Legal Bases for Military Operations in Iraq

• Author: Raul A. 'Pete' Pedrozo
• Position: Associate Professor, International Law Department, US Naval War College
• Pages: 45-67

Ill

Legal Bases for Military Operations in Iraq

Raul A. "Pete" Pedrozo*

Introduction

OnMarch 23, 2003 coalition forces invaded Iraq after it was found to be in

material breach of its obligations under numerous UN Security Council

resolutions. Less than two months later, on May 1, 2003, President Bush made his

historic "mission accomplished" speech from the flight deck of the USS Abraham

Lincoln, declaring that "major combat operations in Iraq have ended [and that] in

the battle of Iraq, the United States and our allies have prevailed." 1Six years later,

US combat troops remain in Iraq fighting aviolent insurgency. Although the situa-

tion has improved over the past year, President Obama has vowed to end US com-

bat operations no later than August 31,20 10.2Even if the President does not live up

to his campaign promise, all US forces must withdraw from Iraq no later than

December 31, 2011, unless otherwise authorized by the Iraqi government.3This

article will briefly discuss the legal bases for the invasion of Iraq in March 2003, the

legal bases for follow-on operations after May 1, 2003 and the characterization of

the conflict across the spectrum of operations.

Legal Basesfor Launch of Operations

Justifications for Going to War

On March 23, 2003 US, British and other coalition forces invaded Iraq. The mili-

tary intervention was justified primarily along two lines: repeated Iraqi violations

*Associate Professor, International Law Department, US Naval War College.

Legal Bases for Military Operations in Iraq

of anumber of United Nations Security Council resolutions and the right of self-

defense, and, to a lesser extent, humanitarian intervention.4While Itend to agree

with the UKAttorney General that the right of self-defense and the principle of hu-

manitarian intervention did not provide asound legal basis for the invasion,51do

believe there was sufficient justification to attack Iraq based on its continuous and

flagrant disregard of its disarmament and other obligations under numerous Secu-

rity Council resolutions. It is true that weapons inspectors failed to find large quan-

tities of chemical and biological weapons following the invasion and that evidence

relied on by the United States and the United Kingdom to justify the invasion

—

e.g., Iraqi ties to al-Qaeda, Iraq's pursuit ofbiological, chemical and nuclear weap-

ons programs, etc.—was subsequently shown to be based on fraudulent docu-

ments or unsubstantiated assertions of Iraqi defectors.6However, the fact remains

that, at the time of the invasion, Iraq was in breach of all fourteen of its weapons of

mass destruction (WMD) obligations set out in numerous Security Council reso-

lutions, as well as its obligations under Resolution 687 (1991 )7to renounce terror-

ism; under Resolution 688 (1991) 8to cease internal oppression of its civilian

population; under Resolutions 686 (1991),9687 and 1284 (1999) 10 to account for

Kuwaiti and third-country nationals wrongfully detained by Iraq; and Resolutions

686 and 687 to return all Kuwaiti property it had seized. 11

Iraq's Violations of Its Obligations under UN Security Council Resolutions

No one disagrees with the fact that Iraq flagrantly and repeatedly violated countless

Security Council resolutions, 12 as well as its obligations under various interna-

tional instruments, 13 and that it failed to cooperate with United Nations and Inter-

national Atomic Energy Agency (IAEA) weapons inspectors for more than two

decades. Four months after agreeing to the ceasefire terms in Resolution 687 that

ended the first Gulf War, Iraq commenced its pattern of noncompliance with the

ceasefire agreement and failure to fully cooperate with UN and IAEA weapons in-

spectors. 14 This pattern continued throughout the remainder of the decade, 15 cul-

minating in US and UK airstrikes against military targets in Iraq in December 1998

after the UN Special Commission (UNSCOM) submitted areport to the Security

Council indicating that Iraq had failed to cooperate fully with its inspectors. 16 Iraqi

officials did not allow weapons inspectors to return to Iraq until 2002. 17

Adoption of UN Security Council Resolution 1441 (2002)

In September 2002, Iraqi officials met with UN Monitoring, Verification and In-

spection Commission (UNMOVIC) 18 and IAEA officials to discuss the resump-

tion of weapons inspections in Iraq. During that meeting, Iraqi officials agreed to

accept "all the rights ofinspection provided for in all of the relevant Security Council

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