Legal Bases for Coalition Combat Operations in Iraq, May 2003-Present

• Author: Alexandra Perina
• Position: Attorney Adviser in the Office of the Legal Adviser, US Department of State
• Pages: 81-96

V

Legal Bases for Coalition Combat Operations

in Iraq, May 2003-Present

Alexandra Perina*

LIntroduction

UScombat operations in Iraq in 2003 began with airstrikes on March 19 and

swiftly overwhelmed the Iraqi armed forces. Within six weeks, US and co-

alition forces were in control of almost all major cities in Iraq, and Saddam

Hussein's army was considered defeated. On May 1, 2003, from the deck of the

USS Abraham Lincoln, President Bush famously declared that major combat oper-

ations in Iraq had ended. 1His observation that "Americans, following abattle,

want nothing more than to return home [a]nd that is your direction tonight"

proved, however, to be premature. Six-and-a-half years later, 120,000 US troops

remain in Iraq.2This article examines the legal underpinnings for US-led military

operations in Iraq following the defeat of regular Iraqi military forces.

International law reflects anumber of legal bases on which aState may under-

take military operations in foreign territory. The most common legal grounds in-

clude aState's exercise of self-defense, the authorization of the United Nations

Security Council and the consent of the foreign State. Afurther ground, though it

may at first glance appear to conflate issues ofjus ad helium andjus in hello, is found

in the obligations of an occupying State under the laws of war. Each of these legal

*Attorney Adviser in the Office of the Legal Adviser, US Department of State. The views

presented in this paper are not necessarily representative of those of the State Department or the

US government.

Legal Basesfor Coalition Combat Operations in Iraq, May 2003-Present

grounds has formed abasis—often in overlapping and interdependent ways—for

the US military operations in Iraq during the past six- and-a-half years.

For purposes of this paper, the US presence in Iraq will be examined in three

phases: first, during the occupation ofIraq, which formally ended on June 28, 2004;

second, the period following the end of formal occupation until December 31, 2008;

and finally, the current period, which began on January 1, 2009, and continues

today.

II. Belligerent Occupation ofIraq (May 2003 to lune 28, 2004)

Whether aterritory is occupied is aquestion of fact, namely, whether "it is actually

placed under the authority of the hostile army."3This requirement includes both a

physical and an administrative component: an occupying power must both have

firm physical possession of enemy territory and substitute its authority for that of

the local government in that area. Occupation "extends only to the territory where

such authority has been established and can be exercised."4

While it may be difficult to establish from public records specific dates on which

particular areas of Iraq became occupied by US and coalition forces, contempora-

neous documents indicate that the occupation of Iraq more or less in its entirety

was established by mid-May 2003. In aletter to the President of the UN Security

Council on May 8, 2003, the US and UK Permanent Representatives to the United

Nations announced the establishment of the Coalition Provisional Authority

(CPA) "to exercise power of government temporarily."5While the word "occupa-

tion" appears nowhere in the letter, it nonetheless made clear that the United States

and the United Kingdom, through the CPA, undertook the role and responsibili-

ties ofpowers belligerently occupying Iraq under the laws ofwar. Subsequently, on

May 22, 2003, the UN Security Council, noting the May 8letter, "recogniz[ed] the

specific authorities, responsibilities, and obligations under applicable interna-

tional law of [the United States and the United Kingdom] as occupying powers un-

der unified command."6

The insurgency emerged soon afterward, with attacks directed not only against

US and coalition forces, but against Iraqis perceived to be "collaborating" with the

coalition, emerging Iraqi political leaders, and Iraqi police and military forces. In-

surgent targets included the UN headquarters, the Jordanian Embassy, the Al

Rasheed hotel, power stations, foreign companies and oil installations. The insur-

gents themselves were composed of various groups, including Shia militants, for-

eign fighters with anti-coalition motives, Al Qaeda in Iraq and Iraqi nationalists

(most of whom were Baath Party members). With the exception of the Baathists,

none of the insurgent groups represented or was loyal to the government of

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