No Solvency – Revoking Consent
) Iraq proves that consent is not necessary for military presence.
“Transformative Military Occupation,” 100 A.J.I.L. 580,
There was a precedent, of sorts, in Iraq: the "safe haven" established in northern Iraq in 1991.
The U.S.-led military intervention that began
on April 17,
resulting in the
establishment of the zone,
enjoyed neither the specific authorization of the UN Security
Council, nor, initially, the consent of the Iraqi government, whose forces had only a few
months before been repulsed from Kuwait.
After the initial phase, northern Iraq was
protected from Iraqi government incursions almost entirely through the establishment of a
U.S.-initiated air exclusion zone.
The history of this protected zone illustrates certain
transformative possibilities of foreign military involvement.
However, the zone never
assumed the character of anything approaching a full occupation regime. Initiated to enable
large numbers of refugees from the region to return home, it resulted in the application of
enough coalition military pressure to keep Hussein's
forces out of northern Iraq,
enabling the Iraqi Kurds to develop their own administrative structures in the region. Here,
indeed, was a transformation facilitated by a foreign military role: but that role took the form
of a short-term military presence on the ground, followed by a more remote one in the air that
could not be viewed as an occupation.
Transformation as one basis of the decision to use
force in Iraq.
The military operations launched in Iraq
on March 19-20, 2003,
numerous issues relating to the jus ad bellum. These are not reviewed here, partly
because of the familiar principle that the laws of war apply irrespective of the legality or
otherwise of the original resort to force.
However, one question must be briefly addressed:
is transformation a legitimate reason for resorting to force? This question is distinct from
whether transformation is a legitimate goal once force has (for whatever reason) been used.
The case of
Iraq confirms that a complex mixture of political motives may underlie
intervention, and a no less complicated mixture of legal and other justifications.
U.S.-led invasion followed a prolonged and confused legal-cum-political debate, in which the
stated purposes of intervention varied not just over time, but also within and between different
U.S. agencies and participating states.