Legal justifications for the 2003 invasion of Iraq provided by the Bush administration are on shaky judicial ground, George Washington University law professor Sean Murphy said in a speech at the Georgetown University Law Center on Saturday morning.
Despite the public interest and media attention prior to the invasion, Murphy said that the doctrine of preemption was not included in the formal justification presented before the U.N. Security Council.
He described preemption as the thought that if “in five years’ time a particular country might be a threat, you can go ahead and attack them now.”
Instead, he said that the Bush administration relied on a tightly knit series of Security Council resolutions dating from the 1991 Gulf War to argue that the Security Council had previously authorized the invasion.
In Nov. 1990, Security Council Resolution 678 was passed granting the use of force to states acting in cooperation with the government of Kuwait to restore security in the region. The United States, along with other nations, acted upon that resolution in Jan. 1991 during the Gulf War. By April 1991, the war was over and the Security Council passed Resolution 687, commonly referred to as the “ceasefire resolution,” calling for the dismantling of Iraq’s weapons of mass destruction programs in conjunction with the presence of U.N. weapons inspectors and sanctions.
The Bush administration argued that by failing to comply with 687, Iraq reawakened the earlier resolution thus authorizing the use of force.
“The article analyzes this series of resolutions. Particularly, does it authorize force in March 2003, a dozen years later?” Murphy asked.
Fundamental, but often overlooked, Murphy added, was the intervening passage of Resolution 686 that said if Iraq complied with certain obligations, then the use of force would end, thus curtailing the authority of 687.
“This indicates that 687 does have a mechanism for consequences if Iraq does not comply with the WMD provisions,” he said. “In the case of failure to comply with the WMD prohibitions, then new sanctions are faced.”
Murphy said that efforts by the administration to win Security Council approval prior to the invasion indicate that there were doubts as to the legality of this scheme as well.
When asked if the Bush administration’s actions render international law useless, Murphy responded that to the contrary, they actually proved international law extremely useful.
“The interest the American public had in getting Security Council approval, which only really dissipated immediately preceding the invasion, shows the level of legitimacy that international law gives,” he said.
While the legitimacy of the doctrine of preemption still remains to be determined, Murphy said that the struggle within the Security Council prior to the invasion has left a lasting legacy.
“There is now recognition within the Bush administration that having allies makes a difference,” he added.
Murphy published his conclusion about the legality of the U.S. military activities in Iraq in the most recent issue of the Georgetown Law Journal. His article, “Assessing the Legality of Invading Iraq,” is widely considered one of the most thorough investigations of the international and U.N. laws that apply to the invasion.
Caleb Mason (LAW ’06), editor in chief of the Georgetown Law Journal, the host of the event, said that he felt Professor urphy was an authority on the subject.
“What he has done is taken seriously the cases put forward by the administration, precedents and others and examined thoroughly,” Mason said.
