No legal grounds

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Not only do the Americans need to find a quick exit out of Iraq; their legal grounds for staying are getting flimsier by the day.

In October 2002, a year and a month after the 9/11 attacks, US Congress issued a joint resolution "authorising" the use of force in Iraq. This resolution, due to expire in early 2009, was passed on two conditions. One was that the US president would use it to defend US security against "the continuing threat posed by Iraq". This threat, whether real or imagined, ended with the destruction of Saddam Hussein's regime. Under current circumstances, the US cannot claim that Iraq poses any perceivable danger to its security.

The other condition was that the US president would use force to "enforce all relevant United Nations Security Council resolutions regarding Iraq". Under US law, this provision gave Washington the "right" to serve as the head of the multinational force in Iraq. But since the US president announced the end of major military operations on 1 May 2003, and since the UN Security Council issued Resolution 1483 in that same month, Iraq has legally come under the provisions of international humanitarian law, especially the Geneva Conventions of 1949 and their Additional Protocols of 1977.

UN Security Council Resolution 1546 of 8 June 2004, supposedly authorising US troop presence in Iraq, has been extended by successive Iraqi governments under conditions of effective occupation. In other words, the occupation has authorised itself through its locally installed client. Where law purports to reflect "legitimacy", US troop deployments, let alone continued US military operations, now lack any legal grounds. And with US public opinion now so opposed to the war, having discovered that Iraq was invaded under false pretences, the US administration is scrambling desperately to construct a veneer of legality for its continued military presence in Iraq.

The US says it will not seek a replacement of UN Security Council Resolution 1546. Instead, it will seek a bilateral agreement with the Iraqi government. But the proposed agreement, which has the support of Baghdad officials, cannot fill the existing legal void -- not unless the US administration submits it to Congress for approval; something it doesn't intend to do. Yet the US constitution assigns the power to "declare war" to Congress. The US president cannot substitute the consent of the Iraqi government for the consent of the US Congress, however favourable the terms -- especially economically -- of a treaty with Iraq may be to Washington.

Oddly enough, many US politicians don't seem to appreciate the full implications of the legal void that will emerge once UN Security Council resolutions passed -- and not without pressure -- under Chapter VII expire. A new treaty with Iraq cannot fill that void, something that some politicians choose to overlook for the moment.

The legal dilemma may seem procedural, but it is not going to be resolved easily. Some think that US law can be twisted to accommodate the wishes of the administration, the oil monopolies, and the military- industrial complex. But it may not be easy to hoodwink the US public twice -- not after the pack of lies that the administration invented to justify the invasion of Iraq. Presidential candidates are busy debating whether the US should be in Iraq for the next two years or the next 100 years, but few seem to address the crucial question of the "legality" of US presence in Iraq.

David Satterfield, the administration's coordinator for Iraq, claimed that the 2002 congressional resolution authorised the continuing use of force against Al-Qaeda in Iraq. But Al-Qaeda only came to Iraq as a result of US intervention, and Congress endorsed the use of force to defend the US against alleged threats from Iraq, not from Al-Qaeda. So this argument, too, is unlikely to hold.

Some have suggested that Congress's "war on terror" decision provided legal grounds for continuing the war, especially in the wake of UN Security Council resolutions 1368, 1373 and 1390, passed after 9/ 11. If that were true, President Bush could have invaded Iraq unilaterally in 2002 without any further authorisation from Congress. But as is the consensus among international jurists, UN Resolution 1441 of 2002 stopped short of giving the US and other "coalition" countries a mandate to invade Iraq.

The US administration has suggested that Congress implicitly sanctioned the war by continuing to appropriate funds for it. But approving funds is not sufficient to authorise military action. If it were, the president could start any war that he pleased and then ask Congress to finance it. Unless the US administration finds a quick way out of Iraq the current legal dilemma will worsen, as will the humanitarian crisis caused by the US occupation.