The Legality of Use of Force against Iraq in 1991 and 2003

The Legality of Use of Force against Iraq in 1991 and 2003

Abstract

An international law permits anticipatory self-defence in case of an imminent attack. The pre-emptive application of force is double-edged, as any action to the contrary of the UN Security Council is considered to be a breach, while early intervention is an infringement of the rights of the state. Iraq attacked Kuwait in the early 90s and this act led to an imminent attack on Iraq by the UK, USA and East Asian countries[1]. This was following the authorisation of the UN Security Council to promote security and peace in the area. More specifically, this paper will focus on the circumstances that triggered an attack on Iraq and its implications. The present paper discusses the legality of the USA attack on Iraq. In addition, the paper highlights those doctrines employed by various nations in ensuring that peace and security are maintained, worldwide. The paper comments on the impact of the use of force in Iraq. The present paper thus critically compares and evaluates the legality of use of force against Iraq, in 1991 and in 2003, from an international legal perspective.

1.1 Introduction

“The right to life” is a key virtue and fundamental principle, in times of war and peace. Moreover, humanitarian law and human rights jointly respect human dignity and human values and it is difficult, therefore, to enjoy fundamental rights when a human being loses his or her life. The absolute state to the right to life is faced with challenges, with the need to stabilise and maintain law and order in society, which can at times lead to the use of force[1]. The civilians and the members of the armed forces enjoy the fundamental right to life; however; the right is limited to the societal demands under which humanitarian law operates. This implies that the right to life is absolute; however, a normative structure should be set in place to account for any loss of life, to ensure social stability and order throughout society.

International law limits the use of force to prevent a person from losing his or her life. Furthermore, The European Convention is the pioneer of the limitation for Protection of Human Rights[2] and Fundamental Freedom, which asserts that there should be no extra force other than absolute force when safeguarding a person from unlawful violence or when quelling a riot, although the Convention does provide exceptions which result from lawful war acts.

This paper also focuses on the circumstances that led to the attacks on Iraq, with theUK, the USA and certain East Asian countries being the countries which participated in the attacks[3]. The paper then goes on to develop an argument regarding the legality of the force which was applied in Iraq. It is contended that the USA government under President Bush adopted a pre-emptive self-defence mechanism and the paper alludes to the humanitarian intervention as another method of self-defence. The research concludes by comparing, evaluating and arguing both for and against the legality of the use of force against Iraq, in 1991 and in 2003, from an international legal perspective.

1.2 The Circumstances under which Force is applied

1.2.1 Possession of Nuclear Weapons

International law has evaluated circumstances under which armed conflict is considered lawful, especially for the purposes of self-defence. Under international law, Article 2(4) of the United Nations Security Council, states that the threat to possess or use nuclear weapons is unlawful[4]. This, therefore, implies that the rogue states which act to the contrary of Article 2(4) of international law are operating unlawfully. A rogue state may, however, use weapons mainly for the purpose of self-defence. The rogue nations are also supported by the International Court of Justice (ICJ) which asserts that in the case of a credible deterrence, there is need for the use of (or intent to use) nuclear weapons. The law also contravenes the fact that the threat to use a weapon is unlawful under Article 2(4)[5]. However, the intention of the state to use weapons may be considered lawful, if it is aimed at self-defence.

In addition, signatory states are required to comply with the Nuclear Non-proliferation Treaty, which outlines three major principles, namely: disarmament, an inalienable right to nuclear use and non-proliferation of nuclear energy. The treaty defines two categories of states: states which are ascribed and use nuclear weapons (Nuclear Weapon States-NWS) and nations that are not allowed to own, manufacture and use nuclear weapons (Non-Nuclear Weapon States-NNWS). Nevertheless, certain states may be persuaded to enter the Nuclear Proliferation Treaty (NPT), in order to signal their nuclear preferences[6]. Joining NPT is like a commitment which can ruin a non-cooperating state by tainting its reputational position, due to violation of the treaty. However, the possession of (or use of) nuclear weapons is lawful, despite a state being a member or a non-member of the NPT.

It is argued in this paper that the inception of NPT is a threat to the International Community and that the provision for states to own and use nuclear weapons has created a significant “loophole” as member states can lawfully own uranium and plutonium which can be used in manufacturing nuclear weapons, in a short period of time. However, it would appear that certain aberrations have been committed against the International Atomic Energy Agency (IAEA), with few parties having ratified an additional protocol towards NPT which ensures that state members must comply with the IAEA safeguards[7].

The IAEA, for instance, considered Iran to be against NPT obligations. This forced the IAEA to set up transparency measures to ensure that there is a distinct weapon recognition in accordance with its nuclear programmes[8]. Moreover, the United Nations Security Council has resolved that countries should not use uranium, but should comply with IAEA requirements. This implies that rogue states possessing nuclear capacity are at risk, due to the ICJ resolution which states that possession of weapons may justify the extent to which any interference may hinder the preparedness to expend them. This also implies that rogue nations are a potential risk as they may easily attack other states. Arguably, therefore, nuclear proliferation is a major source of threat which has increased the potential for nuclear terrorism.

1.2.2 Self-defence

Article 51 of international law grants every state the right and power against nuclear attacks[9]. Furthermore, the charter has no prejudice, if one of its members is a subject to an attack, thus it is mandated to grant it the right to self-defence, where sSovereign states are entitled to the right and it is also part of the customary law. An armed attack is one of the conditions which can promote self-defence under the international law charter. The state, therefore, has to define aggression based on Article 3(b) which states that an armed attack is the use of a weapon by a nation which is against the integrity of the other nation. Moreover,, the use of nuclear weapons against another state is a licence to self-defence.

International law does not recognise non-state participants in supporting a foreign power. Likewise, those states that support non-state involvement in nuclear weapons’ activities may be sanctioned for their actions. Based on the principles of impunity, a state which sponsors or supports terrorists in any way in conducting an armed attack is considered an armed attacker[10]. This means that, if a nation supports terrorists with nuclear weapons and facilitates them in conducting an attack on another country, the victim nation has a right to act in self-defence against the harbouring country.

International law states that for a state to conduct an anticipatory act of self-defence, the attack must be imminent. It therefore implies that, for the self-defence to be considered lawful, there has to be a certain time-scale element which needs to be satisfied, i.e. the act of aggression has to be very close and imminent. Therefore for a self-defence to be considered lawful, there has to be an imminent nuclear attack on the recipient state.

Furthermore, international law also states that for self-defence to be considered lawful, it has to be proportional and necessary[11]. This implies that a necessary act has to encompass an armed forces attack. The charter also reiterates that for self-defence to be lawful, the armed attack has to be continuous. In addition, the amount of force incurred must be similar to the amount of force used to ascertain a proportional self-defence. Lawful self-defence should also conform to the humanitarian law which states that self-defence ought to adhere to the Laws of the Armed Forces. The humanity principle deters unnecessary suffering and superfluous injury; the law also prohibits the use of excessive force, to the extent of causing incidental loss of innocent lives, to military advantage. This shows that there are numerous circumstances under which states are allowed to use force.

1.3 Background Information to the Attacks on Iraq

The UK, the USA and East Asian countries invaded Iraq, in 2003; however, the reasons behind the attack are still not clearly defined. Several policy justifications have been put forward. For example, the US government alluded to the need for the US to protect its Iraqi allies and the world at large. The US government also justified its actions, based on the threat of terrorism. The US also adhered to the UN Security Council’s orders to disarm Iraq. The Bush government reported to Congress that its actions were lawful, as this was a pre-emptive act of self-defence. The US government reported that the Iraqi invasion was an authorisation of the Security Council. The Security Council thus released Resolution 678 which authorised several states to oppose Iraq from attacking Kuwait and to ensure security and peace in the area. It is evident, however, that Iraq went against the UN-mandate for a cease fire in the 1990-91 war which the US claim that such a breach against a cease fire was sufficient to reignite earlier authorisation[12]. The invasion of Iraq by the US, UK, Australia and Polish states in 2003 lasted from 19th March to 1st May with the main body of the attack happening between 19th March and 9th April. A further 36 countries were involved after this period however the dominant statements were made by the US. It was stated by the US President and British Prime Minister in combination that the mission was to “disarm Iraq of weapons of mass destruction, to end Saddam Hussein’s support for terrorism and to free the Iraqi people” (George Bush, Whitehouse Archives). This indicates the at least attempted reliance on the Security Council Resolution as the basis for the action, at least initially.

1.3.1 Legal Basis for Invasion

There would appear to be several reasons behind the US and other states’ invasion of Iraq: first, the invasion aimed to address and prevent the Iraq invasion of Kuwait, in 1990. This forced the Security Council to adopt Resolution 678 which authorised all willing UN member states to restore security and peace in the area, using all necessary means. Secondly, the Security Council adopted Resolution 687 which imposed obligations on Iraq, such as disarmament that was aimed at a cease-fire; Resolution 687 failed to terminate authorisation, but instead suspended the use of force on Iraq.

Iraq failed to disclose its disarmament obligations and thus breached a “material obligation”. This led to the Security Council adopting Resolution 1441, in October 2002. The resolution was a final warning for Iraq to respond positively to the disarmament requirements or face serious consequences. The US legal theory states that a material breach against Resolution 687 grants the use of force and eliminates a cease-fire[13]. The Security Council later revised the authorisation, in order to apply force. The Council granted the US and UK armies the authority to apply force against Iraq. The US army and other allies’ invasion of Iraq was lawful, based on the fact that Iraq failed to comply with the extension of time. The invasion act was also lawful, as US had strived to defend threats from Iraq and to ensure security and peace in the region.

1.3.2 The Disarmament Process

Inspection in Iraq took a considerable period of time from 1991 to 1998. There was no inspection for four years, but in November 2002 the inspection resumed. The inspection in Iraq was aimed at verifying the disarmament process[14]. However, Security Council resolutions have differed, over the years, in terms of the approach and emphasis. For instance, Resolution 687 aimed at ensuring a cease-fire for the Gulf War, in 1991, which had five elements[15]. More specifically, the resolutions focused on the disarmament process in Iraq which demanded that Iraq declare its programs related to weapons of mass destruction. The resolution also aimed at ensuring that Iraq verified its declaration via an IAEA and the United Nations Special Commission (UNSCOM)[16]. The resolution demanded that Iraq cooperate in the process.

It is argued here that inspection creates confidence in the disarmament process. Iraq, however, was reluctant to accept the demands of the Security Council and the declaration and verification process never materialised, as Iraq did not cooperate. Lack of support from the Iraqi side led to increased time taken undertaking the disarmament process and Iraq was sanctioned, due to the lack of cooperation which led to the apparent starvation of its residents, in the process[17]. Resolution 687 resulted, to a certain extent, in the disarmament process and the process, in turn, led to destruction of numerous crude weapons.

Under the supervision of UNSCOM, several weapons were destroyed, before 1994. In 1996, large biological weapons were destroyed, following authorisation by UNSCOM. IAEA removed extensive fissionable materials and destroyed numerous nuclear infrastructures. Later, in 1999, the Security Council adopted Resolution 1284, with 4 abstentions. Resolution 1284 supplemented the 1991 resolution[18]. After Iraq started cooperating, much progress was made in the disarmament process and all the sanctions were suspended. Iraq, however, rejected inspection for three years, but due to pressure from the US Arab States Secretary General and other member states, it accepted inspection, unconditionally[19]. From the above research, it is evident that the UK, the US and certain East Asian countries attacked Iraq, in 1991 and in 2003 and there were several factors which prompted the attack in Iraq.

As noted in the previous section, the disarmament of Iraq was seen to be at the centre of the 2003 invasion. Since the 1980s there have been general concerns that Iraq were holding extensive nuclear weapons with evidence that Iraq had used these weapons during the Iran-Iraq war. In the immediate run up to the 2003 invasion the US had called for a change of regime in the country and had threatened to use military force if Iraq refused to get rid of all weapons of mass destruction or provide sufficient evidence that it had none.

After failing to reach an agreement an Emergency Summit was held in March between the UK and US to discuss the next step. During this time the US stated that it felt that it was now necessary to use force in order to ensure the compliance of Iraq with the UN Resolution from the inspectors.

1.4 Legality of the use of Force

1.4.1 Global Threats

Since 1990, states such as the US and the UK have focused on military interventions, in variousl regions, with several states justifying the use of armed force in Iraq, in 1991 and in 2003, due to global threats[20]. Arguably, this is a superficial view which suggests that states were lawful in exercising military might in Iraq. On the other hand, the post-Cold War presented a threat to US interests, due to a power imbalance, thus its government was forced to ensure that it intervened in the emerging global crises.

Western economic interests are also at risk, due to political instability, where Western nations rely on imported oil from the Middle East, thus requiring political stability to create a friendly environment for the global market. There is an argument to be had that the reliance of the US and other states facilitated the invasion of Iraq, to ensure both internal security and to prevent external threats. For example, it is evident that Iraq presents a threat to the stability of oil producing states in the region[21]. Moreover, a terrorist group called Al-Qaeda poses another type of challenge. The group aims to replace the Sharia Law which governs the Islamic Chalifate[22]. It is also evident that the two threats are seemingly closely connected. The Al-Qaeda group has blamed the US government for infringing the rights of those within Islamic holy places by positioning its troops in Saudi Arabia. However, the elimination of Saddam Hussein by the US army has somewhat reduced Al-Qaeda ideologies.

In the early 90s, it became obvious that security interests had evolved from economic interests, with the US government now becoming the major target for Al-Qaeda. The terrorist group feels that war over the US will restore Islamic Chalifate and will also end Islamic adherence[23]. Proliferation of weapons is a major threat to the US and Western governments to support terrorism and enhance an aggressive history within governments.

After the fall of the Soviet regime, humanitarianism is another looming motivation which has boosted military intervention; hegemony is also associated with responsibility which is a major boost for the US and certain European governments to focus on manmade disasters. The US and European governments are forced to practise justice, despite using force. For example, the US government was mandated to reduce suffering in Northern Iraq, in 1991[24]. This was aimed at protecting the Kurds and alleviating want and suffering in the region.

There is a perceived general agreement among USA, UK and East Asia states which invade rogue states. This is due to security, justice and economic stability. The US economy relies on a stable global trade and external conflict is, therefore, a major threat. However, there are several responses to the intervention based on threats among human activists, rogue states and terrorism regimes. It is now a common belief that the US and some parts of Asia and Europe are not willing to accept that Al-Qaeda’s reaction is due to military actions. Terrorist acts by Al-Qaeda were also used to justify the break from traditional norms and constraints against international law. However, it is argued here that Europe prefers to use adjudication through the use of universal jurisdiction statutes which help in punishing the perpetrators of mass violence[25]. Europe also supports the adoption of international law for dealing with perpetrators; thus, these differences in opinion and attitude have led to vital ramifications to which several people adhere.

It is argued here that there is substantial merit in creating a situation whereby there is one overall legal system that is not led by any particular nation. Although the background arguments presented by the US and the UK in relation to disarmament are strong, there is at least an argument that they have used their dominant political position to assert their rights in a way that would not have been possible by another state. Creating a level and unified playing field is therefore a crucial issue to be addressed in the opinion of the author, rather than the need to consider whether the US was justified in this particular instance.

1.4.2 Economic Stability and Security as a Public Good

The USA has a strong motive and military which are aimed at maintaining global stability. This, therefore, serves the interests of various parties. Global stability constitutes public good which encompasses non-rivalry and non-exclusivity. Stability and security is a public good, as everyone can enjoy them and avoid causing inconvenience to each other. This justifies the fact that the US contributes to a collective problem, as very few who enjoy the good will be willing to contribute towards its production. This also applies to global security, where the USA has the ability to deal and engage in combat where threats to stability are concerned, thus other “small” nations benefit without incurring any costs[26].

Several “smaller” nations view the contribution of the US towards NATO as biased. The super powers supported the deterrence strategy by using destruction as a means of gaining stability which the “smaller” members also enjoyed the benefits of without making any contribution[27]. Later, these “smaller” members opted to participate in contributing towards security demands. In practice, there are huge hurdles for collective action due to the fact that the deterrence available is limited. The two super powers coordinated very well towards deterrence, using little costs to enhance public good. However, the efficacy of deterrence and mutuality produces the incorporation of other member states which lacks a stabilising factor. Nowadays, deterrence does not apply when there is any destabilising agent against the status quo. This is another aspect of public good, which alludes to the tendency of states to attempt to hang their actions on supporting the public good. The USA which takes the lead in this case contributes what it can afford. This can also lead to smaller contributions for public good. This state implies that public good is underfunded and it poses a great threat to global stability.

1.4.3 The Scope of Military Action

The US and other member states, ceased force on Iraq, in 1990, after they managed to liberate Kuwait; this was contrary to Resolution 678 which granted the authorisation for the participating states to use force. However, other resolutions after 678 did not allow the US military force to enter Baghdad, following ther repulsion of the Iraqi soldiers in Kuwait[28]. The US forces acted within the Security Council Mandate, as they did not proceed to Baghdad, in 1991. Moreover, there was an international consensus concerning the limitation of troops to proceed to Baghdad. The UN Charter protects the political and territorial rights of any state; therefore, the US acted within its mandate, as its main aim for invading Iraq was to liberate Kuwait and to ensure that there is security and peace in the region. According to Murphy, there were no instances of the UN violating the sovereignty of Iraq[29]. Furthermore, several states which participated in the war aimed at liberating Kuwait. The UN, therefore, asserts that the use of force in Iraq was due to the fact that Iraq had invaded Kuwait with the use of nuclear weapons, starting the dispute about disarmament. A real difficulty emerges in this discussion as it is felt by the author here that there are difficulties in determining to what extent the dominant states such as the US and the UK should be allowed or indeed required to take the lead in taking action of this nature. Collective action is naturally going to ensure greater support to a particular cause however this falls down somewhat due to the fact that some states simply don’t have the same support. On balance therefore it is suggested here that a central UN decision is appropriate but allowing certain nations to take the lead is a natural and efficient way of ensuring action is taken, provided they are answerable to the underlying structure.

1.5 Anticipatory or Pre-emptive Self-Defence

The Bush administration exercised a pre-emptive self-defence doctrine to prevent rogue states fromt flourishing. The US government has received threats from terrorists and opposing states, suggesting that the matter may escalate if force is used unnecessarily or with the perception of unfairness. From an historical point of view, the USA has no pre-emptive record against the other states. This includes the attacks on Iraq. However, the USA have been linked to a pre-emptive military attack in the Cuban missile attack, in 1962, though it was not carried out in a definitive manner[30].

In the recent attacks, the USA has avoided pre-emption in justification of its actions. The Security Council and the General Assembly have condemned Israel for its 1981 bombing which destroyed nuclear reactors in Iraq. Israel, however, defended its stance, alluding that by removing the nuclear reactors, Israel was just exercising its right to self-defence, as stated by the UN Charter. Israel failed to give evidence of any imminent attack by Iraq. Israel, on the other hand, argued that Iraq designed the reactor to develop nuclear bombs which could be used in a war with Israel, as the two nations were in a state of war. The international community, however, rejected Israel’s action. Resolution 487 condemned Israel’s misconduct and violation of the UN charter[31].

Anticipatory self-defence doctrine recognises force as the only justification in an imminent armed attack. Becker argues that common sense is the sure way to test international legal norms, as opposed to textual literalism[32]. This implies that it is awkward for a given nation to wait for another state to attack, before it is entitled to act in self-defence. The pre-emptive doctrine forwarded by Bush goes one step further in terms of anticipatory self-defence. The proposed doctrine advocates for the removal of imminent requirements of attack from the anticipatory self-defence. According to Bush doctrine, a state has a right to self-defence, despite the fact that uncertainty is not catered for in the other nation’s regime or doctrine. This doctrine was deployed in the attack on Iraq, during the Gulf War[33]. This was due to the fact that the Iraqi attack was not imminent, but that the invasion was a strategy aimed at restoring peace.

However, the doctrine employed does not exhibit “certainty” requirements as outlined regarding future armed attacks. Due to changing technologies, it is impossible to respond to imminent attacks that are certain. However, if the UN charter allowed the state to defend itself if they merely felt threatened would open “loopholes” in the face of violence. Ultimately thjs doctrine can have a huge impact on the stability of the world, where states which adhere to the pre-emptive doctrine act in violation of the UN charter.

It is argued here therefore that extreme caution needs to be exercised when working with the doctrine of pre-emption so that there needs to be at least a strong likelihood of force being used and not merely a remote chance at some point in the future.

1.5.1 Unilateral Humanitarian Intervention

The fight against terrorism violates human rights in several ways and this has forced the US government to reject “‘ideas”, in order to restore democracy and to develop free markets and trade. Furthermore, the Security Council has authorised the use of force, specifically for humanitarian use, but this strategy is only envisaged where authorisation has been denied. Military action has promoted humanitarian intervention aimed at rescuing people from human rights’ violation, without the authorisation of the UN Security Council. This is because Article 2(7) prohibits intervention in acts which are considered domestic[34].

The Kosovo Commission has elucidated varied reactions from various states, based on humanitarian intervention. It is evident that states considered the act as legitimate and not illegal. Actions by NATO were conducted on a moral ground. There are several efforts by the General Assembly and the UN to incorporate and recognise humanitarian intervention in its customary law[35]. However, several states maintain that the UN must control and maintain a primacy in controlling conflict resolution. However, smaller nations oppose the strategy to incorporate humanitarian intervention as a means of achieving Western domination. The “larger” states, on the other hand, oppose the proposal, as they feel that the doctrine will mean that certain states might be assigned the duty to intervene, in the case of a humanitarian crisis.

It would seem counterintuitive however to ignore the importance of humanitarian support and assistance which is naturally inherently linked to the issue of self defence. It is argued here that the two are simply indivisible and the UN must necessarily incorporate humanitarian intervention as part of the wider agenda of support overall peace and safety.

1.6 The Extent of the Armed Attacks Conducted against Iraq

The attack on Iraq by the US government has been challenged regarding the importance of international law in safeguarding the rights of every state. For example, sceptics allude to the attack as an act of power politics, masquerading under a facade system. An international institution such as the Security Council and international law has failed to intervene against the invasion of Iraq. This is arguably because the Bush government proceeded with its strategy to execute its plans, in 2002. This might imply that the US government only exercised its hegemonic powers as stipulated in its legal theory[36].

Sceptics, however, fail to clarify the behaviour of the actions conducted by the US government during its invasion of Iraq. The critics do not consider those who participated in the decision that led to US invading Iraq (end of sentence?). The critics have also failed to ascertain the role played by international law and the institutions involved, as well as the due process that was followed in developing the plan. It is the opinion of the author of this paper that international law and other bodies must have played a huge role in structuring the debate to decide whether force was necessary in the case of Iraq. This implies that actions by the US government to conduct an attack without persuading the legal theory ought not to be at the discretion of international norms and undermining by the Security Council.[37]

1.7 Compare and Evaluate the Legality of the Use of Force against Iraq, in 1991 and in 2003, from an International Law Perspective

Having looked at the issues above it can be seen why there is still no consistent agreement as to whether the use of force in Iraq in 2003 has been considered to be legal or illegal. The invasion in 1991 was seen to be legal due to the UN Resolution 660 being passed that condemned the Iraqi invasion of Kuwait and the co-illation forces entered Kuwait liberating it from the Iraqi rule.

During the 2003 invasion the authority was argued to have come from the combination of SCR 678 (which was the authorisation of force in 1991), SCR 687 which required Iraq to disarm itself and SCR 1441 which stated that Iraq was in fundamental breach of the 1991 cease fire. There was no question that Iraq hadn’t breached the requirements, where the dispute lay however was in whether the use of force used by the US and UK predominately was appropriate in the circumstances. Most notably SCR 1441 did not authorise action by “all necessary means” as it did in the 678 SCR which authorised the action in 1991. It is this slight distinction of wording that arguably creates the distinction between 1991 and 2003 and presents the greatest challenge for the US and the UK in gathering support for their use of force in 2003.

1.8 Conclusion

International law has been cited as wanting due to recent responses to international threats and terrorism. “Large” nations and super powers have condemned the law as ill-equipped and outdated when they find themselves to be limited in one way or the other. International law is not merely what a particular nation prefers it to be. Moreover, the international community is a large body, thus declarations by one nation cannot alter the legal aspects. This, therefore, means that counter terrorism by some states such as the Bush administration should be critically assessed. It is also difficult to propose a future international stability. Despite terrorism posing a great challenge to global prosperity, the international bodies and law do not provide a discreet solution to these problems[38]. The paper concludes by saying that the attack on Iraq by the US, the UK and other states was a moral obligation. Difficulties do however arise due to the need to rely on the concepts of self defence to justify the actions and it is concluded here that whilst the actiosn taken by the UK and US can certainly be morally justified with reasonable strength, a review of the legal basis is needed to ensure that this type of leadership can legitimately be shown by the more powerful nation states in the future.

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