1 Lowe, V ‘The Iraq Crisis: What Now?’ (2003) 52 ICLQ 859–71.CrossRefGoogle Scholar

2 The name of the operation is also used by Taft, WH IV and Buchwald, TF ‘Preemption, Iraq, and International Law’ (2003) 97 AJIL 557–63 at n 10.Google Scholar

3 I will not in this article discuss the issue of pre-emptive self-defence other than assert that most experts have adopted a restrictive attitude in this matter. See Bothe, M ‘Terrorism and the Legality of Pre-emptive Force’ (2003) 14 EJ1L 227–40, with further references in n 2;Google Scholar and Randelzhofer, A ‘Article 51’ in Simma, B (ed) The Charter of the United Nations—A Commentary (2nd ednOUP Oxford 2002) vol 1,788–806.Google Scholar Bothe concludes that an ‘overwhelming majority of legal doctrine’ holds ‘anticipatory self-defence’ to be unlawful. See further the views of several experts interviewed in the summer of 2002 in an expert analysis of the Crimes of War Project, including Thomas Franck, Michael Byers, and Martti Koskenniemi (<http://www.crimesofwar.org> as of 12 Feb 2003). Views opposite to the one represented here by Bothe and Randelzhofer have been expressed mainly by American scholars, such as Wedgwood, R ‘Unilateral Action in the UN System’ 11 EJ1L (2000) 349–59Google Scholarand Yoo, N ‘International Law and the War in Iraq’ (2003) 97 AJIL 563–76. It may be noted that a day before the start of military operations, Anne-Marie Slaughter published an article arguing that the legality deficit of the war could be mended through a legitimacy acquired ex post facto. According to Slaughter, the UN ‘cannot be a straitjacket, preventing nations from defending themselves or pursuing what they perceive to be their vital national security interests’.CrossRefGoogle ScholarSee ‘Good reasons for going around the U.N.’ New York Times, 18 05 2003.Google Scholar

4 SC/7658, Press Release, 5 Feb 2003.Google Scholar

5 SDMurphy (ed) ‘Contemporary Practice of the United States Relating to International Law’ (2003) 97 AJIL 424.Google Scholar

6 Authorization for Use of Military Force Against Iraq, Joint Resolution, Pub L No 107–243, 116 Stat 1498 (2002).Google Scholar

7 Schmitt, MN ‘Preemptive Strategies in International Law’ (2003) 24 Michigan JIL 513–8.Google Scholar

8 National Security Strategy, Sept 2002, available at <http://www.whitehouse.gov/nsc/nss.pdf>. In its turn the National Security Strategy is a continuation of the arguments of threat and self-defence found in the Nuclear Posture Review, presented to the US Congress by Secretary of Defence Donald Rumsfeld in December 2001..+In+its+turn+the+National+Security+Strategy+is+a+continuation+of+the+arguments+of+threat+and+self-defence+found+in+the+Nuclear+Posture+Review,+presented+to+the+US+Congress+by+Secretary+of+Defence+Donald+Rumsfeld+in+December+2001.>Google Scholar

9 Walzer, MJust and Unjust Wars (3rd ednBasic Books New York 2000) ch 5 entitled ‘Anticipations’2.Google Scholar

10 The full text of the speech can be found at <http://www.labour.org.uk/tbglasgow/> (accessed 15 Feb 2003).+(accessed+15+Feb+2003).>Google Scholar

11 The full text of the speech can be found at <http://www.fco.gov.uk> (accessed 11 Feb 2003). The September 2002 dossier entitled ‘Iraq's Weapons of Mass Destruction. The British Government's Assessment’ (and many other relevant documents) can be found at <http://www.guardian.co.uk/Iraq/documents/> and at <http://www.fco.gov.uk/Files/kfile/iraqdossier.pdf>.+(accessed+11+Feb+2003).+The+September+2002+dossier+entitled+‘Iraq's+Weapons+of+Mass+Destruction.+The+British+Government's+Assessment’+(and+many+other+relevant+documents)+can+be+found+at++and+at+.>Google Scholar

12 The report can be found at <http://www.fco.gov.uk/Files/kfile/hrdossier.pdf>..>Google Scholar

13 Gray, C ‘From Unity to Polarisation: International Law and the Use of Force against Iraq’ (2002) 13 EJ1L 1–20.Google Scholar

14 Bentley, T ‘Portrait de Anthony, M Blair en pragmatique‘ Le Monde diplomatique, Février 2003, 16–17 (English translation is from <http://mondediplo.com/2003/02/04blair>).).>Google Scholar

15 One should, however, note that the Bush doctrine of pre-emptive self-defence was preceded by the ‘Albright doctrine’ of humanitarian military intervention. This pendulum in time and place between pre-emptive self-defence and humanitarian intervention, a move intensified after the end of the Cold War, can be seen as a confirmation of Walzer's theory of ‘Just and Unjust Wars’ (n 9).Google Scholar

16 The debates can be found in Security Council Documents, S/PV.4709 and S/PV.4709 (Resumption 1) 18–19 Feb 2003.Google Scholar

17 See Transcript from a discussion entitled ‘Self-defence or aggression’ 2 Dec 2002, including Australian Prime Minister John Howard, of ABCs 7.30 Report, available at <http://www.abc.net.au/7.30> (accessed 12 Feb 2003).+(accessed+12+Feb+2003).>Google Scholar

18 As an example of such ambivalent statements, FYROM concluded its intervention by the following phrase: ‘In that context [ie if Saddam Hussein does not fully cooperate], my country will support action by the international community against this common danger.’ This leaves open whether a UN involvement and SC resolution are at all necessary.Google Scholar

19 The proposals concerning a strengthening of the weapons inspections regime counter the critique that there was no alternative course of action to the US/UK war proposal. See Lowe (n 1) 866.Google Scholar

20 S/PV.4709 at 18 (18 Feb 2003).Google Scholar

21 See, however, Koskenniemi, who concluded that he cannot ‘conceive of an actual situation where the Council's action would extinguish the attacked nation's right of self-defence’, in Crimes of War Project (n 3). Koskenniemi's argument retains in any case the armed attack requirement, leading to his final rejection of the self-defence argument with regard to Iraq.Google Scholar

22 S/PV.4709 (Resumption 1, 19 Feb 2003) at 9.Google Scholar

23 S/PV.4709 at 30–1.Google Scholar

24 S/PV.4717 and Resumption 1, 11–12 Mar 2003. See also Press Releases SC/7685 and SC/7687. See also the same arguments after the war started (and the formal justification had been presented) in SC discussions on 26 Mar 2003, S/PV.4726 (and Resumption 1). The main shift here is towards a strong place for humanitarian concerns.Google Scholar

25 See statement of Jack Straw in the House of Commons, Hansard Debates of 17 Mar 2003, column 704 (available at <http:/www.publications.parliament.uk>, accessed 26 Feb 2004). Copies of the two documents are on file with the author.,+accessed+26+Feb+2004).+Copies+of+the+two+documents+are+on+file+with+the+author.>Google Scholar

26 S/2003/351 (21 Mar 2003).Google Scholar

27 The Foreign Office briefing paper will be discussed further below.Google Scholar

28 See several contributions in ‘Agora: Future Implications of the Iraq Conflict’ (2003) 97 AJIL 553–642.Google Scholar

29 Franck, TM ‘What Happens Now? The United Nations After Iraq’ (2003) 97 AJIL 607–20 at 616.CrossRefGoogle Scholar

30 ibid.

31 Gray (n 13); Lobel, J and Ratner, M ‘Bypassing the Security Council: Ambiguous Authorisation to Use Force, Ceasefires and the Iraqi Inspection Regime’ (1999) 93 AJIL 124–54.CrossRefGoogle Scholar

32 Lobel and Ratner (n 31) 144.Google Scholar

33 See (n 11).Google Scholar

34 Taft and Buchwald (n 2) 560.Google Scholar

35 Gray (n 13) including references in n 53.Google Scholar

36 For one of the most detailed discussions on the notion of ‘material breach’ and the power to determine when it occurs see Wrange, P ‘The American and British bombings of Iraq in international law’ (2000) 39 Scandinavian Studies in Law 491–514.Google Scholar

37 Taft and Buchwald as well as Yoo have briefly referred to the 1993 and 1998 incidents, but with no further discussion of the actions of 1996 or 2001.Google Scholar

38 ‘Bush has decided on military strike against Iraq: U.S. official’ Agence France Press 13 Jan 1993 (available at LexisNexis, as of 28 Jan 2004).Google Scholar

39 Yoo, J (n 3) 570 with further references.Google Scholar

40 ‘Allied aircraft attack southern Iraq’ Agence France Presse 18 Jan 1993 (available at LexisNexis, as of 28 Jan 2004). French sources were emphasizing at the time that the role had been the protection of the strike aircraft.Google Scholar

41 ‘Allies strike at Iraqi radar’ Financial Times 19 01 1993 (available at LexisNexis, as of 28 Jan 2004).Google Scholar

42 Gray (n 13).Google Scholar

43 ‘Confrontation with Iraq: UN sees Baghdad's point of view’ The Independent 20 Jan 1993; ‘France breaks ranks over missile raid on Baghdad’ and ‘Coalition wavers over US-led attacks on Iraq’ reported by The Associated Press 20 Jan 1993 (available at LexisNexis, as of 28 Jan 2004).Google Scholar

44 UN document S/1996/711 of 3 Sept 1996.Google Scholar

45 S/1996/712 and 715 of 3 and 4 Sept 1996. The Russian statement of 4 Sept (S/1996/715) refers to the extension of the no-fly zone in the south as being supported and decided by both the US and UK. There was, however, no official statement from the British government.Google Scholar

46 ‘Clinton finds Little Support at the UN for Iraqi Strikes’ New York Times 5 09 1996.Google Scholar

47 Gray (n 13).Google Scholar

48 Lobel and Ratner (n 31) 124.Google Scholar

49 UN document S/PV.3858 (1998).Google Scholar

50 S/PV.3858 (1998).Google Scholar

51 S/PV.3858 (1998). Similar comments by other members of the SC, including China, France, Russia, Sweden, Gabon.Google Scholar

52 Lobel and Ratner (n 31).Google Scholar

53 See ED Williamson ‘Comment on the Legal Background on the Use of Force to Induce Iraq to Comply with Security Council Resolutions’ ASIL Insight of Mar 1998 <http://www.asil.org/insights/insigh16.htm>. Williamson had been Legal Adviser at the time when SC Res 678 and 687 were adopted..+Williamson+had+been+Legal+Adviser+at+the+time+when+SC+Res+678+and+687+were+adopted.>Google Scholar

54 With regard to the issue of the legal basis of the 1998 strikes, Baroness Symons had referred to SC Res 687 and concluded that the conditions of the ceasefire and in particular the requirement on Iraq to eliminate WMD had been broken.Google Scholar

55 The report and the recommendation of the Secretary-General are found in document S/1998/1172(15 Dec 1998).Google Scholar

56 Letters from the US and UK missions to the United Nations addressed to the President of the Security Council, dated 16 Dec 1998, S/1998/1181 and S/1998/1182.Google Scholar

57 S/1998/1175 (16 Dec 1998).Google Scholar

58 Taft and Buchwald (n 2) 559–60.Google Scholar

59 S/PV.3955 (16 Dec 1998).Google Scholar

60 ibid.

61 SG/SM/6841 (16 Dec 1998).Google Scholar

62 SG/SM/6842 (16 Dec 1998).Google Scholar

63 ‘U.S. quietly intensifies attacks on Iraq, destroying radar sites’ New York Times 5 05 1999.Google Scholar

64 ibid.

65 Gray (n 13).Google Scholar

66 ‘U.N. fails to reach consensus on Iraq policy’ New York Times 24 12 1998.Google Scholar

67 UNMOVIC was established by SC Res 1284, 17 Dec 1999.Google Scholar

68 ‘Blair and Bush defy world fury’ The Observer 18 Feb 2001; ‘Doubts over Iraq air strikes’ The Guardian 19 Feb 2001. Statement of the American Director of Operations, Lt Gen Gregory S Newbold, available at <;http://www.defencelink.mil/news/Feb2001/t02162001_t216iraq.html> (accessed 26 Jan 2004). Newbold emphasized the fact that the strikes were within the no-fly zones, why much of the following discussion has focused on the legality of the zones themselves, see Gray (n 13).+(accessed+26+Jan+2004).+Newbold+emphasized+the+fact+that+the+strikes+were+within+the+no-fly+zones,+why+much+of+the+following+discussion+has+focused+on+the+legality+of+the+zones+themselves,+see+Gray+(n+13).>Google Scholar

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