, theoretically has the ability to rule on the legality of the war, but the US and the UK haveveto power in the Security Council, so action is highly improbable even if the issue were to be raised. Despite this, theUN General Assembly (UNGA) may ask that theInternational Court of Justice (ICJ)—"the principal judicial organ of the United Nations" (Article 92)—give either an 'advisory opinion' or 'judgement' on the legality of the war. Indeed, the UNGA asked the ICJ to give an 'advisory opinion' on "the legal consequences arising from the construction of the wall being built by Israel", by its resolution A/RES/ES-10/14,[108] as recently as 12 December 2003; despite opposition from permanent members of the Security Council. It achieved this by sitting in tenth 'emergency special session', under the framework of the'Uniting for Peace' resolution. The ICJ had previously found against the US for its actions inNicaragua, a finding the US refused to comply with.
The United States structured its reports to the United Nations Security Council around intelligence from theCentral Intelligence Agency andSecret Intelligence Service (MI6) stating that Iraq possessedweapons of mass destruction. The US claimed that justification for the war rested upon Iraq's violation of several UN resolutions, with the most recent being UN Security Council Resolution 1441.[109]
According to a detailed legal investigation conducted by an independent commission of inquiry set up by the government of the Netherlands, the 2003 invasion violated international law. The investigation was headed by formerNetherlands Supreme Court president Willibrord Davids and concluded that the notion of "regime change", as practiced by the powers that invaded Iraq, had "no basis in international law".[100][110] Also, the commission found that UN resolution 1441 "cannot reasonably be interpreted as authorizing individual member states to use military force to compel Iraq to comply with the Security Council's resolutions".[99][111] In a letter to the parliament, the Dutch cabinet admitted that MPs could have been better informed about the doubts and uncertainties of the Dutch intelligence services and about the United States' request for Dutch support.[112][113][114][115]
The Davids inquiry also investigated rumors but was unable to find any proof that the appointment of former Dutch foreign ministerDe Hoop Scheffer as NATO secretary general was the result of his support for the US-led invasion of Iraq. In February 2010, De Hoop Scheffer himself criticized the Davids Commission report. In an interview with newspaperde Volkskrant, he argued that the cabinet did fully inform parliament and that there had never been any doubts. He rejected the conclusion that it took less than 45 minutes to decide to give political support to the United States. He also contested the conclusion that Prime Minister Balkenende failed to provide adequate leadership. In addition, he argued that no United Nations mandate was needed for the invasion of Iraq and remarked that there was no UN mandate when the Netherlands supported the 1991 US operations in Iraq.[116][117][118]
Jack Straw, then UKForeign Secretary, sent a secret letter toPrime MinisterTony Blair in April 2002, warning Blair that the case for military action against Iraq was of "dubious legality". The letter goes on to state that "regime change per se is no justification for military action" and that "the weight of legal advice here is that a fresh [UN] mandate may well be required". Such a new UN mandate was never given. The letter also expresses doubts regarding the outcome of military action.[119]
In March 2003,Elizabeth Wilmshurst, then deputy legal adviser to the British Foreign Office, resigned in protest of Britain's decision to invade without Security Council authorization. Wilmshurst also insinuated that the English Attorney GeneralLord Goldsmith also believed the war was illegal but that he changed his opinion several weeks before the invasion.[120][121]
In March 2004, when aRoyal Court trial raised the question of whether the invasion was legal, the under-secretary of state, Sir Michael Hastings, wrote to the court and warned, "it would be prejudicial to the national interest and to the conduct of the Government's foreign policy if the English courts were to express opinions on questions of international law."
In 2010, then-deputy prime minister of a later governmentNick Clegg, duringprime minister's questions in Parliament, asserted that the Iraq war was illegal. Statements issued later suggested that this was a personal view and not a formal view of the coalition government.[122]
In 2016, the deputy prime minister at the time of the invasion,John Prescott, wrote: "In 2004, the UN Secretary-General Kofi Annan said that as regime change was the prime aim of the Iraq War, it was illegal. With great sadness and anger, I now believe him to be right."[123]
In 2017, the UK Chancellor of the Exchequer at the time of the invasion, Gordon Brown, in his memoir "My Life - Our Times" said that US president George W Bush duped Tony Blair into the 2003 Iraq War. Brown sensationally revealed that the US kept quiet about a top-secret report which showed there was no evidence Iraq had weapons of mass destruction. Brown added, "It is astonishing that none of us in the British government ever saw this American report."[124]
TheIraq Inquiry in the UK later found that the legal basis for the law was questionable.
TheInternational Military Tribunal at Nuremberg held followingWorld War II that the waging of awar of aggression is:
essentially an evil thing...to initiate a war of aggression...is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.[125]
Benjamin B. Ferencz was a former law professor and one of the chief prosecutors for the United States at themilitary trials of German officials following World War II. In an interview given on 25 August 2006, Ferencz stated that in addition toSaddam Hussein,George W. Bush should be tried as well because theIraq War was started by the U.S. without permission by theUN Security Council.[126] Benjamin B. Ferencz wrote the foreword for Michael Haas's book,George W. Bush, War Criminal?: The Bush Administration's Liability for 269 War Crimes.[127] Ferencz elaborated as follows:
a prima facie case can be made that the United States is guilty of the supremecrime against humanity, that being an illegal war of aggression against a sovereign nation.[128]
...
The United Nations charter has a provision which was agreed to by the United States, formulated by the United States, in fact, after World War II. It says that from now on, no nation can use armed force without the permission of the U.N. Security Council. They can use force in connection with self-defense, but a country can't use force in anticipation of self-defense. Regarding Iraq, the last Security Council resolution essentially said, "Look, send the weapons inspectors out to Iraq, have them come back and tell us what they've found – then we'll figure out what we're going to do." The U.S. was impatient, and decided to invade Iraq – which was all pre-arranged of course. So, the United States went to war, in violation of the charter.[128]
Professor Ferencz quoted the resignation letter of British deputy legal adviser to the Foreign Ministry, Elizabeth Wilmshurst, who resigned suddenly before the Iraq war started:
I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution. [A]n unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances that are so detrimental to the international order and the rule of law.[128]
According to theInternational Commission of Jurists (ICJ) in Geneva, the invasion of Iraq was neither in self-defense against armed attack nor sanctioned by a UN Security Council resolution authorizing the use of force and thus constituted the crime of war of aggression.[129] A "war waged without a clear mandate from the United Nations Security Council would constitute a flagrant violation of the prohibition of the use of force". We note with "deep dismay that a small number of states are poised to launch an outright illegal invasion of Iraq, which amounts to a war of aggression".[130][131]
Then Iraq Ambassador to the United NationsMohammed Aldouri shared the view that the invasion was a violation of international law and constituted a war of aggression,[132] as did a number of American legal experts, includingMarjorie Cohn, Professor atThomas Jefferson School of Law and president of theNational Lawyers Guild,[133] and formerAttorney-General of the United StatesRamsey Clark.[134]
With the support of large bipartisan majorities, theU.S. Congress passed the Authorization for Use of Military Force Against Iraq Resolution of 2002. The resolution asserts the authorization by theConstitution of the United States and the United States Congress for the President to fight anti-United States terrorism. Citing theIraq Liberation Act of 1998, the resolution reiterated that it should be the policy of the United States to remove the Saddam Hussein regime and promote a democratic replacement. The resolution "supported" and "encouraged" diplomatic efforts by PresidentGeorge W. Bush to "strictly enforce through the U.N. Security Council all relevant Security Council resolutions regarding Iraq" and "obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion, and noncompliance and promptly and strictly complies with all relevant Security Council resolutions regarding Iraq". The resolution authorized President Bush to use the Armed Forces of the United States "as he determines to be necessary and appropriate" in order to "defend the national security of the United States against the continuing threat posed by Iraq; and enforce all relevantUN Security Council Resolutions regarding Iraq".
Before the invasion, the thenAttorney General for England and Wales,Lord Goldsmith, advised that the war would be in breach of international law for six reasons, ranging from the lack of a second United Nations resolution to UN inspector Hans Blix's continuing search for weapons.[135] Ten days later, on 7 March 2003, as UK troops were massing in Kuwait, Lord Goldsmith changed his mind, saying:
I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force.... Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.[136]
He concluded his revised analysis by saying that "regime change cannot be the objective of military action".
On 1 May 2005, arelated UK document known as the Downing Street memo was apparently leaked toThe Sunday Times. The memo, which details the minutes of a 26 July 2002 meeting, recorded the head of theSecret Intelligence Service (MI6), after his recent visit to Washington, expressing his view that, "Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy." It also quotedForeign SecretaryJack Straw as saying that it was clear that Bush had "made up his mind" to take military action but that "the case was thin" and Attorney-General Goldsmith as warning that justifying the invasion on legal grounds would be difficult.
British officials did not dispute the document's authenticity but did dispute that it accurately stated the situation.
The minutes of the cabinet meetings where the legality of the Iraq war was discussed were subjected to a Freedom of Information request in 2007. The request was refused. On 19 February 2008, the Information Commissioner ordered the minutes to be disclosed in the public interest,[137] but the government appealed to theInformation Tribunal. When the Tribunal upheld the order for disclosure in early 2009,[138]Jack Straw (then Justice Minister) issued the first ever ministerial veto (Section 53 of theFreedom of Information Act 2000) and prevented the release of the minutes.[139][140] On 6 July 2016, extracts from the minutes were disclosed by the Iraq Inquiry.[2][3]
On 21 June 2005, in a minor criminal case, the German Federal Administrative Court decided not to convict a Major in the German Army of the crime of refusing duty that would advance the Iraq war. With regard to the Iraq War, the court found that it had "grave concerns in terms ofpublic international law".[141] However, the court also did not clearly state that the war and the contributions to it by the German Federal Government were outright illegal.[142]
Nikolaus Schultz wrote of this decision: "The Court did not express an opinion as to whether the war on Iraq constituted an act of aggression in the first part of its judgement when dealing with the exceptions to the obligation of a German member of the Federal Armed Forces to obey orders. At a later stage in the written reasons, however, it jumped to the conclusion that a state that resorts to military force without justification and, therefore, violates the prohibition of the use of force provided for by Art. 2.4 of the Charter, at the same time commits an act of military aggression. The (non-binding) Definition of Aggression of the GA attached toUN General Assembly Resolution 3314 is broad enough to support this conclusion. However, it has to be recalled that the State Parties to the Rome Statute of the International Criminal Court (ICC) could not agree on a definition of the crime of aggression."[143]
He summarized: "These findings were watered down to an extent by the Court when it used the cautious proviso that the actions of the states involved only gave rise to grave concerns before arguing the respective issues at stake. By doing that, the Court shifted the burden to the individual soldiers and their decision of conscience whether to obey an order rather than reaching the conclusion that participating in a war violating rules of international law, and even constituting an act of aggression, as the court held, would be illegal and, therefore, justify insubordination."[143]
Followingintelligence from the UK and US, the Dutch government supported the operation of the multinational force in 2003. In January 2010, the 10-month Davids Commission inquiry published its final report. The Commission had been tasked with investigating Dutch government decision-making on political support for the war in Iraq in 2003 .[144] The inquiry by the Dutch commission was the first ever independent legal assessment of the invasion decision. The Dutch commissioners included the former president of theSupreme Court, a former judge of theEuropean Court of Justice, and two academic lawyers.
According to the report, the Dutch cabinet failed to fully inform theHouse of Representatives that the allies' military action against Iraq "had no sound mandate under international law" and that theUnited Kingdom was instrumental in influencing the Dutch decision to back the war.[145] It also emerged that the British government had refused to disclose a key document requested by the Dutch panel, a letter to Balkenende fromTony Blair, asking for the support. This letter was said to have been handed over in a "breach ofdiplomatic protocol" and therefore for Balkenende's eyes only.
In response, Balkenende stated that he had fully informed the House of Representatives about government support for the invasion and that Saddam Hussein's repeated refusal to respect UN resolutions and cooperate with UN weapons inspectors had justified the invasion.[146][147][148]
What domestic legal process that Australia followed to enter the Iraq war (and other wars entered post World War II) is unclear and whether its exercise was valid has been questioned. For practical purposes, the decision to commit theAustralian Defence Force (ADF) to armed conflict is a decision of theelected government, made by theprime minister following deliberations of theNational Security Committee of Cabinet (NSC). How this decision became legally effective is unclear however.
It is commonly accepted that the war-making power is aprerogative power falling undersection 61 of the Constitution.[149][150] Section 61 makes the executive power of the Commonwealth exercisable by thegovernor-general, who by convention only acts on theadvice of ministers. HoweverPeter Hollingworth, the governor-general in office at the time, does not recall formally approving the decision to commit Australian forces. It also arguable however, that theminister for Defence can commit the ADF to war independently using section 8 of theDefence Act and as such it is likely this was the legal method used to commit troops.[151][152] While the governor-general did indicate that he would be willing to sign off any orders in accordance with advice, he was rebuffed after asking theattorney-general for clarification regarding "technical ramifications that could arise under international law".[153]
In an inquiry into the war-making powers, theAttorney-General's Department stated thatDefence was not aware of any "practice or requirement" for the minister to use section 8 to deploy Australian forces. Additionally, Defence relayed its legal advice that the war-making power "is an exercise of prerogative power pursuant to section 61 of the Constitution" and that "there is no constitutional requirement for the Government to act through the Governor-General in such circumstances".[154] This position has been confirmed in a memorandum of the Australian Government released in 2024, stating that the decision to deploy the ADF "is a prerogative of the Executive Government".[155] Professor Charles Sampford has challenged the legality of this position. He argues that constitutional powers under section 61 cannot be exercised independently by the prime minister without involving the governor-general.[156]
He sought to balance the need to cooperate with UN inspections—to gain support for lifting sanctions—with his intention to preserve Iraq's intellectual capital for WMD with a minimum of foreign intrusiveness and loss of face. … Saddam wanted to recreate Iraq's WMD capability—which was essentially destroyed in 1991—after sanctions were removed and Iraq's economy stabilized, but probably with a different mix of capabilities to that which previously existed. Saddam aspired to develop a nuclear capability—in an incremental fashion, irrespective of international pressure and the resulting economic risks—but he intended to focus on ballistic missile and tactical chemical warfare (CW) capabilities.
During the period 1991–1998, Iraq submitted many declarations called full, final and complete. Regrettably, much in these declarations proved inaccurate or incomplete or was unsupported or contradicted by evidence. In such cases, no confidence can arise that proscribed programmes or items have been eliminated. … The overall impression is that not much new significant information has been provided in the part of Iraq's Declaration, which relates to proscribed weapons programmes, nor has much new supporting documentation or other evidence been submitted.
He'd done it before,' Cheney said. 'He had produced chemical weapons before and used them. He had produced biological weapons. He had a robust nuclear program in '91.' The U.S. invasion 'was the right thing to do, and if we had to do it again, we would do exactly the same thing,' he said.
The plant was sold and installed by a British company in Hounslow, Uhde Ltd.
Stewart: "Now this is not- Is this firsthand knowledge of yours? Somebody told you this, you've seen it." [...] Sada: "After 90's, after 90's, [sic] they were there, and how I knew they were there, after they were transported, the pilots who transported it, they told me." Stewart: "The guys who flew there..." Sada: "The guys who were responsible-"
