Iraq and the 'Fog of Law'

• Author: John F. Murphy
• Position: Professor of Law, Villanova University School of Law
• Pages: 19-41

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Iraq and the "Fog of Law"

John F. Murphy*

Theconference "The War in Iraq: ALegal Analysis," from which this volume

derives, covered avariety of topics and aplethora of legal issues. It was fol-

lowed by aworkshop consisting of moderators of the various panels, panelists and

commentators with aview to continuing the dialogue begun at the conference. As a

commentator at the conference, 1this author was struck not only by the large num-

ber of controversial issues arising out of the conflict in Iraq, but also by the ab-

sence of clear resolution of many of these issues, both at the conference and in the

wider world outside of the conference, hence my choice of the "fog of law" as part

of the title of this article.2

By the "fog oflaw," Imean not only the debate over the law as it was interpreted

and applied in Iraq; but also the issue ofwhat law applied—national law, especially

the law of Iraq; the law of armed conflict (or, as preferred by some, "international

humanitarian law"); the law of the United Nations Charter, including Security

Council resolutions adopted under Chapter VII; or no law at all.3

Although the first panel of the conference was titled "Legal Bases for Military

Operations in Iraq," and Andru Wall presented adefense of the legality of the

March 2003 invasion of Iraq and the removal of the Saddam Hussein regime from

power,4this topic was not aprimary focus of the conference. Perhaps this was just

as well, since the legality ofthe war in Iraq under the jus ad helium, the law of resort

*Professor of Law, Villanova University School of Law.

Iraq and the "Fog ofLaw'

to the use of armed force, has been debated extensively in various other forums.

Moreover, with the passage of time and arash of developments in Iraq that have

raised ahost of other issues, the legality ofthe 2003 invasion has arguably become a

matter of academic interest only. It may be appropriate, however, to make two

brief observations before leaving the topic. The first is that there was general agree-

ment in the Security Council debates concerning Iraq on a"strict constructionist"

approach to thejus ad bellum. That is, the strict limits on the use of force set forth in

Article 2(4) of the UN Charter5are subject to only two exceptions: (1) self-defense in

response to an armed attack and (2) military action taken or authorized by the Secu-

rity Council.

In the Security Council debates prior to and after the invasion, there was no in-

vocation of Article 51 6as abasis for the invasion. Rather, the debate focused on

whether the particular Security Council resolutions on Iraq, including especially,

but not limited to, Resolution 1441, 7authorized the March 2003 invasion of Iraq

without the need for afurther resolution explicitly authorizing such an action. The

"fog of law" in this case may have been Resolution 1441 itself, which this author has

described elsewhere as "a masterpiece of diplomatic ambiguity that masked real

differences ofview between the United States and the United Kingdom, on the one

hand, and France, Germany, and Russia, on the other, in how Iraq's failure to fulfill

its obligations under Resolution 687 should be handled."8In asimilar vein, Michael

Glennon has suggested that Resolution 1441 "can accurately be said to lend sup-

port to both claims. This is not the hallmark of great legislation."9

The second observation concerns whether, assuming arguendo that none of the

applicable Security Council resolutions authorized the March 2003 invasion of

Iraq, this was a"failure of the Security Council," as suggested by Glennon, or

whether the Security Council should have accepted the US and UK proposal that it

adopt aresolution explicitly authorizing the use of force if Iraq failed to carry out

its obligation to disarm. There has been considerable debate over whether it was

necessary or desirable as a matter ofpolicy to remove the Saddam regime to main-

tain international peace and security, but adiscussion of the arguments for and

against this proposition are beyond the scope of this article. For present purposes,

it suffices to note that there was little or no prospect that the Security Council

would adopt aresolution authorizing such action, however compelling the reasons

for doing so. There is considerable evidence that, far from helping to enforce Reso-

lution 687, France, Russia and China engaged in deals with the Saddam Hussein

government that undermined the resolution's enforcement. 10 In short, the

Saddam regime was one favored by three permanent members of the Security

Council, and it is reasonable to conclude that they had no interest in its removal

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