European University Viadrina

Lecture: International Judicial System

Iraq against the United States of America (events 2003-2004)

A proposal of a judgment of the International Court of Justice

Elzbieta Szumanska

Table of Contents

1. Historical and legal background ... 4

2. Application ... 7

3. Arguments of the Iraqi government

3.1. Crimes against peace and security ... 9
3.2. No proof of weapons of mass destruction in Iraq ... 9
3.3. The use of armed forces without legal authorization ... 10
3.4. Humanitarian crisis ... 11
    3.4.1. Failure to ensuring food and medical supplies ... 12
    3.4.2. Torture and prison abuses ... 12
    3.4.3. Destruction of object indispensable to the survival of the civilian population and failure to maintain order and cultural property ... 13

4. Arguments of the US American government

4.1 Protection of world’s peace ... 14
4.2 Weapon of mass destruction as a principal reasons for the US invasion ... 15
4.3. Legal authorization for military operation and the doctrine of “Preventive War” ... 16
4.4. Human rights abuses ... 18
    4.4.1 False allegations suggested by Iraq against the USA ... 18
    4.4.2 Iraqi practices of genocide, torture and prison abuses ... 19

5. Proposal of a judgment ... 21

Bibliography and Internet sources ... 23

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 international¹ demanding of withdrawal of the Iraqi army from Kuwait by issuing several resolutions² 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”³ 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 UNSCOM⁴ 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 UNMOVIC⁵ 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 Iraq⁶ 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.

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1 Namely the League of Arab States, the United Nation Security Council
2 Namely UN Security Resolutions: 660, 661, 662, 665, 678, 686
3 A six weeks aerial bombardment of Iraq composed of US, British, French and Saudi Arabian armies
4 United Nations Special Commission
5 The United Nations Monitoring, Verification and Inspection Commission
6 Operation Desert Fox