User:Zer0faults/Legitamacy Rework
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A legal dispute exists over the legitimacy of the 2003 invasion of Iraq. The debate is centered around the question; was the invasion an unprovoked assault on an independent country -- thus an invasion breaching international law -- or whether the conditions set in place after the Gulf War allowed the resumption if Iraq did not uphold to the Security Council resolutions.[1] Those arguing for its legality often cite Congressional Joint Resolution 114 and previous UN Security Council resolutions, as well as Resolution 1441, stating these documents allow for military action. Those arguing against its legality also cite much the same sources, stating they do not actually permit war but instead layout conditions that must be met before war can be declared. Critics often cite the Downing Street memo as further proof the war was waged under misleading terms. The terms of the debate change depending on the subject of domestic or international law.
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[edit] United Nations
Beginning from the end of the Gulf War in 1991, the Iraqi government agreed to Security Council Resolution 687, which called for weapons inspectors to search locations in Iraq for chemical, biological and nuclear weapons, as well as weapons that exceed an effective distance of 150 kilometres.[2] After the passing of resoluton 687, thirteen additional resolutions (699, 707, 715, 949, 1051, 1060, 1115, 1134, 1137, 1154, 1194, 1205, 1284) were passed by the Security Council reaffiming the continuation of inspections, or citing Iraq's failure to comply fully with them.[3] On September 9, 1998 the Sucrity Council passed resolution 1194 which unanimously condemns Iraq's suspension of cooperation with UNSCOM, one month later on October 31 Iraq officially declares it will cease all forms of interaction with UNSCOM.[4]
The period between October 31, 1998 and the initiation of Operation Desert Fox, December 16, 1998, contained talks by the Iraqi government with the United Nations Security Council. During these talks Iraq attempted to attach conditions to the work of UNSCOM and the IAEA, which was against previous resolutions calling for unconditional access. The situation was difused after Iraq's Ambassador to the U.N., Nizar Hamdoon, submitted a third letter stating the position of the Iraqi government on October 31 was "void".[5] After weapons inspections resumed UNSCOM requested arms documents related to weapon usage and destruction during the Iran-Iraq war. The Iraqi government rejected this as the document was hand written and by their position did not fall within the scope of the UN mandate. The UN inspectors insisted in order to know if Iraq destroyed all of its weapons, it had to know "the total holdings of Iraq's chemical weapons."[6] Further incidents erupted as Iraqi officials demanded "lists of things and materials" being searched for during suprise inspections.[7]
On December 16, 1998, U.S. President Bill Clinton inititated Operation Desert Fox based on Iraq's failure to fully comply with the inspectors. Clinton noted the announcement made by the Iraqi government on October 31, stating they would not longer cooperate with UNSCOM. Also noted was the numerous efforts to hinder UNSCOM officials, including prevention of photographing evidence and photocopying documents, as well as prevention of interviewing Iraqi personnel.[8] [9]
For four years after Operation Desert Fox, the inspection teams remained out of the country. The no-fly zone enforced by the United States, United Kingdom and France however became a location of constant exchange of fire since Iraqi Vice President Taha Yassin Ramadan instructed Iraqi military to attack all planes in the no-fly zone.[10] In late 2002, after international pressure and more UN Resolutions, Iraq allowed inspection teams back into the country. In 2003 UNMOVIC was inspecting Iraq but were ordered out despite their pleas for more time.[11] [12] After the Iraq war no WMDs were found in Iraq (see Duelfer Report and WMD in Iraq). George W. Bush has since admitted that "much of the intelligence turned out to be wrong" [13].
Prior to invasion, the United States and the United Kingdom attempted unsuccessfully to secure a United Nations resolution explicitly authorizing force on the grounds that Iraq was allegedly in violation of various previous resolutions. Because certain additional prior U.N. consent was not garnered, some contend that the invasion of Iraq is by U.N. standards an illegal war of aggression. [citation needed] In addition to assertions regarding possible weapons of mass destruction, the United States and the U.K. also asserted that the use of pre-emptive military force was legal under the original U.N. resolution from the 1991 Gulf War.
The United States structured its reports to the United Nations Security Council around alleged intelligence from the Central Intelligence Agency and MI5 stating that Iraq possessed weapons of mass destruction. Legal justification rested upon Iraq's violation of several U.N. Resolutions, most recently UN Security Council Resolution 1441. [14] U.S. president George W. Bush claimed Iraq's supposed WMDs posed a significant threat to the United States and its allies. [15][16] U.N. inspection team UNIMOVIC, capable of continuing the search were ordered out because war appeared imminent.
[edit] Weapons of Mass Destruction
In the past, Iraq had been supplied with chemical weapons and the technology to develop them by the United States, Germany and France. In 1988, Saddam allegedly used these weapons against Iraqi Kurds during the Halabja poison gas attack. In 1990 during the Gulf War Saddam had the opportunity to use these weapons, but chose not to. One of the noted reasons is the Iraqi forces lack of functioning equipment to protect themselves from the effects as well as the speed in which the US forces traversed the open desert. [[17]] From 1991-1998 UNSCOM inspected Iraq and worked to locate and destroy WMD stockpiles, the team was replaced in 1999 with the United Nations Monitoring Verification and Inspection Commission, UNMOVIC.
The Iraq Survey Group final report concluded in its September 30, 2004 report that, "ISG has not found evidence that Saddam Hussein possessed WMD stocks in 2003, but the available evidence from its investigation—including detainee interviews and document exploitation—leaves open the possibility that some weapons existed in Iraq although not of a militarily significant capability." The U.S. officially abandoned its search for WMDs in Iraq on January 12, 2005.
In January 2006, the New York Times reported that "A high-level intelligence assessment by the Bush administration concluded in early 2002 that the sale of uranium from Niger to Iraq was 'unlikely.'"[18] The Iraqi government denied the existence of any such facilities or capabilities and called the reports lies and fabrications, which was backed by the post-war prima facie case that no WMDs were evident or found.
[edit] Human Rights Violations
The human rights violations of the Saddam Hussein regime stretch back even before the events of the first Gulf War. In 1988 the Al-Anfal Campaign took place in Iraqi Kurdistan, and was carried out by the cousin of Saddam Hussein, Ali Hassan al-Majid. A document signed by Ali Hassan al-Majid is quoted as stating, "all persons captured in those villages shall be detained and interrogated by the security services and those between the ages of 15 and 70 shall be executed after any useful information has been obtained from them". This target group covered any male of fighting age. The events of the Anfal campaign have often been compared with the events of the holocaust in their similarities of mass graves and concentration camps. In 1991 after the Iraqi forces were expelled from Kuwait, the regime of Saddam Hussein cracked down on uprisings in the Kurdish north and Shia south. It is stated between this time over 40,000 Kurds were executed and 60,000 or more Shi'ites.
In 2000, two human rights groups, International Federation of Human Rights Leagues and the Coalition for Justice in Iraq, released a joint report documenting the doctrination of children into a fighting force. These children as young as five were recruited into the Ashbal Saddam or Saddam's Cubs. The children would be seperated from their parents and undergo military training. Parents objecting to this recruitment would be executed and children jailed if they failed to comply, these jails were later noted by Scott Ritter in an interview with CNN.
[edit] Countries supporting and opposing the invasion
Support for the invasion and occupation of Iraq included 49 nations, a group that was frequently referred to as the "coalition of the willing". These nations provided combat troops, support troops, and logistical support for the invasion. The nations contributing combat forces were, roughly:
Total 300,884 - 98% US & UK
United States (250,000 83%), United Kingdom (45,000 15%), South Korea (3,500 1.1%), Australia (2,000 0.6%), Denmark (200 0.06%), and Poland (184 0.06%), these totals do not include the 50,000+ soldiers of the Kurdish forces that assisted the coalition. Ten other countries offered small numbers of non-combat forces, mostly either medical teams and specialists in decontamination. In several of these countries a majority of the public was opposed to the war. For example, in Spain polls reported at one time a 90% opposition to the war. In most other countries less than 10% of the populace supported an invasion of Iraq without a specific go-ahead from the UN. [19]. According to a mid-January 2003 telephone poll, approximately one-third of the U.S. population supported a unilateral invasion by the US and its allies, while two-thirds supported war if directly authorized by the U.N. [20][21].
Global protests expressed opposition to the invasion. In many Middle Eastern and Islamic countries there were mass protests, as well as in Europe; North, Central and South America; Africa and Oceana On the government level, the war was criticized by Canada, Belgium, Russia, France, The People's Republic of China, Germany, Switzerland, The Vatican, India, Indonesia, Malaysia, Brazil, Mexico, the Arab League, the African Union and many others. Though many nations opposed the war, no foreign government openly supported Saddam Hussein, and none volunteered any assistance to the Iraqi side. Leading traditional allies of the U.S. who had supported Security Council Resolution 1441, France, Germany and Russia, emerged as a united front opposed to the U.S.-led invasion, urging that the UN weapons inspectors be given time to complete their work.
Saudi Foreign Minister Prince Saud said the U.S. military could not use Saudi Arabia's soil in any way to attack Iraq. [22] After ten years of U.S. presence in Saudi Arabia, cited among reasons by Saudi-born Osama bin Laden for his al-Qaeda attacks on America on September 11, 2001, most of U.S. forces were withdrawn in 2003. [23] According to the New York Times, the invasion secretly received support from Saudi Arabia. [24]
[edit] Legality of the invasion
[edit] U.S. law
Under the United States Constitution, the right to declare war is given to the United States Congress, whereas the President is given the title of commander-in-chief and thus general authority over the armed forces. Congress has not authorized a declaration of war since World War II instead using "authorizations of force". In response to the Korean and Vietnam Wars, where the President authorized the use of military force without consulting Congress, however, Congress passed the War Powers Resolution stipulating (among other things) that the President had to seek Congressional approval to wage war.
Since the passing of the War Powers Act various Presidents have uniformly maintained that it is an infringement on the President's rights as commander-in-chief, but have nevertheless always requested congressional permission when required by the resolution; Congress, on the other hand, has largely maintained that it acted within its constitutional authority, but nevertheless has uniformly consented to all presidential requests under it. The Iraq War was no exception: in October 2002, the U.S. Congress passed the "Authorization for the Use of Military Force Against Iraq"[25], in response to presidential request under the War Powers Act. It stated that
The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to -
- (1) defend the national security of the United States against the continuing threat posed by Iraq; and
- (2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
On October 3, 2002, Rep. Ron Paul (R-TX) submitted to the House International Relations committee a proposed declaration which read, "A state of war is declared to exist between the United States and the government of Iraq." It was rejected[1], as all such suggestions since World War II have been. The first Circuit Court of Appeals stated that "...the text of the October Resolution itself spells out justifications for a war and frames itself as an 'authorization' of such a war." The Court of Appeals decision goes on to cite Massachusetts v. Laird stating "The court found that other actions by Congress, such as continued appropriations to fund the war ... provided enough indication of congressional approval" [26]
Article VI of the U.S. Constitution provides that treaties of the United States, along with federal law and the Constitution itself, are the supreme law of the land. (Treaties and federal law are on an equal footing, below the Constitution; the term "supreme law of the land" was intended to indicate that they supercede state law where the federal and state levels share jurisdiction.) The United States ratified the UN Charter, and therefore under U.S. law the U.S. is bound by the UN Charter.
However, it is not possible to use this logic to argue that the war could have been conducted illegally under United States law. Treaties do not necessarily supercede other acts of Congress; as the Supreme Court stated in Whitney v. Robertson, "By the constitution, a treaty is placed on the same footing . . . with an act of legislation. . . . if the two are inconsistent, the one last in date will control the other".[2] Therefore, the authorization for use of force (noted above) automatically overrode the UN Charter, if there was any conflict to begin with.
[edit] International law
Resolution 1441, drafted and accepted unanimously the year before the invasion, threatened "serious consequences" to Iraq in case Iraq did not comply with all conditions. Russia, the People's Republic of China, and France made clear in a joint statement that this did not authorize the use of force but a further resolution was needed. On the day of the vote the US ambassador to the UN, John Negroponte, said that in the event of a "further breach" by Iraq, Resolution 1441 would require that "the matter will return to the Council for discussions."[27]
Until a few days before the war, it was the position of the UK, the main U.S. ally in the war, that a further resolution would be desirable before the United Kingdom would go to war.
Some have said that the US and other coalition governments' invasion of Iraq was an unprovoked assault on an independent country which breached international law. Under Article 2, Number 4 of the UN Charter, "All Members shall refrain... from the threat or use of force against the territorial integrity or political independence of any state..." This is known as the "Prohibition of Aggression." For the use of force other than in self defence, it is absolute without the positive sanction of the security council under Article 42. Resolution 1441 was not intended by China, Russia and France to authorize war. The coalition formed around the USA argued that another understanding of the resolution is possible, although Kofi Annan, speaking on behalf of the UN charter, declared: "I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal." [28]
The Bush administration argued that the UN Security Council Resolutions authorizing the 1991 invasion, in addition to Resolution 1441, gave legal authority to use "all necessary means," which is diplomatic code for going to war. This war ended with a cease fire instead of a permanent peace treaty. Their view was that Iraq had violated the terms of the cease-fire by breaching two key conditions and thus made the invasion of Iraq a legal continuation of the earlier war. If a war can be reactivated ten years after the fact, it would imply that any nation that has ever been at war that ended in a cease-fire (such as Korea) could face war for failing to meet the conditions of the cease-fire. Such is the purpose of using a cease-fire agreement in place of a peace treaty; the resumption of war is the penalty for, and thus deterrent of, engaging in the prohibited action(s). For instance, in WWII, the state of war with Germany did not end until 19 October 1951 and with Japan, not until 28 April 1952 [29].
Since the majority of the United Nations security council members (both permanent and rotating) did not support the attack, it appears that they viewed the attack as invalid under any resolution still in effect in March, 2003. Both Kofi Annan, current Secretary-General of the United Nations, and former Secretary-General Boutros Boutros-Ghali, as well as several nations, say that the attack violated international law as a war of aggression since it lacked the validity of a U.N. Security Council resolution to authorize military force, and was not an act of defence, and so violated the UN charter, in other words constitutes a war crime. However, none have called for the security council to consider sanctions against the United States or the other nations involved, both because of an effort to restore warmer relationships with the US, and because the attempt would be futile since the US has a veto in the Security Council.
It should be noted that there was precedent for the Bush Administration's position regarding UN authorization to use force. In 1998, after Iraq was still uncooperative with UN inspection teams, the U.S. and the U.K. launched a bombing campaign against the country. The Bush Administration argued that President Bill Clinton took military action in 1998 based on the same basic WMD intelligence and under the same UN authority that was used to justify the action in 2003. [30] In 1998, the U.S. Ambassador to the UN, Peter Burleigh stated, "Following Iraq's repeated, flagrant and material breaches of its obligations under resolutions 687, 707, 715, 1154, 1194, 1205 and others - in addition to its failure to fulfill its own commitments - the coalition today exercised the authority given by Security Council resolution 678 (1990) for member states to employ all necessary means to secure Iraqi compliance with the Council's resolutions and restore international peace and security in the area." [31]
The United States and United Kingdom claimed, and continue to claim, that it was a legal action which they were within international law to undertake. Some in the media have called the good faith of the Security Council into question on this matter. [32] [33] One argument is that the United Nations itself, along with the three opponents of the Iraq War on the Security Council, France, Russia, and China, all benefited financially (in some cases, perhaps illegally) from transactions with the Saddam Hussein regime under the Oil-for-Food Programme; [34] and that the leaders of these three countries, along with Kofi Annan, fought against a second UN resolution not out of higher principle but in order to keep these contracts. Nevertheless, opposition to the war was widely popular amongst the populace of nearly all nations except the United States. Additionally, the resistance of the Security Council and the UN as a whole to the invasion of Iraq has not only been attributed to legal challenges but also to Anti-Americanism and a resentment of the cultural and economic dominance of the USA. In the case of France, mostly US commentators have suggested it was an attempt to court the Arab world and its local Muslim population. [35]
On 28 April 2005, the UK government published the full advice given by the Attorney General Lord Goldsmith on 7 March 2003 on the legality of the war. The publication of this document followed the leaking of the summary to the press the day before. In the document, Lord Goldsmith weighs the different arguments on whether military action against Iraq would be legal without a second UN Resolution. He said,
I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force... Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution
He concluded his analysis by saying that "regime change cannot be the objective of military action".
Member countries to the International Criminal Court cannot be tried for war of aggression as it was agreed in the Rome Statute that a definition has to be agreed upon first. This is not to be expected before 2009. It would however be possible to obtain an advisory opinion by the International Court of Justice.
Few courts have touched the question of the legality of the war. The first decision was taken by the German Federal Administrative Court, which ruled that an army officer could lawfully refuse to follow the order of a superior on the grounds of his constitutional right to freedom of conscience due to the grave concerns in terms of international law regarding this war. [36]
[edit] Downing Street memo
On 1 May 2005, a related UK document known as the Downing Street memo, detailing the minutes of a meeting on 26 July 2002, was apparently leaked to The Times. British officials did not dispute the document's authenticity, and UK Prime Minister Tony Blair's spokesman has called the document "nothing new." The document describing the full advice of Lord Goldsmith:
The Attorney-General said that the desire for regime change was not a legal base for military action. There were three possible legal bases: self-defence, humanitarian intervention, or UNSC authorisation. The first and second could not be the base in this case. Relying on UNSCR 1205 of three years ago would be difficult.
and states furthermore that
Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record. There was little discussion in Washington of the aftermath after military action..... It seemed clear that Bush had made up his mind to take military action, even if the timing was not yet decided. But the case was thin. Saddam was not threatening his neighbours, and his WMD capability was less than that of Libya, North Korea or Iran.
On 5 May, John Conyers and 89 members of congress asked George W. Bush, in a formal letter, to answer some questions about the document, including whether he or anyone in his administration disputes its accuracy. [37] The Bush Administration has stated that they will not answer the questions. Critics of the memos bring up the fact that they cannot be authenticated.[38] Although this is accurate, it does not prevent the Bush administration from answering questions regarding its authenticity.
There was much dispute over the statement "intelligence and facts were being fixed around the policy" and critics of the Iraq War believed this to mean that WMD intelligence was being made up to support the War effort. However, it should be noted that included in the memo were real concerns expressed regarding Iraq's WMD programs which are mentioned numerous times throughout the document:
Regime change and WMD were linked in the sense that it was the regime that was producing the WMD...
For instance, what were the consequences, if Saddam used WMD on day one...
[edit] British court rulings
No British court has yet ruled on the legality or otherwise of the invasion of Iraq.
Flight Lieutenant Malcolm Kendall-Smith was court-martialled in June 2005 for refusing to serve in Iraq. He argued that the invasion had been illegal and therefore he was not permitted to obey an illegal order. The court ruled that the legality of the invasion was not relevant to this case as the tour in question was after the post-invasion Security Council resolutions that recognised the occupation, and that as a junior officer he could not personally be guilty of aggression as this is a command crime.
On 22 May 2005, the British government declined a request from the families of soldiers killed in Iraq for an investigation into the legality of the war. The families are now seeking a judicial review of the request. [39] [40]
[edit] Calls for International Criminal Court investigation
Many parties submitted complaints to the Chief Prosecutor of the International Criminal Court alleging that the invasion of Iraq was an act of illegal aggression and that various war crimes had been committed.
In a letter dated February 9, 2006 the Prosecutor said that the court did not, as yet, have jursidiction over the crime of aggression and the available information did not indicate any intentional targeting of civilians or attacks where the anticipated civilian damage was clearly excessive to the anticipated military advantage.
The Prosecutor found evidence of willful killings and inhuman treatment.
[edit] Opposition view of the invasion
Those who opposed the war in Iraq did not regard Iraq's violation of UN resolutions to be a valid case for the war, since no single nation has the authority, under the UN Charter, to judge Iraq's compliance to UN resolutions and to enforce them. Furthermore, critics argued that the US was applying double standards of justice, noting that other nations such as Israel are also in breach of UN resolutions and have nuclear weapons; this argument is not a black and white matter, [41], as some claim that Iraq's history of actually using chemical weapons (against Iran and the Kurdish population in Iraq) suggested at the time that Iraq was a far greater threat. Others claim, also, that this contradicts previous U.S. policy, since the US was one of many nations that supplied chemical weapon precursors, even when well aware of what it was being used for. [citation needed]
Although Iraq was known to have pursued an active nuclear weapons development program previously, as well as to have tried to procure materials and equipment for their manufacture, these weapons and material have yet to be discovered. President Bush's reference to Iraqi attempts to purchase uranium in Africa in his 2003 State of the Union address are by now commonly considered as having been based on forged documents (see Yellowcake forgery).
Robert Fisk, who has been a British Middle East correspondent for 29 years, warns in his book "The great war for civilisation" that history is repeating itself. Fisk, in the Dutch tv news program Nova: "It is not just similar, it is 'fingerprint' the same". In 1917, the UK invaded Iraq, claiming to come "not as conquerors but as liberators". After an insurrection in 1920, "the first town that was bombed was Fallujah and the next town that was laid siege to was Najaf". Then, the British army intelligence services claimed that terrorists were crossing the border from Syria. Prime minister Lloyd George stood up in the house of commons and declared that "if British troops leave Iraq there will be civil war". The British were going to set up a democracy in Iraq. In a referendum, however, a king was 'elected'. "They decided they would no longer use troops on the ground, it was too dangerous, they would use the Royal Air force to bomb villages from the air, which is exactly what the Americans are now doing. And eventually, [...] we left and our leaders were overthrown and the Baath party, which was a revolutionary socialist party at the time - Saddam Hussein - took over. And I'm afraid that the Iraq we are creating now is an Iraq of anarchy and chaos. And as long as we stay there, the chaos will get worse."
[edit] References
- ^ Paul, U.S. Representative Ron, Office of (2002). Paul Calls for Congressional Declaration of War with Iraq. Accessed on June 06, 2005.
- ^
[edit] See also
Category:2003 Iraq conflict Category:Human rights abuses Category:International Criminal Court Category:Issues in international criminal law Category:Laws of war Category:War crimes
