Was the 2003 Invasion of Iraq Legal?

• Author: Andru E. Wall
• Position: Lieutenant Commander, JAGC, US Navy
• Pages: 69-80

IV

Was the 2003 Invasion of Iraq Legal?

Andru E. Wall*

I. Introduction

Discussion of the jus ad bellum and the Iraq war is anything but simple and

uncontroversial. There is certainly no shortage of opinions on the subject.

One of the author's favorite quotes is from General Wesley Clark, who said the

2003 invasion was legal, but illegitimate. 1You will appreciate the irony if you re-

member that the Independent International Commission on Kosovo established

by the United Nations called General Clark's 1999 Kosovo campaign illegal, but

legitimate.2

When several leading international law professors were asked by aBritish news-

paper, "Was the 2003 Iraq war legal?" their responses were illustrative.3Professor

Malcom Shaw replied: "[0]n the basis ofthe intelligence we had at the time and the

publicly available knowledge, there was acredible and reasonable argument in favor

of the legality ofthe war." Professor Christine Chinkin answered "no" because she

believed UN Security Council Resolution 1441 preserved for the Security Council

the decision on enforcement action. Professor Sir Adam Roberts replied: "There

was in principle apossible case for the lawfulness of resort to war by the US and its

small coalition." Professor James Crawford answered simply: "It comes down to a

political judgment."

Unfortunately this author thinks Professor Crawford's statement is quite accu-

rate, as it reflects the truism that law and policy are mutually affecting; nowhere is

*Lieutenant Commander, JAGC, US Navy. This article is derived in part from Andru E. Wall,

The Legal Casefor Invading Iraq, 32 ISRAEL YEARBOOK OF HUMAN RIGHTS 165 (2002).