The Continued Presence of the Multinational Force on Iraqi Request

Catherine Quidenus*

I. Introduction

Shortly after the United States proclaimed the end of 'Operation Iraqi Freedom' on 1 May 2003, the Security Council' recognized the United States and the United Kingdom as occupying powers in Iraq and called upon all parties to the conflict to fully comply with their obligations under international law. From the end of the invasion phase to the formal transfer of the administrative authority from the Coalition Provisional Authority (hereafter CPA) to the Iraqi Interim Government on 28 June 2004, the Multinational Force (hereafter MNF) was indisputably bound by the laws of armed conflict. The political transformation of Iraq that followed the invasion was addressed by the Security Council in Resolution 15462 of 8 June 2004. The Security Council "endorse[d] the formation of a sovereign Interim government of Iraq [...] which w[ould] assume full responsibility and authority by 30 June 2004 for governing Iraq [...]" and "welcome[d]" the "end of the occupation" and the existence of the CPA by 30 June 2004, which would lead to Iraq's "full sovereignty"3. There are two letters annexed to this resolution, one by Ayad Allawi, then prime minister of the Interim Government of Iraq that was to take office, requesting the continued presence of the MNF, and the other by US Secretary of State, Colin Powell, reflecting an approval of the request. The resolution explicitly recognized the importance of the consent to the presence of the MNF given by the "sovereign Government of Iraq" 4.

II. Legal Questions

The request of the Iraqi Interim Government for the continued presence of the MNF and the compliance with it by the occupying powers raise legal questions which can be broken

* Department for European, International and Comparative Law, Section for International Law and International Relations, University of Vienna 1 UN Doc. S/RES/1483 (2003), 22 May 2003. 2 UN Doc. S/RES/1546 (2004), 8 June 2004. 3 Ibid., op. paras. 1 and 2. 4 UN Doc. SIRES/1546 (2004), 8 June 2004, preamb. para. 15. down in two issues. Firstly, military activity on request of the government could itself violate a norm of international law; the question arises if and under which circumstances a foreign power has the right to militarily engage in another country and a government can legally ask for such foreign military activity, respectively. Secondly, regarding the rules applicable in times of armed conflict, the ius in bello, an effectively issued request could have an impact on the qualification of the conflict and, hence, the applicability of the laws of armed conflict. Although requesting military assistance from a foreign power and responding to it is common state practice (the most recent example being the Ethiopian intervention in Somalia on behalf of the UN-backed transitional government in December 2006), it is very much disputed if and under which circumstances such a request and compliance with the request is lawful under international law. Military activity on the territory of a foreign state is often said to amount to prohibited use of force, prohibited intervention, or violate other rules of international law, such as the right to self-determination. In this context, the legality of the government and, accordingly, the effectivity of such a request are often questioned. In the case at hand, the involvement of the Security Council leads to additional legal problems. Military assistance on request of the government also poses legal questions regarding international humanitarian law, the ius in bello. This body of law is divided into two legal regimes. One is applicable to international armed conflict, i.e. between two or more states and on occupied territory, and the other is applicable to non-international armed conflict. It can be taken for granted that until 28 June 2004, when 'full sovereignty' was handed over to the Iraqi Interim Government, an international armed conflict existed, and, hence, the rules of international armed conflict were applicable and the occupying powers had to abide by the law of occupation. But it is very much disputed until what time this legal regime applied. It has to be discussed if Security Council Resolution 1546 of 8 June 2004, the request of the Interim Government for the presence of the Multinational Force of 5 June 2004, or the formal transfer of authority that took place on 28 June 2004 had any influence on the qualification of the conflict on Iraqi territory and, consequently, on the applicability of norms of ius in bello.

III. From the Invasion to the Occupation and beyond - The Facts

On 20 March 2003, a US led 'coalition of the willing' (predominately composed of the US, the UK and Australia) started military operations against Iraq, which was then governed by Saddam Hussein and his Baath party. The operation was labelled 'Operation Iraqi Freedom' by the US military and declared accomplished only a few weeks later, on 1 May 2003, by US President George W. Bush. Addressing the people of the United States, he announced the "end of major combat operations" in Iraq and by that the end of the military invasion phases.

5 See http://www.whitehouse.gov/news/releases/2003/05/2003050 1-15 .html.