US Troops Leaving Iraqi Cities

[jmm99]

Now the serious answer.

Our present legal basis for military action in Iraq is a UN resolution, summarized in the Operational Law Handbook 2007 (p.1-3):

g. UN Security Council Resolution 1511 (2003) authorized “a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq.”

That resolution (which put the US in command) has been renewed, as stated in Pres. Bush's War Powers Act Report of 13 Jun 2008:

The U.N. Security Council authorized a Multinational Force (MNF) in Iraq under unified command in U.N. Security Council Resolution 1511 of October 16, 2003, and reaffirmed its authorization in U.N. Security Council Resolution 1546 of June 8, 2004, U.N. Security Council Resolution 1637 of November 8, 2005, U.N. Security Council Resolution 1723 of November 28, 2006, and U.N. Security Council Resolution 1790 of December 18, 2007, set to expire on December 31, 2008.

http://www.fas.org/irp/congress/2008_rpt/warpowers.html

Without renewal of the UN mandate, or ratification of the SOFA, US forces would have to be confined to bases with limited rights of self-defense.

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The legal basis for OIF was different. As summarized in the Operational Law Handbook (p. 1-3):

2. OPERATION IRAQI FREEDOM.

a. In the months leading up to the U.S.-led invasion of Iraq in 2003, U.S. diplomats worked feverishly to obtain UN Security Council support for a new Resolution explicitly authorizing the use of military force. When these diplomatic efforts failed, many pundits opined that, as a result, the U.S. lacked a legitimate basis for using force against Iraq.

The Bush Administration countered that authority existed under previous Security Council resolutions. Looking back to November 1990, the Security Council had passed Resolution 678, which:

Authorize[d] Member States co-operating with the government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;

b. Significantly, UNSCR 678 authorized the use of force not only to expel Iraqi forces from Kuwait (implementing Resolution 660), but also “to restore international peace and security in the area.” In an attempt to bring this goal of peace and security in the northern Arabian Gulf region to fruition, the Security Council passed UNSCR 687, which formalized the cease-fire between coalition and Iraqi forces.

As a consequence, UNSCR 687 placed certain requirements on the government of Iraq, including:

(1) Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: all chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities related thereto; and

(2) Iraq shall unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapon-usable material or any subsystems or components or any research, development, support or manufacturing facilities related to the above.

c. The U.S. position is that UNSCR 687 never terminated the authorization to use force contained in UNSCR 678. It merely suspended it with a cease-fire, conditioned upon Iraq’s acceptance of and compliance with the terms contained in the document and discussed above. While the Government of Iraq accepted the terms, compliance was never achieved.

The Security Council recognized this situation in November 2002 with the adoption of UNSCR 1441, which provided in part that “Iraq has been and remains in material breach of its obligations under relevant resolutions, including Resolution 687 (1991)….”

It was the position of the U.S. Government that, since Iraq remained in material breach of UNSCR 687, the cease-fire contained therein was null and void, and the authorization to use “all necessary means” to return peace and stability to the region (based on UNSCR 678) remained in effect. Under this rationale, a new Security Council resolution again authorizing “all necessary means” was politically advisable, yet legally unnecessary.

However, the U.S. argument is not without its critics.

I am not one of the critics - in short, I argue that Gulf II was simply a legal continuation of Gulf I. Given the military actions and economic sanctions taken between the two "Gulfs", that was also factually true.

But, when we decided to get into "nation building" big time - new constitution, new governmental structure, etc., the justification for our initial military action went by the boards ("Old Iraq", the culprit, ceased to exist).

Hence, the need for UN Res. 1511 and its renewals, which recognize the independent state of Iraq, to justify a continued US military presence.