Was the 2003 Invasion of Iraq Legal?

Abstract

D of the jus ad bellum and the Iraq war is anything but simple and uncontroversial. There is certainly no shortage of opinions on the subject. One of the author’s favorite quotes is from General Wesley Clark, who said the 2003 invasion was legal, but illegitimate.1 You will appreciate the irony if you remember that the Independent International Commission on Kosovo established by the United Nations called General Clark’s 1999 Kosovo campaign illegal, but legitimate.2 When several leading international law professors were asked by a British newspaper, “Was the 2003 Iraq war legal?” their responses were illustrative.3 Professor Malcom Shaw replied: “[O]n the basis of the intelligence we had at the time and the publicly available knowledge, there was a credible and reasonable argument in favor of the legality of the war.” Professor Christine Chinkin answered “no” because she believed UN Security Council Resolution 1441 preserved for the Security Council the decision on enforcement action. Professor Sir Adam Roberts replied: “There was in principle a possible case for the lawfulness of resort to war by the US and its small coalition.” Professor James Crawford answered simply: “It comes down to a political judgment.” Unfortunately this author thinks Professor Crawford’s statement is quite accurate, as it reflects the truism that law and policy are mutually affecting; nowhere is