Iraq Resolution

President George W. Bush, surrounded by leaders of the House and Senate, announces the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq, October 2, 2002.

The Iraq Resolution or the Iraq War Resolution (formally the Authorization for Use of Military Force Against Iraq Resolution of 2002,[1] Pub.L. 107–243, 116 Stat. 1498, enacted October 16, 2002, H.J.Res. 114) is a joint resolution passed by the United States Congress in October 2002 as Public Law No: 107-243, authorizing military action against Iraq.[2]

Contents

The resolution cited many factors as justifying the use of military force against Iraq:[3][4]

The resolution "supported" and "encouraged" diplomatic efforts by President George W. Bush to "strictly enforce through the U.N. Security Council all relevant Security Council resolutions regarding Iraq" and "obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion, and noncompliance and promptly and strictly complies with all relevant Security Council resolutions regarding Iraq."

The resolution authorized President Bush 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."

Passage

An authorization by Congress was sought by President George W. Bush soon after his September 12, 2002 statement before the U.N. General Assembly asking for quick action by the Security Council in enforcing the resolutions against Iraq.[5][6]

Of the legislation introduced by Congress in response to President Bush's requests,[7] S.J.Res. 45 sponsored by Sen. Daschle & Sen. Lott was based on the original White House proposal authorizing the use of force in Iraq, H.J.Res. 114 sponsored by Rep. Hastert & Rep. Gephardt and the substantially similar S.J.Res. 46 sponsored by Sen. Lieberman were modified proposals. H.J.Res. 110 sponsored by Rep. Hastings was a separate proposal never considered on the floor. Eventually, the Hastert-Gephardt proposal became the legislation Congress focused on.

Passage of the full resolution

Introduced in Congress on October 2, 2002, in conjunction with the Administration's proposals,[3][8] H.J.Res. 114 passed the House of Representatives on Thursday afternoon at 3:05 p.m. EDT on October 10, 2002, by a vote of 296-133,[9] and passed the Senate after midnight early Friday morning, at 12:50 a.m. EDT on October 11, 2002, by a vote of 77-23.[10] It was signed into law as Pub.L. 107–243 by President Bush on October 16, 2002.

United States House of Representatives

Party Yeas Nays Not
Voting
Republican 215 6 2
Democratic 82 126 1
Independent 0 1 0
TOTALS 297 133 3

United States Senate

Party Yeas Nays
Republican 48 1
Democratic 29 21
Independent 0 1
TOTALS 77 23
Final Congressional vote by chamber and party, October 2002

Amendments offered to the House Resolution

The Lee Amendment

Amendment in the nature of a substitute sought to have the United States work through the United Nations to seek to resolve the matter of ensuring that Iraq is not developing weapons of mass destruction, through mechanisms such as the resumption of weapons inspections, negotiation, enquiry, mediation, regional arrangements, and other peaceful means.
Sponsored by Rep. Barbara Lee (D-CA).[11]
Failed by the Yeas and Nays: 72 - 355[12]

The Spratt Amendment

Amendment in the nature of a substitute sought to authorize the use of U.S. armed forces to support any new U.N. Security Council resolution that mandated the elimination, by force if necessary, of all Iraqi weapons of mass destruction, long-range ballistic missiles, and the means of producing such weapons and missiles. Requested that the President should seek authorization from Congress to use the armed forces of the U.S. in the absence of a U.N. Security Council resolution sufficient to eliminate, by force if necessary, all Iraqi weapons of mass destruction, long-range ballistic missiles, and the means of producing such weapons and missiles. Provided expedited consideration for authorization in the latter case.
Sponsored by Rep. John Spratt (D-SC-5).[13]
Failed by the Yeas and Nays: 155 - 270[14]

The House Rules Amendment

An amendment considered as adopted pursuant to the provisions of H.Res. 574[15]
Sponsored by House Rules.[16]
Resolution (H.RES.574) agreed to by voice vote[17]

Amendments offered to the Senate Resolution

The Byrd Amendments

To provide statutory construction that constitutional authorities remain unaffected and that no additional grant of authority is made to the President not directly related to the existing threat posed by Iraq.
Sponsored by Sen. Robert Byrd (D-WV).[18]
Amendment SA 4868 not agreed to by Yea-Nay Vote: 14 - 86[19]
To provide a termination date for the authorization of the use of the Armed Forces of the United States, together with procedures for the extension of such date unless Congress disapproves the extension.
Sponsored by Sen. Robert Byrd (D-WV).[20]
Amendment SA 4869 not agreed to by Yea-Nay Vote: 31 - 66[21]

The Levin Amendment

To authorize the use of the United States Armed Forces, pursuant to a new resolution of the United Nations Security Council, to destroy, remove, or render harmless Iraq's weapons of mass destruction, nuclear weapons-usable material, long-range ballistic missiles, and related facilities, and for other purposes.
Sponsored by Sen. Carl Levin (D-MI).[22]
Amendment SA 4862 not agreed to by Yea-Nay Vote: 24 - 75[23]

The Durbin Amendment

To amend the authorization for the use of the Armed Forces to cover an imminent threat posed by Iraq's weapons of mass destruction rather than the continuing threat posed by Iraq.
Sponsored by Sen. Dick Durbin (D-IL).[24]
Amendment SA 4865 not agreed to by Yea-Nay Vote: 30 - 70[25]

International law

Further information: United Nations Charter and International law

There have been no findings by any legal tribunal with both legal authority and legal jurisdiction that any laws were violated. There are only two legal tribunals with both authority and jurisdiction to make such a finding: (1) The US federal courts and (2) the United Nations. Advisory opinions are prohibited in US Courts and are also prohibited by the UN Charter unless the security council authorizes them. There are no relevant advisory opinions or legal finding regarding the legality. The United Nations security council has made no findings on the issues.

International law - right of pre-emptive self defense

There is no requirement in international law that the United States (or any nation) seek permission to initiate any war of self-defense.[26] "The United States government has argued, wholly apart from Resolution 1441, that it has a right of pre-emptive self-defense to protect itself from terrorism fomented by Iraq.[27] Although this position has been intensively criticized, without any legal finding for support, claims for legality or illegality are merely debates. To prove illegality it would first be necessary to prove that the US did not meet the conditions of necessity and proportionality and that the right of pre-emptive defense did not apply.[28] However, In September 2004, Kofi Annan, Secretary General of the United Nations, said "I have indicated that it was not in conformity with the UN Charter" and "it was illegal". [29]

U.S. law

Further information: Doe v. Bush, US Constitution and US law

The United States Court of Appeals for the First Circuit refused to review the legality of the invasion in 2003, citing a lack of ripeness.

In early 2003, the Iraq Resolution was challenged in court to stop the invasion from happening. The plaintiffs argued that the President does not have the authority to declare war. The final decision came from a three-judge panel from the US Court of Appeals for the First Circuit which dismissed the case. Judge Lynch wrote in the opinion that the Judiciary cannot intervene unless there is a fully developed conflict between the President and Congress or if Congress gave the President "absolute discretion" to declare war.[30]

Similar efforts to secure judicial review of the invasion's legality have been dismissed on a variety of justiciability grounds.

Legal debates - U.N. security council resolutions

Debate about the legality of the 2003 invasion of Iraq under international law, centers around ambiguous language in parts of U.N. Resolution 1441 (2002).[31] The U.N. Charter in Article 39 states: "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".

The position of the U.S. and U.K. is that the invasion was authorized by a series of U.N. resolutions dating back to 1990 and that since the U.N. security council has made no Article 39[32] finding of illegality that no illegality exists.

Resolution 1441 declared that Iraq was in "material breach" of the cease-fire under U.N. Resolution 687 (1991), which required cooperation with weapons inspectors. The Vienna Convention on the Law of Treaties states that under certain conditions, a party may invoke a "material breach" to suspend a multilateral treaty. Thus, the U.S. and U.K. claim that they used their right to suspend the cease-fire in Resolution 687 and to continue hostilities against Iraq under the authority of U.N. Resolution 678 (1990), which originally authorized the use of force after Iraq invaded Kuwait.[33] This is the same argument that was used for Operation Desert Fox in 1998.[34] They also contend that, while Resolution 1441 required the UNSC to assemble and assess reports from the weapons inspectors, it was not necessary for the UNSC to reach an agreement on the course of action. If, at that time, it was determined that Iraq breached Resolution 1441, the resolution did not "constrain any member state from acting to defend itself against the threat posed by Iraq".[35]

It remains unclear whether any party other than the Security Council can make the determination that Iraq breached Resolution 1441, as U.N. members commented that it is not up to one member state to interpret and enforce U.N. resolutions for the entire council.[36] In addition, other nations have stated that a second resolution was required to initiate hostilities.[37] Some have asserted that the war was an illegal war of aggression, and Kofi Annan, former United Nations Secretary-General, expressed the belief that the war in Iraq was an "illegal act that contravened the U.N. charter."[38]

See also

References

  1. ↑ Authorization for Use of Military Force Against Iraq Resolution of 2002 (pdf)
  2. ↑ The "news release" linked to from a blog post dated Sunday, December 10, 2006 is no longer present on the web site "whitehouse dot gov", but an archived copy of it does exist at "web dot archive dot org". See "Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq". The Office of the President of the United States. Archived from the original on November 2, 2002.
  3. 1 2 "President, House Leadership Agree on Iraq Resolution" (Press release). The White House. 2002-10-02.
  4. ↑ "Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq" (Press release). The White House. 2002-10-02.
  5. ↑ "President's Remarks at the United Nations General Assembly" (Press release). The White House. 2002-09-12.
  6. ↑ "Remarks by the President after Meeting with Congressional Leaders" (Press release). The White House. 2002-09-18.
  7. ↑ Legislation related to the Authorization for Use of Military Force Against Iraq, Congressional Record, Library of Congress.
  8. ↑ Major Congressional Actions of H.J.Res. 114, Congressional Record, Library of Congress
  9. ↑ 107th Congress-2nd Session 455th Roll Call Vote of by members of the House of Representatives
  10. ↑ 107th Congress-2nd Session 237th Roll Call Vote by members of the Senate
  11. ↑ H.AMDT.608 - Amendment in the nature of a substitute of H.J.RES.114, 107th Congress, U.S. House of Representatives, Library of Congress, 2002-10-10
  12. ↑ On Agreeing to the Lee of California Substitute Amendment, 107th Congress, U.S. House of Representatives, Clerk of the House, 2002-10-10
  13. ↑ H.AMDT.609 - Amendment in the nature of a substitute of H.J.RES.114, 107th Congress, U.S. House of Representatives, Library of Congress, 2002-10-10
  14. ↑ On Agreeing to the Spratt of South Carolina Substitute Amendment, 107th Congress, U.S. House of Representatives, Clerk of the House, 2002-10-10
  15. ↑ H.RES.574 - Providing for the consideration of the joint resolution (H.J.RES.114), 107th Congress, U.S. House of Representatives, Library of Congress, 2002-10-08
  16. ↑ H.AMDT.610 - Amendment considered as adopted pursuant to the provisions of H.Res.574, 107th Congress, U.S. House of Representatives, Library of Congress, 2002-10-10
  17. ↑ On Agreeing to Resolve H.RES.574, 107th Congress, U.S. House of Representatives, Library of Congress, 2002-10-08
  18. ↑ S.AMDT.4868 - Providing for Statuary Construction in the Consideration of the Joint Resolution (S.J.RES.45), 107th Congress, U.S. Senate, Library of Congress, 2002-10-10
  19. ↑ On Agreeing to the Amendment (Byrd Amdt. No. 4868), 107th Congress, U.S. Senate, Library of Congress, 2002-10-10
  20. ↑ S.AMDT.4869 - Providing for Congressional Construction in the Consideration of the Joint Resolution (S.J.RES.45), 107th Congress, U.S. Senate, Library of Congress, 2002-10-10
  21. ↑ On Agreeing to the Amendment (Byrd Amdt. No. 4869), 107th Congress, U.S. Senate, Library of Congress, 2002-10-10
  22. ↑ S.AMDT.4862 - Providing for Congressional Construction in the Consideration of the Joint Resolution (S.J.RES.45), 107th Congress, U.S. Senate, Library of Congress, 2002-10-10
  23. ↑ On Agreeing to the Amendment (Levin Amdt. No. 4862), 107th Congress, U.S. Senate, Library of Congress, 2002-10-10
  24. ↑ S.AMDT.4865 - Providing for Congressional Amendment in the Consideration of the Joint Resolution (S.J.RES.45), 107th Congress, U.S. Senate, Library of Congress, 2002-10-10
  25. ↑ On Agreeing to the Amendment (Byrd Amdt. No. 4865), 107th Congress, U.S. Senate, Library of Congress, 2002-10-10
  26. ↑ Case of the S.S. "Lotus" (France v. Turkey), PCIJ Series A, No. 10, at 18 (1927). "The first and foremost restriction imposed by international law upon a State is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State.
  27. ↑ American Society of International Law: Security Council Resolution 1441 on Iraq's Final Opportunity to Comply with Disarmament Obligations November, 2002. http://www.asil.org/insigh92.cfm Retrieved 12/28/2011.
  28. ↑ American Society of International Law. June 2002. Frederic L. Kirgis. Pre-emptive Action to Forestall Terrorism. http://www.asil.org/insigh88.cfm Accessed 12/28/2011. “The right of self-defense is such a permissive rule, if the conditions of necessity and proportionality are met.”
  29. ↑ http://news.bbc.co.uk/1/hi/world/middle_east/3661134.stm
  30. ↑ Doe v. Bush Opinion by Judge Lynch 3/13/2003 Pages 3,4,23,25,26. Retrieved 8/7/2007.
  31. ↑ World Press: "The United Nations, International Law, and the War in Iraq" Retrieved 9/5/2007. "Resolution 1441 ultimately passed—by a vote of 15-0—because its ambiguous wording was able to placate all parties. <...> Resolution 1441 is ambiguous in two important ways. The first deals with who can determine the existence of a material breach. The second concerns whether another resolution, explicitly authorizing force, is needed before military action against Iraq may be taken."
  32. ↑ UN Charter Article 39 http://www.un.org/en/documents/charter/chapter5.shtml Accessed 12/28/2011.
  33. ↑ ASIL: Security Council Resolution 1441 on Iraq's Final Opportunity to Comply with Disarmament Obligations November, 2002. Retrieved 9/5/2007. "The language of 'material breach' in Resolution 1441 is keyed to Article 60 of the Vienna Convention on the Law of Treaties, which is the authoritative statement of international law regarding material breaches of treaties. Under Article 60 of the Vienna Convention, a material breach is an unjustified repudiation of a treaty or the violation of a provision essential to the accomplishment of the object or purpose of a treaty. Article 60 provides that a party specially affected by a material breach of a multilateral treaty may invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting state. <...> Security Council Resolution 687, adopted at the end of the Gulf War, includes a provision declaring a formal cease-fire between Iraq, Kuwait and the member states (such as the United States) cooperating with Kuwait in accordance with Resolution 678 (1990). Resolution 678 authorized member states to use all necessary means to restore international peace and security in the area, and thus provided the basis under international law for the allies' military action in the Gulf War. The determination in Resolution 1441 that Iraq is already in material breach of its obligations under Resolution 687 provides a basis for the decision in paragraph 4 (above) of Resolution 1441 that any further lack of cooperation by Iraq will be a further material breach. If Iraq, having confirmed its intention to comply with Resolution 1441, then fails to cooperate fully with the inspectors, it would open the way to an argument by any specially affected state that it could suspend the operation of the cease-fire provision in Resolution 687 and rely again on Resolution 678."
  34. ↑ World Press: "The United Nations, International Law, and the War in Iraq" Retrieved 9/5/2007. "[On Dec. 16, 1998], U.S. and British warplanes launched air strikes against Iraq after learning that Iraq was continuing to impede the work of UNSCOM, the weapons inspectors sent to Iraq at the close of the Gulf War, and thus was not in compliance with Resolution 687. When the Security Council met that night to discuss whether individual member states could resort to force without renewed Security Council consent, it was clear that the Security Council members did not all agree on the legality of the U.S. and British resort to force. According to the press release from that meeting, the U.S. representative claimed his country's actions were authorized by previous council resolutions (as many in the Bush administration are arguing again today). The British delegate similarly argued that because Iraq had not complied with the terms of Resolution 687, military force was justified."
  35. ↑ World Press: "The United Nations, International Law, and the War in Iraq" Retrieved 9/5/2007. "At that time, U.S. Ambassador to the U.N. John Negroponte said: 'This resolution contains no 'hidden triggers' and no 'automaticity' with respect to the use of force. If there is a further Iraqi breach, reported to the council by UNMOVIC, the IAEA, or a Member State, the matter will return to the council for discussion….[But] if the Security Council fails to act decisively in the event of further Iraqi violations, this resolution does not constrain any member state from acting to defend itself against the threat posed by Iraq or to enforce the relevant United Nations resolutions and protect world peace and security.' The British ambassador, Sir Jeremy Greenstock, agreed."
  36. ↑ US not allowed to speak for the entire council
  37. ↑ ASIL: Security Council Resolution 1441 on Iraq's Final Opportunity to Comply with Disarmament Obligations November, 2002. Retrieved 9/5/2007. "[T]he representative of Mexico (a current member of the Security Council) said after the vote on Resolution 1441 that the use of force is only valid as a last resort and with prior, explicit authorization from the Council. Mexico does not stand alone in taking that position. <...> It would be argued that, in light of the emphasis in the Charter on peaceful dispute settlement, Resolution 678 could not be used as an authorization for the use of force after twelve years of cease fire, unless the Security Council says so."
  38. ↑ Iraq war illegal, says Annan BBC News, September 16, 2004

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