Last updated on: 5/30/2008 7:54:00 AM PST
Was the preemptive invasion of Iraq a violation of international law?
General Reference (not clearly pro or con)
Anne-Marie Slaughter, PhD, JD, Dean of Princeton University's Woodrow Wilson School of Public and International Affairs, stated in a Mar. 4, 2003 Council on Foreign Relations interview titled, "International Law Expert Says U.S. Should Delay an Iraq Attack Until It Gains Security Council Backing":
"I think it is certainly true that eight out of 10 international lawyers would say that would be a violation of international law. That view would also be supported by the legal advisers of most other countries in the United Nations. On the other hand, the United States has said from the beginning that it did in fact have authorization for the use of force, based on a string of resolutions going back to the original [Gulf War] ceasefire resolution in 1991.
And certainly it was clear in November  under Resolution 1441 that we were reserving the right to act without a second Security Council resolution. The other members of the council were insisting that we should come back for a second vote. So this is an area in which the law is sufficiently undeveloped that I think you can reasonably agree to disagree. There's no question, however, that many, many, many other countries-the majority of other countries and certainly many of our European allies-will not see a unilateral American-led attack as explicitly authorized by the Security Council."
Mar. 4, 2003 - Anne-Marie Slaughter, PhD, JD
Arthur Schlesinger Jr., former Advisor to President Kennedy, stated in his Oct. 19, 2004 article "Seeking Out Monsters," published in The Guardian UK:
"According to Secretary of State [Daniel] Webster's 'famous' 1841 statement, a pre-emptive reaction could be justified only on very narrow grounds - if the prospective attack showed 'a necessity of self-defence, instant and overwhelming, leaving no choice of means, and no moment for deliberation'. This was manifestly not the case with Iraq. It was not a pre-emptive war. It was a preventive war."
Oct. 19, 2004 - Arthur Schlesinger, Jr.
Kofi Annan, Secretary General of the United Nations, stated in a Sep. 16, 2004 interview with Owen Bennett-Jones for BBC World Service:
"Q: I wanted to ask you that - do you think that the resolution that was passed on Iraq before the war did actually give legal authority to do what was done?
A: Well, I'm one of those who believe that there should have been a second resolution because the Security Council indicated that if Iraq did not comply there will be consequences. But then it was up to the Security Council to approve or determine what those consequences should be.
Q: So you don't think there was legal authority for the war?
A: I have stated clearly that it was not in conformity with the Security Council - with the UN Charter.
Q: It was illegal?A: Yes, I have indicated it is not in conformity with the UN Charter, from our point of view and from the Charter point of view it was illegal."
Sep. 16, 2004 - Kofi Annan, MS
Erwin Chemerinsky, JD, Professor of Law and Political Science at Duke University, in a Mar. 25, 2003 Los Angeles Times article titled "By Flouting War Laws, U.S. Invites Tragedy":
"Nothing in international law authorizes a preemptive war to overthrow a government and disarm it. Our war in Iraq fits in none of the prescribed situations where it is lawfully permissible."
Mar. 25, 2003 - Erwin Chemerinsky, JD
16 International Law Professors signed a Mar. 7, 2003 letter titled "War Would Be Illegal," published by The Guardian UK:
"We are teachers of international law. On the basis of the information publicly available, 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.
The doctrine of pre-emptive self-defence against an attack that might arise at some hypothetical future time has no basis in international law. Neither security council resolution 1441 nor any prior resolution authorises the proposed use of force in the present circumstances..."
Mar. 7, 2003 - Katja Ziegler
Ralph Wilde, PhD
Ben Saul, DPhil, LLB
Philippe Sands, QC
Roger O'Keefe, PhD
Susan Marks, PhD
Vaughan Lowe, PhD
Agnes Hurwitz, PhD, LLM
Pierre-Marie Dupuy, PhD
James Crawford, PhD
Matthew Craven, PhD
Christine Chinkin, PhD, LLM, LLB
Deborah Cass, LLM
Ulf Bernitz, JD
Stephen Zunes, PhD, Professor of Politics at the University of San Francisco, wrote in a Sep. 30, 2002 article titled "The Case Against War" in The Nation:
"International law is quite clear about when military force is allowed. In addition to the aforementioned case of UN Security Council authorization, the only other time that a member state is allowed to use armed force is described in Article 51, which states that it is permissible for 'individual or collective self-defense' against 'armed attack...until the Security Council has taken measures necessary to maintain international peace and security.' If Iraq's neighbors were attacked, any of these countries could call on the United States to help, pending a Security Council decision authorizing the use of force.
Based on evidence that the Bush Administration has made public, there doesn't appear to be anything close to sufficient legal grounds for the United States to convince the Security Council to approve the use of military force against Iraq in US self-defense."
Sep. 30, 2002 - Stephen Zunes, PhD
Matthew Happold, LLM, MSc, MA, Lecturer in Law at the University of Nottingham, wrote in a Mar. 13, 2003 article, "The Legal Case For War With Iraq," in Guardian Unlimited:
"The prohibition of the use of force is a foundational rule of international law. Only two exceptions are permitted: the use of force in self-defence, or with the express authorisation of the UN security council exercising its powers under chapter VII of the UN charter.Iraq has not attacked the US, the UK or their allies, nor is there any evidence that it is about to do so. Force may only be used in self-defence in response to an actual or (according to some commentators) an imminent armed attack. Therefore any arguments based on self-defence fail. What the US national security strategy has advocated are pre-emptive attacks on countries which may threaten the US. The use of armed force in such circumstances is contrary to international law."
Mar. 13, 2003 - Matthew Happold, PhD, LLM
John Yoo, JD, Professor of Law at the University of California at Berkeley, in an Aug. 4, 2003 article titled "Why Iraq's Weapons Don't Matter," in Legal Times, wrote:
"What is important from the perspective of international law is not whether Iraq had WMD in the end. What matters is whether, at the time of the invasion, it appeared reasonably necessary to defend against Iraq's threat to U.S. national and international security...
International law, which at times mimics criminal law on self-defense, allows the justification of the Iraq war based on the facts as they reasonably appeared at the time of the invasion. Rather than prove its harmlessness, Iraq instead did everything it could to suggest that it possessed WMD and would be willing to use them. Hence the games played with U.N. arms inspectors and the rumors that Iraq would use chemical weapons if coalition forces neared Baghdad."
Aug. 4, 2003 - John Yoo, JD
Peter Goldsmith, Queen's Counsel, Attorney General of the UK, in a Mar. 17, 2003 statement on the legal basis for the use of force against Iraq wrote:
"Authority to use force against Iraq exists from the combined effect of resolutions 678, 687 and 1441. All of these resolutions were adopted under Chapter VII of the U.N. Charter which allows the use of force for the express purpose of restoring international peace and security."
Mar. 17, 2003 - Peter Goldsmith, QC, PC
Paul Schott Stevens, JD, Partner in Dechert, an international law firm, Andru E. Wall, Professor of International Law at the US Naval War College, and Ata Dinlenc, JD, Attorney with Kaye Scholer LLP, wrote in a 2003 essay titled "The Just Demands of Peace and Security: International Law and the Case Against Iraq," published by the The Federalist Society for Law and Public Policy Studies:
"In the widening international and domestic debate over Iraq, some insist that U.S. or coalition military action against Iraq today would be unlawful unless once again explicitly authorized by the Security Council.
As a matter of international law, this clearly is not the case. A renewed Security Council mandate may be useful or desirable, but it is not necessary. The Security Council previously has authorized the use of force against Iraq, the Council has not rescinded but rather reaffirmed its position on numerous occasions since, and the circumstances justifying the Council's conclusion that Iraq is a threat to international peace and the security of the Middle East region remain unchanged.
The U.N. Charter contemplates that the Security Council may - as it has with respect to Iraq - authorize the use of force to remove threats to international peace and security. The Charter also recognizes that, in response to acts of aggression, states - such as the US and its coalition partners - have an inherent right to act individually and collectively in their defense.Further military action against Iraq may, we believe, be justified on either or both grounds."
2003 - Andru E. Wall
Paul Schott Stevens, JD
Ata Dinlenc, JD
Anthony Clark Arend, PhD, Director of the Institute for International Law and Politics at Georgetown University, wrote in a Spring 2003 The Washington Quarterly article, "International Law and the Preemptive Use of Military Force":
"Almost since the moment that the [1945 UN Charter] was adopted, states have used force in circumstances that simply cannot be squared with the charter paradigm...
Given this historical record of violations, it seems very difficult to conclude that the charter framework is truly controlling of state practice, and if it is not controlling, it cannot be considered to reflect existing international law... For all practical purposes, the U.N. Charter framework is dead.
If this is indeed the case, then the Bush doctrine of preemption does not violate international law because the charter framework is no longer reflected in state practice."
Spring 2003 - Anthony Clark Arend, PhD
Abraham D. Sofaer, LLB, Professor of Law at Stanford Law School, wrote in a 2003 Hoover Institute essay titled "War with Iraq: On the Legality of Preemption":
"Although the use of force in Iraq was not explicitly approved by the U.N. Security Council, the combination of resolutions adopted regarding Iraq established a strong basis upon which to justify the use of force. This is the principal basis on which the administration has properly relied in justifying its actions under international law.
The administration has also properly invoked the inherent right of self-defense in using force against Iraq, despite the absence of an 'imminent' threat of attack."
2003 - Abraham D. Sofaer, LLB
Joshua Muravchik, PhD, Adjunct Professor at the Institute of World Politics, wrote in a Dec. 2002 Commentary magazine article titled "The Bush Manifesto":
"The complaint that Bush's doctrine of preemption traduces international law is the most serious charge laid against it. But is it well founded?
Bush's statement does not strike a posture that places America above the law, as some critics have suggested. To the contrary, it seeks to embed the new doctrine in established legal traditions. 'For centuries,' it asserts, 'international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves.' And it continues: 'We must adapt [this] concept of imminent threat to the capabilities and objectives of today's adversaries.'
Those capabilities include weapons of mass destruction that can be 'easily concealed, delivered covertly, and used without warning.' In this, Bush is on strong legal ground."
Dec. 2002 - Joshua Muravchik, PhD