Operation Iraqi freedom: legal and policy considerations.

Author:Turner, Robert F.

On the eve of Operation Iraqi Freedom, I was asked by Dr. Laurie Mylroie to write a 5,000-word legal defense of the campaign to remove Saddam Hussein from power by force to appear in a new book she was writing. (1) It took me 15,000 words to even summarize what I saw as the most compelling legal arguments--without in the process even mentioning the intelligence reports (of which I was aware) that Iraq had sought to purchase uranium from Niger that have become so central to the campaign to characterize President Bush as a "liar." (2)

While the chapter was being prepared I was invited to give lectures to legal conferences in Hawaii and Germany on the same issue sponsored by U.S. Pacific Command (PACOM) and European Command (EUCOM) and attended by international lawyers from many nations, invitations that provided further opportunities to examine these issues.

I don't start off with any fondness for war. As the son of an Air Force medical officer posted to a NATO assignment in Oslo more than half a century ago, I traveled around Europe as a child and saw some of the remaining rubble from World War II. Later, as a young adult, I spent considerable time in Indochina in a variety of capacities, including twice as a junior Army officer. I saw soldiers die, and I saw civilians and even small children die. I returned with a hatred for war, and when I was selected in 1985 to be the first president of the congressionally established U.S. Institute of Peace, it was all the more exciting because of my passion for peace. Since 1995, I have been co-teaching a seminar on "War and Peace" at the University of Virginia School of Law.

In a 1793 letter to James Monroe, Secretary of State Thomas Jefferson observed that "through all America there has been but a single sentiment on the subject of peace and war, which was in favor of the former.... We have differed perhaps as to the tone of conduct exactly adapted to the securing it." (3) And there, indeed, lies the rub. Two of my primary areas of interest are international and constitutional law, and my interest in both resulted in no small part from inquiries I began as I tried to understand the Vietnam conflict in the mid-1960s. Most of my international law colleagues opposed U.S. intervention in Iraq because of their preference for peace and their respect for the rule of law; and yet, I supported Operation Iraqi Freedom for precisely the same reasons. Because I believe that it is only when the rule of law is credible--that is, when international actors otherwise favorably disposed to resorting to aggression or other unlawful activity that threatens the peace perceive that the law will be enforced--that it has any chance of playing a serious role in keeping the peace.

While flying into Munich International Airport for the EUCOM conference, I did not miss the irony that, sixty-five years earlier, world leaders had gathered there and ignored the prohibition in international law (4) against the aggressive use of armed force in an effort to appease Adolf Hitler and maintain "peace for our time." (5) Despite their good intentions, history reveals that their failure to enforce the law made legal constraints on aggression irrelevant and emboldened Hitler, who dismissed the cautions of his generals the following year by asserting he had "seen" the British and French leaders at Munich and they were "little worms." (6) At least forty million people around the globe lost their lives during World War II, and one of the fundamental lessons drawn from that tragedy was that unenforced international law will not maintain the peace. Indeed, early efforts like the toothless Kellogg-Briand Treaty may actually have contributed to Hitler's aggression by giving peace-loving states a false sense of security that encouraged them to neglect their military defenses. War, after all, was unlawful.

Hoping to avoid the same mistake in the future, in 1945 representatives of fifty nations gathered in San Francisco to draft the U.N. Charter. This time, peace would be maintained by more than mere paper barriers. Article 1 of the Charter provided:

The Purposes of the United Nations are:

  1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats' to the peace, and for the suppression of acts of aggression or other breaches of the peace....

Reflecting the sagacity of Sun Tzu, (8) rather than simply agreeing to unite against aggression once war had broken out, the authors of the Charter vowed to remove "threats to the peace" even before aggression could occur. Drawing on the lessons of the pre-war era, when neither the League of Nations nor any other state or group of states was willing to do more than utter a few words of criticism in response to Japanese aggression in Manchuria in 1931 and Italian aggression in Ethiopia four years later, the new United Nations was to have its own enforcement body.

Chapter V of the Charter established a Security Council with "primary" (but not exclusive) "responsibility for the maintenance of international peace and security," (9) and every U.N. member accepted a legal obligation to "carry out the decisions of the Security Council" in accordance with the Charter. (10)

Not every use of force by sovereign states in the absence of Security Council authorization is unlawful. The basic prohibition against the use of force is set forth in Article 2, paragraph 4, of the Charter, which provides:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. (11) Professor Phillip C. Jessup, one of America's preeminent authorities on international law in the mid-twentieth century and a distinguished judge on the International Court of Justice, wrote shortly after the Charter was written:

Article 2, paragraph 4, is not an absolute prohibition on the use of force. If force can be used in a manner which does not threaten the territorial integrity or political independence of a State, it escapes the restriction of the first clause. But it must then be established that it is not "in any other manner inconsistent with the Purposes of the United Nations." (12) Obviously, since the Iraqi regime of Saddam Hussein was repeatedly determined by the Security Council to be a "threat to the peace," and the very first purpose set forth in Article 1 of the Charter is to "remove" threats to the peace, one can not with a straight face argue that the "purpose" of Operation Iraqi Freedom was inconsistent with the purposes of the Charter. Nor did the states involved in the liberation of Iraq have designs on its "territorial integrity" or "political independence." The clear intention was to remove a repeat offender--a tyrant who had slaughtered countless human beings and ruled his own people by terror--from power so that he would no longer remain a threat to the peace of the world. In the end, Iraq will have every square meter of territory it had under Saddam's rule, and if the intervention is fully successful it will have a new government composed of Iraqis and reflecting the will of the majority clearly expressed through free and fair elections, supervised by the United Nations and anyone else who wishes to observe.

It seems clear that the people of Iraq do not feel their "political independence" has been undermined by Operation Iraqi Freedom. Responding to a July 2003 YouGov public opinion poll of 798 adult residents of Baghdad, commissioned by a London television station, only 9 percent said they would rather live under Saddam Hussein than under the Americans, and more than three out of four expressed hope that the coalition forces would remain in Iraq for the time being--with 56 percent hoping they would remain "at least" one year. When given six options for the kind of government they would like to see replace Saddam's dictatorship, the most popular response was "western-style democracy," receiving 36 percent of the votes. (13) Sovereignty belongs ultimately to the people of a country, and the best evidence suggests that the Iraqi people did not view Operation Iraqi Freedom as an infringement upon their rights.

As a general principle, of course, states may not invade each other's territory, even for short periods of time, without violating the Charter. However, as Professor Derek Bowett has correctly observed, "the inviolability of territory is subject to the use of that territory in a manner which does not involve a threat to the rights of other states." (14) And the Security Council repeatedly determined that Iraq's use of its territory was a "threat to the peace." (15)

The Charter also expressly recognized that, "until the Security Council has taken measures necessary to maintain international peace and security," member states may act in "individual or collective self-defence...." (16) To clarify that the Security Council was not the only remedy available if peace was threatened, the committee that drafted Article 2, paragraph 4, of the Charter in San Francisco announced that "the use of arms in legitimate self-defEnse remains admitted and unimpaired" by the Charter. (17)

Senator Arthur Vandenberg of Michigan, a senior member of the U.S. delegation to San Francisco, told the Senate:

If the omission [of the right of collective self-defense] had not been rectified there would have been no Charter. It was rectified, finally, after infinite travail, by agreement upon Article 51 of the Charter. Nothing in the Charter is of greater immediate importance and nothing in the Charter is of equal potential importance. (18) Addressing the Inter-American Bar Association in 1949, Senator Vandenberg further explained that the realization that Security Council action could be blocked by any of five permanent members made it imperative that the...

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