The Legality of Use of Force against Iraq in 1991 and 2003

The Legality of Use of Force against Iraq in 1991 and 2003

An international law permits anticipatory self-defence in case of an imminent attack. The pre-emptive application of force is double-edged, as any action to the contrary of the UN Security Council is considered to be a breach, while early intervention is an infringement of the rights of the state. Iraq attacked Kuwait in the early 90s and this act led to an imminent attack on Iraq by the UK, USA and East Asian countries[1]. This was following the authorisation of the UN Security Council to promote security and peace in the area. More specifically, this paper will focus on the circumstances that triggered an attack on Iraq and its implications. The present paper discusses the legality of the USA attack on Iraq. In addition, the paper highlights those doctrines employed by various nations in ensuring that peace and security are maintained, worldwide. The paper comments on the impact of the use of force in Iraq. The present paper thus critically compares and evaluates the legality of use of force against Iraq, in 1991 and in 2003, from an international legal perspective.

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1.1 Introduction

“The right to life” is a key virtue and fundamental principle, in times of war and peace. Moreover, humanitarian law and human rights jointly respect human dignity and human values and it is difficult, therefore, to enjoy fundamental rights when a human being loses his or her life. The absolute state to the right to life is faced with challenges, with the need to stabilise and maintain law and order in society, which can at times lead to the use of force[1]. The civilians and the members of the armed forces enjoy the fundamental right to life; however; the right is limited to the societal demands under which humanitarian law operates. This implies that the right to life is absolute; however, a normative structure should be set in place to account for any loss of life, to ensure social stability and order throughout society.

International law limits the use of force to prevent a person from losing his or her life. Furthermore, The European Convention is the pioneer of the limitation for Protection of Human Rights[2] and Fundamental Freedom, which asserts that there should be no extra force other than absolute force when safeguarding a person from unlawful violence or when quelling a riot, although the Convention does provide exceptions which result from lawful war acts.

This paper also focuses on the circumstances that led to the attacks on Iraq, with theUK, the USA and certain East Asian countries being the countries which participated in the attacks[3]. The paper then goes on to develop an argument regarding the legality of the force which was applied in Iraq. It is contended that the USA government under President Bush adopted a pre-emptive self-defence mechanism and the paper alludes to the humanitarian intervention as another method of self-defence. The research concludes by comparing, evaluating and arguing both for and against the legality of the use of force against Iraq, in 1991 and in 2003, from an international legal perspective.

1.2 The Circumstances under which Force is applied

1.2.1 Possession of Nuclear Weapons

International law has evaluated circumstances under which armed conflict is considered lawful, especially for the purposes of self-defence. Under international law, Article 2(4) of the United Nations Security Council, states that the threat to possess or use nuclear weapons is unlawful[4]. This, therefore, implies that the rogue states which act to the contrary of Article 2(4) of international law are operating unlawfully. A rogue state may, however, use weapons mainly for the purpose of self-defence. The rogue nations are also supported by the International Court of Justice (ICJ) which asserts that in the case of a credible deterrence, there is need for the use of (or intent to use) nuclear weapons. The law also contravenes the fact that the threat to use a weapon is unlawful under Article 2(4)[5]. However, the intention of the state to use weapons may be considered lawful, if it is aimed at self-defence.

In addition, signatory states are required to comply with the Nuclear Non-proliferation Treaty, which outlines three major principles, namely: disarmament, an inalienable right to nuclear use and non-proliferation of nuclear energy. The treaty defines two categories of states: states which are ascribed and use nuclear weapons (Nuclear Weapon States-NWS) and nations that are not allowed to own, manufacture and use nuclear weapons (Non-Nuclear Weapon States-NNWS). Nevertheless, certain states may be persuaded to enter the Nuclear Proliferation Treaty (NPT), in order to signal their nuclear preferences[6]. Joining NPT is like a commitment which can ruin a non-cooperating state by tainting its reputational position, due to violation of the treaty. However, the possession of (or use of) nuclear weapons is lawful, despite a state being a member or a non-member of the NPT.

It is argued in this paper that the inception of NPT is a threat to the International Community and that the provision for states to own and use nuclear weapons has created a significant “loophole” as member states can lawfully own uranium and plutonium which can be used in manufacturing nuclear weapons, in a short period of time.

However, it would appear that certain aberrations have been committed against the International Atomic Energy Agency (IAEA), with few parties having ratified an additional protocol towards NPT which ensures that state members must comply with the IAEA safeguards[7].

The IAEA, for instance, considered Iran to be aga………………………..