Lecture Notes

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Authorizing War

The First Gulf War was legal, the second was not.

It may seem strange to think of wars as being “legal” or “illegal,” but the United Nations does try to make this distinction. To appreciate the difference, let’s examine two recent U.S. invasions:

Specifically, we are going to study these two wars from a legal point of view.

The 1991 Invasion of Iraq (also known as the 1st Gulf War)

In 1991, Iraq’s dictator, Saddam Hussein, invaded the neighboring country of Kuwait, in order to seize Kuwait’s oil wells. Was the invasion legal? Certainly not. Member states of the UN have explicitly agreed never to use force against another sovereign state—except in cases of self-defense. Saddam was violating the conditions of his UN membership.

How did the UN respond? The United Nations is a collective security arrangement. This means that all members have promised to come to the defense of any individual state that gets attacked. In other words, “an attack against one is an attack against all.”

Having been attacked, Kuwait went to the Security Council, and asked for the UN’s protection. With powerful friends like the U.S. sitting on the Security Council, Kuwait had no trouble convincing the Council that it had been unlawfully attacked, and the United Nations should do something about it. 

First, the SC issued a resolution: 

Resolution 660

The Security Council,

Alarmed by the invasion of Kuwait on 2 August 1990 by the military forces of Iraq,

1. Demands that Iraq withdraw immediately all its forces to the positions in which they were located on 1 August 1990. 

 

These are strong words when they come from the Security Council. Remember, SC resolutions are binding—so all member states are legally obliged to comply. If they don’t, they are breaking international law.

Despite the resolution, Saddam refused to withdraw his troops from Kuwait.

The SC now passed a second resolution, authorizing war with Iraq.

Resolution 678

The Security Council,

Noting that, despite all efforts by the United Nations, Iraq refuses to comply with its obligation to implement resolution 660, in flagrant contempt of the Security Council,

1. Authorizes member states to use all necessary means to uphold and implement resolution 660 and to restore international peace and security in the area. 

 

Only the Security Council can authorize a war—unless it’s a war of self-defense. By authorizing a war, the SC was saying, in effect:

“Normally, states are not allowed to go to war with each other, but in this case we are giving you permission to pile onto Iraq and kick its butt.”

The United States and every other country now had “legal” permission to go to war with Iraq. U.S. President George H.W. Bush (Sr.) organized a coalition of 54 countries willing to help enforce the first Security Council resolution.

Importantly, the U.S. contributed its own massive military muscle, and attacked Iraq with all its strength.  This was clearly an interstate war, a war between sovereign states.

No one can stand up to the military might of the United States. The war lasted 31 days before Hussein threw up his hands, signed a surrender agreement, and withdrew his remaining troops away from the border. 

That is exactly how the UN system of collective security is supposed to work.

The 2003 Invasion of Iraq (also known as the 2nd Gulf War)

Twelve years after the first U.S. invasion of Iraq, Hussein was still in power, but the U.S. had a new president, George W. Bush (Jr). Bush wanted to attack Iraq for a variety of reasons, but he didn’t have a good excuse, because Hussein had not attacked anyone since 1991.

Nonetheless, Bush went to the Security Council and tried to convince it to authorize a second war against Iraq. His main argument was that Saddam might attack the U.S. in the future. He said a pre-emptive war was needed in order to prevent a future attack.

The Security Council laughed him—or they would have laughed, if proper decorum had allowed it. They basically said: “Are you crazy? You can’t attack another country just because you think that country might attack you at some point in the future!”

The Security Council refused to pass a resolution authorizing a second war against Iraq.

President Bush decided to go to war with Iraq anyway. This time, the war lasted 143 days. Again, the U.S. kicked butt. Hussein fled into hiding. When he was finally found, he was hanged. (Hussein was captured in 2003 and hanged in 2006).

Meanwhile, the U.S. promised to help Iraq form a new government—the first democratic government in Iraq’s history. Many Iraqis cheered in the streets, but others were suspicious of U.S. intentions. They believed that the U.S. was planning to turn Iraq into a puppet state, while taking control of Iraq’s oil industry. Would U.S. troops ever go home? Within weeks of the U.S. “victory” in Iraq in May 2003, small groups of militant Iraqis began targeting U.S. soldiers in guerrilla attacks. These attacks marked the beginning of an 8-year insurgency against U.S. domination. One war had ended, another had begun.

Conclusion

When the U.S. invaded Iraq in 1991, it did so with the permission of the UN Security Council. This makes the invasion legal, according to the UN Charter and international law.

But in 2003, when the U.S. invaded Iraq again, it did so without the permission of the UN Security Council. Furthermore, the U.S. cannot legitimately claim that this was a war of self-defense, as Iraq was not a threat to U.S. security.

Because of these things, the 2003 U.S. invasion of Iraq is widely regarded as illegal. Indeed, Kofi Annan, the UN Secretary-General at that time, said: “From our point of view and the UN Charter point of view, the war was illegal."

 

Check Your Understanding

  1. How many times has the United States invaded Iraq?
  2. Saddam Hussein was the dictator of what country? 
  3. What country did Hussein invade in 1991?
  4. What country did Hussein invade in 2003?
  5. Was Hussein’s invasion of Kuwait in 1991 legal, according to international law? Explain your answer.
  6. Was Iraq legally obliged to obey Security Council Resolution 660? (SC Resolution 660 demanded that Iraq remove its forces from Kuwait). Explain your answer.
  7. What did the UN do when Iraq failed to comply with SC resolution 660?
  8. Was the U.S. invasion of Iraq in 1991 an interstate war or an insurgency?
  9. Was the 1991 U.S. invasion of Iraq legal, according to international law? Explain your answer.
  10. Was the 2003 U.S. invasion of Iraq legal, according to international law? Explain your answer.
  11. From a legal perspective, what was the difference between the 1991 U.S. invasion of Iraq and the 2003 U.S. invasion of Iraq?
  12. Imagine that you are writing an argumentative paper, and your thesis is: George H.W. Bush (Sr.) was a better president than George W. Bush (Jr). What have you learned in this lesson which would seem to support this thesis?