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The Authorization for Use of Military Force Against Iraq Resolution of 2002,[2] informally known as the Iraq Resolution, is a joint resolution passed by the United States Congress in October 2002 as Public Law No. 107-243, authorizing the use of the United States Armed Forces against Saddam Hussein's Iraq government in what would be known as Operation Iraqi Freedom.[3]

There have been no findings by any legal tribunal with both legal authority and legal jurisdiction that any laws were violated. There are only two legal tribunals with both authority and jurisdiction to make such a finding: (1) The US federal courts and (2) the United Nations. Advisory opinions are prohibited in US Courts and are also prohibited by the UN Charter unless the security council authorizes them. There are no relevant advisory opinions or legal finding regarding the legality. The United Nations security council has made no findings on the issues. Importantly, the UK and the United States, the two aggressor nations, are permanent members of the UN Security Council with veto powers. Thus, it's unlikely any legal determination can ever be made while the UK and the US are in the council as they would veto such a vote. The United Nations Secretary General, Kofi Annan, has clearly stated that according to the UN charter the invasion was a war crime.[30]

International law: right of pre-emptive self defense

There is no requirement in international law that the United States (or any nation) seek permission to initiate any war of self-defense.[31] "The United States government has argued, wholly apart from Resolution 1441, that it has a right of pre-emptive self-defense to protect itself from terrorism fomented by Iraq.[32] Although this position has been intensively criticized, without any legal finding for support, claims for legality or illegality are merely debates. To prove illegality it would first be necessary to prove that the US did not meet the conditions of necessity and proportionality and that the right of pre-emptive defense did not apply.[33] In September 2004, Kofi Annan, Secretary General of the United Nations, reiterated his opinion “that it was not in conformity with the UN Charter" and "it was illegal".[34]

U.N. security council resolutions

Debate about the legality of the 2003 invasion of Iraq under international law, centers around ambiguous language in parts of U.N. Resolution 1441 (2002).[35] The U.N. Charter in Article 39 states: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security".

The position of the U.S. and U.K. is that the invasion was authorized by a series of U.N. resolutions dating back to 1990 and that since the U.N. security council has made no Article 39[36] finding of illegality that no illegality exists.

Resolution 1441 declared that Iraq was in "material breach" of the cease-fire under U.N. Resolution 687 (1991), which required cooperation with weapons inspectors. The Vienna Convention on the Law of Treaties states that under certain conditions, a party may invoke a "material breach" to suspend a multilateral treaty. Thus, the U.S. and U.K. claim that they used their right to suspend the cease-fire in Resolution 687 and to continue hostilities against Iraq under the authority of U.N. Resolution 678 (1990), which originally authorized the use of force after Iraq invaded Kuwait.[37] This is the same argument that was used for Operation Desert Fox in 1998.[38] They also contend that, while Resolution 1441 required the UNSC to assemble and assess reports from the weapons inspectors, it was not necessary for the UNSC to reach an agreement on the course of action. If, at that time, it was determined that Iraq breached Resolution 1441, the resolution did not "constrain any member state from acting to defend itself against the threat posed by Iraq".[39]

It remains unclear whether any party other than the Security Council can make the determination that Iraq breached Resolution 1441, as U.N. members commented that it is not up to one member state to interpret and enforce U.N. resolutions for the entire council.[40] In addition, other nations have stated that a second resolution was required to initiate hostilities.[41] The vast majority of international legal scholarship contended that the war was an illegal war of aggression, and Kofi Annan, former United Nations Secretary-General, expressed the belief that the war in Iraq was an "illegal act that contravened the U.N. charter."[42]

See also

There is no requirement in international law that the United States (or any nation) seek permission to initiate any war of self-defense.There is no requirement in international law that the United States (or any nation) seek permission to initiate any war of self-defense.[31] "The United States government has argued, wholly apart from Resolution 1441, that it has a right of pre-emptive self-defense to protect itself from terrorism fomented by Iraq.[32] Although this position has been intensively criticized, without any legal finding for support, claims for legality or illegality are merely debates. To prove illegality it would first be necessary to prove that the US did not meet the conditions of necessity and proportionality and that the right of pre-emptive defense did not apply.[33] In September 2004, Kofi Annan, Secretary General of the United Nations, reiterated his opinion “that it was not in conformity with the UN Charter" and "it was illegal".[34]

U.N. security council resolutions

Debate about the legality of the 2003 invasion of Iraq

Debate about the legality of the 2003 invasion of Iraq under international law, centers around ambiguous language in parts of U.N. Resolution 1441 (2002).[35] The U.N. Charter in Article 39 states: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security".

The position of the U.S. and U.K. is that the invasion was authorized by a series of U.N. resolutions dating back to 1990 and that since the U.N. security council has made no Article 39[36] finding of illegality that no illegality exists.

Resolution 1441 declared that Iraq was in "material breach" of the cease-fire under [36] finding of illegality that no illegality exists.

Resolution 1441 declared that Iraq was in "material breach" of the cease-fire under U.N. Resolution 687 (1991), which required cooperation with weapons inspectors. The Vienna Convention on the Law of Treaties states that under certain conditions, a party may invoke a "material breach" to suspend a multilateral treaty. Thus, the U.S. and U.K. claim that they used their right to suspend the cease-fire in Resolution 687 and to continue hostilities against Iraq under the authority of U.N. Resolution 678 (1990), which originally authorized the use of force after Iraq invaded Kuwait.[37] This is the same argument that was used for Operation Desert Fox in 1998.[38] They also contend that, while Resolution 1441 required the UNSC to assemble and assess reports from the weapons inspectors, it was not necessary for the UNSC to reach an agreement on the course of action. If, at that time, it was determined that Iraq breached Resolution 1441, the resolution did not "constrain any member state from acting to defend itself against the threat posed by Iraq".[39]

It remains unclear whether any party other than the Security Council can make the determination that Iraq breached Resolution 1441, as U.N. members commented that it is not up to one member state to interpret and enforce U.N. resolutions for the entire council.[40] In addition, other nations have stated that a second resolution was required to initiate hostilities.[41] The vast majority of international legal scholarship contended that the war was an illegal war of aggression, and Kofi Annan, former United Nations Secretary-General, expressed the belief that the war in Iraq was an "illegal act that contravened the U.N. charter."[42]