2003 Invasion of Iraq: Encyclopedia II - 2003 Invasion of Iraq - Legitimacy and legality

2003 Invasion of Iraq - Legitimacy and legality

2003 Invasion of Iraq - Invasion legitimacy

Many have argued that the legitimacy of the invasion could be disputed under international law. Prior to invasion, the U.S. and U.K. attempted unsuccessfully to secure a U.N. resolution explicitly authorizing force on the grounds that Iraq was allegedly in violation of various previous resolutions. The U.S. structured its report to the U.N. Security Council around alleged intelligence from the CIA and MI5 stating that Iraq allegedly possessed weapons of mass destruction. Legal justification rested upon Iraq's violation of several U.N. Resolutions, most recently UN Security Council Resolution 1441. [87] U.S. president George W. Bush claimed Iraq's supposed WMDs posed a significant threat to the United States and its allies. [88][89] 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.[90] U.N. inspection teams capable of continuing the search were ordered out because war appeared imminent. The U.S. Iraq Survey Group Final Report concluded in its September 30, 2004 report that, "ISG has not found evidence that Saddam Husayn possessed WMD stocks in 2003, but the available evidence from its investigation—including detainee interviews and document exploitation—leaves open the possibility that some weapons existed in Iraq although not of a militarily significant capability." The U.S. officially abandoned its search for WMDs in Iraq on January 12, 2005.

To this date, WMDs have not been found in Iraq, see Duelfer Report.[91][92][93]

2003 Invasion of Iraq - Countries supporting and opposing the invasion

Support for the invasion and occupation 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 were, roughly:

Total 300,884 - 98% US & UK

United States (250,000 83%), United Kingdom (45,000 15%), South Korea (3,500 1.1%), Australia (2,000 0.6%), Denmark (200 0.06%), and Poland (184 0.06%). 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, in Spain 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. [94]. 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.[95][96].

Global protests expressed opposition to the invasion. In many Middle Eastern and Islamic countries, many protesters supported Saddam Hussein, but protesters in the United States and Europe generally did not. On the government level, the war was criticized by Canada, Belgium, Russia, France, The People's Republic of China, Germany, Switzerland, The Vatican, India, Indonesia, Malaysia, Brazil, Mexico, the Arab League, the African Union and others. Though many nations opposed the war, no foreign government openly supported Saddam Hussein, and none volunteered any assistance to the Iraqi side.

Saudi Foreign Minister Prince Saud said the U.S. military could not use Saudi Arabia's soil in any way to attack Iraq. [97] After ten years of U.S. presence in Saudi Arabia, cited among reasons by Saudi-born Osama bin Laden for his al-Qaeda attacks on America on September 11, 2001, most of U.S. forces were withdrawn in 2003. [98] According to the New York Times, the invasion secretly received support from Saudi Arabia. [99]

2003 Invasion of Iraq - Legality of the invasion

Under the United States Constitution, presidents do not have authority to declare war. This power is granted exclusively to Congress, and there is no provision in the Constitution for its delegation, although under the War Powers Resolution of 1973, the president can send troops to a country without congress's consent for 60-90 days. On October 3, 2002, Rep. Ron Paul (R-TX) submitted to the House International Relations committee a proposed declaration which read, "A state of war is declared to exist between the United States and the government of Iraq." It was rejected.^[100] Citing several factors, including unresolved issues from the 1991 Gulf War, the Bush administration claimed intrinsic authority to engage Iraq militarily^[101], and Congress delegated its war powers to the President^[102]; from this point of view, the invasion of Iraq, while a war, may therefore be considered a police action commenced by the executive, like the Korean war.

Resolution 1441, drafted and accepted unanimously the year before the invasion, threatened "serious consequences" to Iraq in case Iraq did not comply with all conditions. Russia, the People's Republic of China, and France made clear in a joint statement that this did not authorize the use of force but a further resolution was needed. This was also the position of the UK and the US at the time the resolution was decided. On the day of the vote the US ambassador to the UN, John Negroponte, said that in the event of a "further breach" by Iraq, Resolution 1441 would require that "the matter will return to the Council for discussions."[103]

Until a few days before the war, it was the position of the UK, the main US ally in the war, that a further resolution would be desirable before the UK would go to war.

Some have said that the US and other coalition governments' invasion of Iraq was an unprovoked assault on an independent country which breached international law. Under Article 2, Number 4 of the UN Charter, "All Members shall refrain... from the threat or use of force against the territorial integrity or political independence of any state..." This is known as the "Prohibition of Aggression." For the use of force other than in self defence, it is absolute without the positive sanction of the security council under Article 42. Resolution 1441 was not intended by China, Russia and France to authorise war. The coalition formed around the USA argued that another understanding of the resolution is possible, although Kofi Annan, speaking on behalf of the UN charter, declared: "I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal." [104]

The Bush administration argued that the UN Security Council Resolutions authorizing the 1991 invasion, in addition to Resolution 1441, gave legal authority to use "all necessary means," which is diplomatic code for going to war. This war ended with a cease fire instead of a permanent peace treaty. Their view was that Iraq had violated the terms of the cease-fire by breaching two key conditions and thus made the invasion of Iraq a legal continuation of the earlier war. If a war can be reactivated ten years after the fact, it would imply that any nation that has ever been at war that ended in a cease-fire (such as Korea) could face war for failing to meet the conditions of the cease-fire. Such is the purpose of using a cease-fire agreement in place of a peace treaty; the resumption of war is the penalty for, and thus deterrent of, engaging in the prohibited action(s). For instance, in WWII, the state of war with Germany did not end until 19 October 1951 and with Japan, not until 28 April 1952[105].

Since the majority of the United Nations security council members (both permanent and rotating) did not support the attack, it appears that they viewed the attack as invalid under any resolution still in effect in March, 2003. Both Kofi Annan, current Secretary-General of the United Nations, and former Secretary-General Boutros Boutros-Ghali, as well as several nations, say that the attack violated international law as a war of aggression since it lacked the validity of a U.N. Security Council resolution to authorize military force, and was not an act of defence, and so violated the UN charter. However, none have called for the security council to consider sanctions against the United States or the other nations involved, both because of an effort to restore warmer relationships with the US, and because the attempt would be futile since the US has a veto in the Security Council.

The United States and United Kingdom claimed, and continue to claim, that it was a legal action which they were within international law to undertake. Some in the media have called the good faith of the Security Council into question on this matter. [106] [107] One argument is that the United Nations itself, along with the three opponents of the Iraq War on the Security Council, France, Russia, and China, all benefited financially (in some cases, perhaps illegally) from transactions with the Saddam Hussein regime under the Oil for Food program; [108] and that the leaders of these three countries, along with Kofi Annan, fought against a second UN resolution not out of higher principle but in order to keep these contracts. Nevertheless, opposition to the war was widely popular amongst the populace of nearly all nations except the United States. Additionally, the resistance of the Security Council and the UN as a whole to the invasion of Iraq has been attributed to Anti-Americanism and a resentment of the cultural and economic dominance of the USA. In the case of France, it has also been attributed an attempt to court the Arab world and its local Muslim population. [109]

On 28 April 2005, the UK government published the full advice given by the Attorney General Lord Goldsmith on 7 March 2003 on the legality of the war. The publication of this document followed the leaking of the summary to the press the day before. In a Labour press conference, Tony Blair responded to a question from journalist Jon Snow asking whether the full report could be published by saying 'we may as well, you've seen most of it already'. In the document, Lord Goldsmith weighs the different arguments on whether military action against Iraq would be legal without a second UN Resolution. Saying that "regime change cannot be the objective of military action," it clearly stated that invasion for the purpose of regime change was illegal. [110]

On 1 May 2005, a related UK document known as the Downing Street memo, detailing the minutes of a meeting on 26 July 2002, was apparently leaked to The Times. British officials did not dispute the document's authenticity, and UK Prime Minister Tony Blair's spokesman has called the document "nothing new." The document corroborates the information in the full advice of Lord Goldsmith: "The Attorney-General said that the desire for regime change was not a legal base for military action. There were three possible legal bases: self-defence, humanitarian intervention, or UNSC authorisation. The first and second could not be the base in this case. Relying on UNSCR 1205 of three years ago would be difficult.," and states furthermore 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. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record. There was little discussion in Washington of the aftermath after military action." and that "It seemed clear that Bush had made up his mind to take military action, even if the timing was not yet decided. But the case was thin. Saddam was not threatening his neighbours, and his WMD capability was less than that of Libya, North Korea or Iran.." On 5 May, John Conyers and 89 members of congress asked George W. Bush, in a formal letter, to answer some questions about the document, including whether he or anyone in his administration disputes its accuracy. [111] The Bush Administration has stated that they will not answer the questions. Critics of the memos bring up the fact that they cannot be authenticated. [112]

On 22 May 2005, the British government declined a request from the families of soldiers killed in Iraq for an investigation into the legality of the war. The families are now seeking a judicial review of the request. [113] [114]

In Britain, Flight Lieutenant Malcolm Kendall-Smith, who was decorated during three tours at the front in Afghanistan and Iraq, was court-martialled for refusing to serve a fourth tour in Iraq:

He has been charged with four counts of "disobeying a lawful command." But Kendall-Smith, a decorated medical officer in the Royal Air Force, says that his study of the recently revealed evidence about the lies, distortions and manipulations used to justify the invasion has convinced him that both the war and the occupation are "manifestly illegal." Thus any order arising from this criminal action is itself an "unlawful command," The Sunday Times reports. In fact, the RAF's own manual of law compels him to refuse such illegal orders, Kendall-Smith insists. [115]

The officer had made clear that he is not a conscientious objector, and would not necessarily refuse a tour of duty of legal engagement, and that his objection was purely legal. He refused to return to active service in Iraq after studying the legal advice of Lord Goldsmith, the attorney general, and concluded that it was wrong.

Lt Kendall-Smith's lawyer commented, "He maintains his stance and he will maintain his plea of not guilty, on the basis that the war in Iraq was manifestly illegal. It is a legal test to seek out a ruling on the jurisprudence of the issue: was the war legal or not?" [116]

Separately, but also referenced in the above article, Admiral Sir Michael Boyce, the former Chief of the Defence Staff, has stated that he did not believe the UK Attorney General's legal advice justifying the war was watertight, and stated that because of this he had demanded unequivocal legal assurance that the war was legal. He stated in interview on May 1, 2005, that despite this, he did not consider himself to have full legal cover from prosecution at the International Criminal Court (ICC), that he had never been told of the March 7 memo by Goldsmith which raised doubts as to the war's legality, and that:

"I think I have done as best as I can do. I have always been troubled by the ICC. Although I was reassured ... about five years ago, I was patted on the head and told, 'Don't worry, on the day it will be fine.' I don't have 100 per cent confidence in that. [...] If my soldiers went to jail and I did, some other people would go with me. I wanted to make sure that we had this anchor which has been signed by the government law officer. It may not stop us from being charged, but, by God, it would make sure other people were brought into the frame as well." transcript

Lord Boyce was asked whether he meant by this, Prime Minister Tony Blair and the Attorney General Lord Goldsmith; he replied: "Too bloody right."

It is reported in The Guardian, although not on the ICC website as yet, that papers have been filed with the ICC by a pressure group, "Military Families Against the War", asking the court to determine whether any member of the British armed forces died or suffered injuries "pursuing impermissible military objectives connected to regime change rather than the threat to international peace and security in the region from Iraq's (alleged) programme of WMD". Phil Shiner of Public Interest Lawyers said he had also referred to the ICC prosecutor the multiple alleged cases of torture and deaths whilst in detention in British-controlled areas. [117] It is not confirmed whether the ICC is obliged or has discretion to accept the case on such a basis.

2003 Invasion of Iraq - Opposition view of the invasion

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 the UN 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 as Israel are also in breach of UN resolutions and have nuclear weapons; this argument is not a black and white matter, [118], as some claim that Iraq's history of actually using chemical weapons (against Iran and the Kurdish population in Iraq) suggested at the time that Iraq was a far greater threat. Others claim, also, that this contradicts previous U.S. policy, since the US was one of many nations that supplied chemical weapon precursors, even when well aware of what it was being used for.

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 purchase uranium in Africa in his 2003 State of the Union address are by now commonly considered as having been based on forged documents (see Yellowcake forgery).

Robert Fisk, who has been a British Middle East correspondent for 29 years, warns in his book "The great war for civilisation" that history is repeating itself. Fisk, in the Dutch tv news program Nova: "It is not just similar, it is 'fingerprint' the same". In 1917, the UK invaded Iraq, claiming to come "not as conquerors but as liberators". After an insurrection in 1920, "the first town that was bombed was Fallujah and the next town that was laid siege to was Najaf". Then, the British army intelligence services claimed that terrorists were crossing the border from Syria. Prime minister Lloyd 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 a democracy 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, which is exactly what the Americans are now doing. And eventually, [...] we left and our leaders were overthrown and the Baath 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."

Adapted from the Wikipedia article "Legitimacy and legality", under the G.N U Free Docmentation License. Please also see http://en.wikipedia.org/wiki