European University Viadrina Frankfurt (Oder)
Seminar: International Judicial System
3rd Semester, Academic Year: SS 2005

Iraq against the United States of America: a proposal of a
judgment of the International Court of Justice
(events of 2003)

by: Andreas Lorek

TABLE OF CONTENTS

1. BACKGROUND 3

1.1. INTERNATIONAL COURT OF JUSTICE 3
1.2. BACKGROUND OF THE PRESENT CASE  4
1.3. THE CASE OF IRAQ 4

2. ARGUMENTS OF BOTH PARTIES  6

2.1. THE ACCUSATION: IRAQ 6
2.2. THE DEFENSE: UNITED STATES OF AMERICA  8
2.3. IRAQ’S RESPONSE  13
2.4. AMERICA’S FINAL DEFENCE 15

3. THE (PROPOSAL OF A) JUDGMENT OF THE ICJ  16

LITERATURE AND SOURCES 18

PRESS AND MEDIA 19

LEGAL DOCUMENTS  19
 

1. Background

1.1. International Court of Justice

“The International Court of Justice established by the Charter of the United Nations [is] the principal judicial organ of the Unirted Nations” is laid down in article 1 of the Statute of the International Court of Justice (ICJ). The ICJ consists of 15 international judges of high moral character who are elected by the General Assembly (GA) and the Security Council of the United Nations (UNSC). It is not permitted to have two judges of the same nationality in the Court. Judges are elected for nine years, re-election for another period is possible. Every three years elections will be held in which five judges are chosen. If the bench of judges does not include one with the nationality of a state of the dispute, this state can appoint a person to sit ad hoc for this case.

The seat of the ICJ is at the Peace Palace in The Hague, Netherlands, nevertheless it is possible to exercise its functions elsewhere. The ICJ has two main functions: it has to settle legal disputes submitted to the Court in accordance with international law and secondly it has to give advisory opinions on legal questions (ICJ 2005a). Only states can be parties in front of the ICJ. It is open to all states that have ratified the Statute, conditions for other states can be made by the UNSC. Article 36 of the Statute of the ICJ makes clear that “the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations”. All Members of the UN are as well parties to the ICJ, as laid down in Article 93 of the Charter of the United Nations (UN). A dispute could be brought to the attention of the ICJ by any member of the UN (Charter of the UN: Article 35.1) or a party to the dispute (Charter of the UN: Article 35.2). The UNSC is like the ICJ a principal body of the UN. These two bodies often have to act in correlation, a complete separation of powers does not exist. Their functions are complementary (cp. Skubiszewski 1996). States have the opportunity to accept the jurisdiction of the ICJ generally in respect of all occurring disputes or only particular ones. A general acceptance of the ICJ needs a declaration from a state which is party to the present Statute (Statute of the ICJ: Article 36.2).

1.2. Background of the present case

In respect to Article 36.2 of the Statute of the ICJ the United States of America (USA) have not signed the declaration to accept all cases in front of the ICJ. For this reason it is difficult to bring them in front of the ICJ if the do not want. Iraq is like the USA an Original Member of the UN. Both states have not signed the declaration recognizing the jurisdiction of the Court as compulsory (ICJ 2005b). Anyhow it would be unlikely, that Iraq would bring the case in front of the ICJ, knowing of the breaches of UN law in the past. For this paper we assume that both parties agreed to bring the case to the ICJ. The present composition of the Court is as follows: President Shi Jiuyong (China); Vice- President Raymond Ranjeva (Madagascar); Judges Abdul G. Koroma (Sierra Leone); Vladlen S. Vereshchetin (Russian Federation); Rosalyn Higgins (United Kingdom); Gonzalo Parra- Aranguren (Venezuela); Pieter H. Kooijmans (Netherlands); Francisco Rezek (Brazil); Awn Shawkat Al-Khasawneh (Jordan); Thomas Buergenthal (United States of America); Nabil Elaraby (Egypt); Hisashi Owada (Japan); Bruno Simma (Germany); Peter Tomka (Slovakia) and Ronny Abraham (France) (ICJ 2005a). As we can see, there is currently no judge from Iraq sitting in the Court, but a judge from the USA and as well one of its strongest allies United Kingdom (UK). For this reasons all parties agreed to have an ad hoc judge from Iraq.

1.3. The case of Iraq

In July 1979 Saddam Hussein became President and Chairman of the Revolutionery Command Council, which means that de facto he was at this time already ruler of Iraq before he formally came to power. Territorial disputes led to the Iran-Iraq War from 1980-1988. During this time ongoing rebellions from Kurdish elements in the north of the country lasted. The government of Iraq used weapons against civilians, for example in March 1988 where in a gas attack on the city of Halabja several thousand people were killed (Wikipedia 2005a). In August 1990 Iraq invaded Kuwait because of a territorial dispute. The Iraqi invasion was immediately condemned by the Arab League and the UNSC. The latter imposed a few days later an economic embargo on Iraq. Resolution 678 was adopted in November 1990. It called for the fully completion of resolution 660 and the complete withdrawal of the Iraqi forces before 15th January 1991. Otherwise “all necessary means” would take place, which is the diplomatic code for military actions.

However, Saddam Hussein did not comply with this demand, which led to the begin of the first Gulf War (Operation “Desert Storm”) on 17th January 1991 with allied troops of 28 countries led by the US. After six weeks ceasefire was announced on 28th February 1991 by the US. Iraq agreed in April 1991 on a permanent ceasefire and complete withdrawal of Kuwait. The UNSC agreed on resolution 687 after the war on 3rd April 1991. Iraq was demanded to destroy all Weapons of Mass Destruction (WMD) and ballistic missiles with a range greater than 150 kilometers. The United Nations Special Commission (UNSCOM) was established by this resolution. UNSCOM should inspect Iraq’s nuclear capabilities and make sure that Iraq fulfils all requirements of the resolution.

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