The Iraq War and International Law

The Iraq state of war and Inter field of study justiceA exact analysis of the Iraq warfare of March 2003This paper offers an insight into several(prenominal) of the politico- judicial issues arising from the Iraq contend of 2003 and the subsequent forces occupation of Iraq by spinal fusion forces led by the get together States of America and the join res publica. The impingement of Iraq is assessed against the subsisting framework of public global police. It is hoped that a detailed, critical and gener all(prenominal)y objective appraisal is r polish offered through divulge, although subjective angles are offered to present and support a personal view where much(prenominal) is deemed appropriate. forewordThe onslaught of the oil-rich middle-eastern enounce of Iraq in 2003 was at a lower placetaken by the United States and the United region on March 20 of that year, with the tacit political and in some cases logistical dressinging of certain new(prenominal) dis k operating establishments. Collectively these supportive narrates, amounting to lambert in total and including Spain, Australia, Italy, Turkey and Japan, were described as a coalition of the willing.1 After approximately three weeks of concerted troops operations, the prevail of ibn Talal Hussein Hussein and the Baath Party below his dictatorial control was brought to an end and Iraq fell under the occupation of coalition forces.The of import legitimacy of the invasion was disputed since the outset and the question remains unrivalled of extreme fray today. The often promulgated legal confession for the war machine prevail was that Iraq lawlessly possessed stockpiles of so-called Weapons of Mass Destruction, including chemical biological and possibly stock-still nuclear weapons, in violation of the 2002 United Nations Security Council occlusion 1441.2 In the run up to the invasion and throughout the campaign United res publica Prime look Tony Blair and United States chairman George W. provide and their respective garbage disposals repeatedly alleged that these putative weapons posed a serious and imminent threat to the West in general. Expert United Nations inspection teams had been searching Iraq for these alleged weapons prior to the invasion and nonhing substantial had been found although thither was a common suspicion, inter alios, in both the United States and the United demesne, that the Iraki authorities, which were often obstructive, were hiding something. The weapons inspectors were willing to continue their work, plainly were forced out when President Bush lost patience with Saddam Hussein by the onset of war. Scrupulous and unfettered investigations since Iraqs capitulation two and a half years ago view failed to unearth any(prenominal)(prenominal)thing that could be described as a weapon of mass ravaging.3Chapter 1The myths and realities of Public International Law in the context of the Iraq War of 2003Public transna tional law, sometimes unconvincingly referred to as the law of nations, whitethorn be defined as the formation of law that regulates the activities of entities possessing world(prenominal) personality. In particular(a) it is said to goern the alliance amongst independent sovereign states.4It is submitted that nation states derive their autonomy by fashion of inherent legitimacy or some other socio-political creation instead than through a decree granted by the supranational community. Exactly how is a political, constitutional and even so so philosophical matter which varies between countries and is largely beyond the ambit of this work. As things stand in 2005 there is no higher or global power. States may therefrom submit to enter into worldwide sanctifyments voluntarily under the matrix that is referred to as supranational law, and sometimes they will accept legislative treat outside their induce combine. The fundamental problem with the concept of internatio nal law is that there is currently no global sovereign authority that enjoys universal recognition and therefore there is no supreme legal entity ( such as a fan tan or Cr hold) to underpin and enforce a system of law. It follows that independent states be to follow their own counsel and pursue their own national (and finally sovereign) agenda, when it comes to the interpretation of their commitments under international law.Scholars, commentators and political break crop upers alike amaze contended that international law has evolved to a point where it make its separately from the mere swallow of states, merely it is submitted that we are still very far from the crystallisation of that process. at that place is a trend toward judging the domestic runs of a state in light of international law and standards just the consistent lack of consensus, forceful capacity and machiavellian disabilities of the so-called United Nations even in field such as the environment, diseas e and poverty of common interest to the totality of the world population amply testifies to this conclusion.Many states, nonably including the hugely probative and influential United States, vigorously oppose the idea of the supremacy of international law, economiseing that national sovereignty remains the dominant legal value. A human body of commentators now point to the development of a legislative and judicial process in international law that parallels such systems within domestic law, but this is a nascent process, and far from true maturity. It is submitted that the status quo dictates that states but commit to international law with a pragmatic and ego-importance-serving view and that they observe the well(p) to make their own interpretations of its meaning. Moreover, international courts only function with the bear of states and their rulings are often overlooked.In summary, international law in the primordial part of the twenty first century better resembles a break and Mix system more akin to a retail confectionery retort than a supreme, coherent and consistently reliable and enforceable legal superstructure. It is suggested that international law exists and is recognised only when each state wants it to be, when it suits their national agenda.There is no better example of the fluid and amorphous disposition of international law than that under discussion in this paper. It was a bran-new world ordain that gave rise to the 2003 Iraq War. In the context of the socio-political legacy of the hideous 9/11 contends on Ameri force out soil, which caused a seismic set up in global relations and received diplomatic wisdom, and what the Bush administration considered to be the relative success of the subsequent United States-led invasion of Afghanistan in 2001, it was deemed by American President that he had sufficient armament justification and general support, certainly among middle American voters and hopefully oversea, for further a rm operations against perceived threats in the snapper East. Iraq was unfinished business, and something that had given his drive George Bush senior, a bloody nose when he held the Executive. It is submitted that the unanticipated natural selection of Saddam Hussein as leader of Iraq later his own fuck offs departure from office moldiness(prenominal) have leant a steady and irksome personal angle to George Bush subalterns berth and approach to the Iraq question.Given Saddam Husseins continued empale on power, relations between the leading members of the coalition and Iraq had non change since the nadir of the original 1991 conflict, which was provoked by the middle eastern states invasion of its southern neighbour Kuwait.5 The nations had acquiesced in a state of bitter low-level conflict in the intervening years, characterised by British and American air-strikes, human shields, no-fly zones, an extensive sanctions politics, and other threats against the Iraki state, w hich reacted with public belligerence. Iraqi air defences regularly engaged and fired upon coalition airplanes enforcing the longstanding Union and southern no-fly zones, which had been implemented after the 1991 Gulf conflict.All things considered, by 2003 the typify was set for a stern and high stakes test of the middle of the framework of public international law and its application in the critically important arena of gird conflict and possible justifications for a military response to real and putative threat. It is submitted that what followed serves only to buttress and underline the commencement comments in this paper viz. that the phrase public international law may in harsh reality be a contradiction in terms in terms.Chapter 2War in International Law, the general bulwark and principal(a) exceptionsThe United Nations Charter6 establishes a legal framework for the use of military force in international law. Almost all states are signatories to this Charter, includi ng the United Kingdom, the United States and indeed Iraq. The Charter stresses that field pansy is the fundamental goal of the Charter, and that it is to be preserved wherever possible. The preamble emphasises a determination to practice margin and live together in peace with one other as good neighbours, to unite our strength to maintain international peace and tribute, and to guarantee that armed force shall non be used, save in the common interest. bind 1 of the UN Charter establishes the United Nations objectives, the first of which isTo maintain international peace and security and to that end to take effective corporate measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other splites of the peace, and to total about by collected nitty-gritty, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.Article 31 of the 1969 Vienna Convention on the Law of Treaties,7 provides that a treaty must be interpreted in accordance with its overarching purposes and objects, including its preamble. It is submitted that those provisions of the UN Charter which are relevant to this paper namely the prohibition on the use of force and its exceptions must therefore be interpreted in accordance with this fundamental sentiments.The Charter thereafter lays down two core principles2(3) All Members shall settle their international disputes by peaceful means in such a room that international peace and security, and justice, are not endangered.2(4) 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 any other manner inconsistent with the Purposes of the United Nations.In Nicaragua v United States8 the International judicature of Justice described Article 2(4) as a perem ptory average of international law, from which States cannot derogate. The effect of Articles 2(3) and 2(4) is that resort to force can only be justified as expressly provided under the Charter, and only in situations where it is consistent with the goals of the United Nations.The UN Charter permits the use of military force in the situations set out in Chapter VII. Article 42 provides that, if peaceful means have not succeeded in deriving conformity with Security Council decisions, it may take such serve by air, sea or down forces as may be necessary to maintain or repair international peace and security.In practice this means that states require a breach of a relevant Security Council resolution in coiffe to use military force against another State,9 and such reach can only be justified where any and all peaceful means available for resolving the dispute have been exploited to the full. It is submitted that where breach of such a resolution has occurred, states do not enjoy a one-sided right under Article 42 to use force to get conformity or to penalise the defaulting state the question as to what action should be taken remains a matter for the Security Council.The preceding(prenominal) is subject to the provisions of Article 51 of the Charter, which reserves states rights to self-defence. A state does not require a Security Council resolution in order to defend itself with the use of military force, but it should be noted that even this right is subject to action by the Security Council. Article 51 stipulatesNothing in the present Charter shall impair the inherent right of individual or collective self-defence if emphasis added 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 defence shall be immediately reported to the Security Council and shall not in any way affect the a uthority 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.In line with normal principles of interpretation, exceptions to the fundamental principle of the prohibition on the use of force, Articles 42 and 51 must be interpreted restrictively and narrowly on the facts of the particular case.Therefore, under the UN Charter there are only two situations in which one state can legally resort to force against another(1) In individual or collective self-defence (in this regard Article 51 of the Charter enshrines a right provided by customary international law.)(2) consistent to a relevant United Nations Security Council resolution.As for the question of self defence, it is clear that the United Kingdom has not been the subject of any channelise attack which could be linked with Iraq. Therefore it is submitted that it is clear that the right of self-de fence responsive to a military or even terrorist attack does not arise for consideration. Accordingly, the only possible justification is as an anticipatory species of self-defence presumably in contemplation of some real and imminent forthcoming threat. Regrettably, Article 51 of the Charter is silent as to whether self-defence includes the salmagundi of pre-emptive strike opted for by the United States and the United Kingdom in 2003.internationally renowned commentators have taken different tacks on this question. Oppenheim concludes that epoch anticipatory action in self-defence is typically wicked, it will not ineluctably be unlawful in all circumstances.10 It is argued that the matter depends on the particular facts of the situation including especially the gravity of the threat and the extent to which pre-emptive action is avoidable, and any other options to circumnavigate or mitigate the risk of attack. In fact, it is submitted that the couple requirements of proporti onality and necessity are even more important in relation to anticipatory or proactive self-defence than they are in reactive circumstances. On the other hand Detter endorses a more unsophisticated analysis rendering the practice plainly unlawful. In The Law of War he argues that it should be conceded that pre-emptive force is covered the prohibition of force in Article 2(4) of the UN Charter and that this derives a simple presumption that such action is illegal.11 In un doubtful terms he concludes that the mere threat of attack thus does not warrant a military response.12Chapter 3A Critical Evaluation of the Legality of the 2003 Invasion of Iraq and United States and United Kingdom justifications for the military campaignGeorge Bush minor(postnominal)s administration make no secret of the fact that removing Saddam Hussein from power was a primary goal throughout 2002. It did offer to accept major concessions in Iraqi military and foreign policy in lieu of this, but it is submitte d that this would have resulted in what may have been calculated to be an untenable loss of face for Hussein which would thus have presented him with an unacceptable option, while maintaining ostensible negotiations to the world at large. Reportedly, on 9/11 itself, in the immediate aftermath of the strikes President Bush enquired as to whether there were any likely links between the terrorists and the Iraqi dictatorship. When told that none were obvious, President Bush responded by saying Well, find them.13 As stated, the emphasised justification for the invasion focused on Iraqi production and use of weapons of mass destruction (hereafter WMD), but suspected links with terrorist organizations provided the underlying impetus for popular support, particularly in middle-America where attitudes are insular and introspective and the most disinterested appraisal would find that general knowledge on world personal business is limited to say the least.14 Little if any convincing eviden ce was presented and has since been put in actually linking the regime of Iraq to Al-Qaeda.15 That said, the incidence of grotesque human rights violations in Iraq, including state-sponsored optical aberration and mass murder organised under Saddam Hussein leadership, was in like manner cited as a justification for the campaign.16 It is notable however, that it has been suggested that only the WMD landed estate would have presented a legally defensible ground for military disturbance under the auspices of international law, given the claimed breach of Security Council final result 1441.17 The apparent absence of WMDs in Iraq is problematic to say the least in terms of the putative international and national legality of the 2003 campaign.In summary, secretarial assistant of Defence Donald Rumsfeld claimed that the stated goals for the invasion of Iraq were as followsSelf-defenceTo find and unmake weapons of mass destruction, weapons programs, and any terrorists sheltering un der the regimeTo gather intelligence on networks of weapons of mass destruction and terrorist groups. human beingsitarianTo bring to an end sanctions and to provide add-on support (Secretary of State Madeline Albright claimed that 500,000 Iraqi children had died because of sanctions.)United Nations Security Council (UNSC) resultResolution 1205, make in 1999.Regime ChangeTo terminate the administration of Saddam HusseinTo facilitate Iraqs transition to democratic self-ruleOtherTo untouchable Iraqs oil fields and other resources18Certain members of the Republican camp had even higher hopes for the war. The Bush administration claimed that the war could serve generally as a catalyst to facilitate democracy and peace in the Middle East, on the assumption that once Iraq became democratic and secured new influence, friends and prosperity there would be pressure and incentives for other states in the region to pursue the same route (presumably due to the so-called demonstration effect) , and that the socio-political environment that previously had nurtured terrorism would be destroyed. Hamzeh defines the term demonstration effect as a radical event in one place that may act as a catalyst for a revolutionary process in another place at approximately the same point in time.19 That said, it is submitted that for diplomatic and bureaucratic reasons these goals were de-emphasised to allow stress to be put on justifications establish on the allegation that Iraq represented a specific threat to the United States and to upholding the rule of international law.There is of course a popularly held counter point of view which argues that the reasons promulgated to justify pre-emptive war were either inadequate, gilded or just plain falsehoods. A summary of critical opinions as to the true motivations that provoked the 2003 military campaign features belowThe Oil dischargeTo seize control of Iraqs hydrocarbon deposits and in so doing preserve the United States dollar mark as the monopoly currency for the hugely important international oil securities industry (Iraq had been using the Euro as its oil export currency since 2001)to reduce the worth of oil for the high-consumption American marketTo assure that American interests would be primary beneficiaries of Iraqi oilTo guarantee that the United States exercised military control over the middle easts hydrocarbon reserves, and thus secure a lever to control other countries depending on that market for supplies.Military and Construction InterestsTo divert vast amounts of notes to the American defence and construction industries as a consequence of the campaign and subsequent occupation.Public Popularity and Executive Re-election (Falklands Factor)To buttress and enhance the crisis popularity enjoyed by the President as a result of his stern response to the 9/11 attacks, and moreover to distract attention and dilute critical comment on other domestic political issues where President Bush was palpably defenseless politically (In this regard it should be noted that George Bush juniors father saw his own wartime popularity quickly eroded when the electorate began to focus on the economy in the aftermath of the 1991 conflict. It is submitted that this cannot have gone unnoticed in the political think-tanks of Washington DC, or indeed by Prime Minister Tony Blairs advisors in Lon put on, where reference is so often made to the so-called Falklands Factor which boosted Margaret Thatchers ailing popularity and secured her re-election and subsequent political dominance in the 1980s.)Revenge and IdeologyTo obtain retribution. It is said that revenge is a dishful best served cold and for over a decade George W. Bush junior had waited to seize revenge against Saddam Hussein for the humiliation of the dictators survival after the first Gulf conflict and for allegedly attempting to have his father, President George H. W. Bush, kill during a 1993 visit to Kuwait. It may too have been a com e-on to secure closure for other members of the United States Administration, including the influential Richard Cheney, who was both anger and humiliated by the continuation of the Hussein dictatorship after the 1991 American action.20To pursue the fundamental strategic goal of unquestionable American geopolitical pre-eminence as promulgated, inter alios, by the Project for a New American Century.21Under pressure from its vociferous critics, in April 2005 the United Kingdom presidency published the full text of the advice provided by the Attorney General shaper Goldsmith on 7 March 2003 on the legality of the war.22 In his advice, the Attorney General evaluated the various arguments on whether military action against Iraq would be legal without another specific United Nations Resolution. shaper Goldsmith was equivocal on many points but he firmly concluded that regime change was not a lawful goal of military action, indeed, he expressly stated that invasion for the purpose of u surping Saddam Hussein was an illegal endeavour.23A document that has come to be known as the belt down course memorandum, which details the minutes of a United Kingdom government console meeting on 26 July 2002, was leaked to newspaper The Times on 1 May 2005.24 The document corroborated the Attorney Generals advice, and restated Lord Goldsmiths opinion that the desire for regime change was not a legal ground for military action under international law. The memo stated were three possible legal routes self-defence, humanitarian intervention, or United Nations Security Council authorisation. It was found that the first and second grounds could not be the justifications in this case, and that reliance on United Nations Security Council Resolution 1205, which was, at the relevant time, some three years old, would be a tenuous and pregnable stance. The weakness of the argument is exacerbated by recognition of the fact that the cabinet were not discussing a new trade pact or arcane diplomatic relations, but the single most important decision that a government can take, namely a pre-emptive war.The Downing Street memo further stated that President Bush wished to remove Saddam, by applying military force, justified by the co-existence of sheltered terrorist factions and WMD. However, it is submitted that the intelligence was being posited around the policy. It was too found that the majority view of the UNSC was not satisfied with the general UN route, and that it harboured no enthusiasm for promulgating additional information on the record of the Iraqi regime. The Memo also indicated that there was little discussion in Washington of the consequences of military action or of the impact of the aftermath on the state of Iraq. It is submitted that it must have been quite apparent that the US President had already intractable to resort military action, even if the timing of that action was still to be finalised. However, at this point the case for invasion remai ned flimsy.25 Saddam was not constitute any realistic threat to his neighbours, nor even posturing to do so. As the Memo suggested, even in the worst alleged case scenario (which has thus far proved to be wrong) his WMD capability fell substantially short of that of Iran, Libya and North Korea. Four days after the leak in London, in a move initiated by John Conyers, a rank member of the House Judiciary Committee, the US intercourse formally communicate the President to answer a series of penetrating questions relating to the Downing Street Memo, including whether he or anyone in his administration disputes its accuracy.26 The Bush Administration has to involvement failed to answer those questions.Exhibiting similar reticence, on 22 May 2005, the United Kingdom government refused a plaintive request for an investigation into the legality of the war from the families of soldiers that had lost their lives in Iraq. These bereaved families have now sought a judicial review of that d ecision. Treasury solicitors were responsible for refusing the request, which they did after Tony Blair had made his own view that a review was unnecessary patently clear. In a Channel 4 News interview he stated We have had inquiry after inquiry, we do not need to go back over this again and again.27Seeking to justify their decision, the Treasury Solicitors claimed there were at least five principle reasons to deny the request of the families. These were as followsThe European Court of man Rights has already clarified that decisions on military action abroad are not reviewable under the European Convention of Human Rights (hereafter ECHR).None of the fatalities occurred within the jurisdiction of the UK as defined by Article 1 of the ECHR.The ultimate decision to pursue military action in Iraq was not the immediate and direct operative cause of the deaths of the proposed claimants relatives.There was no specific and individualised risk of harm to those who lost their lives, such th at could be distinguished from any other members of the United Kingdom armed forces. Dispatching armed forces to Iraq as part of an organised military force fully weaponed and capable of defending itself could not be considered on the same undercoat as sending a helpless individual victim overseas to confront the risk of torture or death.The claimants would have to invoke the Human Rights enactment in raising an action before the domestic courts, but that Act is not applicable in any relevant experience to any territory beyond the frontiers of the United Kingdom.The Treasury Solicitors also contended that the fraught(p) question of the legality of the invasion of Iraq was irrelevant to whether there had been any breach of Article 2 of the ECHR.28The legal position in the United States was also both tenuous and pregnable. In conformity with the well known system of checks and balances protected and maintained by the United States Constitution the authority to advance war is gra nted exclusively to Congress, and there is no provision in the Constitution for its delegation, although it is true that under the provisions of the US War Powers Act of 197329 the President can send troops to a country without the consent of Congress for a period not exceeding 90 days. George Bush, therefore, did not have personal authority to declare war.On October 3, of 2002, US good example and Congressman Ron Paul submitted a proposed declaration to the House International dealing Committee which stated that a state of war was declared to exist between the United States and (with a careful choice of words) the government of Iraq. He saidAmerica has a sovereign right to defend itself, and we dont need UN permission or approval to act in the interests of American national security. The decision to go to war should be made by the U.S. Congress alone. Congress should give the President full war-making authority, rather than binding him with resolutions designed to please our UN d etractors.30However, this proposal was rejected. Although this would seem to the casual observer a damning outcome, the President was undeterred. To overcome this obvious setback, drawing on several factors, including unresolved matters still persisting from the 1991 Gulf War, George Bush juniors administration forcefully claimed the intrinsic authority to engage Iraq militarily, and Congress was manoeuvred into circumnavigating fundamental technicalities in transferring what were in substance its war powers to the President.31It is submitted that this policy in itself left the American action on shaky legal foundations to say the least.32 On this tentative analysis, the invasion and military occupation of Iraq, while to all intents and purposes a war per se, may therefore be considered a police action initiated by the Executive, in similar fashion to the Korean War and, notably perhaps, the ill-fated Vietnam War before it.The United Nations Competing perspectives on the applicable resolutions