Iraq against the United States of America (events 2003-2004)
A proposal of a judgment of the International Court of Justice
Seminar Paper 2008 26 Pages
Table of content
1. Historical and legal background
3. Arguments of the Iraqi government
3.1. Crimes against peace and security
3.2. No proof of weapons of mass destruction in Iraq
3.3. The use of armed forces without legal authorization
3.4. Humanitarian crisis
3.4.1. Failure to ensuring food and medical supplies
3.4.2. Torture and prison abuses
3.4.3. Destruction of object indispensable to the survival of the civilian population and failure to maintain order and cultural property
4. Arguments of the US American government
4.1 Protection of world’s peace
4.2 Weapon of mass destruction as a principal reasons for the US invasion
4.3. Legal authorization for military operation and the doctrine of “Preventive War”
4.4. Human rights abuses
4.4.1 False allegations suggested by Iraq against the USA
4.4.2 Iraqi practices of genocide, torture and prison abuses
5. Proposal of a judgment
Bibliography and Internet sources
1. Historical and legal background
In order to understand the “Second Iraq War”, to follow argumentation of both sides and to deliver an appropriate judgment, firstly it is necessary to prove historical facts that have shaped given situation.
Saddam Hussein came formally to power in July 1979 as a President and Chairman of the Revolutionary Command Council. Hussein had the absolute power in Iraq and His control of the military and all state institutions was beyond question. Under his leadership Iraq has never been a democratic, peaceful state: systematically violated laws and human rights, mass killings, tortures and political imprisonment led to a crisis which has become a subject of the dispute on international stage till nowadays (web.amnesty.org/pages/irq-article_3-eng).
One of the conflicts, Hussein was involved in, was the war with Iran 1980-1988 for the control over the waterway Shatt al-Arab. This warfare has grown from a much wider background: Kurdish and Shiites problem, religious conflict, personal enmity between Hussein and Ayatollah Komeini and Iraq’s gain to replace Iran’s leading position in the Arab world. As a result of the conflict, where chemical and biological weapons were used, died and were wounded hundreds thousands of people (vide: ROBINSON; GOLDBLAT 2008)
The next aggressive step of Hussein’s government was the invasion of Kuwait in August 1990 behind an accusation that the state is stealing oil from Rumailah Fields and establishes military bases within the Iraqi territory. An immediate reaction on the attack resulted in international demanding of withdrawal of the Iraqi army from Kuwait by issuing several resolutions against Iraq. When Saddam Hussein refused to fulfill their obligations the United Nations Security Council put economic sanctions on Iraq (THE SC RESOLUTION 661). In September 1990 the Security Council authorized United Nations Member States cooperating with Kuwait government “to use necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions” in order to restore peace (THE SC RESOLUTION 678). Hussein refused to accomplish also this obligation and only the military operation “Dessert Storm” brought the war between Iraq and Kuwait to the end (historyguy.com). According to the Resolution 687 Iraq “shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision of its all weapons of mass destruction and all ballistic missiles with a range greater than 150 kilometers” (THE SC RESOLUTION 687). According to the same resolution, an UNSCOM commission has been formed in order to watch fulfilling of UN obligations. Iraq initially accepted them but in next seven years the agreement was systematically violated. In December 1998 Iraqi government removed the UNSCOM inspectors from its territory claiming they were spying for the CIA (vide. THE GUARDIAN 7.1.1999). In 1999 the UNSCOM has been replaced by UNMOVIC in order to verify Iraq’s compliance with the again violated obligations. As consequence, the USA and Great Britain launched series of crucial economic sanctions and a bombardment campaign of Iraq aiming, firstly, discontinuing of Iraqi production, maintenance and storing of weapons of mass destruction and, secondly, protection of minorities rights in the country (unmovic.org).
The United States have been engaged in the particular Iraq-Kuwait conflict and play an important role in it from the very beginning. In October 1998 US President Bill Clinton signed the “Iraqi Liberation Act” mentioning so called “regime change” in Iraq by organization und financial support of a democratic opposition in the country. Despite of this fact, the UN Security Council has not mentioned called “regime changes” in the Resolution 687 at all. Nevertheless in 2000 the newly elected President George W. Bush expressed his support to the idea of Iraqi transition to democracy and until the 9/11 attacks there had not been formulated any official suspicious regarding a possible link between Iraq and Al-Qaeda.
Tensions between the Iraqi and American governments increased dramatically after the 9/11 events. The White House suspected that Iraq’s weapons of mass destruction could be passed on terrorists. On September 13th, day after the attacks, the US government put Iraq on a list of seven countries potentially sponsoring international terrorism (usiraqprocon.org) and announce accusation act to the world public (cbsnews.org). On September 20th George W. Bush announced the “War on Terrorism”. The Bush’s idea of an immediate invasion has been criticized by the U.S. key NATO allies: France and Germany. The UN Security Council, after a complex debate, adopted in November 2002 a compromising Resolution 1441 authorizing the re-initiation of weapons’ inspections with all their consequences for Iraq and gave to Saddam Hussein a final opportunity to comply it.
Bush was seeking an authorization for the aggression planned also on domestic stage. In October US Congress presented the “Joint resolution to Authorize the Use of United States Armed Forces Against Iraq”. Nevertheless the American opinion was clearly against military invasion. The Congress resolution gave to George W. Bush legitimacy to use “all means necessary” against Iraq (whitehouse.gov), however it is necessary to remember that it was a domestic law.
In order to obtain an UN authorization for the aggression, on 5th February 2003 Collin Powell presented some proofs that Iraq still produces and holds weapons of mass destruction and also an evidence that there is a link with terrorist organization. An international opinion was divided: the USA, the Great Britain and Spain were for Powell’s initiative proposing an adequate resolution and Canada, France and Germany against it. As consequence the resolution has been rejected and the United States together with England, Australia, Poland and Denmark decided to pursue the aggression without an UN authorization (historyguy.com). On 20th March 2003 the United States and its allies launched military intervention. As result Hussein’s government has collapsed and 1st May 2003 George W. Bush declared a victory in the war in order to “disarm Iraq of weapons of mass destruction, to end Saddam Hussein’s support for terrorism and to free the Iraqi people” (boakes.org). The allies have begun a rebuilding of Iraq and an establishment of a new democratic government and a temporary administration. After five years of these events one can argue whether the allies were successful or rather not in their aims. Internal disorder led to an asymmetric conflict with the Iraqi rebellion, whereas civil war occurred between the Sunnis and Shiites. As a result of the impossibility to restore order, a growing number of coalition nations decided to withdraw troops from Iraq.
2. Application of the Republic of Iraq
According to the Article 36 §2 of the Statute of International Court of Justice the USA and Iraq have not signed the declaration in order to accept all cases in front of ICJ (icj-cij.org). For the interest of the ICJ decision one should assume that the parties consent to have the case ruled by the International Court of Justice.
Under Article 31 §2 and §3, of the Statute of the Court, a State party to a case before the International Court of Justice which does not have a judge of its nationality on the Bench may choose a person to sit as judge ad hoc in that specific case under the conditions laid down in Articles 35 to 37 of the Rules of Court. For the interest of the Iraqi party a French ad hoc judge François Luchaire will be announced and in this way the judgment will be adopted by 16 judges.
Ministry of Foreign Affairs
28th June 2008
APPLICATION OF THE REPUBLIC OF IRAQ
To Her Excellency, the President, to the Judges of the International Court of Justice, the undersigned being duly authorized by the Republic of Iraq and being the Ambassador of the republic of Iraq accredited at The Hague:
I have honor to refer to the Declarations made by the Republic of Iraq and by the United States of America accepting jurisdiction of the Court as provided for in the Article 36 of the Statute of the International Court of Justice and, under jurisdiction thereby conferred upon the Court submit, to accordance of Article 40 of the Statute and Article 38 of the Rules of Court, an Application instituting proceedings in the name of the Republic of Iraq against the United States of America in the following case.
1. The United States of America started the invasion on 20th of March 2003 together with coalition forces in number ca. 300 000 soldiers (nationalpriorities.org).
2. As a civil consequence can be assumed that more than 150 000 civilian and around 6000 soldiers have been killed. Ca. 1,9 million people have been internally displaced and more than 2 million refugees escaped. A number of breaches of international law have already been reported, including the failure to prevent looting and allowing breakdown of law and order, failure to provide humanitarian assistance and shooting civilians during protests
3. The destruction of Iraq’s economy and infrastructure caused an unemployment of 60%. 30% of the population lives in poverty. Drinking water, food, electricity and medical supplies are understaffed (globalpolicy.org).
4. Iraq’s cultural heritage has been entirely destroyed, including the National Library, the National Museum and the site of ancient Babylon (globalpolicy.org).
Iraq claims that the United States of America has broken its obligations expressed in the Charter of the United Nations and other treaties as well as violated fundamental rules of general and customary international law causing facts stated above. By public acceptance of its responsibility for the invasion, the United States of America is claimed to be bounded to bring these activities immediately to the end, to pay suitable compensation for the damage and prejudice suffered, and to apologize officially the Iraqi nation and its authorities.
3. Arguments of the Iraqi government
3.1. Crimes against peace and security
The republic of Iraq claims that the United States using military forces without specific authorization of the Security Council committed crimes against peace and security. It is violation of international law because the attack started a war against Iraq’s independence, sovereignty and integrity (globelaw.com). According to the Charter of the International Military Tribunal crimes against peace and security are those including “planning, preparation, initiation or waging of a war aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing” (THE CHARTER OF INTERNATIONAL MILITARY TRIBUNAL; ART. 6A).
The Charter of The United Nations also acknowledges called acts as crimes against peace and security. According to the Article 1 of the UN Charter “all Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” (THE CHARTER OF THE UN CHAPTER I ART. 1). American administration has not developed any friendly relations with Iraqi government in order to prevent threats of universal peace. Furthermore, according to the Article 33 of the same Charter, the parties of the conflict should seek solutions by “negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement (…) or other peaceful means” (ibid. ART. 33). In this meaning the US military attack against Iraq can be understood as violation of these rules because any other solution have been sought.
 Namely the League of Arab States, the United Nation Security Council
 Namely UN Security Resolutions: 660, 661, 662, 665, 678, 686
 A six weeks aerial bombardment of Iraq composed of US, British, French and Saudi Arabian armies
 United Nations Special Commission
 The United Nations Monitoring, Verification and Inspection Commission
 Operation Desert Fox
 Russia and France made a clear statement that those consequences do not include the use of force in order to overthrow the Iraqi government. US Ambassador J. Negroponte and British Ambassador J. Greenstock publicly confirmed this interpretation and Hussein accepted the resolution on 13th November 2002.