The Legality of Operation Iraqi Freedom under International Law

• Author: Michael N. Schmitt
• Position: Professor of International Law, George C. Marshall European Center for Security Studies, Garmisch-Partenkirchen, Germany
• Pages: 367-392

XVII

The Legality of Operation Iraqi Freedom

under International Law

Michael N. Schmitt*

Inthe months preceding the attack on Iraq by the US-commanded "coalition of

the willing," 1few issues captured greater international attention than the legal-

ity of the impending armed conflict. Even United Nations Secretary-General Kofi

Annan entered the fray, intimating that an attack without the imprimatur of a

Security Council mandate would violate the UN Charter.2Once Operation Iraqi

Freedom began on March 19, 2003, however, one might have expected the brou-

haha to die down, particularly given the speed ofvictory, and the fact that the trou-

bled occupation should have diverted attention fromjws ad helium reservations.3

Indeed, controversy regarding the legality of the two campaigns the United States

and United Kingdom had recently conducted, Operations Allied Force and En-

during Freedom,4faded quickly once hostilities ended.

Yet, as this article is being written in early 2004, the controversy over Iraqi Free-

dom rages on. The 2004 US presidential election campaign has contributed to the

staying power of the issue. So too have the transatlantic and intra- European

*Professor of International Law, George C. Marshall European Center for Security Studies,

Garmisch-Partenkirchen, Germany. The views expressed herein are those of the author in his

personal capacity and do not necessarily represent those of any United States or German

government agency. This article was published previously in volume 3, no. 2of the Journal of

Military Ethics (2004) and is reprinted with permission.

The Legality of Operation Iraqi Freedom under International Law

divides created, or at least exacerbated, by virulent opposition to the war on the

part of some European States, especially France and Germany. The seeming inabil-

ity of weapons inspectors to locate the alleged weapons of mass destruction

(WMD) capabilities that President Bush pointed to so frequently as war clouds

loomed, and the failure to find asmoking gun tying Iraq to Al Qaeda, have added

fuel to the fire.

Given the panoply of justifications for the operation bandied about by govern-

ments, politicians, political commentators, legal experts, non-governmental orga-

nizations, and the public at large, Iraqi Freedom serves as afascinating jus ad

bellum case study. This article considers those most commonly posed—implicit

Security Council authorization, self-defense against State support to terrorism, an-

ticipatory (often mislabeled preemptive) self-defense against terrorism and weap-

ons of mass destruction, breach of the 1991 cease-fire, humanitarian intervention,

and regime change. States mounting the attack formally proffered only breach of

the cease-fire that ended the first Gulf War as its legal basis. However, unofficial

sources in policy and academic circles floated the others as independent grounds

for the action, and the States involved cited each as ade facto, albeit not legal, factor

legitimizing the attack.

Implicit Security Council Authorization

The most universally accepted basis for the use of force is authorization by the

United Nations Security Council. Before granting it, the Council must determine,

pursuant to Article 39 of the UN Charter, that aparticular situation amounts to a

threat to the peace, breach of the peace, or act of aggression. Once it does so, the

Security Council must first attempt to resolve the matter by employing non-force-

ful measures, such as an embargo.5If non-forceful actions prove unsuccessful, or if

it believes that attempting them would be "inadequate," the Council may then, act-

ing under Article 42, "take such action by air, sea, or land forces as it may deem

necessary to maintain or restore international peace and security." Such actions are

known as "Chapter VII enforcement operations," areference to the Charter chap-

ter in which the relevant articles appear.

This decision generally comes in the form of aSecurity Council resolution con-

taining amandate to use "all necessary means" to achieve aspecified end. For in-

stance, Resolution 678 of 1990 authorized "Member States cooperating with

Kuwait" to use all necessary means to "uphold and implement Security Council

Resolution 660 and all subsequent relevant resolutions and to restore international

peace and security."6Resolution 660 had demanded the withdrawal of Iraqi forces

from Kuwait following their August 1990 invasion. 7Mandates can be issued to

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