Historical and Legal Issues: surrounding the U.S. Led invasion of Iraq, March 19, 2003

Controversy continues to surround the legality of the March 19, 2003 invasion of Iraq by the United States and its coalition allies.  U.S. President Bush and some members of the United Nations hold different views concerning the legality of the invasion. The disagreements over legal authority provide for a worthwhile review.  Implications of the U.S. foreign policy concerning Iraq may provide precedence for future legal order internationally.  The War on Terror and the War on Iraq challenge international lawyers and the legal framework.

Varying statements address the question of legal authority. The current U.N. Secretary General, Kofi Annan (in discussing the invasion of Iraq in 2003), remarked, “from our point of view and the U.N. Charter point of view, it was illegal.”[i]   Former Permanent U.S. Representative to the United Nations, Ambassador John Danforth responded to Secretary General Kofi Annan’s 2003 statement  “We don’t agree with the Secretary General on this point.  And I say that very, very respectfully.  I personally have the very highest regard for the Secretary General, but when you consider there were 16 Security Council Resolutions (concerning Iraq) and Resolution 1441 held that the then government of Iraq was not in compliance with the previous resolutions, which is clearly the case, and [the resolutions] promised that there would be serious consequences if they (Iraq) were not in compliance, then the questions for those countries that were part of the coalition was, well, do all these U.N. resolutions mean nothing, does the Security Council mean nothing, is it totally ineffectual, when it says there are going to be consequences, is that really meaningless?  So it seems to me that it would undercut the rule of law had there been no action, had we just said: ‘Well, so we had passed resolutions, but they’re so much waste[d] paper.’  So I think that the action we took with respect to Iraq was something that was required if were going to maintain a rule of law. Just a different interpretation.”[ii]

Iraq’s President Saddam Hussein proved politically astute and manipulative of the U.N. and other international key players.  Saddam put U.S. policy makers in unenviable positions. They had to make decisions to defend against terrorism in the repeated dichotomy of diplomatic negotiation versus use of military force to execute national policy.  Decades of negotiation with Iraq did not work. President Bush remarked prior to the invasion, “I have a choice to make at this time. Diplomacy isn't working. Do I forget the lessons of September the 11th and trust a madman, or do I take action to defend this country?”[iii]  That very question creates worthy international debate.

This review discusses the historical background in context that led to the Iraq war. To assist understanding of the U.S. position, the analysis discusses numerous U.N. Security Council Resolutions in relation to Iraq.  The paper incorporates a review of the U.N. Charter and other matters surrounding the inherent right of self-defense.  That review sets the factual basis for the legal authority for the 2003 invasion of Iraq.

I. HISTORICAL BACKGROUND TO THE CONFLICT WITH IRAQ   

From the time when Saddam Hussein took Iraqi power, “one Iraqi in ten has been killed or forced to leave the country. Most Iraqis who remain have suffered a decline in living standards as well as a loss in freedom and dignity. This gives a certain plausibility to the INC [Iraqi National Congress] claim that the great majority of Iraqis will support almost any alternative to the current regime whenever it is safe enough to do so.”[iv]

Saddam Hussein, the dictator in Iraq, seized power in 1979. Saddam wanted to make Iraq the principal national power in the oil-rich Persian Gulf.  Saddam “fired ballistic missiles at Iran and Saudi Arabia, Bahrain, and Israel.”[v]  Saddam, once he consolidated power in Iraq, started a war with his neighbor, Iran, in 1980. In that conflict, Saddam committed international war crimes including the use of chemical weapons against the Iranians.  He eventually used those same chemical weapons against his own people in Iraq.  In 1990, he invaded another sovereign neighbor, Kuwait. “It is easy to forget the wantonness of Iraq’s invasion, which was unprovoked and carried out with particular cruelty, and the horror with which the world received news of it.  That invasion rightly shaped, forever after, the way the world would look at Saddam Hussein’s Iraq.”[vi]  The Kuwait invasion shocked and aggravated the International community and led to a military response from the U.N.  Led by the U.S., Operation Desert Storm drove Iraqi forces from Kuwait in 1991.

Saddam Hussein's brutality and deceitfulness became well known internationally. Saddam ruthlessly suppressed Shi'ite Muslims in the South of Iraq.  He coldheartedly dealt with the Kurds in Northern Iraq, including 1987 and 1988 poisonous gas attacks on Kurdish villages.  Using chemical weapons against Iraqi Kurdish civilian opponents in the town of Halabja, an estimated 5,000 Kurds were killed and those chemical agents have caused numerous birth defects that continue to affect the town today.[vii]   Saddam “once ordered the killing of every person between the ages of 15 and 70 in certain Kurdish villages in northern Iraq.  He has gassed many Iranians, and 40 Iraqi villages.”[viii]   Human Rights Watch published a report, “painstakingly compiled over eighteen months . . . that demonstrate(s) convincingly a deliberate intent on the part of the government of Saddam Hussein to destroy, through mass murder, part of Iraq's Kurdish minority.”[ix]   In the Anfal campaign, Iraq forcibly relocated Kurdish civilians from their homes and killed an estimated 50,000 to 180,000 Kurds.[x]

Further, Human Rights Watch implored the international community to acknowledge that genocide occurred in Iraq in 1988 and that the international community should punish Iraq to the fullest extent of the law. The Genocide Convention requires the Security Council to prevent genocidal action. The U.S. did not prove complacent with regards to those abuses. In July of 1993, the Security Council received a draft U.S. proposal to create a commission of enquiry into Iraqi war crimes and genocide in order to prosecute all those involved.[xi]

Analysis of legal implications of the Iraq invasion starts with a look at the first through the seventeenth resolutions passed by the Security Council.   On August 2, 1990, Iraq invaded Kuwait. Tremendous international response followed.  A day later, the Security Council adopted Resolution 660.  That became the first of many resolutions stating Iraq had violated International Peace and Security.  Resolution 660 condemned Iraq’s actions and demanded withdrawal from Kuwait.[xii]

On August 6, 1990, the Security Council passed Resolution 661 affirming the “inherent right of individual and collective self defense”[xiii] and placed economic sanctions on Iraq.  On August 7, 1990 President George H. W. Bush announced that the U.S. would launch a “wholly defensive” mission to prevent Iraq from invading Saudi Arabia.  This mission was called Operation Desert Shield/Storm. U.S. troops were deployed quickly to Saudi Arabia.

On November 29, 1990 the U.N. Security Council adopted Resolution 678, which authorized member states to use “all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions (including 661 662, 664, 665, 666, 667, 669, 670, and 674) and to restore international peace and security in the area.”  Resolution 678, gave Iraq until January 15, 1991 to implement Resolution 660 fully.[xiv]

Saddam refused to withdraw from Kuwait before the January 15th deadline. Operation Desert Storm commenced the next day, with the U.S. Congress authorizing the use of military force to drive Iraq out of Kuwait. U.N. coalition forces launched massive air campaigns with more than 1,000 operational military flights daily.  Five hours after the first attacks, an Iraqi radio station in Baghdad broadcast a voice identified as Saddam Hussein declaring, "The great duel, the mother of all battles has begun. The dawn of victory nears as this great showdown begins."[xv]

Iraq launched missile attacks on coalition bases in Saudi Arabia.  Iraq also launched missile attacks on Israel. Iraq had hopes of enticing Israel into the war, a strategy that proved ineffective.[xvi]  Israeli Air Force Colonel Menachem Eynan told a radio reporter two hours after the air strikes began that "We're completely out of the picture. We're not involved, and we're not acting."[xvii]

Saddam also had hopes that by bombing Israel, he would gain approval of Arab States in the coalition and withdraw them from the war. Again his hope created a gross miscalculation as Arab states stayed in the coalition with the exception of Jordan, which remained officially neutral throughout the war.

On February 27th, one hundred hours after the ground campaign started, President G. H. Bush declared a ceasefire and established Kuwait to have been liberated.

Approximately a month later, the Security Council adopted Resolution 687, which established the conditions for a formal cease-fire suspending hostilities in the Persian Gulf.  Resolution 687 required Iraq to:

1) Destroy its chemical and biological weapons and ballistic missiles and agree to on-site inspections;

2) Not use, develop, construct, or acquire such WMD and their delivery systems;

3) Not acquire or develop nuclear weapons or nuclear-weapons-usable material or components; and

4) Accept on–site inspections and destroy nuclear-related weapons or nuclear materials.[xviii]

Saddam Hussein officially accepted the terms of Resolution 687.  The official cease-fire included Iraq, Kuwait, the U.S., and the coalition nations that had supported Kuwait.  Any violation of cease-fire provisions would suspend the agreement.

To execute inspections under Resolution 687, the U.N. organized a United Nations Special Commission (UNSCOM).  That Commission would assist the International Atomic Energy Agency (IAEA) to assess Iraq’s Weapons of Mass Destruction (WMD) programs and investigate compliance issues.  The IAEA, under the stipulations negotiated, would acquire custody of all of Iraq’s nuclear-weapons materials.  Resolution 687 further required Iraq to renounce international terrorism. Those latter two provisions held great importance to improved conduct by Iraq

The many refugees who fled Northern Iraq during Operation Desert Storm caused the coalition to establish a no-fly zone prohibiting Iraqi military aircraft to fly north of the 36th parallel. In 1992, continued internal repression of Iraqi’s civilian population, resulted in a U.S., British, and French coalition forces establishing an additional no-fly zone south of the 32nd parallel.

Barely four months after the agreement of terms of the cease-fire, the Security Council was forced to pass additional resolutions due to Saddam’s lack of compliance of previous resolutions. Saddam Hussein played dangerous games with the U.N. and the international community.  Saddam failed to cooperate with UNSCOM. He would accept some weapons inspections under special terms, then decline other UNSCOM overtures.

UNSCOM teams sought certain evidence of nuclear, chemical and biological weapons capabilities and ballistic missiles legitimacy.  Saddam’s lack of cooperation and submission and equivocation led UNSCOM to suspicions about Iraqi activities. My interview with Timothy V. McCarthy, former Chief U.N. Inspector for missiles in Iraq for thirteen years, clearly addressed the Iraqi WMD. McCarthy personally conducted and led repeated inspections on the ground in Iraq.  He had worked previously with the Center For Nuclear Studies (CNS) at the Monterey Institute for International Studies (MIIS).  Based on his broad expertise of Iraqi personalities and weapons systems, CBS News later employed McCarthy as a network television and radio analyst and commentator. He virtually had traveled the world in comprehensive and exhaustive search for Iraqi WMD. McCarthy stated, “It is fair to say the report [Duelfer] concluded that Saddam never abandoned his WMD ambitions. Hussein aides knew of his tenacity in that regard and related explicit and implicit WMD discussions with their President at various times.  The U.N. banned Iraqi missile programs and activities related to delivery systems with a range greater than 150 kilometers specifically. Nonetheless, Iraq pursued missile programs actively on a variety of fronts.  Activities in the nuclear, biological and chemical areas were much more ambiguous. The interpretation of that work evolves into some fairly detailed technical arguments. Nevertheless, it is fair to say that Iraqi research and other efforts would have supported resumption of nuclear, biological and chemical programs at the appropriate political moment. In the final analysis, one can conclude that Saddam would have pursued WMD continually given the right opportunity. However, evidence that he was actively doing so in a comprehensive manner before Operation Iraqi Freedom is much more sketchy and ambiguous.”[xix]

McCarthy further stated that Iraq had continuously made “material omissions” in their declarations to the United Nations.  It was difficult to compare what UNSCOM was finding versus what Iraq did not declare.  McCarthy went on to say that there was no “falsified intelligence information” on the part of UNSCOM. The intelligence assessment made at the time could be considered “poor trade craft” within the intelligence community.  Although serious fundamental errors existed within the U.S. Central and Defense Intelligence Agencies, Vice President Dick Cheney and President Bush were by know means at fault implicitly. 

There further may be more to consider in the WMD area with regard to biological laboratories that awaiting the outcome of more analysis. The current U. S. President and the Vice President put good faith in the evidence being procured, the same evidence former President Clinton advanced.  “At the time in 2003, there was no other way to act, than the way those officials did. Further, it would have been irresponsible for the U. S. not to act, under the perspective at that moment in time.”[xx]

Saddam’s intransigence remained unrelenting for years. Despite the numerous Security Council resolutions and economic sanctions. Saddam used the Oil For Food (OFF) program to his benefit.  “Sanctions cannot be imposed indefinitely, since the regime diverts the ‘oil for food’ monies and smuggles three billion dollars in oil a year.”[xxi] The Oil For Food program that was supposed to help the Iraqi people was actually used by Saddam Hussein for his personal causes and benefit.  “The introduction of OFF in late 1996 represented a key turning point for the Iraqi Regime. OFF rescued Baghdad’s economy from a terminal decline created by sanctions. The Regime quickly came to see that OFF could be corrupted to acquire foreign exchange both to further undermine sanctions and to provide the means to enhance dual-use infrastructure and potential WMD-related development.”[xxii]

For the balance of the decade Saddam continuously refused to allow UNSCOM inspectors to do their agreed job. The Security Council continued to pass resolutions.  On November 12, 1997, the U.N. Security Council approved Resolution 1137 which “condemn(ed)…the continued violations by Iraq of its obligations under the relevant resolutions to cooperate fully and unconditionally with (UNSCOM), ” found that the situation continued to constitute a threat to international peace and security, and warned that ‘serious consequences’ would result if Iraq failed to comply with its international obligations.”[xxiii]

A few months after the signing of Resolution 1137, U.N. Secretary-General Annan secured a memorandum of understanding confirming Iraq’s acceptance of all relevant Security Council Resolutions and its avowal to cooperate fully with UNSCOM and the IAEA.  In October of 1998, after making an agreement to accept all Security Council resolutions, Saddam formally brought to a halt to everything to do with UNSCOM. The Security Council, in response to Iraq’s continued violations, adopted Security Council Resolution 1205 which condemned Iraq’s decision to oust UNSCOM as a “flagrant violation of resolution 687…and other relevant resolutions.”[xxiv]

UNSCOM could not continue its mandate because of Saddam’s obstructionism, On December 16, 1998, the United States and Britain jointly conducted a 70-hour missile and aircraft bombing campaign against approximately one hundred targets in Iraq. During the next four years, Iraq refused to permit UNSCOM inspections.  On December 17, 1999 the Security Council decided to disband UNSCOM and replace it with the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC).[xxv]

On September 11, 2001, the security posture of the U.S. changed abruptly. Terrorist attacks on the World Trade Center and the Pentagon used civilian aircraft as weapons. Al Qaeda operatives, trained and led from bases in Afghanistan, demonstrated the threat posed by terrorists who could seek safe haven in rogue nations with potential access to the capabilities WMD.[xxvi]

Throughout the following year President George W. Bush focused on the need to confront Iraq.  “States like these, and their terrorist allies, constitute an axis of evil, arming to threaten the peace of the world.  By seeking weapons of mass destruction, these regimes pose a grave and growing danger.  They could provide these arms to terrorists, giving them the means to match their hatred.  They could attack our allies or attempt to blackmail the United States.  In any of the cases, the price of indifference would be catastrophic.”[xxvii]  President Bush addressed the U.N. and spoke of the possible ‘use of force’ in Iraq to enforce existing U.N. Security Council Resolutions and to eliminate dangerous threats to international peace and security.  President Bush challenged the U.N. to face the threat posed by Iraq as evidenced by its continuing defiance of the Security Council Resolutions.[xxviii]

The Security Council unanimously adopted Security Council Resolution 1441 finding Iraq in material breach of its previous resolutions and threatened “serious consequences” for further intransigence. “The threat(s) [of] Iraq’s non-compliance with council resolutions, proliferation of weapons of mass destruction and long-range missiles harms international peace and security”. The Council condemned the absence of international inspections in Iraq since December 1998 and Iraq’s continued failure to renounce international terrorism and cease the repression of its civilian population. The UN gave Iraq a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council. ”[xxix]

In its defense, Iraq submitted an incomplete and inaccurate declaration to the U.N. composed principally of recycled information.  The declaration clearly failed to address any of the outstanding disarmament questions that previous inspectors had publicly documented. The reports submitted by UNMOVIC to the Council confirmed these shortcomings. On February 28, 2003, UNMOVIC Executive Chairman Dr. Hans Blix stated that the declaration contained “little new significant information . . . relating to proscribed weapons systems.”  On January 27, 2003, Dr. Blix stated that the Iraqi declaration did not contain “any new evidence that would eliminate” the “many open disarmament issues.” Blix further indicated that Iraq had not come “to a genuine acceptance, not even today, of the disarmament, which was demanded of it.  Dr. Blix repeated his conclusion that, “It was a disappointment that Iraq’s declaration of December 7, 2002 did not bring new documentary evidence.”[xxx]

On March 19, 2003, the United States led an ad hoc ‘coalition of the willing’ invasion of Iraq ending regime of Saddam Hussein and its Ba’athist party.  On May 1, 2003, President Bush announced cessation of major combat operations in Iraq and, under Security Council Resolution 1483, assumption by the United States as an occupying power responsible to rebuild Iraq.

When the U.S. invaded of Iraq, Saddam Hussein had no intention to comply with disarmament requirements.  Iraq was in “material breach” of Security Council Resolution 1441 and Security Council Resolution 687.  No Security Council member had or has stated that Iraq had met obligations under the seventeen U.N. resolutions.  Saddam disregarded these resolutions which “required him to cease the torture and unnecessary imprisonment of opposition groups; to provide for the immediate repatriation of prisoners of war and other political detainees; to cease amassing and destroy all chemical, biological, nuclear, and ballistic missile programs and associated infrastructure; to cease sheltering terrorists and terrorist groups; and to allow for monitoring and inspection to verify Iraqi compliance. He had complied with none of these resolutions.”[xxxi]

Coalition forces in Iraq continued to search for WMD sites. Future years may yield the precise fate of Iraq’s weaponry. Although “We did not find the stockpiles we thought were there… I want to remind you what the Duelfer report said: ‘Saddam Hussein was gaming the oil-for-food program to get rid of sanctions’.  And why?  Because he had the capability and knowledge to rebuild his weapon programs.  And the great danger we face in the world today is that a terrorist organization could end up with weapons of mass destruction.  Knowing what I know today, I would have made the same decision.  The world is safe with Saddam in a prison cell.”[xxxii]

II.  DISCUSSION OF THE SECURITY COUNCIL RESOLUTIONS

Many U.N. watchers argue that America needed an additional “eighteenth” resolution to go to war. On March 10th, 2003 French President Jacques Chirac declared preemptly that France would veto any such resolution. Thus diplomats abandoned efforts at additional resolutions.  French motives need continued examination. In what became their new zeal for multilateral U.N. authority  France “did not request a Security Council resolutions to authorize its interventions in Chad, the Ivory Coast, or other former French colonies”.[xxxiii]

On September 12, 2002, President Bush spoke to the U.N. the General Assembly. He outlined U. S complaints against the Iraq.  He detailed Iraq’s 12-year noncompliance with the terms of the previous resolutions.[xxxiv]

Much invasion debate assumes that the Security Council did not endorse the use of force.  That assumption pales in the repeated resolution wording, deliberately framed to allow U.N. members to use all necessary means to uphold and implement resolutions. The resolutions authorize the use of force and require restoration of international peace and security. Resolutions allow action against aggression.  The Security Council authorized a U.S. led coalition to wage war on Iraq in 1991, a significant legal precedent.   

On October 31, 1998, Saddam denied UNSCOM inspectors access within Iraq. At that time, all Coalition intelligence services agreed that Saddam possessed WMD capabilities across a range of categories including chemical, biological, and nuclear programs, and missile delivery systems.[xxxv]  The international community, even with the new UNMOVIC, seemed powerless to monitor and deal with Saddam rule of Iraq as a rogue state.

The attacks on the United States of September 11, 2001 raised questions of preemption.  The combination of weapons of mass destruction, rogue state actions, and actual terrorism posed an imminent threat to the international security.[xxxvi]

Iraq’s “material breach” of its disarmament obligations by failing to disclose, discontinue, and destroy WMD programs, caused unanimous Security Council passage of Resolution 1441 on November 8, 2002.  Resolution 1441 gave Iraq  “a final opportunity to comply with its disarmament obligations” and warned Iraq of “serious consequences” if it failed to do so.[xxxvii]

In both the 1980’s and 1990s, Saddam used chemical weapons against the people of Iran. He fired missiles against Iran, Saudi Arabia and Israel. He actively pursued nuclear weapons.”[xxxviii]  Those actions provide objective evidence of Iraqi possession of WMD and sponsorship of nuclear programs.

When President Bush ordered U.S. forces into action, he stated that he was doing so under previous resolutions and U.N. Security Council Resolutions 678, 687 and 1441. The U. S. Congress passed a Joint Resolution 114 to authorize the use of United States Armed Forces against Iraq.  That Resolution held no requirement for the President to obtain U.N. Security Council authorization. The President could act unilaterally.[xxxix]

In all Security Council debates, ‘all necessary means’ was understood to mean ‘the use of force’.   The ‘no fly zones’ in the North and South of Iraq reflect that reality.  The U.N. authorization for the use of force neither expired nor terminated by subsequent resolution.  U.N. history includes expiration dates on many of its resolutions.  In Bosnia, Resolution 1031 expressly terminated the use of force.[xl]  In Somalia, Security Council Resolution 954 set a time limit for the use of force.[xli]

III.  DISCUSSION OF THE U.N. CHARTER AND THE SOVEREIGN RIGHT OF SELF-DEFENSE

An additional legal right for the 2003 invasion of Iraq accrues from the sovereign right of self-defense. Article 51 of the U.N. Charter recognizes and affirms, but does not limit, that “inherent” right under international law.  Until the Security Council takes measures necessary to maintain international peace and security, nothing in the present Charter impairs the inherent right of individual or collective self-defense if an armed attack occurs against a United Nations member.[xlii]

The U.N. Charter makes the legality of the use of force in self-defense subject to the existence of certain circumstances. Preemptive use of force covers the ability to strike first before enemy action and falls within the legality of self-defense. Preemptive force characterized the 2003 invasion of Iraq.

Broad disagreement exists on whether ‘imminence’ of an attack includes an element necessary for preemptive force.  Whether an attack by Saddam directly, or through his ability to support terrorists constituted ‘imminent’, remains questionable in the naysayers minds. The U.S. National Security Strategy in 2002 included preemptive response to attack.[xliii]   A visible Iraqi mobilization posing to attack the U.S. in the most traditional sense was lacking.  Saddam held no physically capability to send missiles against the U.S. Thus it may have appeared to certain observers that there was no ‘imminent’ threat.  However, in the context of modern warfare and technology and state sponsored terrorism ‘imminent’ takes a broader definition

Weapons of mass destruction increase the capabilities of today terrorists as well as rogue states.  Allowing Saddam to remain in power could have resulted in devastating attacks internationally given Iraq’s capabilities militarily. As a result, President Bush clearly faced a choice: Either wait to see if Saddam struck first or enforce the many U.N. resolutions and U.S. public law.  “For if a regime that is animated by unlawful ambitions against its neighbours continues to develop ABC [Atomic, Biological and Chemical] weapons, and especially if it does so in violation of international commitments, the deprivation of those weapons in a single instance may only reinforce the regime’s intentions to try even harder the next time to develop and deploy the weapons so that it can then paralyse subsequent efforts to control it.”[xliv]

“The U.N. Charter can not and should not be read to restrict the use of force in self-defense situations of “imminent” attack.  Rather, fundamental principles of international law and the values expressed in the United Nations Charter establish that the standard for the use of force is “necessity,” which is determined by four factors: (1) the nature and magnitude of the threat involved; (2) the likelihood that the threat will be realized unless preemptive action is taken; (3) the availability and exhaustion of alternatives to using force; and (4) whether using preemptive force is consistent with the terms and purposes of the U.N. Charter and other applicable international agreements.”[xlv]  The U. S. attack of Iraq proves consistent with those four factors.

The Caroline Affair of 1837 reinforces and confirms the argument for legal self-defense.  The Caroline Affair established the principle of "anticipatory self-defense" in international politics.  It held that military action may be justified by the mere threat of armed attack.  “In 1837, the steamer Caroline had been supplying armed insurgents against British rule in Canada with reinforcements of men and materials from the United States. In response, a British force from Canada entered U.S. territory at night, seized the Caroline, set the ship on fire, and sent it down the Niagara River, killing two U.S. citizens in the process. The British claimed that they were acted in self-defense. U. S. Secretary of State Daniel Webster called upon the British to show that the: necessity of self-defence [was] instant, overwhelming, leaving no choice of means, and no moment for deliberation . . . [and that the British force], even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.”[xlvi] The British prevailed. The Caroline Affair decision became to be known as the Webster’s formula. It holds reference frequently when making a legal claim to self-defense.  Further, the International Military Tribunal at Nuremberg endorsed the Webster formula, when it ruled that the German invasion of Norway in 1940 was not defensive because it was unnecessary to prevent an “imminent” Allied invasion.[xlvii]

IV. CONCLUSION

An objective analysis of evidence contained in this review fully supports the legality of the United States invasion of Iraq in 2003. The invasion followed twelve years of exhaustive diplomacy between the two primary nations, the United States and Iraq. Military action by the United States and its allies held logical and legal foundation within the terms of the cease-fire suspending the hostilities of the 1991 Gulf War. Iraq’s continued breaches of the cease-fire, established principles of international law, both treaty and armistice, justified the application of force. Recognized United Nations authorities previously sanctioned actions necessary to compel Iraqi compliance with duly negotiated cease-fire agreements. International law permitted the use of force against Iraq based on anticipatory self-defense against both Weapons of Mass Destruction and Iraq’s potential cooperation with international terrorist actions. The United Nations Charter contains language that clearly authorizes preeminent use of force to nullify threats of attack. Arguments against the legality of U.S. action remain specious, subjective, and lacking in legal precedent.

Beverly Bica

December 7, 2005

University of San Diego

Joan Kroc Institute for Peace and Justice

Justice Richard Goldstone – International Criminal Court