Legality of Iraq war: Philippe Sands
Extract from Philippe Sands' book Lawless World
By early March the only argument left, the only plausible justification, would be to run the argument that the Security Council had somehow already authorized the use of force.
It was not difficult to predict that Tony Blair would have to make this argument, which had already circulated in academic circles and had been raised in informal meetings of the Security Council. Fifteen British and other European academics — myself included — foresaw that Britain would claim that resolution 1441 (and possibly also the earlier resolutions 678 and 687 of 1990 and 1991) might somehow be claimed to authorize the use of force. This was even more likely if (as the British government feared) France or Russia were to veto a second resolution. We wrote a letter to the Prime Minister to pre-empt a claim which the overwhelming majority of our academic colleagues around the world considered to be without any merit:
“We are teachers of international law. On the basis of the information publicly available, there is no justification under international law for the use of military force against Iraq. [. . .J Neither Security Council resolution 1441 nor any prior resolution authorizes the proposed use of force in the present circumstances. Before military action can lawfully be undertaken against Iraq, the Security Council must have indicated its clearly expressed assent. It has not yet done so. A vetoed resolution could provide no such assent.”
We agreed on the law but were divided on whether an express Security Council resolution would make it a just war. To accommodate both views we added a further line: ‘A lawful war is not necessarily a just, prudent or humanitarian war.’ We also sent a copy to The Guardian newspaper, which published it the following day, on 7 March. (The New York Times declined to publish a similar letter from American academics.) It ran as a lead story on the front page and was picked up by the BBC and the wire services. For the next couple of days, radio and TV were full of interviews and news stories about the legality of any war on Iraq. The arguments for and against the legal-
ity of an Iraq war even made it onto breakfast television chat shows. The effect was catalytic, as the legality of the war became a significant political issue. During a crucial ten-day period after ~ March, the Attorney General was required to provide a clear and decisive statement on the legality of force in the absence of a further Security Council resolution.
In unprecedented circumstances, on 17 March 2003 the Attorney General was invited to respond to a parliamentary question on the legal basis for the use of force by the United Kingdom against Iraq. The written answer required just 337 words. It set out with remarkable economy the basis for his view that authority to use force against Iraq existed from the ‘combined effects’ of UN Security Council resolutions 678, 687 and 1441. The argument was beguilingly simple:
1. In Resolution 678, the Security Council authorized force against Iraq, to eject
it from Kuwait and to restore peace and security in the area.
2. In Resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under Resolution 678.
3.. A material breach of Resolution 687 revives the authority to use force under Resolution 678.
4. In Resolution 1441, the Security Council determined that Iraq has been and remains in material breach of Resolution 687, because it has not fully complied with its obligations to disarm under that resolution.
5. The Security Council in Resolution 1441 gave Iraq ‘a final opportunity to comply with its disarmament obligations’ and warned Iraq of the ‘serious consequences’ if it did not.
6. The Security Council also decided in Resolution 1441 that, if Iraq failed at
any time to comply with and co-operate fully in the implementation of Resolution 1441, that would constitute a further material breach.
7. It is plain that Iraq has failed so to comply and therefore Iraq was at the
time of Resolution 1441 and continues to be in material breach.
8. Thus, the authority to use force under Resolution 678 has revived and so
continues today.
9. Resolution 1441 would in terms have provided that a further decision of
the Security Council to sanction force was required if that had been intended. Thus, all that Resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorize force.
The argument is well spun and could, at a pinch, win the prize for the most plausible response to the question: what is the best possible argument to justify the use of force in Iraq in March 2003? But it masks a host of complex issues. It is a bad argument, and very few states and virtually no established international lawyers see its merits. On i8 March, the day after the argument was published, the Foreign Office’s Deputy Legal Adviser, Elizabeth Wilmshurst, tendered her request for early retirement or resignation. ‘I regret that I cannot agree that it is lawful to use force without a second ~Security Council resolution,’ she wrote. After noting the evolution of the legal views, she added: ‘I cannot in conscience go along with advice within the Office or to the public or Parliament — which asserts the legitimacy of military action without such a resolution,
particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law.’
The Attorney General’s reliance on resolution 678 is misconceived. That resolution was only intended to get Iraq out of Kuwait. It required that Iraq comply fully with resolution 660, which demanded that ‘Iraq withdraw immediately and unconditionally all its forces to the positions in which they were located on 1 August 1990’. There
was nothing in resolution 66o, or any other resolution adopted between that one and 678, which mentioned regime change, or the overthrow of Saddam Hussein’s government. The British Ambassador to the UN at the time, Sir Crispin Tickell, was one of the main drafters of resolution 678. He clearly understood that the resolution would have no purpose beyond the removal of Saddam Hussein’s forces from Kuwait. Similarly, writing in his memoir in 1995, Colin Powell is explicit: ‘The UN resolution made clear that the mission was only to free Kuwait. (. . .) The UN had given us our
marching orders, and the President intended to stay with them.’ His British counterpart, Sir Peter de la Billiere, does not demur: ‘We did not have a mandate to invade Iraq or take the country over.’ The same point is made by others who were in power at the time. John Major was Prime Minister when resolutions 678 and 687 were adopted. In his view: ‘Our mandate from the United Nations was to expel the Iraqis from Kuwait, not bring down the Iraqi regime [. ..] We had gone to war to uphold international law. To go further than our mandate would have been, arguably, to break international law.’ No ambiguity there.
If resolutions 660 and 678 did not provide any basis for over-throwing Saddam Hussein in 1991, how could they have done so in 2003? A right to use force which did not exist in 1991 cannot ‘revive’ in 2003. Similarly, the ceasefire established by resolutions 686 and 687 was premised on the use of force only to remove Iraq from Kuwait. Resolution 687 stated expressly that it was for the Security Council to implement the resolution and secure peace and security in the region. Moreover, there is nothing in 687 which allows one or more members of the Security Council or the British Prime Minister — to decide what further steps are needed.
Whether right or wrong, it is the very essence of the system of collective security which America and Britain created, and which gave rise to resolutions 678 and 687, that decision-making is collective. It is not individual, or prime ministerial. And this was the
view put by the Foreign Office legal advisers in a note which was first circulated in March 2002. They concluded that since the ceasefire had been proclaimed by the Security Council in resolution 687, ‘it is for that body to assess whether any such breach of those obligations has occurred. The US have a rather different view: they maintain that the assessment of breach is for individual member states. We are not aware of any other state which supports this view.’ Moreover, as Professor Vaughan Lowe, the Chichele Professor of International Law at the University of Oxford, has written: ‘there is no known doctrine of the revival of authorizations in Security Council resolutions.
Even if resolutions 678 and 687 could be construed to authorize a right to use force to overthrow Saddam Hussein — which they do not on what basis could such a right be said to ‘revive’? Did resolution 1441 provide a basis for the revival of the right to use
force, as the British Attorney General implies? There are established rules and practices for interpreting Security Council resolutions, like any other international agreements. Resolution 1441 must be interpreted in good faith, in its context, and in the light of its object and purpose. All these elements seem to have been ignored by the Attorney General. If that approach leads to any ambiguity or obscurity then it is appropriate to look at the preparatory work involved in the negotiation of the resolution. The preparatory work would be unhelpful to the argument and it too seems to have been inadequately considered. The operative paragraph of resolution 1441 provides that “false statements or omissions in declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below.”
Paragraph11 provided for the inspectors (the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) and the International Atomic Energy Agency) ‘to report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations’. By paragraph 12 the Council decided ‘to convene immediately upon receipt of a report. . . to consider the situation and the need for full compliance with all of the relevant Security Council Resolutions.
Any argument that by resolution 1441 the Council was reviving the authority to use force contained in resolution 6781 is defeated by the wording of paragraph 4 of resolution 1441. It is absurd to claim that the requirement in that paragraph for ‘assessment’ by the Council could be met merely by a report to, and discussion of Iraq’s
failures by the Security Council: the clear intention of the drafters is that the Council would take a decision after assessing the situation — whether Iraq had committed a breach of its obligations sufficient to justify force. Resolution 1441 is not a revival of the authorization to use force; it requires that the Council meet again and decide upon the situation in the event of an adverse report from Messs Bliz or El Baradei. This is plain from the language of the resolution, and is not altered by any statements made at the time of the resolution’s adoption. As the Russian Deputy Foreign Minister, Yui Fedotov put it on 8 November 2003: Russia, with the support France, China and other UN Security Council members, to took steps to remove the most unacceptable formulations from the draft, including ‘provisions which would permit an automatic unilateral use of force’
In adopting resolution 1441, the understanding of all but a small minority of the members of the Security Council was that it would be for the Council to decide what to do if Iraq failed to comply with the requirements of that resolution. When resolution 1441 was being negotiated, the drafters were well aware of the ‘revival’ argument. During one of the informal sessions, they had put before them a 1998 academic article setting out the views of a senior legal adviser at the US State Department. This articulated the revival argument which was eventually relied on by America and Britain as well as the claim that the US alone could determine the existence of a material breach of a Security Council resolution. There is no indication members of the Security Council accepted that view.
Against that background, it is difficult to understand on what basis the Attorney General could claim, as he did, that resolution 1441 merely required reporting to and discussion by the Security Council of Iraq’s failures, but no express further decision to authorize force. ‘The Attorney General must have overlooked completely the entire context of the negotiations to reach the conclusion he did in respect of 1441,’ I vas told by one diplomat who was involved throughout the negotiations of 1441. The US Permanent Representative to the United Nations John Negroponte said in his Explanation of Vote that ‘resolution 1441 contains no “hidden triggers” and no “automaticity” with the use of force’. Sir Jeremy Greenstock, the UK Permanent Representative, was even clearer:
“We heard loud and clear during the negotiations the concerns about ‘automaticity’ and ‘hidden triggers’ ... there is no ‘automaticity’ in this Resolution. If there is a further Iraqi breach of the disarmament obligations the matter will return to the Council for discussion as required in Operational Paragraph 12. We would expect the Security Council then to meet its responsibilities.”
In adopting resolution 1441, the great majority of the members of the Security Council understood that it would be for the Security Council to decide what to do if Iraq failed to comply. The consequences of that were spelt out by Lord Thomas in a House of Lords debate: ‘Neither the United Kingdom nor the United States is entitled to enforce the “will” of the Security Council.’
I believe that the Attorney General’s argument — that a non-existent authority to use force can ‘revive’ at the behest of three of the fifteen members of the Security Council — makes a mockery of the UN system. The claim has rightly been called ‘risible’. It undermines Britain’s credibility at the UN. ‘My Ambassador was very very angry when the British used the “revival” argument in March 2003,’ I was told by a senior adviser to one of the Security Council members that had negotiated resolution 1441. It caused Kofi Annan to speak out, describing the actions of the UK and the US diplomatically as lacking legitimacy. The Attorney General would have known that his arguments would face considerable difficulties before an English court or the World Court.