Forgot password? Don't have an account? All Rights Reserved. OSO version 0. University Press Scholarship Online. Sign in. Not registered? Sign up. Publications Pages Publications Pages. Search my Subject Specializations: Select Users without a subscription are not able to see the full content. Iraq and the Use of Force in International Law Marc Weller Abstract The prohibition of the use of force is one of the most crucial elements of the international legal order.
More The prohibition of the use of force is one of the most crucial elements of the international legal order. Authors Affiliations are at time of print publication. Print Save Cite Email Share. Show Summary Details. With the growth in both the extent and the reach of international agreements, treaties, conventions and codes, the extent to which individual sovereign States retain the final control over their national policies may have diminished, though even in the heyday of State sovereignty, the late 19 th century, the extent to which any State was truly independent depended much on non-legal factors, such as relative economic strength.
This tendency is becoming more noticeable in the modern commercial environment, and especially in respect of the internet. The principal of these international bodies was the United Nations, which, in succession to the League of Nations, took a leading role in the post-World War II global security system. It may be true that the Iraq war involved one state or coalition of states against another, but it was very much linked with the broader US war against terrorism — the historical justification, based as it is upon state practice as codified in conventions, was largely inapplicable.
US policy towards Iraq was driven largely by the American perception of global security. The question of whether such action was legally justified in international law was one which was either disregarded, or left to others — particularly the UK — to annunciate. Whatever the political, military or diplomatic reasons for taking aggressive military action against Iraq, there were broadly speaking four possible legal justifications. The specific details of these arguments — except for the last two — will not be examined in this paper. But the context in which they were placed — the world security system — will be.
Not every exercise of military force is lawful. Rules have developed over time to control and regulate war, and the tendency over the past few centuries has been to limit the freedom of sovereign states to levy war.
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The US-led attack on Iraq could be justified within the framework of modern international law on the use of force. It might have been designed to force compliance with UN resolutions, but it was not expressly authorised by the UN. But the legal basis for its action was at best uncertain. But it has not spelt the end of the existing system, despite some initial pessimistic assessments. If it cannot fit comfortably into an historical framework, merely describing it as illegal is unhelpful and possibly simplistic. We must turn to the second possible basis for legality of ius ad bellum. This could be for individual states to define, but we have an existing system which could be utilised for the construction of broader principles of international public law.
As the global security system is currently understood, the UN Security Council alone has the power to make a binding determination in international law that a situation constitutes a threat to international peace and security:. The Security Council shall 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.
Article 41 of the UN Charter provides for a range of non-military measures which the Security Council may authorise to deal with such a situation and, if they prove ineffective, article 42 permits more direct action:. Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the UN.
This is a predominantly historical basis for the laws of law and one based on detailed precedents. However, while the UN itself can take or authorise military action, the Charter does not necessarily exclude the possibility of unilateral action by individual states in certain circumstances. This is recognised by article Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the UN, until the Security Council has taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
This article clearly limits the scope of self-defence to interim measures — any solution adopted is always subject to subsequent Security Council action. However, it does not cover situations where the Security Council has failed, for some reason, to reach agreement on taking action. Aggressive war is no longer a legitimate instrument of national policy, but the use of force is not necessarily limited or reserved to the UN alone.
Legality of the Iraq War - Wikipedia
Thus, although the general rules for the conduct of international relations may be categorised as historical, there may be additional theoretical justifications available — particularly those based on ethical considerations. Many international lawyers argued that, in the context of the UN Charter, the attack on Iraq was unlawful at international law given the circumstances in which it occurred. In particular, it appears to be inconsistent with the UN Charter, though the principle protagonists in the Iraqi war relied upon Security Council resolutions to justify the use of force.
The former may be immutable, the latter founded on strategic situations which may no longer be relevant. The UN and its public international law bodies could work on the theoretical basis of the law of war — because the focus is no longer on states, less relevant for states alone to develop principles of law. We could see signs of this developing in the ongoing diplomacy surrounding the US involvement in Iraq.
The post-World War II security system did allow some freedom of action for states.
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The exercise of independent action by the US and its allies was not necessarily contrary to the UN Charter. Article 1 of the Charter states that one of the purposes of the UN is:.
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However, such police actions are only allowed to suppress a breach of international law. What had Iraq done? It had not invaded or threatened a neighbour. Pre-emptive self-defence? Through an exchange of diplomatic notes, the dispute was resolved in favour of the Americans. US Secretary of State Daniel Webster urged the following definition of self-defence, which the British accepted: There must be a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation.
It is hard to see how the US action against Iraq in could satisfy this test, unless there was evidence that Iraq intended using weapons of mass destruction on its neighbours or the US itself. If that was the case, the UN arms inspectors did not uncover clear evidence of it. Until the Caroline case,  self-defence was a political justification for what, from a legal perspective, were ordinary acts of war. The positivist international law of the 19 th century rejected natural law distinctions between just and unjust wars.
Military aggression was unregulated and conquest gave good title to territory. As long as the act being defended against was not itself an act of war, peace would be maintained — a matter of considerable importance to relatively weak states, as the United States then was — and Iraq was in The distinction between a state of war, and a state of peace, is thereby blurred.
Was Britain's military action in Iraq legal?
It has been argued that the right of self-defence should not be seen as having been restricted by the UN Charter:. The history of Article 51 suggests However, it would seem that there must still be the elements of urgency, immediacy and the absence of credible alternatives to war. Emphasis added. Iraq had not attacked any state, nor is there any evidence whatever that an attack by Iraq was imminent. Therefore self-defence did not justify the use of force against Iraq by the United States or any state.
Potential capacity to attack the US, real or imagined, is an insufficient basis for action. Furthermore, article 51 requires that any exercise of self-defence is subject to the Security Council taking measures to maintain international peace and security, and indeed requires that any action in self-defence be reported to the Security Council. Even if one puts article 51 aside, self-defence would appear to require, as a bare minimum, credible evidence of not merely capacity to strike, but also of an intention to do so, on the part of the government of the state to be attacked in pre-emptive self-defence.
For, although a desire to rid the world of a tyrant may be a laudable intention, and ought perhaps to be allowed by international law, this was not the ground upon which the war was waged, though the US argued — as the invasion neared — that the exile of Saddam Hussein — something not required by any of the UN resolutions — would alone prevent a US attack on Iraq.
This would be particularly valid in the case of weapons of mass destruction. The immediacy of the threat would not necessarily be as significant as the magnitude of the threat. This would, of course, be justified in theoretical terms rather than in reliance on a historical justification such as the UN Charter.
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This would be entirely appropriate given that the Caroline test for pre-emptive self-defence is itself largely a customary justification of self-defence and only partly enshrined in the UN Charter. If the UN Charter is inadequate in the provisions allowing self-defence then it may well be proper for countries to fall back upon customary law — provided the justification is the prevention of war and not its initiation returning to the ethical element.
The invasion of Iraq must be seen in its wider context, both legal and political.
This can be traced back to Perhaps more importantly, the 11 September attacks on US cities caused a psychological reaction in the US, which was echoed by the actions of its government.
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