On September 15, 2004, in a radio interview with the BBC, United Nations Secretary General Kofi Annan declared that the military campaign against Iraq in March of 2003 was “illegal,” calling into question, yet again, whether the decision to remove Saddam Hussein from power was in line with customary international law. Annan’s comments echoed the sentiments of several nations (most notably Russia, France, and Germany), as well as some international legal scholars, that the actions of the United States (“US”), the United Kingdom (“UK”), and a “coalition of the willing” did not conform to the United Nations (“UN”) Charter. Meanwhile, both the US and the UK argued that the action was justified under international law due to the combined effect of numerous UN Security Council resolutions concerning Iraq.
|Gonzaga Journal of International Law||
Cite as: Adam P. Tait, The Legal War: A Justification for Military Action in Iraq 9 Gonz. J. Int’l L. 96 (2005), available at http://www.gonzagajil.org
The Legal War: A Justification for Military Action in Iraq
Adam P. Tait*
On September 15, 2004, in a radio interview with the BBC, United Nations Secretary General Kofi Annan declared that the military campaign against Iraq in March of 2003 was “illegal,” calling into question, yet again, whether the decision to remove Saddam Hussein from power was in line with customary international law. Annan’s comments echoed the sentiments of several nations (most notably Russia, France, and Germany), as well as some international legal scholars, that the actions of the United States (“US”), the United Kingdom (“UK”), and a “coalition of the willing” did not conform to the United Nations (“UN”) Charter. Meanwhile, both the US and the UK argued that the action was justified under international law due to the combined effect of numerous UN Security Council resolutions concerning Iraq. In September 2002, for example, President George W. Bush spoke to the UN about the danger that Saddam Hussein and his Ba’ath regime posed to the free world, citing Iraq’s continuing repudiation of Security Council resolutions and the threat it posed to international peace and security as a justification for military action.
This article examines the justifications for the war, and details two reasons why the invasion of Iraq was legal under customary international law. First, existing Security Council resolutions were valid and effective in 2003 to authorize the United States and other member states to participate in the military effort against Iraq. Because those resolutions had never been repealed or extinguished, and because events of the past 13 years made clear that those resolutions still had effect, the US and UK were correct to justify their actions on those resolutions. Second, this article will argue that the effort was justified as preemptive self-defense as codified in Article 51 of the UN Charter. Because Iraq posed a possibly imminent threat to the collective security of the world, and because the definition of imminence has changed in a post-Sept. 11 world, the coalition effort to remove Saddam Hussein from power was an appropriate response to the Iraqi threat.
This article is separated into four parts. Part I examines the role of the UN Security Council during times of international conflict and threats to peace and security. Namely, this section discusses the Security Council’s ability to address specific threats, as well as the shortcomings and inadequacies of this body. Part II details the history of events concerning Iraq since Saddam Hussein’s forces first entered Kuwait in 1990. This article provides a description of important Security Council resolutions that concerned Iraq’s actions and refusals to abandon its Weapons of Mass Destruction (“WMD”) programs. Part III argues why military action by coalition forces against the regime of Saddam Hussein and the Ba’ath Party was justified according to existing Security Council resolutions. Part IV explains that military action was justified according to the inherent right to self-defense, as codified by Article 51 of the UN Charter. Further, this section demonstrates that state practice over the course of history affirms the inherent right of self-defense. In conclusion, this article will offer some suggestions to resolve the disputes that arose over the debate concerning military action in Iraq.
II. The Role of Security Council Resolutions During Threats to International Peace and Security
The Security Council is perhaps the most well known organ of the United Nations, and surely the most controversial. Paragraph 1 of Article 24 of the UN Charter states: In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
According to this responsibility to maintain peace and security among the nations of the world, the Security Council must determine the existence of threats to the peace, any breaches of the peace, or acts of aggression, and make recommendations or decisions to restore peace. This duty is tempered by the fact that it must act in accordance with the “Purposes and Principles” of the UN, namely principles of “justice and international law.” When the Security Council acts according to this mandate, its decisions become binding on Member States, which “agree to accept and carry out the decisions of the Security Council in accordance with the…Charter.” While there is a great deal of discussion about what constitutes a decision of the Security Council and just when it acts ‘in accordance’ with its mandate, the Security Council remains an important body in the realm of international law–when it speaks, nations do listen.
That is not to say that the Security Council clearly and definitively sets forth decisions. Indeed, there have been numerous occasions when the Security Council was not able to decide on a course of action, yet Member States took up arms regardless of such inactivity. The Security Council’s impotence with regards to the situation in Kosovo in the late 1990s is telling. In 1993, the Security Council passed a resolution that asked the former Federal Republic of Yugoslavia (“FRY”) to reconsider its refusal to allow European bodies to continue their monitoring activities in Kosovo. By 1998, several nations, including the US, UK, Russia, Germany, and France, urged the Security Council to pass a resolution forming an embargo against the FRY, a request that the Council granted on March 31, 1998.
This latest resolution did little to deter the bloodshed in Kosovo, as matters became increasingly worse. By September of 1998, Serbian and Yugoslavian forces had ruthlessly displaced hundreds of thousands of Kosovars, prompting the Security Council to demand an immediate cease-fire in the region; however, nothing in the resolution clearly authorized the use of force if the FRY continued to disregard former resolutions. It became clear at that time that the Russians were prepared to veto any resolution that went towards authorizing force against the FRY. NATO nations took up the task of persuading Slobodan Milosevic, the FRY President, through their authorization of activation orders for air strikes shortly thereafter.
On March 24, 1999, after repeated attempts to bring the conflict to an end, NATO nations commenced air strikes against FRY targets in Kosovo and Serbia. The bombing campaign lasted for seventy-seven days, and throughout the campaign the Security Council remained unable to influence those events. The UK delegate to the Security Council reported to the Council that the bombing campaign was legal and justified to prevent humanitarian suffering, and that “[e]very means short of force ha[d] been tried.” Two days later, a Russian effort to call an end to the NATO action was voted down twelve against three. Commentators have considered this to be an important event in defining the role of the Security Council in times of crisis, showing that the proponents of military action may not have to secure a resolution to justify such actions. Some military actions will go forth without the “blessing” of a Security Council resolution when a permanent member of the Security Council will not follow the others. In this case, however, although the Security Council did not expressly authorize the use of force, it was clear that many Member States were willing to support military action even if a minority of nations were unwilling to do so.
The Security Council has in fact rarely used its Chapter VII authority to enforce international peace and security. During the Korean conflict, for example, the Soviet delegation’s refusal to support a resolution to denounce that aggression almost kept the Council from having any influence. Fortunately, based on the absence of the Soviet delegation (which had protested the inclusion of Nationalist Chinese as the Chinese representative in the Council), the remaining members were able to pass a recommendation to denounce aggression on the Korean peninsula. With the return of the Soviets, however, no further Security Council action was taken. The Security Council was unable to provide leadership during the crisis. This situation, along with the crisis in Kosovo, shows that the Council is often hard-pressed to exercise its authority under Chapter VII of the Charter to authorize the use of force when international peace and security are at risk.
III. The History of Iraq and the UN Security Council
On August 2, 1990, Iraqi forces stormed across the Kuwaiti border and ruthlessly took control of that nation’s capital, Kuwait City. Six days later, Iraq declared that it would annex Kuwait, and then, on August 28, 1990, claimed that the country was a province of Iraq. In response to the armed aggression of Saddam Hussein’s regime, the United Nations Security Council passed Resolution 660, which denounced these actions and called for Iraqi forces to withdraw from Kuwait. Of course, this call went unheeded. The Security Council then passed Resolution 661, wherein it expressed its concern with the actions of Iraq and its desire to end the occupation of Kuwait and restore the “sovereignty, independence, and territorial integrity of Kuwait.” Resolution 661 also addressed the right of Kuwait and other nations to exercise the use of force in recognition of “the inherent right of individual or collective self-defense in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter.” The Security Council then passed Resolution 662, which memorialized its position that the Iraqi invasion and annexation of Kuwait had “no legal validity, and [was] considered null and void.
Meanwhile, a coalition of nations led by the United States formed an alliance named “Desert Shield” to defend against a possible invasion of other Gulf States, most notably Saudi Arabia. On August 12, 1990, the United States began to use its navy to create a blockade against any Iraqi oil exports, only allowing humanitarian shipments into Kuwait, justifying the decision as consistent with Article 51 and previous Security Council resolutions that mandated sanctions against the Iraqi regime. After repeated demands by the United Nations and the world community that Iraqi forces withdraw from Kuwait, the Security Council adopted Resolution 678, which authorized Member States to use “all necessary means to uphold and implement resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area.” On January 16, 1991, after Saddam Hussein’s regime failed to honor the demands of Resolution 678 and other resolutions, the multinational alliance began a campaign of aerial bombardments of Iraqi sites. After almost a month of bombing, a massive ground offensive began, which quickly and effectively routed remaining Iraqi ground forces and removed the Iraqi presence from Kuwait. Shortly thereafter, Iraq accepted the offer of President George H. W. Bush to suspend offensive combat operations and declare a cease-fire upon its willingness to abide by all Security Council resolutions.
On April 3, 1991, the Security Council adopted Resolution 687, often known as the “Mother of all Resolutions,” which in effect codified the cease-fire agreement between Iraq and the international coalition. In that resolution, the Security Council demanded that Iraq unconditionally accept the destruction of all chemical, biological, and nuclear weapons programs. The resolution also required Iraq to destroy all ballistic missiles with a range greater than 150 kilometers. In accordance with these measures, a strict monitoring system was put into place to oversee Iraq’s compliance. The International Atomic Energy Agency (“IAEA”) and United Nations Special Commission on Iraq (“UNSCOM”) were to supervise this monitoring system.
The monitoring system created by Resolution 687, although considered by some to be the “most comprehensive international monitoring system ever established in the sphere of arms control,” did not compel Iraq’s compliance. Just four months after Resolution 687 was created, the Security Council condemned the non-compliance of the Hussein regime with regards to the destruction of its weapons programs, stating that such violations constituted a “material breach of the relevant provisions which established a cease-fire and provided the conditions essential to the restoration of peace and security in the region.” The Security Council continued to note Iraq’s blatant disregard for relevant resolutions throughout the 1990s. In June of 1996, the Security Council again condemned Iraq’s refusal to work with UNSCOM inspectors and its “clear violations” of relevant resolutions. One year later, the Security Council passed Resolution 1115, noting Iraq’s “repeated refusal” to allow UNSCOM access to weapons sites, a “clear and flagrant” violation of its obligations. Unbelievably, later that year, the Security Council was forced to again condemn Iraq, noting the “continued violations by Iraq of its obligations under the relevant resolutions to cooperate fully and unconditionally with [UNSCOM].”
On February 23, 1998, UN Secretary General Kofi Annan reached an agreement with Iraq to ensure its cooperation with UNSCOM and the IAEA on disarmament activities. In late 1998, Iraq reported that it would not finish its work with UNSCOM. This action prompted the US and the UK to commence Operation Desert Fox, a bombing campaign that continued for seventy hours. Both nations referred to Security Council Resolution 1154 as providing legal justification for the operation. That resolution stressed “the compliance the Government of Iraq with its obligations, repeated again in the memorandum of understanding, to accord immediate, unconditional, and unrestricted access to the Special Commission and the IAEA in conformity with the relevant resolutions is necessary for the implementation of resolution 687 (1991), but that any violation would have the severest consequences for Iraq.” Operation Desert Fox was the third armed attack on Iraqi positions after the cease-fire. The Clinton Administration conducted military strikes in 1993 and 1996 to extend the southern no-fly zone, invoking Resolution 678 as authority.
After Operation Desert Fox, Iraq continued to refuse access to weapons inspectors. The Security Council disbanded UNSCOM in December of 1999, and replaced it with the United Nations Monitoring, Verification, and Inspection Commission (“UNMOVIC”). The resolution establishing UNMOVIC provided that the Security Council would suspend several sanctions against Iraq if it would cooperate with the inspection regiment put into place in Resolution 687. Iraq refused to comply, denouncing the resolution because it did not “address Iraq’s legitimate right to secure a lifting of the embargo having met its commitments under UN accords.”
On September 12, 2002, a year and a day after the terrorist attacks of September 11, President George W. Bush went before the United Nations to call attention to Iraq’s decade-long pattern of obstructionism and defiance towards the international community. Two months later, the Security Council unanimously passed Resolution 1441, which called Iraq to task on its continuing refusal to comply with previous resolutions and to address “the threat…proliferation of weapons of mass destruction and long-range missiles poses to international peace and security.” The resolution condemned the fact that Iraq had not allowed inspectors in almost four years, as well as its failure to condemn international terrorism. Importantly, the resolution gave Iraq “a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council.” Iraq was expected to comply with the resolution, as the Security Council reminded the nation that it (the Security Council) had repeatedly warned of “serious consequences” that would result from continued non-compliance.
Subsequently, Iraq allowed inspectors back into the country. While Resolution 1441 aimed at the complete disarmament of Iraq under the threat of serious consequences, the nation never complied. In accordance with the mandates of Resolution 1441, Iraq submitted a declaration of the state of its weapons programs and compliance efforts; however, this declaration was considered a weak and untruthful attempt at compliance. Dr. Blix, in January of 2003, acknowledged that the Iraqis had not lived up to the demands of 1441, stating that the nation had yet to show “a genuine acceptance, not even today, of the disarmament which was demanded of it.” In March of 2003, the US and UK attempted to persuade the Security Council to pass one more resolution authorizing the use of force against Iraq for its continuing disregard of previous resolutions. However, certain nations on the Security Council – including Russia, France and Germany – were opposed to such a resolution. The follow-up resolution never materialized, and the US and UK abandoned their attempts to convince their stubborn partners on the Council. On March 19, 2003, the United States led a coalition of nations that quickly destroyed Iraqi resistance and took control of the nation. In May of 2003, President Bush announced an end to major combat operations, signaling the end of the regime of Saddam Hussein.
IV. Existing Security Council Resolutions Justified Armed Force Against Iraq
The text of Resolution 678 is very clear. Member States were authorized “to use all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area.” It is telling that this resolution does not contain language expressly authorizing the US-led coalition to engage in military action against Iraqi forces. Further, the Security Council did not speak to enforcement measures after Resolution 678; this resolution served as the basis for military action in Iraq in 1990, and served as justification for any use of force to enforce the cease-fire memorialized in Resolution 687.
Resolutions 678 and 687 stand together as twin pillars of justification for the US-led invasion of Iraq in 2003. Whereas the former enables Member States to employ “all necessary means” to uphold subsequent resolutions with regards to Iraq, the latter sets out the mandates that Iraq was required to obey in order to preserve the cease-fire and suspend Resolution 678. Tracing the history of armed conflict in Iraq from the end of the Gulf War and identifying the relevant Security Council resolutions during those periods makes clear that Resolutions 678 and 687 were still in effect in March of 2003, and provide the legal basis for the use of armed force to enforce those resolutions.
The US and UK worked feverishly in late 2002 and early 2003 to create the required consensus to pass a resolution that would authorize the use of force in Iraq. Such a resolution would have been the eighteenth resolution with regards to Iraq’s violation of international law, but it never materialized. Three members of the Security Council, Russia, France and Germany, strongly opposed such a resolution, believing that Resolution 1441 was the limit for threats against Saddam Hussein. As the Kosovo and Korean situations illustrated before, the interests of but a few members of the Security Council may bar the entire Council from fulfilling its duties under the Charter. This surely was the case during the Iraq debate.
One scholar has pointed out that the stance of Russia, France, and Germany–that former resolutions such as 678 and 687 were no longer in force–undermines the premise that Security Council resolutions are law at all. Professor John Yoo explains that these nations had agreed to authorize the use of force against Iraq in 1991. The text of those resolutions has not been changed and the conditions for their enforcement have remained constant. If Russia, France, and Germany were to consider Resolutions 678 and 687 expired, argues Yoo, there would be considerable dispute about the legal force and legitimacy of Security Council resolutions. Such a result would call into question whether such resolutions are legal legislative acts or “ad hoc legislative edicts.” In other words, when one or two Security Council member states call into question the effectiveness of existing resolutions, they in effect minimize the importance and legitimacy of the resolutions. This then begs the question of whether a Security Council resolution is binding as an expression of international law.
The US and UK, when confronted with the reality that an eighteenth resolution would not pass, moved forward with military plans, relying on existing Security Council resolutions to justify the March 2003 invasion. This was not a position of weakness. Resolutions 678 and 687 were still viable, effective mandates at that time, as events of the previous decade make clear.
On January 13, 1993, US, UK and French aircraft attacked Iraqi positions, destroying Iraqi missile launchers. In response to the attacks, UN Secretary-General Boutros Boutros-Ghali said:
The raid, and the forces that carried out the raid, have received a mandate from the Security Council, according to Resolution 678, and the cause of the raid was the violation by Iraq of Resolution 687 concerning the cease-fire. So, as Secretary-General of the United Nations, I can say that this action was taken and conforms to the resolutions of the Security Council and conforms to the Charter of the United Nations.
Clearly, the military action in 1993 was considered legal under international law, not because a new resolution had been passed to authorize such a use of force, but instead because the action was in conformity with existing Security Council resolutions. President George H.W. Bush cited Iraq’s “failure to live up to the resolutions” when he ordered the strikes. In his report to Congress concerning the action, the President cited the comments of Secretary-General to justify the action as conforming with international law, and necessary in light of Iraq’s violations of Resolution 687.
In December of 1998, the US and UK launched a seventy-hour air assault against Iraqi targets. US officials, in providing a legal foundation for the military action, made clear that Iraq’s continuing breaches of obligations under existing resolutions served as a justification for the attacks. President Bill Clinton justified the military action in much the same way as his predecessor did stating that the military action was:consistent with and has been taken in support of…Resolutions 678 and 687, which authorize UN Member States to use all necessary means to implement the Security Council resolutions and to restore peace and security in the region and establish the terms of the cease-fire mandated by the Council, including those related to the destruction of Iraq’s WMD programs.
Although some members of the Council did voice objections to the action, international approval for the air strikes was strong. Thirteen nations offered some sort of support, either in the form of facilities, troops, or equipment, including Australia, Canada, Spain, and Germany. This sentiment to enforce Resolutions 678 and 687 only served to strengthen the position of the US and UK that the cease-fire and disarmament provisions of those resolutions were still effective to authorize the use of force.
The precedent from the 1993 and 1998 attacks on Iraqi targets is as clear today as it was at those times. Saddam Hussein’s regime remained in material violation of Resolution 687, which required the regime to comply with the inspection regime and abandon and destroy its weapons programs. Resolution 678, which authorized Member States “to use all necessary means” to uphold “subsequent resolutions” such as Resolution 687, was the correct authorization for the attacks of 1993 and 1998. There had been no resolution which in effect caused those resolutions to expire; in fact, they were very much effective and relevant in 2003 when the US-led coalition invaded Iraq.
It is important to note Security Council practice with regards to ending its authorization to use force. When the Council decides to end the use of force, it either passes a new resolution extinguishing the previous resolution, or it makes a clear duration for authority in the resolution itself. In other words, the Security Council must expressly terminate the authority of its resolutions. There is no such language in Resolution 678 which makes clear that its authorization to use force would lapse at a specific point or that the Council had reserved the right to determine when the authorization would end. Nor has the Council ever expressly terminated the effect of Resolution 678. These facts, coupled with the express language of Resolution 1441, make clear that Resolutions 678 and 687 remained in effect in March 2003, when the invasion of Iraq began.
Resolution 1441, passed in late 2002, explicitly refers to Iraq’s “non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles…[.]” The resolution actually referred to Resolutions 678 and 687, as the Security Council “recall[ed] that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to Resolution 660 (1990) and to restore international peace and security in the area.” Further, 1441 recalled Iraq’s obligations under Resolution 687:Deploring the fact that Iraq has not provided an accurate, full, final, and complete disclosure, as required by resolution 687 (1991), of all aspects of its programmes to develop weapons of mass destruction and ballistic missiles with a range greater than one hundred and fifty kilometres, and of all holdings of such weapons, their components and production facilities and locations, as well as all other nuclear programmes, including any which it claims are for purposes not related to nuclear-weapons-usable material. Deploring further that Iraq repeatedly obstructed immediate, unconditional, and unrestricted access to sites designated by the United Nations Special Commission (UNSCOM) and the International Atomic Energy Agency (IAEA), failed to cooperate fully and unconditionally with UNSCOM and IAEA weapons inspectors, as required by resolution 687 (1991), and ultimately ceased all cooperation with UNSCOM and the IAEA in 1998, Deploring the absence, since December 1998, in Iraq of international monitoring, inspection, and verification, as required by relevant resolutions, of weapons of mass destruction and ballistic missiles…[.]
This was not the sort of language that could be interpreted as expressly terminating any previous authorization to use force or repealing Iraq’s duties under the inspection regime, as nations such as France, Germany, and Russia argued. Instead, this language makes clear that those resolutions still had a binding effect–reinforcing Security Council practice that resolutions, if they are to be held as binding, must be expressly terminated, or expressly limited by time or event requirements.
Resolution 1441 also refers to the Security Council’s repeated previous warnings to Iraq of “serious consequences” that would result from continued violations of the regimes obligations. That language, when compared to the language of Resolution 678, shows a high degree of justification for the view that Resolution 1441 allowed the use of force upon further non-compliance by Iraq. Resolution 678 gave Iraq “one final opportunity” to withdraw from Kuwait and comply with the demands of the Security Council. If Iraq did not take advantage of that opportunity, then Member States were allowed to “use all necessary means” to comply enforcement. Likewise, the language of 1441, while not specifically authorizing the use of force, makes clear that such an option was authorized upon Iraq’s further non-compliance with its obligations. The resolution gave Iraq a “final opportunity to comply” with its duties. That language, coupled with the “serious consequences” that would follow upon non-compliance, shows that Resolution 1441 was in fact a legal authorization to use force to ensure Iraqi compliance. The fact that no Member State found Iraq to be in compliance with its obligations under existing resolutions further justified the decision to use force.
It should also be noted that the cease-fire agreement embodied in Resolution 687 declares a formal suspension of hostilities between Iraq and Member States such as the US, rather than with the United Nations itself. The resolution was a “formal cease-fire…between Iraq, Kuwait, and the Member States cooperating with Kuwait in accordance with Resolution 678 (1990).” Iraq’s continued breaches of this resolution, which the US and other nations cited when they used force in 1993 and 1998, served to suspend the cease-fire and in effect renewed the authority given in Resolution 678. In 2003, there was no disagreement as to whether Iraq was in breach of its obligations under Resolution 687, all of which were re-affirmed in Resolution 1441. Iraq’s breach suspended the cease-fire of Resolution 687. As was the case in 1993 and in 1998, Member States that had “cooperated” with Kuwait in the Gulf War were again authorized, under Resolution 678, to use force in order to enforce Iraq’s existing obligations.
In international law, a nation that is specially affected by another nation’s breach of a treaty agreement may either suspend or terminate the effect of the treaty with regards to the breaching nation. Iraq had repeatedly breached its obligations under the cease-fire agreement of Resolution 687. Therefore, the US and UK, as “Member States cooperating with Kuwait,” had the right to suspend or terminate the cease-fire with respect to Iraq. The treaty that was Resolution 687 did not have effect in 1993, 1998, or 2003, because of Iraq’s repeated breaches. The US and UK could therefore legally suspend or terminate the cease-fire and appeal to Resolution 678 to enforce “serious consequences” for Iraq’s intransigence and to restore international peace and security to the region.
V. The Right of Self-Defense Justified the Invasion of Iraq
Article 51 of the UN Charter provides the rights of nations to defend themselves from threats to national security. Indeed, this right is considered independent of any treaty or convention under international law: “[n]othing in the present Charter shall impair the inherent right to individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measure necessary to maintain international peace and security.” This language makes clear that there is a right to defend one’s nation, or other nations, independent of Security Council approval.
The inherent right to self-defense was first enunciated in the Caroline incident. In 1837, a secret British military unit entered the United States and destroyed the American vessel Caroline, which had been aiding Canadian insurgents fighting against British rule. The incident resulted in the loss of the vessel as well as two American lives. Confronted by American officials, the British maintained that the attack on the Caroline was an act of self-defense. Daniel Webster, the US Secretary of State, wrote a letter in return, demanding that the British justify this claim by showing that the need for self-defense was:instant, overwhelming, leaving no choice of means, and no moment for deliberation…even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.The British accepted this test by justifying its actions accordingly.
As has been explained by international scholars, the Caroline test requires that nations show that use of force is necessary due to an imminent threat, and that the response is proportionate to the threat. Accordingly, the decision to invade Iraq, if not justified by existing Security Council resolutions, would have to have been justified by an imminent threat coming from Iraq, one proportionate to a response such as regime change. While there most certainly was debate as to whether the threat emanating from Iraq was “imminent,” the United States has made clear that nations can no longer wait for threats to materialize in a post-Sept. 11 world:For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat…
Rogue states and terrorists do not seek to attack us using conventional means…Instead, they rely on acts of terror and, potentially, the use of weapons of mass destruction—weapons that can be easily concealed, delivered covertly, and used without warning.
As was demonstrated by the losses on September 11, 2001, mass civilian casualties is the specific objective of terrorists and these losses would be exponentially more severe if terrorists acquired and used weapons of mass destruction.
The United States has long maintained the option of preemptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction— and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act preemptively.
This view, prompted by the terrible events of Sept. 11, changes the entire paradigm of the Caroline test. No longer can nations be aware of imminent threats, and at least one nation, the United States, has made clear that it will act preemptively to “forestall or prevent” a hostile regime or group from attacking American targets.
Preemptive self-defense has been practiced before, such as the Torrey Canyon incident of 1967. There, the United Kingdom took unilateral action to protect its coastal and marine resources after the Liberian oil tanker Torrey Canyon ran aground in the English Channel. Fearing for the well-being of its resources, the UK bombed and destroyed the ship, asserting a customary international law right of intervention. In the 1950s, the French seized foreign merchant ships on the high seas thought to be carrying arms to the Algerian rebel movement. The French government cited its inherent right to self-defense to justify the seizures. On several occasions, the US has attacked another nation out of concern for self-defense. In 1986, the US attacked Libyan targets in order to stop possible terrorist attacks. In 1989, took military action in Panama, citing an imminent threat to American lives. In 1993, the Clinton administration ordered attacks on Iraqi targets after the regime failed to honor its obligations under Resolution 687. In each instance, the UN took no action, unable to pass a unanimous declaration that Article 51 of the UN Charter did not authorize such actions.
The threats posed by the Iraqi regime in 2003 were not precisely known, but current intelligence showed that the regime had not complied with its obligations under Security Council resolutions to cooperate with the inspections regime and declare the extend of its nuclear, chemical, and biological weapons programs. Such intransigence had long worried the world community, hence the seventeen resolutions that the Security Council had passed since the invasion of Kuwait. President Clinton justified the military action against Iraq in 1993 as an exercise in self-defense, stating:The evidence of the Government of Iraq’s violence and terrorism demonstrates that Iraq poses a continuing threat to United States nationals and shows utter disregard for the will of the international community as expressed in Security Council Resolutions and the United Nations Charter…I concluded that there was no reasonable prospect that new diplomatic initiatives or economic measures could influence the current Government of Iraq to cease planning future attacks against the United States.
In his testimony before the United Nations in February, 2003, US Secretary of State Colin Powell set forth the case against the Iraqi regime, explaining the threat as determined by US and foreign intelligence:The material I will present to you comes from a variety of sources. Some are U.S. sources and some are those of other countries. Some are the sources are technical, such as intercepted telephone conversations and photos taken by satellites. Other sources are people who have risked their lives to let the world know what Saddam Hussein is really up to.
I cannot tell you everything that we know, but what I can share with you, when combined with what all of us have learned over the years, is deeply troubling. What you will see is an accumulation of facts and disturbing patterns of behavior. The facts and Iraqis’ behavior, Iraq’s behavior, demonstrate that Saddam Hussein and his regime have made no effort, no effort, to disarm, as required by the international community.
Indeed, the facts and Iraq’s behavior show that Saddam Hussein and his regime are concealing their efforts to produce more weapons of mass destruction.
Given what the international community knew about Iraq’s continued intransigence, the fact that the extent of Iraq’s weapons programs was unknown, and the magnitude of suffering that could occur if Iraq did have those weapons programs, the US-led coalition, in an act of collective self-defense, was justified in its invasion of Iraq under the Caroline test. Invasion was a proportionate response to the threat that Iraq’s weapons programs posed, and the history of violations by the Saddam Hussein regime made clear that his removal was justified. Further, the events of September 11, 2001, made clear that threats not considered imminent are real and deadly nonetheless. The aggressive actions of the coalition were consistent with previous acts of self-defense taken by numerous nations, and entirely appropriate under the Caroline test.
In conclusion, the US-led coalition was justified in its invasion of Iraq and removal of Saddam Hussein from power. Existing Security Council resolutions and authorization, coupled with Iraq’s continued breach of its obligations under those resolutions, show that there was license to enforce those duties by “all necessary means.” The Security Council never expressly extinguished authorization to use force under these resolutions, nor did it put a time limit on that authority. Resolutions 678 and 687 were still effective in 2002-2003, as evidenced by the language of Resolution 1441.  Second, because the threat posed by Iraq’s non-compliance with weapons programs was grave, growing, and possibly imminent, the action to remove him from power was justifiable as an act of preemptive self-defense. The US has expressed the view that, in a post-Sept. 11 arena, nations cannot wait for an express declaration of war or other clear signs to designate a threat as “imminent.” Following the practice of numerous states over the past half-century, the US led a coalition to preemptively defend itself and other nations from the possibility of an Iraqi regime armed with WMD. Considering the costs of a WMD attack, regime change was an appropriate response to the Iraqi threat.
The action against Iraq revives an old and troublesome dilemma for the United Nations and the Security Council. The events of September 11 gave rise to the possibility that acts of war will not be announced by formal declarations, but instead may be delivered by secret and silent terror groups with no ties to any one nation or state. Nations are more aware of their need to curb possible violence, and regimes which support terror groups or terror acts, or which seek weapons of mass-destruction, are now considered greater dangers than ever before. The US-promoted doctrine of pre-emption will force the Security Council to consider the mandates and authorizations it gives in the future, but also magnifies the problems that disagreement between Council Members may produce.
Although a large group of nations, including Russia, France, and Germany, opposed the US-led coalition against Iraq, it is clear that a precedent has been set, if not reinforced. The US government, under the leadership of George W. Bush, has made the case that nations cannot wait for “imminent” threats to materialize. No longer can nations simply wait for enemies to formally declare war. Nor can nations even rely on intelligence capabilities to detect the massing of enemy troops, or the launch of a missile carrying a nuclear weapon. The sophistication and sinister motives of terror groups make it almost impossible to identify an imminent threat before it is carried out. The fact that over thirty nations supported the coalition efforts against Saddam Hussein demonstrates that this theory is gaining traction, and will continue to conflict with the Security Council’s Chapter VII authority.
Preemptive self-defense is now squarely in conflict with the view that Security Council authority is still paramount in armed aggression between nations. Those who espouse the latter view will continue to argue that no nation should use force without Security Council authority unless the inherent right to self-defense is clearly invoked. Those who support the former view will counter with the claim that, in the end, each nation must have the right to defend itself, even if without Security Council approval. Therein lies the danger of such a conflict. As was evidenced in both the Korea and Bosnia situations, disagreement between Security Council members results in inaction – precisely the result that nations cannot afford. As Security Council members argue as to their rights against the duties and powers of that body, the question of state action against potential threats – be they rogue states or terror groups – goes unanswered. And as was made painfully clear on the morning of Sept. 11, complacency or inaction on the part of the world community can result in deadly consequences.
Although the prospect seems dim, Security Council members are compelled to find a solution. Some on the political right argue for the dissolution of the United Nations and a return to regional and ad-hoc coalitions. Some on the far left of the political spectrum push for sanctions and penalties against the US-led coalition and a strengthening of Security Council authority. Either way, the Security Council’s role must be defined in this post-Sept. 11 world. This article has argued that the US-led coalition was justified, not only by existing Security Council resolutions, but also by the realities of preemptive self-defense after Sept. 11. However, just because international law justified the coalition action, it should not be assumed that the action was free from controversy.
This article recommends that UN members work to redefine Article 51 of the Charter. The realities of the threats that nations now face demand that the world look at what is an “imminent” threat and determine when self-defense, including preemptive self-defense, is justified. The text of Article 51 gives a nation the right to respond to an armed attack. However, given the manner in which the Bush administration framed the Iraq debate, it is clear that nations in the future will be more willing to take preemptive steps to deter attacks, rather than wait for the armed attack to actually take place. It is clear that Article 51 has run its course in its current form, and needs revision. Further, UN members must make clear the scope of authority of UN Security Council resolutions. It must be clear whether a resolution authorizes the use of force, and if so, when that authority ends. During the drafting of Security Council resolutions, members must find a way to escape the political nuance that causes vague and open-ended resolutions. This may even entail an overhaul of procedural rules, to ensure that certain requirements are met during the creation of each resolution. Each nation must be fully aware of its rights and duties under a Security Council resolution, and must be able to rely on the plain text of the resolution.
The Security Council is truly at a crossroads. Its inability to assert any semblance of authority during times of crisis has potentially deadly ramifications, as was made clear in Bosnia. However, the decision by the US and UK to break away from the decaying framework surrounding the Security Council and take action brought hope in more ways than one. First, the coalition demonstrated that nations can use military force without approval from the Security Council, and still find justification in international law. This result legitimizes military efforts that are necessary, but perhaps opposed by a few influential nations. Second, the coalition brought the Security Council’s inefficiencies and shortcomings to a head – so perhaps they can be rectified. It is now clear that the UN and the Security Council must address these problems. And third, the coalition was able to remove a murderous regime independently of a UN mandate. While some may question the virtues of such a result, the action does signal hope to those in the world whom the UN is to protect. A coalition of willing nations may come together under the mandate of international law, to actually alleviate suffering in the world. If the rest of the world wants to see the UN and the Security Council to play a part in such an important mission, it is now on notice.
* Adam P. Tait is a 2005 graduate of Gonzaga University School of Law, cum laude. Mr. Tait will begin practicing commercial litigation at the Spokane firm of Reed & Giesa, P.S., in the fall of 2005. Mr. Tait would like to thank his lovely wife, Nicola, and his son Riley, age 4, and daughter Paige, age 2 for the support and joy they give him.
 Patrick E. Tyler, U.N. Chief Ignites Firestorm By Calling Iraq War ‘Illegal,’ New York Times, Sept. 17, 2004, at 11.
 U.N. Charter art. 24, para. 1.
 U.N. Charter art. 39.
 U.N. Charter art. 24, para 2; David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter 28-29 (2001).
 U.N. Charter art. 25.
 Schweigman, supra note 7, at 31 n.115-117.
 Sec. C. Res. 855, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/855 (1993).
 Sec. C. Res. 1160, U.N. SCOR, 53rd Sess., U.N. Doc. S/RES/1160 (1998) (imposing an arms embargo against the FRY and stated that the failure to move towards peace in Kosovo would invite further action from the Council).
 Sec. C. Res. 1199, U.N. SCOR, 53rd Sess., U.N. Doc. S/RES/1199 (1998).
 Paul Heinbecker, Kosovo, in The UN Security Council: From the Cold War to the 21st Century 537, 540 (David Malone ed., 2004).
 UK permanent representative Jeremy Greenstock, Address to the U.N. Security Council (March 24, 1999).
 Paul Heinbecker, Kosovo, in The UN Security Council: From the Cold War to the 21st Century 537, 542 (David Malone ed., 2004).
 See id.
 John F. Murphy, Force and Arms, in The United Nations and International Law, 108 (Christopher C. Joyner ed., 1997).
 See id.
 See C. Warbrick, The Invasion of Kuwait by Iraq, 40 ICLQ pt. 1, at 482-492 (1991).
 Sec. C. Res. 660, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/660 (1990).
 Sec. C. Res. 611, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/611 (1990).
 Sec. C. Res. 662, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/662 (1990).
 D. Gilman, The Gulf War and the United Nations Charter: Did the Security Council Fulfill its Original Mission?, 24 Conn. L. Rev. 1131, 1149 (1992).
 Id. at 1150.
 Sec. C. Res. 678, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/678 (1990).
 Supra note 20, at 113-114.
 See id. at 114.
 Sec. C. Res. 687, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/687 (1991).
 Id. at paras. 8, 9 & 12.
 Id. at para. 8.
 Sec. C. Res. 687, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/687 (1991).
 Report of the Secretary-General on the Status of the Implementation of the Special Commission’s Plan for the Ongoing Monitoring and Verification of Iraq’s Compliance with Relevant Parts of Section C of Security Council Resolution 687 (1991), U.N. Doc. S/1994/11138 (Oct. 7, 1994).
 A.J.R. Groom, Edward Newman, & Paul Taylor, Burdensome Victory: The United Nations and Iraq, in A United Nations for the Twenty-First Century: Peace, Security and Development 149, 156 (Dimitris Bourantonis & Marios Evriviades eds., 1996).
 Sec. C. Res. 707, U.N. SCOR, 46th Sess., U.N. Doc. S/RES/707 (1991).
 Sec. C. Res. 1060, U.N. SCOR, 51st Sess., U.N. Doc. S/RES/ 1060 (1996).
 Sec. C. Res. 1115, U.N. SCOR, 52nd Sess., U.N. Doc. S/RES/1115 (1997).
 Sec. C. Res. 1137, U.N. SCOR, 52nd Sess., U.N. Doc. S/RES/1137 (1997).
 Memorandum of Understanding, U.N. Doc. S/1998/166 (1998).
 See Sec. C. Res. 1205, U.N. SCOR, 53rd Sess., U.N. Doc. S/RES/1205 (1998). The Security Council noted “with alarm the decision of Iraq…to cease cooperation with the United Nations Special Commission, and its continued restrictions on the work of the [IAEA].”
 See S.M. Condron, Justification for Unilateral Action in Response to the Iraqi Threat: A Critical Analysis of Operation Desert Fox, 161 Military L. Rev. 115-180 (1999).
 Sec. C. Res. 1154, U.N. SCOR, 53rd Sess., U.N. Doc. S/RES/1154, at para. 3 (1998).
 Frederick Rawski & Nathan Miller, The United States in the Security Council: A Faustian Bargain?, in The UN Security Council: From the Cold War to the 21st Century 361 (David M. Malone ed., 2004).
 Sec. C. Res. 1284, U.N. SCOR, 54th Sess., U.N. Doc. S/RES/1284 (1999).
 Id. at pt. C.
 Statement by the Iraqi Deputy Prime Minister, Tariq Aziz (Feb. 20, 2000) quoted in “Iraq Condemns UN Resolution,” available at http://news.bbc.co.uk/1/hi/world/middle_east/649826.stm.
 Id. at 2.
 Id. at 3.
 Id. at 5.
 Executive Chairman of UNMOVIC Dr. Hans Blix, Briefing of the Security Council (Dec. 19, 2002), available at http://www.unmovic.org.
 U.N. SCOR Twelfth Quarterly Report at 3, U.N. Doc. S/2003/232 (1999), available at http://www.un.org/Depts/unmovic/new/documents/quarterly_reports/s-2003-232.pdf (UN-MOVIC Executive Chairman Dr. Hans Blix stated that the declaration “contained little new significant information”).
 Executive Chairman of UNMOVIC Dr. Hans Blix, Briefing of the Security Council (January 27, 2003), available at http://www.unmovic.org.
 Adam Roberts, The Use of Force, in The UN Security Council: From the Cold War to the 21st Century 141 (David M. Malone ed., 2004).
 See id.
 John Yoo, Agora: Future Implications of the Iraq Conflict: International Law and the War in Iraq, 97 A.J.I.L. 563, 564 (2003).
 Sec. C. Res. 678, supra note 29, at para. 2.
 Sec. C. Res. 678, supra note 29, at para. 2.
 See Sec. C. Res. 687, supra note 32.
 See Yoo, supra note 61, at 564-67.
 See Roberts, supra note 59, at 141.
 See id.
 Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and Int’l Law, 201 (2001) (quoting Boutros Boutros-Ghali, January 14, 1993).
 Barton Gellman & Ann Devroy, “Military Action Against Iraq Signaled by Administration”, Washington Post, Jan. 14, 1993, at A1.
 Letter to Congressional Leaders Reporting on Iraq’s Compliance With United Nations Security Council Resolutions (Jan. 19, 1993), 2 Pub. Papers of George Bush 2269-70 (1993).
 Security Council Meets to Discuss Military Strikes Against Iraq; Some Members Challenge Use of Force Without Council Consent UN Doc. SC/6611, at 1-2, 7 (Dec. 16, 1998).
 Letter to Congressional Leaders on the Military Strikes Against Iraq (Dec. 18, 1998), 2 Pub. Papers of William J. Clinton 2197 (1998).
 See, e.g., Sec. C. Res. 1031, U.N. SCOR, 50th Sess., U.N. Doc. S/RES/1031, at para. 3 (1995) ("[T]he mandate…shall terminate on the date which the Secretary-General reports to the Council."); Sec. C. Res. 929, U.N. SCOR, 49th Sess., U.N. Doc. S/RES/929, at para. 2 (1994) ("[T]he mission of Member States cooperating with the Secretary-General will be limited to a period of two months…").
 See Sec. C. Res. 678, U.N. SCOR, 45th Sess., U.N. Doc. S/RES/678 (1990).
 See id., at preamble.
 See Roberts, supra note 59, at 141.
 See Sec. C. Res. 1441, U.N. SCOR, 57th Sess., U.N. Doc. S/RES/1441 at para. 13 (2002).
 Sec. C. Res. 678, supra note 80, at para. 1.
 Id. at para. 2.
 Sec. C. Res. 1441, supra note 85, at para. 2.
 Sec. C. Res. 687, supra note 32, para. 33.
 See Vienna Convention on the Law of Treaties, art. 60(2)(b), May 23, 1969, 21 U.S.T 77.
 See Ruth Wedgwood, The Enforcement of Security Council Resolution 687: The Threat of Force Against Iraq's Weapons of Mass Destruction, 92 AJIL 724, 726 (1998); see also, Vienna Convention, Art. 60, supra note 92, at art. 60; see also John Yoo, Agora: Future Implications of the Iraq Conflict: International Law and the War in Iraq, 97 A.J.I.L. 563, 568-569 (2003).
 U.N. Charter art. 51.
 See Myres S. McDougal, The Soviet-Cuban Quarantine and Self-Defense, 57 AJIL 597, 599 (1963); Oscar Schachter, The Right of States to Use Armed Force, 82 Mich. L. Rev. 1620, 1634-1634 (1984); Abraham D. Sofaer, International Law and Kosovo, 36 Stan. J. Int’l Law 1, 16 (2000).
 Letter from U.S. Secretary of State Daniel Webster to British Minister Henry Fox (Apr. 24, 1841), in 29 British and Foreign State Papers, 1840-1841, at 1138 (1857).
 Letter from Lord Ashburton to U.S. Secretary of State Daniel Webster (July 28, 1842), in 30 British and Foreign State Papers, 1841-1842, at 1858 (1857).
 See, e.g., Yoram Dinstein, War, Agression, and Self-Defense 208-212 (3d ed. 2001); Yoo, supra note 92, at 572.
 Dinstein, supra note 98, at 208-212, & 219-220.
 The National Security Strategy of the United States of America, available at http://www.whitehouse.gov/nsc/nssall.html.
 See Michael Akehurst, A Modern Introduction to International Law 175 (3d ed. 1977).
 See id.
 See President’s Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the United States Air Strike Against Libya (Apr. 16, 1986), in 1 Pub. Papers 478 (1986).
 See President’s Letter to the Speaker of the House of Representatives and the President Pro Tempore of the Senate on the United States Military Action in Panama (Dec. 21, 1989), in 2 Pub. Papers 1734 (1989).
 See President’s Letter to Congressional Leaders on the Strike on Iraq Intelligence Headquarters (June 28, 1993), in 1 Pub. Papers 940 (1993).
 See UN Doc. S/PV. 2682 (Apr. 21, 1986) (US, UK, Australia, Denmark, and France oppose declaration); UN Doc. S/21048 (Dec. 22, 1989); UN Doc. S/PV. 2902 (Dec. 23, 1989) (US, UK, France, and Canada oppose declaration).
 Supra 106.