Introduction

It is not possible to understand the threat and then the use of force against Iraq by the USA and the United Kingdom in 2003 without understanding the developments that have occurred in state practice since the Gulf Conflict of 1991. In the period after 1993, the USA and the United Kingdom, sometimes with other states, have placed incredible pressure on the legal framework governing the use of force contained in the UN Charter in a concerted effort to widen both exceptions to the ban on the threat or use of force in Article 2(4), namely the right of self-defence contained in Article 51, and military action taken under the authority of the Security Council derived from Article 42. While in 1991, Operation Desert Storm conducted by the Coalition of states against Iraq, under American command, but with UN Security Council authority, was generally viewed as lawful (by Hilaire and myself amongst many others), the military action taken against Iraq commencing on 20 March 2003 was much more controversial. After the adoption of Resolution 1441 on 8 November 2002, the USA and the United Kingdom brought the above-mentioned pressures to bear by making claims that the resolution was by itself sufficient to justify the use of force against Iraq, even though it did not contain clear authorizing language.