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.

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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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