Why the invasion of Iraq was lawful.

Publication: Behind the Headlines

Publication Date: 22-JUN-02

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COPYRIGHT 2002 Canadian Institute of International Affairs

When the United States, Britain, Australia, and their allies invaded Iraq, they claimed that they were acting in accordance with international law because resolutions passed by the United Nations Security Council had authorized the war. Many countries and international lawyers disagree. They claim that no resolution of the Security Council authorized the war and that as a consequence the invasion was illegal. Who is right?

The debate is reminiscent of Humpty Dumpty's debate with Alice. Humpty Dumpty said that when he uses a word 'it means just what I choose it to mean--neither more nor less.' In response to Alice's question of whether he could make words mean different things, Humpty Dumpty replied 'the question is, which is to be master--that's all.' Stripped to its core, the debate over the Iraq war was, and continues to be, a debate over who is to be master of the interpretation of Security Council resolutions--those countries that used force or those countries that opposed the use of force.

Democracies resolve debates within their borders about the meaning of words in statutes or other legal documents by referring the matter to a court. The international community cannot do so, however. It has no court that operates like a domestic court in a Western democracy. (The International Court of Justice can only decide disputes that the concerned states agree be submitted to it.)

For this reason, the legality of the invasion of Iraq cannot be tested in a court of law. It can be tested only by reference to reason: is there a rational basis for concluding that the invasion of Iraq was lawful under international law? If so, then the right of the United States, Britain, Australia, and their allies to invade Iraq must be conceded and the debate moved to the political question of whether the invasion was a smart thing to do. After all, international law exists for the benefit of the United states, too. The US should not be prevented from acting in accordance with its security needs by appeals to international law if it can make a rational case of legality.

The charter of the United Nations authorizes the use of force under chapter VII, which permits war under two circumstances. One circumstance is individual or collective self-defence pursuant to article 51. Countries that are attacked have the inherent right to defend themselves by war. The other is when the Security Council, on behalf...

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