The War in Iraq and the Dilemma of Controlling the International Use of Force

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1 The War in Iraq and the Dilemma of Controlling the International Use of Force A. MARK WEISBURD SUMMARY I. INTRODUCTION II. THE FACTS III. THE WAR AND THE CHARTER A. Authorization Under Resolution 678? B. Authorization Derived from Resolution 687? C. Authorization Derived from Resolution 1441? D. Authority Derived from the Concept of Self-Defense? E. Justification Drawn from Beyond the Charter? F. Summary IV. EVALUATION OF THE CHARTER SYSTEM V. ORGANIZING TO CONTROL THE USE OF FORCE? A. Introductory Note B. Why the Charter Took the Form It Took C. The Ten Conflicts Suez Crisis West Irian Goa Somalia-Ethiopia Tanzania-Uganda Vietnam-Kampuchea Soviet Union-Afghanistan Iraq-Iran Argentina-United Kingdom Iraq-Kuwait D. Examining the Original Assumptions Willingness to Use Force Dealing with Dominant States Justifications for the Use of Force Conclusions VI. CONCLUSION Professor of Law, The University of North Carolina at Chapel Hill. The author gratefully acknowledges the support of the Carolina Law Foundation in the preparation of this article. 521

2 522 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 39:521 I. INTRODUCTION War has been a principal focus of public international law since the discipline took shape. While lawyers have, over the centuries, concerned themselves with many aspects of war, the twentieth century was distinguished by an effort to establish international institutions intended to prevent states from initiating armed conflicts with other states without some form of international authorization. The longest-lived such institution is the United Nations; the most recent armed conflict that that institution has neither specifically authorized nor prevented is the attack on Iraq by the United States and the United Kingdom. 1 This article advances two theses. First, the attack on Iraq was a violation of the Charter of the United Nations (the Charter). Second, the events leading up to that attack demonstrate that the system established by the Charter has flaws so fundamental that no government can reasonably rely on the United Nations to address its security concerns. That system, often characterized by its intention to subject international relations to the rule of law, is in fact entirely arbitrary at its core. Paradoxically, therefore, the legal obligation that Iraq s attackers breached was a requirement of submission to a system that is itself lawless. The article concludes with an effort to consider the implications of the inadequacies of the Charter system for any effort to control states choices to go to war by legal means. II. THE FACTS On August 2, 1990, Iraq invaded Kuwait. 2 The Security Council on the same day adopted Resolution 660, determining that the invasion was a breach of the peace in violation of Chapter VII of the Charter. 3 During the next several months, a large number of states 4 most prominently the United States dispatched large military forces to Saudi Arabia. 5 Over this same period, unsuccessful efforts were made to persuade Iraq to withdraw from Kuwait. In the face of Iraq s continued presence in Kuwait, in November 1990 the Security Council adopted Resolution 678, which authorized Member States cooperating with the Government of Kuwait unless Iraq, on or before January 15, 1991, fully implemented [earlier resolutions relating to the invasion of Kuwait] to use all necessary means to uphold and implement Resolution 660 (1990) as well as all subsequent relevant resolutions and to restore international peace and security in the area Actually, a total of seven states apparently contributed military units to the attack: the United States, the United Kingdom, Australia, Poland, Denmark, the Czech Republic, and Slovakia. However, only the United States and the United Kingdom provided more than token forces. See Condoleezza Rice, Our Coalition, WALL ST. J., Mar. 26, 2003, at A A. MARK WEISBURD, USE OF FORCE: THE PRACTICE OF STATES SINCE WORLD WAR II (1997). 3. S.C. Res. 660, U.N. SCOR, 45th Sess., 2932d mtg., U.N. Doc. S/RES/660 (1990), available at (last visited Apr. 1, 2004). 4. These states will be referred to hereafter as the Coalition. 5. WEISBURD, supra note 2, at S.C. Res. 678, U.N. SCOR, 45th Sess., 2963d mtg. para. 2, U.N. Doc. S/RES/678 (1990), available at (last visited Apr. 1, 2004).

3 2004] THE WAR IN IRAQ AND THE INTERNATIONAL USE OF FORCE 523 Iraq did not comply with Resolution 678 and, on January 16, 1991, the Coalition began a campaign of aerial attacks against Iraq. 7 Iraq did not withdraw its forces from Kuwait despite this bombardment and, on February 24, 1991, the Coalition ground forces assembled in Saudi Arabia began a campaign against the Iraqi presence in Kuwait. 8 The Coalition quickly drove the Iraqis from Kuwait and its commanders suspended combat operations on February 28, On March 2, 1991, the Security Council adopted Resolution 686, which acknowledged the fact that fighting had ended and imposed various requirements upon Iraq, including the obligation to [d]esignate military commanders to meet with counterparts from the forces of Kuwait and the Member States cooperating with Kuwait... to arrange for the military aspects of a cessation of hostilities at the earliest possible time. 10 This resolution was followed, on April 3, 1991, by Resolution That resolution is crucial to any examination of the legalities of the 2003 war. First, Resolution 687 [affirmed] the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait and Iraq. 12 Second, it affirmed thirteen earlier Security Council resolutions, including Resolution 678, except as expressly changed below to achieve the goals of the present resolution, including a formal cease-fire. 13 Third, it imposed upon Iraq the obligation to destroy or render harmless its chemical, biological, and nuclear weapons stocks and production facilities for those weapons, to agree to inspection by international authorities as part of the implementation of these obligations, to agree never to develop such weapons, and to submit to ongoing monitoring of its compliance with the nondevelopment requirement. 14 Fourth, it [declared] that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of [the provisions of Resolution 687], a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with [R]esolution 678 (1990). 15 Finally, it [decided] to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region. 16 As Resolution 687 required, the government of Iraq accepted the provisions of the resolution by a formal letter dated April 6, Over the next several years, the system established by Resolution 687 was not smoothly implemented. In January 1993, Iraqi troops entered Kuwait in violation of Resolution 687; at the same time, Iraq sought to interfere with the operations of the 7. See WEISBURD, supra note 2, at Id. at Id. at S.C. Res. 686, U.N. SCOR, 45th Sess., 2978th mtg. para. 3(b), U.N. Doc. S/RES/686 (1991), available at (last visited Apr. 1, 2004). 11. S.C. Res. 687, U.N. SCOR, 46th Sess., 2981st mtg., U.N. Doc. S/RES/687 (1991), available at (last visited Apr. 1, 2004). 12. Id. pmbl. 13. Id. para Id. paras Id. para Id. para See Identical Letters Dated 6 April 1991 From the Permanent Representative of Iraq to the United Nations Addressed Respectively to the Secretary-General and the President of the Security Council, U.N. SCOR, 46th Sess., at 2, U.N. Doc. S/22456 (1991).

4 524 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 39:521 inspection system established by that resolution. 18 In statements by its president on January 8 and January 11, the Security Council characterized these actions as material breaches of Resolution 687 and threatened serious consequences. 19 On January 13, January 17, and January 18, in response to Iraq s actions, warplanes from France, the United Kingdom, and the United States attacked military installations in Iraq. 20 United Nations Secretary-General Boutros Boutros-Ghali characterized the action at the time as having been under a mandate from the Security Council 21 and later described the raids as in accordance with the Security Council s determination of 11 January that Iraq was in material breach of [R]esolution After the January 18 raids, Iraq ceased both its incursions and the efforts it was then making to hinder the United Nations inspectors. A second problem arose in 1994 after Iraq had deployed military units in the southern part of its territory near Kuwait. The United States threatened unilateral military action to force the withdrawal of those troops. 23 After Iraq announced that it had begun to withdraw the troops whose presence had provoked the crisis, the Security Council adopted Resolution 949, which not only demanded that Iraq withdraw the troops from its southern territory, but also expressly reaffirmed the second paragraph of Resolution the paragraph that authorized the use of all necessary means to implement Resolution 660 and subsequent resolutions and to restore international peace and security in the area. 25 A more serious problem developed in Iraq began to interfere more and more with the operations of the inspectors, to the point that the United States threatened military action in order to coerce Iraq into ceasing its obstruction. 26 Military action was avoided, however, when U.N. Secretary-General Kofi Annan obtained an agreement from Iraqi President Saddam Hussein to permit inspections to resume. 27 At a news conference following the conclusion of the agreement, after Iraq s deputy prime minister had observed that the agreement was reached through diplomacy not saber-rattling Annan commented, You can do a lot with diplomacy, but of course you can do a lot more with diplomacy backed up by firmness and force. 28 The reaction of the Security Council to the episode was more ambiguous. At the meeting when it adopted Resolution 1154 approving the agreement obtained by the Secretary-General, six of the Council s fifteen members 18. Note by the President of the Security Council, U.N. Doc. S/25091 (1993) (concerning various actions by UNIKOM and UNSCOM); Note by the President of the Security Council, U.N. Doc. S/25081 (1993) (concerning United Nations flights into Iraqi territory). 19. U.N. Doc. S/25081, supra note 18; U.N. Doc. S/25091, supra note Boutros Boutros-Ghali, Introduction to THE UNITED NATIONS AND THE IRAQ-KUWAIT CONFLICT , at (1993); see also R.W. Apple, Jr., U.S. and Allied Planes Hit Iraq, Bombing Missile Sites in South in Reply to Hussein s Defiance, N.Y. TIMES, Jan. 14, 1993, at A1 (discussing the January 13 bombing). 21. Press Release, United Nations, Transcript of Press Conference by Secretary-General, Boutros Boutros- Ghali, Following Diplomatic Press Club Luncheon in Paris on 14 January, at 1, U.N. Doc. SG/SM/4902/Rev.1 (Jan. 15, 1993). 22. Id. at Barbara Crossette, U.S. Is Demanding a Quick U.N. Vote on Iraqi Pullback, N.Y. TIMES, Oct. 15, 1994, at A S.C. Res. 949, U.N. SCOR, 49th Sess., 3438th mtg. at 1 2, U.N. Doc. S/RES/949 (1994), available at (last visited Apr. 1, 2004). 25. S.C. Res. 678, supra note 6, para See Kenneth Katzman, Iraq: Weapons Programs, U.N. Requirements, and U.S. Policy CRS-2 (Cong. Res. Serv., Rep. No. IB92117, Sept. 2, 2003), available at (last visited Apr. 2, 2004); James Bennet, Clinton Describes Goals for a Strike on Iraqi Arsenals, N.Y. TIMES, Feb. 18, 1998, at A See Katzman, supra note 26, at CRS Barbara Crossette, A Testy Hussein Deputy and a Candid U.N. Chief Fence with the Press, N.Y. TIMES, Feb. 24, 1998, at A11.

5 2004] THE WAR IN IRAQ AND THE INTERNATIONAL USE OF FORCE 525 appear to have criticized the unilateral threats of force made during the crisis; 29 three other members including Japan, a sponsor of the resolution joined these six in stressing that the resolution did not permit an automatic use of force in the event that Iraq failed to comply with the agreement, 30 even though Resolution 1154 warned Iraq that its failure to abide by the agreement with the Secretary-General would have severe[] consequences for Iraq. 31 But Annan s February 1998 agreement came to nothing, as Iraq continued to obstruct inspections. In November 1998, the Security Council adopted Resolution 1205, condemning Iraq s failure to comply with its obligations under the inspection regime. 32 In contrast to the statements by the President of the Security Council in 1993, however, the resolution neither characterized Iraq s actions as a material breach of its obligations nor made any threats; it did, however, stress the Council s continued institutional control by setting out, in the last paragraph of the resolution, its decision in accordance with its primary responsibility under the Charter for the maintenance of international peace and security, to remain actively seized of the matter. 33 Indeed, the debates accompanying the adoption of this resolution underline that six of the states voting for it, including two of the cosponsors and three permanent members who could have blocked the resolution if they had chosen to do so, supported the resolution in part because they read it as making explicit the authority of the Security Council to determine how to respond to any breach of Iraq s obligations. 34 Particularly striking in this regard was the statement by the representative of the United Kingdom, one of the original sponsors of the resolution, that [i]t is well established that the authorization to use force given by the Security Council in 1990 may be revived if the Council decides that there has been a sufficiently serious breach of the conditions laid down by the Council for the ceasefire. 35 After the adoption of this resolution, Iraq agreed to comply with its obligations. 36 Despite this agreement, the inspectors concluded in December that they were not receiving the cooperation from Iraq necessary for them to accomplish their mission; they withdrew from Iraq in that month to avoid aerial attacks subsequently carried out by the United States and the United Kingdom. 37 The purpose of these attacks, according to President Clinton, 29. See Provisional Verbatim Record of the Three Thousand Eight Hundred and Fifty-Eighth Meeting, U.N. SCOR, 53d Sess., 3858th mtg. at 4 5 (Costa Rica), 6 7 (Brazil), 8 9 (Sweden), 9 10 (Kenya), (China), (Russia), U.N. Doc. S/PV.3858 (1998), available at (last visited Apr. 5, 2004). 30. See id. at (Japan), (France), 18 (Gambia). 31. S.C. Res. 1154, U.N. SCOR, 53d Sess., 3858th mtg. para. 3, U.N. Doc. S/RES/1154 (1998), available at (last visited Apr. 5, 2004). 32. S.C. Res. 1205, U.N. SCOR, 53d Sess., 3939th mtg. para. 1, U.N. Doc. S/RES/1205 (1998), available at (last visited Apr. 5, 2004). 33. Id. para See Provisional Verbatim Record of the Three Thousand Nine Hundred and Thirty-Ninth Meeting, U.N. SCOR, 53d Sess., 3939th mtg. at 3 (France), 4 (Russia), 5 6 (Sweden, cosponsor), 6 (Brazil, cosponsor), 6 7 (Kenya), 9 10 (China), U.N. Doc. S/PV.3939 (1998), available at (last visited Apr. 5, 2004). 35. Id. at 10 (emphasis added). 36. See Letter Dated 15 December 1998 from the Secretary-General Addressed to the President of the Security Council, Annex II, at 3, U.N. Doc. S/1998/1172 (1998), available at (last visited Apr. 5, 2004). 37. See id. at 3 12; Report of the Security Council 16 June June 1999, U.N. GAOR, 54th Sess., Supp. No. 2, at , U.N. Doc. A/54/2 (1999).

6 526 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 39:521 was to punish Iraq for its failure to cooperate with the inspection process. 38 The United Kingdom and the United States justified their actions by reference to Security Council resolutions. The United Kingdom, in a letter to the president of the Security Council, described its action as based on the relevant resolutions of the Security Council[;] 39 a similar letter from the United States specifically invoked the authority granted by Resolution 678 to employ all necessary means to secure Iraqi compliance with the Council s resolutions and to restore international peace and security in the area. 40 No Council resolutions, statements by the Council president, or statements by the Secretary- General condoned these uses of force against Iraq. On the contrary, in a Security Council meeting on December 16, both Russia and China characterized the attacks as unlawful and blamed the U.N. inspectors for the crisis, four other Council members criticized the use of force without Council authorization, and France was noncommittal. 41 Secretary-General Annan referred to the occasion as a sad day for the world. 42 Inspections did not resume until November In 2002, the United States began to insist upon action against Iraq because, among other reasons, of the threat posed by the weapons that the United States asserted Iraq possessed in violation of Resolution 687. On September 12, President Bush, in a speech to the General Assembly, stressed Iraq s repeated violations of Security Council resolutions, urging that the United Nations take action. 44 He added, But the purposes of the United States should not be doubted. The Security Council resolutions will be enforced. The just demands of peace and security will be met, or action will be unavoidable. And a regime that has lost its legitimacy will also lose its power. 45 On October 11, at Bush s urging, 46 Congress adopted a joint resolution authorizing the president to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to... defend the national security of the United States against the continuing threat posed by Iraq; and... enforce all relevant United Nations Security Council resolutions regarding Iraq. 47 The United States sought action in the Security Council as well. Other members of the Council agreed that Iraq could not continue in its failure to comply with the disarmament obligations the Council had imposed. For example, in a debate on the subject in October, the representative of France called for a two-stage approach to the problem: first, the adoption of a resolution requiring Iraq to comply with previously imposed 38. See Clinton s Statement: We Are Delivering a Powerful Message to Saddam, N.Y. TIMES, Dec. 17, 1998, at A Letter Dated 16 December 1998 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council, at 1, U.N. Doc. S/1998/1182 (1998), available at (last visited Apr. 5, 2004). 40. Letter Dated 16 December 1998 from the Charge d Affaires A.I. of the United States Mission to the United Nations Addressed to the President of the Security Council, at 2, U.N. Doc. S/1998/1181 (1998), available at (last visited Apr. 5, 2004). 41. See Provisional Verbatim Record of the Three Thousand Nine Hundred and Fifty-Fifth Meeting, U.N. SCOR, 53d Sess., 3955th mtg. at 3 5 (Russia), 5 (China), 7 (Costa Rica), 10 (Sweden), (Brazil), 12 (Kenya), (France), U.N. Doc. S/PV.3955 (1998), available at (last visited Apr. 5, 2004). 42. Steven Erlanger, U.S. Decision to Act Fast, and Then Search for Support, Angers Some Allies, N.Y. TIMES, Dec. 17, 1998, at A See Katzman, supra note 26, at CRS-2 to CRS-3; John F. Burns, Unhindered by Iraqi Officials, Arms Inspectors Visit 3 Sites, N.Y. TIMES, Nov. 28, 2002, at A In Bush s Words: On Iraq, UN Must Face up to Its Founding Purpose, N.Y. TIMES, Sept. 13, 2002, at A Id. 46. R.W. Apple, In Deference to the Chief, N.Y. TIMES, Oct. 12, 2002, at A Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No , 2, 116 Stat. 1498, 1501 (2002); see also Alison Mitchell & Carl Hulse, Congress Authorizes Bush to Use Force Against Iraq, Creating a Broad Mandate, N.Y. TIMES, Oct. 11, 2002, at A1.

7 2004] THE WAR IN IRAQ AND THE INTERNATIONAL USE OF FORCE 527 obligations and second, in the event of Iraq s noncompliance with this resolution, a reconsideration by the Council. 48 He stated, United in sending Iraq a message of firmness in an initial resolution, the Security Council will, we have no doubt, remain united to assume all of its responsibilities during the second stage, should Iraq violate its commitments. 49 The Security Council unanimously adopted Resolution 1441 on November 8, The members of the Council were clear as to the import of this resolution: As the French representative stated, The rules of the game spelled out by the Security Council are clear and demanding and require the unfailing cooperation of [the] Iraqi leaders. If Iraq wants to avoid confrontation it must understand that this is its last opportunity. 51 Resolution 1441 s preamble recall[ed] a number of its previous relevant resolutions, specifically mentioning, among others, Resolutions 678, 686, and Its first operative paragraph provided that the Security Council had decided that Iraq was in material breach of Resolution 687 through its failure to comply with the disarmament provisions of that resolution. 53 The resolution went on, however, to afford Iraq... a final opportunity to comply with its disarmament obligations. 54 To this effect, the resolution required Iraq to provide a complete declaration on all aspects of its weapons programs and established an enhanced inspection regime. 55 It further provided that false statements or omissions in the declaration[s] and any failure to cooperate fully would amount to further material breach[es] of Iraq s obligations and were to be reported to the Council. 56 The resolution also required the inspectors acting under Resolution 1441 to report to the Council in the event of any interference by Iraq in their work. 57 Further, the resolution provided that the Council would convene immediately upon receipt of reports of Iraqi violations of these obligations in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security. 58 It included a paragraph [recalling] that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations and concluding with a decision to remain seized of the matter. 59 By December 19, 2002, it became clear that the adoption of Resolution 1441 would not end the controversy. On that date, Dr. Hans Blix, Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC), the body charged with implementing the inspection regime established by Resolution 1441, reported to the Security Council on his organization s preliminary assessment of the declaration Iraq 48. See Provisional Verbatim Record of the Four Thousand Six Hundred and Twenty-Fifth Meeting, U.N. SCOR, 57th Sess., 4625th mtg. at 13, U.N. Doc. S/PV.4625 (Resumption 3) (2002), available at (last visited Apr. 5, 2004). 49. Id. at Julia Preston, Security Council Votes, 15-0, for Tough Iraq Resolution; Bush Calls it a Final Test, N.Y. TIMES, Nov. 9, 2002, at A Provisional Verbatim Record of the Four Thousand Six Hundred and Forty-Fourth Meeting, U.N. SCOR, 57th Sess., 4644th mtg. at 5, U.N. Doc. S/PV.4644 (2002), available at (last visited Apr. 5, 2004). 52. S.C. Res. 1441, U.N. SCOR, 57th Sess., 4644th mtg. pmbl., U.N. Doc. S/RES/1441 (2002), available at (last visited Apr. 5, 2004). 53. Id. para Id. para Id. paras. 3, 5, Id. para Id. para S.C. Res. 1441, supra note 52, para Id. paras

8 528 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 39:521 had provided regarding its weapons programs pursuant to Resolution Blix noted that many questions regarding Iraq s weapons programs had remained at the time inspections ended in 1998, but that Iraq had failed to take advantage of the opportunity afforded by the declaration s requirement to answer those questions. 61 On the contrary, Blix indicated that Iraq had provided little new information; he stressed the lack of evidence supporting claims of destruction of weapons and noted that in some cases, UNMOVIC was in possession of information that appeared to contradict the Iraqi declaration. 62 He indicated that supporting evidence was necessary in order to justify any conclusion that the declaration was accurate and complete. 63 Indeed, UNMOVIC s report for the period December 1, 2002 through February 28, 2003, indicated a number of difficulties with Iraq s performance under Resolution It repeated Blix s December 19 assessment of Iraq s declaration. 65 And, while the report characterized Iraq as relatively cooperative on the process of implementing Resolution 1441, 66 it also implied that Iraq, in violation of Resolution 1441, was failing to cooperate with respect to the substance of its disarmament obligations. 67 Given that Iraq s compliance with Resolution 1441 was less than perfect, the Security Council faced the question of how to respond. The reaction of the members of the Council was divided. For example, in the course of a January 20, 2003, Security Council meeting in which the Council members were represented by their foreign ministers, German Foreign Minister Joska Fischer flatly rejected military action with respect to Iraq. 68 Similarly, in an interview following that meeting, French Foreign Minister Dominique de Villepin insisted on the necessity of dealing with the matter peacefully if at all possible. 69 He stressed that the presence of inspectors made it impossible for Iraq to pursue any weapons programs and, while noting the necessity for improvements in Iraq s cooperation, characterized a use of force as the worst solution and threatened to veto any Security Council Resolution authorizing the use of force against Iraq. 70 The position of the United States was quite different. At that same ministerial level meeting of the Security Council, Secretary of State Colin Powell repeatedly insisted on the necessity of taking action against Iraq if it did not come into full compliance with Resolution The United States had been increasing its forces in the region 60. Hans Blix, Briefing the Security Council, 19 December 2002: Inspections in Iraq and a Preliminary Assessment of Iraq s Weapons Declaration (Dec. 19, 2002), at (last visited Apr. 5, 2004). 61. Id. 62. Id. 63. Id. 64. See generally Twelfth Quarterly Report of the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission in Accordance with Paragraph 12 of Security Council Resolution 1284 (1999), Annex, U.N. Doc. S/2003/232 (2003), available at quarterly_reports/s pdf (last visited Apr. 5, 2004). 65. See id. para See id. paras See id. para Provisional Verbatim Record of the Four Thousand Six Hundred and Eighty-Eighth Meeting, U.N. SCOR, 58th Sess., 4688th mtg. at 5, U.N. Doc. S/PV.4688 (2003), available at (last visited Apr. 5, 2004). 69. Dominque de Villepin, Minister of Foreign Affairs, Press Conference at the Ministerial Meeting of the Security Council (Jan. 20, 2003), at frame_ang_iraq.htm (last visited Apr. 5, 2004). 70. Id. 71. Provisional Verbatim Record of the Four Thousand Six Hundred and Eighty-Eighth Meeting, supra note 68, at 18.

9 2004] THE WAR IN IRAQ AND THE INTERNATIONAL USE OF FORCE 529 throughout this period. 72 Indeed, Secretary-General Annan asserted that the pressure of the American military buildup had helped to induce Iraq to agree to inspections; in mid- January 2003, he stated, Without that pressure I don t think the inspectors would be back in Iraq today. 73 This disagreement persisted. On February 5, 2003, Secretary Powell presented a number of items of evidence supporting the conclusion of the United States that Iraq was evading rather than complying with its obligations under Resolution 1441, including intercepted voice communications between Iraqi officers apparently discussing concealment of materials Iraq was forbidden to possess and satellite photographs of what he described as facilities for manufacturing chemical and biological weapons. 74 Powell stressed what he described as a pattern of deception and concealment on the part of Iraq. 75 Other members of the Council did not argue that Iraq was cooperating fully with the inspection process; indeed, Foreign Minister de Villepin, representing France, stated that: Regarding the chemical area, we have indications about a capacity to produce VX and mustard gas. In the biological area, the evidence suggests that there are significant stocks there is the possible possession of significant stocks of anthrax and botulism toxins, and possibly a production capacity today. The absence of long-range delivery systems reduces the potential threat of these weapons. But we have disturbing indications about the continued determination of Iraq to acquire ballistic missiles with a range exceeding the authorized range of 150 kilometers. 76 But de Villepin, as well as the foreign ministers of Russia and China, did not agree with Powell that a military response to Iraq s actions was in order. 77 UNMOVIC continued to report that it had found very few proscribed weapons or manufacturing facilities for weapons while also criticizing Iraq for only cooperating lukewarmly. 78 The United States insisted on the necessity for military action while other states, among them France and Russia, continued to assert that the inspection process could be made effective. Efforts to reach a compromise in the Security Council proved unavailing, with France and Russia making clear that they would veto any resolution authorizing the use of force. 79 On March 17, 2003, President Bush, in a televised speech, stated that military operations would commence against Iraq in as little as forty-eight hours if Iraqi president Saddam Hussein did not leave Iraq during that time. 80 On the same day, the United States and the United Kingdom abandoned efforts to obtain a Security Council 72. See, e.g., Eric Schmitt, Buildup Leaves U.S. Nearly Set to Start Attack, N.Y. TIMES, Dec. 8, 2002, at A1; Thousands of Troops Ordered to Gulf Region, WASH. POST, Jan. 1, 2003, at A Julia Preston, Annan Says Talk of War with Iraq Is Premature, but Warns Baghdad It Must Disarm, N.Y. TIMES, Jan. 15, 2003, at A Powell s Address, Presenting Deeply Troubling Evidence on Iraq, N.Y. TIMES, Feb. 6, 2003, at A Id. 76. In Their Words: The Security Council, N.Y. TIMES, Feb. 6, 2003, at A See id. 78. See Hans Blix, Briefing of the Security Council, 14 February 2003: An Update on Inspections (Feb. 14, 2003), at (last visited Apr. 5, 2004). 79. John Tagliabue, France and Russia Ready to Use Veto Against Iraq War, N.Y. TIMES, Mar. 6, 2003, at A Richard W. Stevenson, Bush Gives Hussein 48 Hours, and Vows to Act, N.Y. TIMES, Mar. 18, 2003, at A1.

10 530 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 39:521 resolution authorizing an attack on Iraq. 81 The United States and the United Kingdom commenced military operations against Iraq on March On May 1, 2003, after a campaign in which the United States and its allies had eliminated all organized resistance to their control of Iraq, President Bush announced the end of major combat operations. 83 III. THE WAR AND THE CHARTER Article 2(4) of the Charter establishes a general rule that a state may not threaten or use force against the territorial integrity or political independence of any [other] state. 84 It also provides for circumstances in which states may use force. In Article 51, the Charter preserves states inherent right of... self-defence if an[y] armed attack occurs, and characterizes that right as available to both the state facing an armed attack and to other states assisting the target state as a matter of collective self-defense. 85 Also, the Charter provides the Security Council with wide discretion to deal with international violence. Under Article 25, U.N. members agree to accept and carry out the Security Council s decisions. 86 These decisions, furthermore, may address a wide range of issues. Under Article 39 of the Charter, the Security Council has the authority to determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. 87 The Security Council has very broad discretion to determine that a situation permits it to invoke its authority under this article. 88 Further, under Article 42, it clearly has the authority to authorize Member States to use military force to deal with a threat to the peace, breach of the peace, or act of aggression. 89 It should also be noted, however, that the authority of the Council is subject to one caveat: except with respect to decisions in procedural matters, the Council may take decisions only if none of the five permanent members China, France, Russia, the United Kingdom, and the United States vote against the resolution intended to embody the decision. 90 Thus, it is clear that if the states comprising the Security Council including all five permanent members had deemed the fall 2002 situation in Iraq a threat to the peace within the meaning of Article 39, they could have lawfully authorized members of the United Nations to use force to deal with the threat. In this case, however, there is no dispute that the Security Council never adopted a resolution unambiguously and explicitly authorizing the use of force against Iraq due to any threat the Council judged Iraq to present as of the fall of 2002 or the winter of Since the objectives of the attack included 81. See Felicity Barringer, Eclipsed by Events, U.N. Officials Wonder About the Past and Ponder the Future, N.Y. TIMES, Mar. 18, 2003, at A See David E. Sanger & John F. Burns, Bush Orders Start of War on Iraq; Missiles Apparently Miss Hussein, N.Y. TIMES, Mar. 20, 2003, at A Michael R. Gordon, Between War and Peace, N.Y. TIMES, May 2, 2003, at A1; David E. Sanger, Bush Declares One Victory in a War on Terror, N.Y. TIMES, May 2, 2003, at A1; Eric Schmitt & Bernard Weinraub, Pentagon Asserts the Main Fighting Is Finished in Iraq, N.Y. TIMES, Apr. 15, 2003 at A U.N. CHARTER art. 2, para Id. art Id. art Id. art See Joachim A. Frowein & Nico Kirsch, Introduction to ch. VII, 1 THE CHARTER OF THE UNITED NATIONS: A COMMENTARY 702, (Bruno Simma et al. eds., 2d ed. 2002) [hereinafter U.N. CHARTER: A COMMENTARY]; Christopher Greenwood, International Law and the Pre-emptive Use of Force: Afghanistan, Al- Qaida, and Iraq, 4 SAN DIEGO INT L L.J. 7, 19 (2003) (arguing that in the case of pre-emptive action by the Security Council, the Charter does not limit action to those threats that are imminent ). 89. See U.N. CHARTER art See id. arts. 23, 27.

11 2004] THE WAR IN IRAQ AND THE INTERNATIONAL USE OF FORCE 531 the removal of the government of Iraq, 91 the attack was a use of force directed against the political independence of Iraq and thus a violation of Article 2(4), unless it could be justified on some basis other than that of explicit, current Security Council authorization. In letters to the president of the Security Council dated March 20, 2003, Australia, the United Kingdom, and the United States reported their military operations against Iraq and offered justifications for those actions. 92 The United States argued that Iraq s failure to comply with the disarmament obligations imposed upon it by Resolution 687 as found by the Council in Resolution 1441 removed the basis for the cease-fire established by Resolution 687, reviving the authority to use force granted by Resolution The United States also characterized its actions as necessary to defend the United States and the international community from the threat posed by Iraq. 94 The United Kingdom did not refer explicitly to a revival of authority conferred by Resolution 678, though its letter stressed Resolution 1441 s determination that Iraq was in material breach of Resolution The United Kingdom went on to assert that [m]ilitary action was undertaken only when it became apparent that there was no other way of achieving compliance by Iraq, but made no reference to a right of self-defense. 96 Australia s letter was very similar to that of the United Kingdom, though Australia explicitly asserted that military action was consistent with Resolutions 678, 687, and The following sections of this article analyze these and other arguments supporting the legality of the attack on Iraq. A. Authorization Under Resolution 678? One argument in favor of the legality of the attack under the Charter looks to the language of Resolution 678. It will be recalled that that resolution authorized members of the United Nations to use all necessary means to uphold and implement [R]esolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area Since, it is argued, resolutions such as 687 and 1441 are relevant to the peace and security of the region and clearly are subsequent to Resolution 660, Resolution 678 should be seen as authorizing all necessary means to enforce them. Obviously, this interpretation of 678 requires reading the term subsequent as referring to any resolution adopted after Resolution 660 and relating in some way to the Iraq-Kuwait conflict whether adopted before or after Resolution 678. On the face of it, this 91. See News Release, Headquarters United States Central Command, General Franks Message to the Troops (Mar. 21, 2003), at News_Release.asp?NewsRelease= txt (last visited Apr. 10, 2004). 92. See Letter Dated 20 March 2003 from the Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/2003/350 (2003) [hereinafter U.K. Letter], available at (last visited Apr. 10, 2004); Letter Dated 20 March 2003 from the Permanent Representative of the United States of America to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/2003/351 (2003) [hereinafter U.S. Letter], available at (last visited Apr. 10, 2004); Letter Dated 20 March 2003 from the Permanent Representative of Australia to the United Nations Addressed to the President of the Security Council, U.N. Doc. S/2003/352 (2003) [hereinafter Australia Letter], available at (last visited Apr. 10, 2004). 93. See U.S. Letter, supra note Id. at See U.K. Letter, supra note Id. 97. Australia Letter, supra note S.C. Res. 678, supra note 6, para. 2.

12 532 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 39:521 reading is implausible it amounts to seeing the Security Council as authorizing the use of force for the indefinite future. Nor is this reading inevitable; a more natural interpretation of the phrase [R]esolution 660 and all subsequent relevant resolutions would see it as applying to Resolution 660 and those resolutions adopted after 660 but before 678 and dealing with the same subject. That reading, indeed, appears to have been the one intended by the states voting for 678, judging by the verbatim records of the Security Council meeting at which that resolution was adopted. The Foreign Minister of Canada stated: In this resolution, we have done more than simply reiterat[e] our commitment to the earlier decisions we have taken. What we are saying is that, should the government of Iraq continue to choose to ignore its obligations under international law, and under Security Council resolutions, the Member States, co-operating with the Government of Kuwait, will be authorized to use all necessary means to uphold and ensure the implementation of these resolutions. 99 The representative of Malaysia stressed that the Council had certainly not authorized actions outside the context of its [R]esolutions 660 (1990), 662 (1990) and 664 (1990). 100 (These resolutions, respectively, required that Iraq withdraw its troops from Kuwait, 101 decided that Iraq s purported annexation of Kuwait was legally invalid, 102 and demanded that Iraq permit foreign nationals to leave its territory and that of Kuwait.) 103 And the foreign minister of the United Kingdom stated, There is no ambiguity about what the Council requires in this resolution and in previous resolutions. We require that Iraq comply fully with the terms of [R]esolution 660 (1990) and all later resolutions and withdraw all its forces unconditionally to the positions on which they stood on 1 August. 104 In context, all of these statements indicate that the persons representing these states saw themselves as authorizing the use of force to enforce resolutions the Security Council had already adopted, not resolutions which it might adopt in the future. In any event, the language of Resolution 687 would appear to make it impossible to consider Resolution 678 in isolation. It will be recalled that Resolution 687 declared a formal cease-fire between Iraq, Kuwait, and the states assisting Kuwait effective upon official notification of Iraq s acceptance of the terms of Resolution That official notification was forthcoming, and the cease-fire therefore went into effect according to the terms of Resolution 687. Necessarily, the cease-fire resolution bound, not only Iraq, but also Kuwait and the states assisting it. Thus, as discussed more fully below, 106 Resolution 687 must be read as at least suspending the authority granted by 678. It must be admitted that there are arguments against this conclusion. The best would appear to turn upon the language of Security Council Resolution The Council 99. Provisional Verbatim Record of the Two Thousand Nine Hundred and Sixty-Third Meeting, U.N. SCOR, 45th Sess., 2963d mtg. at 71, U.N. Doc. S/PV.2963 (1990) (emphasis added) Id. at See S.C. Res. 660, supra note 3, para S.C. Res. 662, U.N. SCOR, 45th Sess., 2934th mtg. at 20, U.N. Doc. S/RES/662 (1990), available at (last visited Apr. 10, 2004) S.C. Res. 664, U.N. SCOR, 45th Sess., 2937th mtg. at 21, U.N. Doc. S/RES/664 (1990), available at (last visited Apr. 10, 2004) Provisional Verbatim Record of the Two Thousand Nine Hundred and Sixty-Third Meeting, supra note 99, at 81 (emphasis added) S.C. Res. 687, supra note 11, para See infra notes and accompanying text See S.C. Res. 949, supra note 24.

13 2004] THE WAR IN IRAQ AND THE INTERNATIONAL USE OF FORCE 533 adopted this resolution in 1994 to deal with a deployment of Iraqi troops, which appeared to threaten Kuwait. Resolution 949 included a paragraph expressly reaffirming the language in Resolution 678 that authorized the use of force against Iraqi troops in Kuwait. 108 If that language was reaffirmed by Resolution 949, it could be argued that whatever limiting effect might have been created by Resolution 687 would have been erased. The difficulty with this argument is that it overlooks the context in which Resolution 949 was adopted. Iraq had in essence threatened Kuwait militarily that is, its behavior recalled the 1990 invasion. By reaffirming Resolution 678, Resolution 949 made clear to Iraq the Security Council s continued readiness to defend Kuwait. But 949 neither authorized nor threatened any action. Again, the debates of the Security Council with respect to Resolution 949 throw light on its meaning. Russia s representative, who could have vetoed the resolution, voted for it, but made clear that he saw it as containing no provisions that could be read as authorizing the use of force. 109 The representative of France, a cosponsor of Resolution 949, stated that, It would be the task of the Security Council to take up any action on the part of Iraq which could be regarded as noncompliance with this present resolution. 110 China s representative, who also voted for 949, stated, It should be noted that our favourable vote on this resolution does not signify any change in our reservations regarding other relevant resolutions of the Council, including [R]esolution 678 (1990). 111 (China had abstained in the Council s vote on Resolution 678.) 112 Thus, three permanent members of the Security Council who voted for Resolution 949 did so on the understanding that it did not provide authority for the use of force. Since any one of those members could have prevented the adoption of the resolution, it makes sense to give particular weight to their understanding of the meaning of a resolution they could have blocked, but did not. If this is correct, then Resolution 949 adds nothing to Resolution 678. Professor Christopher Greenwood has also argued that Resolution 678 remained in effect. Preliminarily, he emphasizes that Resolution 678 authorized the use of force, not simply to liberate Kuwait, but also to restore peace and security in the region. 113 He goes on to stress Iraq s failure to comply with Resolution 687 and the reference to Resolution 678 in the preamble to Resolution But the relevant language of Resolution 1441 is Recalling all its previous relevant resolutions, in particular its resolution[] (1990) of 29 November This seems something less than an unequivocal statement that all the authority granted by Resolution 678 remains in effect. Further, the argument does not address the fact that Resolution 687 necessarily at least suspended the authority granted by Resolution 678, as discussed more fully in the next section. In short, it seems difficult to argue that Resolution 678 alone could be seen as authorizing the 2003 attack on Iraq Id. pmbl Provisional Verbatim Record of the Three Thousand Four Hundred and Thirty-Eighth Meeting, U.N. SCOR, 49th Sess., 3438th mtg. at 4, U.N. Doc. S/PV.3438 (1994), available at (last visited Apr. 10, 2004) Id. at 6 (emphasis added) Id. at Provisional Verbatim Record of the Two Thousand Nine Hundred and Sixty-Third Meeting, supra note 99, at Greenwood, supra note 88, at Id. at S.C. Res. 1441, supra note 52, pmbl.

14 534 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 39:521 B. Authorization Derived from Resolution 687? This shifts the analysis to a second argument supporting the attack on Iraq; that is, that the attack was authorized as the Charter required because Iraq was in material breach of Resolution 687. In considering that resolution, it is crucial to understand its character. Some writers, in analyzing it, have sought to employ concepts developed for analyzing cease-fire agreements. 116 This seems to be a mistake, and one which leads to a misunderstanding of the effect of the resolution. This point requires some discussion. As pointed out above, the Charter invests the Security Council with what amounts to plenary authority with respect to the maintenance of international peace and security. 117 Thus, had the Security Council simply adopted a resolution embodying a decision that there should be a cease-fire in the fighting between Iraq and the Coalition, all the combatants on both sides would have been legally obliged to stop fighting. It is therefore a distortion of Resolution 687 to analogize it to an agreement; rather, it embodies a decision of the Security Council as to the steps necessary to restore international peace in the wake of Iraq s invasion of Kuwait. Indeed, to think of this resolution as analogous to an agreement constrains the Security Council in a way inconsistent with the Charter. The Council cannot, after all, agree to surrender its responsibility regarding international peace and security. Yet if it were seen as bound by a cease-fire agreement, that is exactly what it would have done. Suppose, for example, the Security Council decided that it had omitted from Resolution 687 some provision it later came to see as essential to maintaining international peace and security. Suppose it saw Iraqi compliance with this provision as so crucial that it would be worth a war to obtain that compliance. Could Iraq somehow argue that the Security Council was legally precluded from imposing this new obligation on it because Iraq had not accepted the obligation? This could be true only if the Security Council could somehow divest itself of its responsibilities by agreement which would not only be an odd result, but would appear to conflict with Article 103 of the Charter. 118 In this context, Resolution 687 s demand for Iraqi acceptance of its terms should be seen more as an attempt to forestall Iraqi attempts to evade the resolution than as a reflection of some limitation of the Security Council s authority. But if Resolution 687 is simply a manifestation of the Security Council s authority and not an agreement, to which states does it apply? Clearly, it is intended to bind not only Iraq, but also the states fighting Iraq. After all, if Resolution 687 declares that a formal cease-fire is in effect, who is supposed to cease firing? Surely the answer is not just Iraq, but the states fighting Iraq as well. Those states, as noted above, are as subject to the authority of the Security Council as Iraq is. If this view is correct, a number of consequences follow. First, it must be a mistake to attribute significance to the fact that the initial decision to stop fighting was made by the states opposing Iraq, as some writers have done. 119 All states are subject to the authority of the Security Council; once that authority has been exercised in the form of particular determinations, no state is free to simply disregard that determination, even if the 116. See, e.g., Ruth Wedgwood, The Enforcement of Security Council Resolution 687: The Threat of Force Against Iraq s Weapons of Mass Destruction, 92 AM. J. INT L L. 724, (1998); PAUL SCHOTT STEVENS ET AL., THE JUST DEMANDS OF PEACE AND SECURITY: INTERNATIONAL LAW AND THE CASE AGAINST IRAQ 13 (2003), available at (last visited Apr. 10, 2004) See supra notes and accompanying text In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. U.N. CHARTER art See, e.g., Wedgwood, supra note 116, at 726.