Why the War Wasn’t Illegal

Again—interesting POV. I can see the war not being “ille­gal” while not being pre­cise­ly legal (by UN stan­dards), either, as the author points out.

The Wash­ing­ton Times, Sep­tem­ber 26, 2004
Michael E. O’Han­lon, Senior Fel­low, For­eign Pol­i­cy Studies

Unit­ed Nations Sec­re­tary-Gen­er­al Kofi Annan was wrong in recent­ly terming the U.S.-led inva­sion of Iraq “ille­gal.”

The war admit­ted­ly occurred on legal­ly ambigu­ous grounds. It is also fair to acknowl­edge, even among those of us who accept­ed the log­ic of risk­ing war to ensure Iraq’s ver­i­fi­able dis­ar­ma­ment, that its basic desir­abil­i­ty and ben­e­fits can be debat­ed. Indeed, while not my view, it can rea­son­ably be argued the war was a strate­gic mis­take, as it may fos­ter more anti‑U.S. ter­ror­ism and risk leav­ing Iraq in chaos. 

But it was not ille­gal. U.N. Secu­ri­ty Coun­cil Res­o­lu­tion 1441, passed by unan­i­mous vote in Novem­ber 2002, made it clear the then sta­tus quo in Iraq was what was ille­gal. Sad­dam had already vio­lat­ed some 17 pre­vi­ous res­o­lu­tions demand­ing his ver­i­fi­able dis­ar­ma­ment. He was put on notice by Res­o­lu­tion 1441 that con­tin­u­ing this was emphat­i­cal­ly unacceptable. 

And while inspec­tors did make progress in Iraq in the ensu­ing weeks of late 2002 and ear­ly 2003, they hard­ly resolved all ques­tions. Iraq’s com­pli­ance then remained imper­fect at best, as chief U.N. weapons inspec­tor Hans Blix has noted. 

Even some­one who would have pre­ferred to see the inspec­tions con­tin­ue-and again, there was a case to be made for that approach-should not term the war illegal. 

Res­o­lu­tion 1441 did not allow Sad­dam sev­er­al more chances and sev­er­al more bouts of imper­fect com­pli­ance with U.N. demands. Once he again obstruct­ed and obfus­cat­ed, it became clear he was not vol­un­tar­i­ly and ver­i­fi­ably dis­arm­ing-and 1441’s clear impli­ca­tion was that this was unac­cept­able. Whether it auto­mat­i­cal­ly jus­ti­fied war was of course debat­able, and was hot­ly debat­ed at the time. But a legal case cer­tain­ly could be made for that justification. 

To be sure, when Wash­ing­ton tried to secure for­mal approval for war, the Unit­ed States and its part­ners failed to gain their desired sec­ond U.N. res­o­lu­tion in ear­ly 2003. That is why, prac­ti­cal­ly and legal­ly, the war was not explic­it­ly or unam­bigu­ous­ly legal. It was in a grey area. But again, being in a grey area is not the same as being illegal. 

To be sure, it would have been bet­ter if a sec­ond res­o­lu­tion had passed explic­it­ly autho­riz­ing war. In fact, even if blocked by a French or Russ­ian veto, it still would have been polit­i­cal­ly (though not legal­ly) ben­e­fi­cial to have a sec­ond res­o­lu­tion with the clear sup­port of a major­i­ty on the U.N. Secu­ri­ty Council. 

The Bush admin­is­tra­tion right­ly can be fault­ed for not both­er­ing to devel­op a strat­e­gy to improve the odds of such an out­come. U.S. behav­ior was, in this peri­od, strate­gi­cal­ly unwise and legal­ly shaky. And Mr. Ker­ry is on per­fect­ly rea­son­able ground in crit­i­ciz­ing this peri­od of Bush admin­is­tra­tion diplomacy. 

But that does not mean the U.S. action was ille­gal. No U.N. res­o­lu­tion explic­it­ly pro­hib­it­ed the use of force under the cir­cum­stances that exist­ed in ear­ly 2003. 

And Sad­dam had been such a men­ace to his own peo­ple and his neigh­bors in the past that his sys­tem­at­ic non­com­pli­ance with U.N. Secu­ri­ty Coun­cil demands made it rea­son­able to base an inva­sion on a num­ber of argu­ments, includ­ing the inher­ent right of col­lec­tive self-defense in Arti­cle 51 of the U.N. Charter. 

Sad­dam may have been con­tained at the time, more or less, but no one could con­fi­dent­ly argue he did not pose a struc­tur­al threat to region­al peace and sta­bil­i­ty over the longer term. 

Kofi Annan is under­stand­ably frus­trat­ed and even angered by con­di­tions in Iraq today-which cat­e­gor­i­cal­ly are not good, despite White House claims to the contrary. 

He also is on rea­son­able grounds in wish­ing the Bush admin­is­tra­tion had done more to be explic­it­ly mul­ti­lat­er­al and legal in approach­ing any war to unseat Saddam. 

But it is a much dif­fer­ent thing, and a mis­take, to deem ille­gal the use of force to over­throw a bru­tal dic­ta­tor who had sys­tem­at­i­cal­ly and dan­ger­ous­ly defied offi­cial demands made of him by the entire inter­na­tion­al community. 

© Copy­right 2004, The Brook­ings Institution 

Note: The views expressed in this piece are those of the authors and should not be attrib­uted to the staff, offi­cers or trustees of the Brook­ings Institution.

The Brook­ings Insti­tu­tion, 1775 Mass­a­chu­setts Ave NW, Wash­ing­ton DC 20036
Tele­phone: (202) 797‑6004
E‑mail: Brook­ings Info

Cyn is Rick's wife, Katie's Mom, and Esther & Oliver's Mémé. She's also a professional geek, avid reader, fledgling coder, enthusiastic gamer (TTRPGs), occasional singer, and devoted stitcher.
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