Thursday, February 24, 2005

Does the Legality of the Iraq War Matter?

Although the legality of the Iraq War under international law has been a subject of some interest among academic international lawyers, there is not much evidence that this question troubled American decisionmakers (does anyone remember John Kerry complaining about the legality of the Iraq War?). But the U.K. is another matter.

The “illegality” of the Iraq War has been used as a defense to criminal charges by protestors who broke into a UK military base. Moreover, the legality of the Iraq War could be important to UK soldiers charged by the new ICC (to which the UK is a party). For this reason Prof. Phillippe Sands’ new book, Lawless World, which its publisher describes as a “coruscating account of how the Bush and Blair administrations are breaking the law and trying to rewrite the rules ” governing the use of military force under international law is making waves in the UK.

This excerpt in the Guardian charges that the UK’s Attorney General, Lord Goldsmith, who is supposed to give independent legal advice to the UK Government, was leaned on by the U.S. and Tony Blair’s political advisors to deem the Iraq War legal under international law. Tory opposition leaders are already calling for a release of this legal advice and a parliamentary investigation.

This is a complicated issue. So I’m generally unpersuaded by polemics (like Sands’ book seems to be) suggesting the illegality of the Iraq War was such an easy question. (see this defense of the legality of the war here in the American Journal of International Law by the ubiquitous John Yoo). I’m similarly unsure about the Kosovo intervention, despite Peggy’s attempts to justify it here. I can’t help thinking that the only reason Kosovo is uncontroversial and the Iraq War remains controversial (among international lawyers) is that most international lawyers supported Kosovo but opposed Iraq on policy grounds. Put another way, do you know anyone who wanted to go to war in Iraq but thought it was illegal, or opposed the war but thought it was legal? I don’t.

Putting all this aside, for U.S. lawyers, the most interesting tidbit from Sands’ book is about future Legal Adviser of the State Department John Bellinger. Sands writes:

On February 11 2003, Lord Goldsmith met with John Bellinger III, legal adviser to the White House's national security council. The meeting took place in the White House. An official told me later: "I met with Mr Bellinger and he said: 'We had trouble with your attorney; we got him there eventually.'"

Sounds like a good guy.


Anonymous Anonymous said...

International law(s)? What international laws? I don't remember voting in any elections to elect representatives to any international legislature to enact any international laws.


2/25/2005 9:50 AM  
Anonymous Anonymous said...

If you are from the United States then the US Congress and the President are the representatives who ratified and signed the UN Charter, the Nuremberg Principles and other relevant international laws and treaties. More, Article VI clause II of the US Constitution states that such treaties are "the supreme law of the land" so unless the US has withdrawn formally from these agreements, military interventions not approved by the UN Security Council are not only violations of international law, but domestic law as well and also a violation of the President's oath of office.

The question really should be does "legality" matter because these laws have been violated virtually since the day they were created by the US, its allies, and its enemies. In practice, international law (concerning the use of force)has been useful mostly as propaganda - such as the argument that the Iraq invasion was necessary because they violated umpteen Security Council resolutions. The SC resolutions violated by powerful states and their allies (that is the ones not vetoed out of existence) are rarely if ever enforced.

Those concerned with the violation of the Genocide convention in Darfur need look no further than the genocide in East Timor 1975-2000 for precedent. Of course the latter involved crimes committed by a US ally so there was little concern displayed THEN among those who now wring their hands over the ineffectiveness of the UN at stopping crimes against humanity.

2/25/2005 12:01 PM  
Anonymous Anonymous said...

Funny how all these "international laws" are established by those with a strong interest in some status quo, is it not? And who likes the status quo more than those using it to continue their elitehood and/or to oppress others?

Hmmmmm. Leads one to think.

2/25/2005 12:05 PM  
Blogger Chris Borgen said...


Are you saying that the war in Iraq was legal, based on international law, or that it is irrelevant whether it was legal or not?

This seems to be the real split between those who opposed the war and those who were in favor of it. There are some who favored the war and thought it was legal (I don't know many who take that stance); there are more people (as far as I can tell) who favored the war and don't care what international law has to say about it. If that is your view, then our discussion has little to do with the legality of the war in Iraq, per se, but rather the desirability of certain types of international law, such as regulations on the use of force.

If you think such norms do more harm than good, a view that would deny consistent U.S. policy for over a century, then I think you need to make your case.

If, however, you argue that the war was legal based on current norms, then again, I ask, what is the basis of your argument? John Yoo's argument is not based on any common conception of what the laws of armed conflict actually say, but what he thinks they should say. That's all well and good as a piece of academic writing, but personal wishes aren't the same as law, especially when's one's interpretation hasn't been supported by any other state actors (or even been consistently suppoorted by the U.S.).

Whether or not you favored the war as a piece of policy is one thing, but if you think it was either supported by the current rules of the international system or if you think it is harmful to have such rules, you have to actually make your claim.

2/25/2005 12:34 PM  
Anonymous Anonymous said...

This whole legality question has bugged me since some were pushing Bush to get "permission" from the UN for Gulf War II.

In my understanding of the situation Iraq attacked Kuwait and the US, along with the rest of the world declared war on Iraq and drove them out. Then we signed a *ceasefire* with them. We did not end the war.

Over the years Iraq had been routinely violating the rules of the ceasefire, causing much hand wringing and resolution passing in the UN. However if we in the US got tired of that game and decided to restart the shooting war, no further authorization was needed. We were already at war with Iraq, just in a state of suspended hostilities.

So in my opinion those who whinge about the illegality of Gulf War II are ignorant of the facts on the ground. Such ignorance is surprising in someone who is proclaiming their expertise in International Law.

Interestingly I believe the same situation holds with North Korea, in that the US signed a ceasefire 50 years ago, but technically we are still at war with them. If we really got fed up with their posturing legally we could just finish that war with no further palaver. Politically, however, we would probably have to go hat in hand before the UN.

And that is the way some people would like it.

James Kliegel (

2/25/2005 1:31 PM  
Blogger Chris Borgen said...

To reply to James Kliegel's comment:

The U.S. tried to make the argument that the original Gulf War Resolutions could be used as authorization for the most recent action. As far as I know, no other state agreed with this interpretation.

The original resolutions were narrowly tailored to ousting Iraq from Kuwait; once that was done there were further resolutions drafted and passed when the U.S. and its allies undertook further actions in the 1990's. The orifginal resolutions were not viewed as sufficient either legally or politically as that was not the intent of the original drafters.

Despite U.S. attempts to get other states to agree to the interpretation that no further authorization was needed, no one else who voted for the original resolutions (and in particular the other Security Council members) agreed that such a "blank check" was ever contemplated in the original negotiations.

If you think that the intent of the parties is in any way important in interpreting a resolution or if you think the plain meaning of words matter (as opposed to linguistically tortured interpretations) then I think you would come to the same result as well.

Once again, this is a matter of what was actually agreed to and what the resolutions actually said. If we wanted something different, we should have drafted and negotiated for resolutions.

2/25/2005 1:47 PM  
Anonymous Phil Hunt said...

Put another way, do you know anyone who wanted to go to war in Iraq but thought it was illegal, or opposed the war but thought it was legal?You do now.

I supported the war (although with deep reservations), because I thought the Iraqi people would be better off because of it.

But Iraq was a sovewreign state and hadn't invaded anyone. So in iternational law, it was entitled to sovreignty, despite its less-than-perfect human rights record.

(The invasion of Kuwait was ages ago, was a completed incident, and not a reasonable casus belli, IMO. Thisi s because it is unreasonalbe to allow states to drag up old conflicts to start new wars: if you allowed that you'd have to allow e.g. Iran to attack Italy in revenge for Crassus' invasion of Persia over 2000 years ago, which would be silly.)

2/25/2005 3:35 PM  
Anonymous Phil Hunt said...

Funny how all these "international laws" are established by those with a strong interest in some status quo, is it not?All laws are, by definition, established by people with enough power to establish laws. And these powerful people will generally want to remain powerful, i.e. support the status quo. So your argument amounts to saying that no laws should be respected.

That's an intellectually defensible position, IMO, but it may not be what you had in mind...

2/25/2005 3:38 PM  
Blogger John A said...

As the first commentor asked, "International law(s)? What international laws?" The closest thing to such of which I am aware is a series of treaties regarding "martime law". Even the several Geneva Conventions are treaties, not law except perhaps to the signatories. Nor do I recall, in response to the second commentor's "the supreme law of the land" post, that treaties with Japan were formally rescinded before war was declared - or with England circa 1812, come to that, if you want to go to the original drafter's intent. Nor was any of this - including Iraq - done without approval of Congress.

2/25/2005 4:36 PM  
Anonymous dawson said...

Several of these comments, particularly Hunt and Borgen, reveal deep ignorance of the basic principles of international law and of the UN Charter, which is the main treaty governing war and peace. UN Security Council resolutions have no time limitations and remain in effect till removed by another UNSC resolution. Only one resolution was passed in the Korean crisis in 1950. More than half a century later it is still in effect. Why was only one resolution needed in Korea and 18 or so in Iraq? The original Iraq resolution was not "narrowly worded"; like the Korean resolution it authorized UN members to take necessary action to restore peace and security to the whole region. How come the Iraq resolution is considered defunct after a few years and no other UNSC resolution is? There was a perfectly sound case for the legality of regime change in Iraq without asking the UNSC for any more resolutions. The "international lawyers" who claim otherwise are making up their international law as they go along. Also the UN treaty, which practically all states signed, authorizes the UNSC to overthrow the governments of sovereign states any time it decides they are a threat to international peace and security, so let us hear no more about Saddam's "sovereignty." And the one who thought the UN Charter is the "supreme law" of the United States has not read either the UN Charter or the US Constitution. The real problem here is that international law is not really a scholarly discipline. It is easy to claim to be an "expert" on international law, and many of those who pose as such nowadays, especially the ones arguing against the legality of the Iraq war, and leftwing ideologues concerned to twist the law to suit their anti-American agenda.

2/26/2005 1:49 AM  
Blogger Chris Borgen said...

A couple of thoughts on Dawson's comment.

Regardless as to whether you think Security Council Resolutions 678 or 687 (and their related resolutions) are still in force you still don't have pre-existing Security Council sanction for the current Iraq war because neither resolution authorizes the type of action you claim. Nowehere do they give blanket authorizations to wage war on Iraq. See my post "War, Law, and Consistency" on the Opinio Juris main page for the longer version of this argument.

You claim 678 is not narrowly tailored and allows us to wage a war based on Iraq allegedly possessing WMDs? Show me the language you are relying on. Or perhaps you claim 687 authorizes the member states to wage war on Iraq? Once again: show me the language you are relying on. Neither the actual text of the resolutions nor the statements of Security Council members support your broad claims. I also cover this in my main post. Neither resolution does what you assert and general assertions don't carry much weight (especially when, to my knowledge, no other Security Council member agrees with your interpretation).

By the way, last time I looked at the Constitution, Article VI said that, along with the Constitution and the Laws of the U.S., treaties "made, or which shall be made, under the Authority of the U.S. shall be the supreme Law of the Land." For a thoughtful consideration of this, see Marty Lederman's comment to my post on "War, Law, and Consistency."

2/26/2005 12:53 PM  
Blogger Milhouse said...

On the "supreme law of the land" argument: yes, treaties are the supreme law of the land, just like federal statutes. That means they rank equal federal statutes, and like them they are overridden by later statutes that clearly contradict them. So if Congress authorises the president to take military action, that overrides so much of any earlier law or treaty as would forbid him from doing so.

Nor can a treaty override the constitution, any more than a statute can. So anything in a treaty that contradicts the constitution is of no legal force.

In addition, the president can abrogate treaties at his own discretion. So if a treaty prevents a president from doing what he thinks he should, he can just rip it up and voila, problem solved.

3/01/2005 5:48 PM  
Blogger Larry said...

Ummmmmmmmm Read UN Resolution 687 article 33 it states that Upon acceptance of UN Resolution 687 that UN Resolution 678 is formaly ended. CHeck it out if You do not believe me.


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