International Law and the 2003 Campaign against Iraq

• Author: Nicholas Rostow
• Position: General Counsel, US Mission to the United Nations
• Pages: 21-39

Ill

International Law and the 2003 Campaign

against Iraq

Nicholas Rostow1

Introduction

When,on September 12, 2002, President George W. Bush called on the UN

Security Council to enforce its binding resolutions on Iraq and indicated

that the United States was willing to enforce them alone if need be,2one of the ques-

tions he put before the world had periodically come up in the preceding decade: was

it lawful for aState or group of States to enforce the Security Council resolutions on

Iraq without specific Security Council authorization in each case? Or, to put it an-

other way, "who decides?"3The previous occasions when this question was raised in-

volved the enforcement in the 1990s of the No-fly Zones by the United States,

Britain, and, for part of the time, France or larger scale attacks on Iraqi military tar-

gets as in December 1998.4However one frames this constitutive question, in each

case the answer is that those members of the Security Council decided.

Of course, actions are taken in context, and the lawfulness of an action cannot

be assessed without examining its context. The circumstances of the speech, ayear

after the terrorist attacks of September 11, 2001, lent special urgency to the Presi-

dent's call. The effort by Iraq to mount terrorist attacks against the international

coalition formed in response to the 1990 invasion of Kuwait, Iraqi support for Pal-

estinian terrorist attacks against Israel, Saddam Hussein's applause for the Septem-

ber 11attacks themselves, and Iraq's repeated efforts to obtain and then maintain

International Law and the 2003 Campaign against Iraq

nuclear, chemical, and biological weapons programs and capabilities while defying

obligations stemming from the 1991 Gulf War formed the political and legal envi-

ronment of the 2003 military action.

On September 12, 2002, President Bush summarized the principal UN Security

Council resolutions binding on Iraq and Iraq's failure to comply with them. He

said "[t] he conduct of the Iraqi regime is athreat to the authority of the United Na-

tions and athreat to peace Are Security Council resolutions to be honored and

enforced or cast aside without consequence?"5He added that the United States had

the right and indeed the obligation to enforce the law against Iraq and called on UN

Member States to join in doing so. 6

The US view of international law applicable to the Iraq case did not and does not

now enjoy unanimous support. For example, Professor Thomas Franck argues

that, in 2003, the United States, Britain, Australia, and others engaged in ause of

force against Iraq not sanctioned under the UN Charter. 7He disputes the idea that

the campaign was alawful exercise of the international use of force under existing

UN Security Council resolutions and general principles of international law. In

fact, the arguments Professor Franck disagrees with have merit and deserve elabo-

ration before the invisible college of international lawyers renders its judgment.8

The Legal Basis for the 2003 Campaign against Saddam Hussein

The argument for the lawfulness of the 2003 campaign against Saddam Hussein's

government of Iraq is rooted in the Persian Gulf situation after August 2, 1990. The

argument concludes that, first, UN Security Council resolutions and statements

from 1990 through 2002 provided legal authority for the 2003 campaign and dem-

onstrated that, as alegal matter, the 1991 Gulf War had not ended, and, second,

that, in any event, Iraq's material breaches of the 1991 cease-fire, which the Secu-

rity Council repeatedly recognized as such, kept alive, if it were necessary to do so,

the Security Council's 1990 authorization to use force to uphold and implement

subsequent resolutions and restore regional peace and security. The terrorist at-

tacks of September 11, 2001, transformed the context and analysis of Iraqi behavior

and ended more than adecade's tolerance of Iraq's refusal to fulfill its obligations,

to the UN Security Council.9

UN Security Council Resolutions and Council Presidential Statements created

the UN-based legal framework for the 2003 campaign. 10 Resolution 1441, which

the Security Council adopted unanimously on November 8, 2002, recognized "the

threat Iraq's non-compliance with Council resolutions and proliferation of weap-

ons of mass destruction and long-range missiles poses to international peace and

security." 1'The operative section of Resolution 1441 commences with the finding

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