Iraq: The invasion, occupation and international law
By Arab Media Watch director Victor Kattan
The prelude to the invasion of Iraq
The prohibition of the use of force
The illegality of the war
The occupation of Iraq
1. The prelude to the invasion of Iraq
On 20 March 2003, the US and UK invaded Iraq. Although other countries, collectively known as the “coalition of the willing,” also participated, the US and Britain provided approximately 98% of the forces used in the invasion. On 1 May 2003, President George W. Bush declared the end of major combat operations – even though fighting continues.
This paper is not concerned with the rights and wrongs of the Iraq war, the numbers of dead and injured or the ideological reasons for going to war. This information will be provided elsewhere. Instead, this paper is about the war’s legality under international law, and legal issues arising from the occupation of Iraq. However, before analysing these questions it is worth briefly recapping the events and causes which led to the war.
The stepping stones to the invasion and occupation of Iraq have been recently summed up in the memoirs of Sir Christopher Meyer, Britain’s former ambassador to Washington. In his book (DC Confidential: The Controversial Memoirs of Britain’s Ambassador to the US at the time of 9/11 and the Iraq War, London: Weidenfeld & Nicholson 2005) Meyer recalls the following:
● The ‘neocon’ hawks, such as Paul Wolfowitz (US deputy defence secretary during the Iraq war) and Richard Perle (chairman of the Defence Policy Advisory Committee 2001-3), saw Iraq as the anvil on which a realignment of forces in the Middle East favourable to the United States and Israel would be struck. The new Iraq, they argued, would inject stable democracy into a region of autocrats and tyrants. It would offer a haven for US military bases. It would reduce dependency on the Saudis and their oil. Saudi Arabia had for long been a close ally; but across the administration the fear that dared not speak its name was the kingdom’s long-term stability (pp. 235–6).
● Support for regime change caused deep concern inside the Foreign Office. The King Charles Street legal expert’s advice was that regime change, however desirable, could not alone justify going to war (pp. 241-2).
● A Cabinet Office note of July 2002 which recorded that Blair had told Bush at the Crawford ranch in April 2002 that ‘the UK would support military action to bring about regime change, provided that certain conditions were met: efforts had been made to construct a coalition/shape public opinion, the Israeli-Palestinian conflict is quiescent, and the option for action to eliminate Iraq’s WMD through UN weapons inspections had been exhausted’ (pp. 245-6).
● During the Crawford weekend Blair gave a speech at the Presidential Library of the elder Bush where he discussed his doctrine of pre-emption. According to Meyer, “Blair revealed much of his thinking in a well-written, well-delivered speech that never got the press attention it deserved.” Blair said that the lesson of 9/11 was that you did not wait to be hit if you saw a threat coming. You dealt with it before it materialised. Saddam Hussein was such a threat. Doing nothing about him was not an option (p. 247).
● Although the Security Council voted unanimously in favour of resolution 1441, it fudged the trigger for war by failing to explain what the ‘serious consequences’ for Iraq would be if it were found in ‘material breach’ of the resolution. The phrase ‘all necessary means’ was the customary code for war. ‘Serious consequences’ was a diluted substitute that did not enjoy the same pedigree. It had emerged as a hard-fought compromise between, mainly, the French and the Americans. As a result, the French, Russians and a majority of other members of the Security Council were able to claim that a breach of 1441 could not alone constitute the trigger. There would be, as they put it, no automaticity. They would need, they said, a further meeting of the Security Council and a second resolution to authorise war. The US, by contrast, maintained with equal authority that if Saddam failed to meet the demands of 1441, no further resolution would be necessary (p. 257).
● Richard Armitage, US deputy secretary of state 2001-5, told Meyer that much of Colin Powell’s first draft presentation to the Security Council on 5 February 2003 on Iraq’s WMD capability had been unusable in its unsubstantiated accusations against Saddam. “As we were later to find out and Colin Powell himself to acknowledge, much of the information that he presented to the Security Council , even after editing by State and the CIA, was wrong. It was hardly surprising that Powell’s presentation, though quite well received at the time, was not the knock-out blow that the Americans intended” (p. 260).
It becomes clearly apparent from Meyer’s memoirs that the real justification for going to war with Iraq was regime change: to remove Saddam Hussein and the Ba’ath party from power. Although other reasons were advanced by Prime Minister Tony Blair and Foreign Secretary Jack Straw (such as weapons of mass destruction, humanitarian intervention and breach of prior UN Security Council resolutions) this was the overriding reason why Britain went to war alongside America.
As W. Michael Reisman – Myres S. McDougal Professor of International Law at the Yale Law School – concluded in his Manley O. Hudson Lecture, “Why Regime Change is (Almost Always) a Bad Idea”:
“…let the strongest and best-intentioned government contemplating or being pressed to undertake regime change remember that not everything noble is lawful; not everything noble and lawful is feasible; and not everything noble, lawful and feasible is wise.”
98 American Journal of International Law (2004), pp. 516 – 525.
2. The prohibition of the use of force
On 27 August 1928, the US signed a treaty with eight other nations providing for the renunciation of war as an instrument of national policy. Article 1 of the Treaty of Paris (also known as the Kellogg-Briand Pact) provides:
“The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.”
According to Article 2 (4) of the UN Charter signed in San Francisco in 1945:
“All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations Charter.”
The wording of Article 2 (4) of the UN Charter prohibits the use of force in general, rather than only war. The prohibition is not confined to the actually use of force, but extends to the mere threat of force.
This Article was subsequently clarified in the first principle to the 1970 Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, approved by the General Assembly in resolution 2625 (XXV). This provides:
“Every state has the duty to refrain in its international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues.”
“A war of aggression constitutes a crime against international peace for which there is responsibility under international law.”
There are only two exceptions to this prohibition contained in the UN Charter that can justify the use of force: (1) The inherent right to individual or collective self-defence as defined in Article 51 of the UN Charter; and (2) Prior authorisation from the UN Security Council employing the use of force acting under Chapter VII of the Charter.
However, according to the International Court of Justice, the use of force must conform to the requirements of proportionality and necessity. So even if the invasion of Iraq was legal, certain actions of the US and UK forces in Iraq have proven to be disproportionate and excessive. Thus, their responsibility is engaged for these acts under international law.
According to the Definition of Aggression contained in UN General Assembly resolution 3314 (XXIX) 1974, any of the following acts qualify as an act of aggression:
“(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,
(b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State;
(c) The blockade of the ports or coasts of a State by the armed forces of another State;
(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;
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(f) The action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State;”
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The prohibition of aggression is universally regarded as a peremptory norm of international law (jus cogens) for the purposes of state responsibility.
3. The illegality of the war
The vast majority of states, scholars, lawyers, diplomats and religious authorities considered the war to be without legal foundation because it did not satisfy the requirement set out in Article 2 (4) of the UN Charter. Consider the following:
“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.”
Kofi Annan, current UN Secretary-General
“The intervention [ie Iraq war] is illegal.”
Boutros Boutros-Ghali, former UN Secretary-General
“I don’t buy the argument the war was legalized by the Iraqi violation of earlier resolutions.”
Hans Blix, former UN chief weapons inspector
“…there is no justification under international law for the use of military force against Iraq. The UN charter outlaws the use of force with only two exceptions: individual or collective self-defence in response to an armed attack and action authorised by the Security Council as a collective response to a threat to the peace, breach of the peace or act of aggression. There are currently no grounds for a claim to use such force in self-defence … Neither Security Council resolution 1441 nor any prior resolution authorises the proposed use of force in the present circumstances.”
Prof Ulf Bernitz, Dr Nicolas Espejo-Yaksic, Agnes Hurwitz, Prof Vaughan Lowe, Dr Ben Saul, Dr Katja Ziegler
University of Oxford
Prof James Crawford, Dr Susan Marks, Dr Roger O'Keefe
University of Cambridge
Prof Christine Chinkin, Dr Gerry Simpson, Deborah Cass
London School of Economics
Dr Matthew Craven
School of Oriental and African Studies
Prof Philippe Sands, Ralph Wilde
University College London
Prof Pierre-Marie Dupuy
University of Paris
“I think in this case international law stood in the way of doing the right thing.”
Richard Perle, leading neo-conservative and outspoken advocate of the invasion of Iraq
“I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678. I do not need to set out my reasoning; you are aware of it … I cannot in conscience go along with advice - within the Office or to the public or Parliament - which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law.”
Elizabeth Wilmshurst, deputy legal advisor to the Foreign Office (she has since resigned and is in charge of the international law programme at Chatham House).
“A war waged without a clear mandate by the Security Council would constitute a flagrant violation of the prohibition of the use of force. Security Council Resolution 1441 does not authorise the use of force. Upon its adoption, France, Russia and China, three permanent members of the Security Council, issued a declaration indicating that the Resolution excludes such authority. The bottom line is that nine members of the Security Council, including the five permanent members, need to actively approve the use of force - such support is blatantly lacking.”
Louise Doswald-Beck, International Commission of Jurists, Geneva, Switzerland
“An attack on Iraq would be immoral and illegal.”
Dr. Rowan Williams, Archbishop of Canterbury
“War is never just another means that one can choose to employ for settling differences between nations. As the Charter of the United Nations Organization and international law itself remind us, war cannot be decided upon, even when it is a matter of ensuring the common good, except as the very last option and in accordance with very strict conditions, without ignoring the consequences for the civilian population both during and after the military operations.”
Pope John Paul II, address to the Diplomatic Corps, 13 January 2003
4. The occupation of Iraq
It is important to note that there are two sets of rules governing the laws of war. These are the ius ad bellum and the ius in bello. The former concerns the rules governing the resort to armed conflict, whilst the latter rules govern the actual conduct of armed conflict. Both bodies of law have to be kept strictly separate as the ius in bello is applicable in cases of armed conflict whether that conflict is lawful or unlawful under the ius ad bellum.
In other words, the occupying powers cannot rely on the illegality of the invasion of Iraq to avoid applying the principles of international humanitarian law. So long as an international armed conflict is underway, the justification for that conflict has no bearing on whether the laws of occupation apply. As the preamble to the first protocol of 1977 additional to the Geneva Conventions of 12 August 1949 provides:
“…nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations.”
To read the protocol, click here.
The main bodies of law governing a belligerent occupation are set out in the regulations annexed to the IV Hague Convention respecting the Laws and Customs of War on land of 1907, the IV Geneva Convention of 1949 and customary international law.
At the close of major combat operations on 1 May 2003, the ius in bello took over from the ius ad bellum. From that moment, the laws of occupation applied in all those areas of Iraq under the effective control of coalition forces. As the US Army Field Manual notes:
“Military occupation is a question of fact. It presupposes a hostile invasion, resisted or unresisted, as a result of which the invader has rendered the invaded government incapable of publicly exercising its authority, and that the invader has successfully substituted its own authority for that of the legitimate government in the territory invaded” (paragraph 355).
The US and UK remain occupying powers in Iraq as long as they maintain effective control. The transfer of authority from the Coalition Provisional Authority to the “sovereign interim government of Iraq” on 28 June 2004 has not changed this.
As Sir Adam Roberts - Montague Burton Professor of International Relations at Oxford University, Fellow of Balliol College and author of Documents on the Laws of War with Richard Guelff (Oxford: Oxford University Press 2000) - notes:
“After 28 June 2004 the rules laid down in international humanitarian law, and most particularly in the 1949 Geneva Conventions, continue to be applicable to Iraqi government forces and to all those who serve in the multinational force in Iraq. The UN Security Council has been clear on this general proposition. These rules will need to be implemented thoroughly and professionally: this will require action by the governments concerned as well as their armed forces. The transfer of authority must not become an excuse for an abandonment of responsibility. Indeed, the transfer of authority provides an opportunity for the Iraqi government, and the governments supplying troops for the multinational force, to take a clearer, more principled and more determined stand on the application of the rules of international humanitarian law than was evident in the period, now over, of the CPA occupation of Iraq” [emphasis added].
See Policy Brief, Sir Adam Roberts, The End of Occupation in Iraq, International Humanitarian Law Research Initiative, (need to register to gain access).
The Hague Regulations and the IV Geneva Convention set out the rules by which the occupying powers must abide. Article 43 of the Hague Regulations provides that the occupying power must maintain “public order and life” in the occupied territories, and the occupying powers must allow domestic courts to continue to function as the judicial system of the occupied territory whenever feasible. They must also take care of the civilian population.
As Michael N. Schmitt – Professor of International Law at the George C. Marshal European Centre for Security Studies at Garmisch-Partenkirchen, Germany – writes on the website Crimes of War:
“Beyond the maintenance of law and order, Occupying Powers are responsible for the care of the civilian population, including its overall health and hygiene. In particular, the Occupying Power must, to the ‘fullest extent of the means available to it,’ ensure the population receives adequate food, water, and medical treatment; if supplies in the occupied territory are inadequate, foodstuffs and medical stores must be brought in. National Red Cross and Crescent societies, like the Iraqi Red Crescent Society, must be permitted to conduct humanitarian activities, a requirement that also applies to other relief agencies, such as those that maintain public utility services, distribute aid, and conduct rescue operations.”
An occupying power must also ensure that human rights law – concerned with the protection of the individual – is also maintained in occupied territory. This has been the long-established position of the UN Commission of Human Rights. The European Court of Human Rights in Strasbourg has also found that human rights law is applicable to occupied territory in a series of cases relating to Turkey’s occupation of northern Cyprus. The International Court of Justice held likewise in its advisory opinion on the construction of the Israeli wall in the occupied West Bank. In December 2005, the UK Court of Appeal found that the UK Human Rights Act applied in British detention centres in Basra, southern Iraq. For questions and answers on legal aspects of the war in Iraq, visit Human Rights Watch.
According to the UK Manual of Armed Conflict at paragraph 11.7.1:
“Occupation ceases as soon as the occupying power is driven out or evacuates the area … The fact that some of the inhabitants are in a state of rebellion, or that guerrillas or resistance fighters have occasional successes, does not render the occupation at an end. Even a temporarily successful rebellion in part of the area under occupation does not necessarily terminate the occupation so long as the occupying power takes steps to deal with the rebellion and re-establish its authority or the area in question is surrounded and cut off” [emphasis added].
It is clear that Iraq remains under occupation even though powers have been transferred to the Iraqi government. It is evident that Iraqi forces are not yet strong enough to maintain law and order alone without foreign assistance. As long as Iraq has to rely on coalition forces to maintain order, the country will remain occupied. Only when British and American troops depart and Iraqis resume full control of their country will the occupation truly end. Whether or not the Iraqi people will be better off once coalition forces have departed is an entirely different question altogether.