Legality of a Request by the Interim Iraqi Government for the Continued Presence of United States Military Forces

Christopher J. Le Mon
June 04, 2004
            According to United Nations Security Council Resolution 1511, the Coalition Provisional Authority (CPA), the recognized occupying power in Iraq, [1] will dissolve on June 30, and an interim Iraqi government will begin to exercise Iraqi sovereignty. [2]   The United States, however, has repeatedly stated that its troops will remain in Iraq after the handover, pursuant to an expected request by the Iraqi government.  Given the questions surrounding the legitimacy of any Iraqi government, what would be the legal status of such a request?
            Intervention by invitation [3] essentially involves the consent by an inviting state to justify action that would, absent such consent, violate the U.N. Charter's prohibition on the use of force. [4]   Only where the inviting government is recognized as embodying the sovereign rights of the state will an invitation therefrom provide a legal basis, in and of itself, for military action according to the terms of the invitation. 
            On June 30, the sovereignty exercised by the interim Iraqi government will not be complete in the Westphalian sense, [5] since the government will not, at the time of its creation, effectively control the territory of Iraq.  In the era prior to the adoption of the U.N. Charter, the degree of territorial control would have determined the legality of any invitation issuing from a government.  This determination, made by what were called the "standards of belligerency," was a corollary to the "effective control test," by which governmental recognition depends on territorial control.  By operation of these standards, a government that controlled the vast majority of its territory, though fighting a rebellion, could legally invite outside intervention, while one that faced an established insurrection could not.  Instead, a "revolutionary government which [wielded] effective power, with a reasonable prospect of permanency, over the whole-or practically the whole-territory of the State [was] entitled to recognition." [6]
            Since the adoption of the Charter, however, in situations involving civil wars-where governmental legitimacy is most challenged-the government representing the state at the United Nations has been deemed to possess sufficient external legitimacy to legally invite foreign military intervention.  This construction may be inferred from the judgment of the International Court of Justice in its well-known Military and Paramilitary Activities case, where the Court distinguished between permissible intervention at the request of the U.N.-recognized government and impermissible intervention at the request of the opposition in a situation of struggle for control of the country. [7]   Perhaps recognizing this, Security Council Resolution 1511 referred to the exercise of Iraq's sovereignty, determining that the Iraqi Governing Council "embodies the sovereignty of the State of Iraq during the transitional period until an internationally recognized, representative government is established and assumes the responsibilities of the [Coalition Provisional] Authority."  Now that the Iraqi Governing Council has itself dissolved, there is a gap in bodies capable of exercising Iraqi sovereignty.
            The Security Council is currently considering a new resolution on the authority of the interim Iraqi government that will begin to function on June 30.  If the resolution explicitly decides that the interim Iraqi government exercises the sovereignty of the state of Iraq, it would authoritatively impart external legitimacy upon that government. [8]   Under Article 25 of the Charter, members of the U.N. are required to accept and implement all decisions (as distinguished from recommendations) of the Security Council; accordingly, a state refusing to recognize the Iraqi government would be in violation of its Charter obligations.  Since the interim Iraqi government would be recognized as a matter of law, the legality of its invitation to the United States would be established as well.  Additionally, should such government request the departure of foreign troops, noncompliance by the United States would (unless authorized by the Security Council) constitute an illegal use of force, since it would contravene the request of the recognized government of Iraq. [9]
            If the Security Council, acting under Chapter VII of the Charter, authorizes the continued presence of foreign forces in Iraq, an objection by the interim Iraqi government to their continued presence would be insufficient to defeat the legality of such authorization.  Indeed, measures involving the use of force, which the Council can authorize under Chapter VII, are needed precisely in those instances where a government refuses to voluntarily abide by decisions of the Security Council.  It remains to be seen whether Chapter VII  will be the preferred means of legal authorization for the continued military presence of the United States and its allies after June 30.  It would not provide as sharp a contrast with the military occupation before June 30 as would an invitation by the interim Iraqi government.  A Chapter VII operation, however, could immunize U.S. and other foreign personnel from the jurisdiction of the International Criminal Court, if the Security Council renews its annual requests that the ICC refrain from investigating or prosecuting individuals for acts or omissions relating to an operation established or authorized by the United Nations. [10]
About the Author:
Christopher J. Le Mon will be joining the law firm of Shearman & Sterling LLP this autumn.  Most recently, he served as law clerk to Judges Thomas Buergenthal & Vladlen S. Vereshchetin, International Court of Justice, from 2003-04.
[1] See S.C. Res. 1483, pmbl. ¶ 13, U.N. Doc. S/RES/1483 (2003).
[2] See S.C. Res. 1511, ¶ 4, U.N. Doc. S/RES/1511 (2003).
[3] I have explored the question of unilateral intervention by invitation in civil wars at length elsewhere.  See Christopher J. Le Mon, Unilateral Intervention by Invitation in Civil Wars:  The Effective Control Test Tested, 35 N.Y.U.J. Int'l L. & Pol. 741 (2003).  As civil wars share an important characteristic with the situation in Iraq following the occupation by the United States and its allies-namely, contested sovereignty-an examination of the law surrounding the former proves useful for analyzing the latter.
[4] See U.N. Charter at art. 2(4) ("All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations").   
[5] See Stephen D. Krasner, Problematic Sovereignty, in Problematic Sovereignty:  Contested Rules and Political Possibilities 1, 11 (Stephen D. Krasner ed., 2000) (distinguishing various types of sovereignty).
[6] See Sir Hersch Lauterpacht, Recognition in International Law 98 (1947).
[7] See Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, at ¶ 246 (Jun. 27) ("it is difficult to see what would remain of the principle of non-intervention if in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition").
[8] The International Court of Justice has stated that the binding nature of Security Council resolutions attaches not simply to those passed under Chapter VII of the Charter, but to all resolutions which the Council intended to have binding effect.  See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, Advisory Opinion, 1971 I.C.J. 16, 52-53 (Jun. 21).
[9] This was explicitly stated in the General Assembly's definition of aggression, which, in interpreting the Charter's prohibition on the use of force, considered as constituting aggression "[t]he use of armed forces.which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement."  G.A. Res. 3314(XXIX), art. 3(e), U.N. Doc. A/9631 (1974).
[10]   See, e.g., S.C. Res. 1487, U.N. Doc. S/RES/1487 (2003).  See also  Rome Statute of the International Criminal Court, art. 16; Mayur Patel, ASIL Insight: The Legal Status of Coalition Forces in Iraq After the June 30 Handover (March 2004).
            On June 28, 2004, the United States announced that it had formally transferred sovereignty over Iraq to the Interim Iraqi Government.  This followed the Security Council's unanimous passage, on June 8, of Resolution 1546, which noted that after the assumption of power by the Interim Iraqi Government , "Iraq will reassert its full sovereignty."
            Resolution 1546, adopted under Chapter VII of the Charter, reaffirmed the authorization of the U.S.-led multinational force in Iraq (the force was originally authorized in Security Council Resolution 1511).  In doing so, the Council expressly noted that "the presence of the multinational force in Iraq is at the request of the incoming Interim Government of Iraq."  But this request does not seem to be the legal basis for the continued presence of U.S.-led forces in Iraq.  As noted in the main body of this Insight, an invitation for intervention, if issued by a government recognized as embodying the sovereignty of that state, can provide a sufficient legal basis for military intervention pursuant to that invitation.  But the Interim Government, at the time its request was made, had not yet taken office and, by the terms of Resolution 1546 itself, thus did not yet embody Iraqi sovereignty.  Its request, therefore, fell below the traditional threshold required for an invited intervention to be legally well-founded.  Indeed, had the Iraqi request alone constituted a sufficient legal basis for the continued presence of the U.S.-led multinational force in Iraq, there would seemingly have been no need for the Security Council to reaffirm its Chapter VII authorization of that force. 
            The complexity of the legal situation is apparent in paragraph 12 of the resolution, which states that the mandate of the multinational force in Iraq will expire at the end of the Iraqi political transition, currently envisaged to occur at the end of 2005.  However, the Security Council also "declares that it will terminate this mandate earlier if requested by the Government of Iraq."  Should the Iraqi government make such a request, and given the Chapter VII authorization of the multinational force, the Council would likely have to adopt another resolution in order to terminate the force's mandate.  Such a resolution would be subject to the veto by any of the five permanent members of the Security Council, including the United States. [1a]  In such a situation, the Iraqi request would be withdrawn, but the Chapter VII authorization would remain (despite the Council's declared intent to terminate it at the request of the Iraqi government).  Should such a chain of events come to pass, the legal status of the multinational force in Iraq would be quite murky indeed. 
[1a] It is arguable that a permanent member choosing to veto such a resolution would be in violation of its obligations under Article 25 of the Charter, since in Resolution 1546 the Security Council specifically declared that it would terminate the mandate if so requested by the Iraqi government and, because the resolution was adopted under Chapter VII, its terms are binding upon all U.N. Member States.  On this question, statements by members of the Council following the passage of Resolution 1546 offer little insight.  The representative of the United States stated that the "Government of Iraq will have the final say on the presence of multinational forces," while the French representative similarly asserted that "the sovereign [Iraqi] Government may at any time ask that the mandate of the international force be revised or that it end, and such a request will be binding on the Security Council."  U.N. SCOR, 59th Sess., 4987th mtg. at 2, 7, U.N. Doc. S/PV.4987 (2004).  While these declarations reinforce the notion that the Council would have no discretion in the event of an Iraqi request for termination of the mandate, they do not speak to the thornier practical question of the consequences of a veto of a future resolution attempting such termination.