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English translation of this Swedish News Paper Article, written by Carl-Henrik Ehrenkrona, Law Supervisor at the Swedish Foreign Office and Marie Jacobsson, International Law advisor at the Swedish Foreign Office:
http://svd.se/dynamiskt/Brannpunkt/did_5139485.asp
Svenska Dagbladet "Focal Point" (SvD Brännpunkt)
April 1, 2003
UN did not give a mandate for violence
The worlds foremost International Law experts seems to be in agreement. The military action against Iraq is a crime against the UN Charter's prohibition against violence. Any immediate emergency, like the one in Kosovo, was not present when the United States of America and Great Britain commenced the war, writes the Swedish Foreign Office through Carl-Henrik Ehrenkrona and Marie Jacobsson, who explains Swedens stance in the matter.
IMAGE TEXT: Thousands of innocent civilians have been hit by the repulsiveness of war. Many are on the run, captured or homeless after the bombings. Photo: Desmond Boylan/Reuters
The division we saw between International Law experts in the Kosovo case and in relation to the 11 September attacks seems to be totally gone. The exceptions from the prohibition against violence that makes self defense or use of force after a decision by the U.N. Security Council is not an issue.
The opinion of the International Law experts are shared by a large majority of the worlds states. [Translators comment: See for example http://erlingsson.com/usallies.jpg and http://erlingsson.com/usallies.htm ] Nevertheless, some countries that take military part in the U.S.-led coalition have a different opinion in the International Law question. This is natural.
The Iraq war has two important dimensions. One is legal. The other concerns the political legitimacy of the military action.
The legal question concerns the interpretation of the 60+ Iraq resolutions that the U.N. Security Council have approved. The discussion have primarily been focused on the resolutions 678 (1990), 687 (1991) and 1441 (2002).
Resolution 678 is the resolution that gives the U.S.-led coalition mandate to make the Iraqi invasion forces withdraw from Kuwait territory. That is to say, resolution 678 gave those states that assisted Kuwait a mandate for violence in order to free Kuwait (resolution 660) and to realize the Iraq resolutions that have been approved between 660 and 678.
Resolution 678 gave Iraq one final opportunity to at the latest 15 January 1991 comply with previous demands and it gave an explicit mandate to the coalition if this did not occur. Resolution 687 meant to establish a de-facto peace. Iraq was forced to surrender to the peace conditions that the binding Security Council resolution 687 decreed. The resolution made a number of demands on Iraq, one of which was disarmament of weapons of mass destruction (WMD).
The argument has been made that the violence mandate in resolution 678 (1990) still is in effect. This is not an acceptable way to see things.
The violence mandate in resolution 678 was created in a very different situation than what we have now and for a different purpose, namely to free Kuwait. The violence mandate was discontinued through the "peace resolution" 687 (1991), that forced Iraq to submit to a number of peace conditions, among them a cease-fire.
One argument that has been brought forth is that a material breach against resolution 687 revives the violence mandate in resolution 678. Neither such an interpretation has any support with the majority of countries.
On the contrary, the resistance against use of force without further Security Council decisions have been striking. The resistance was not leastly noticed during the 1998 crisis, when the U.S. attempted to press through a new mandate for violence in the Security Council. (The background then was Iraq's total unwillingness to cooperate with the weapons inspectors. [Translators comment: Hardly surprising considering that in 1998, President Bill Clinton successfully pressured UNSCOM director Richard Butler to withdraw inspectors without authorization from the Secretary General or the Security Council -- before their mission was complete -- in order to engage in a four-day heavy bombing campaign against Iraq. As predicted at the time, this illegal use of military force -- combined with revelations that the United States had abused the inspections process for espionage purposes -- resulted in the Iraqi government barring the inspectors' return until a reorganized inspections commission known as UNMOVIC commenced inspections last year. [Steven Zunes, ``An Annotated Critique of President George W. Bush's March 17 Address Preparing the Nation for War,'' (Silver City, NM & Washington, DC: Foreign Policy In Focus, March 2003)]])
No violence mandate materialized, one of the reasons being that there was a veto-threat from the Russian side. When the U.S. and U.K. in December used military means against Iraq, they were criticized for acting without a mandate for violence. Thus the critical states expressed their legal interpretation of the meaning of the resolutions, just as Sweden and other countries now express their conception of justice. The purpose is to prevent a non-desirable evolution of International Law towards a far too wide room for the use of violence.
A little more than ten years later, resolution 1441 established that Iraq is in breach of the obligations the country is subject to in resolution 687 and other resolutions, and it warns Iraq for serious consequences if Iraq doesn't do what the country is obliged to do according to the various U.N. resolutions.
It was not possible for the parties proposing the resolution to achieve a mandate for violence in resolution 1441. A pre-requisite for the approval of resolution 1441 was precisely that it did not contain any explicit or implicit mandate for violence.
This is clear from the discussions in the Security Council before the decision and from the pronouncements made immediately after the resolution was approved. This is why the alliance now attempts to rely on the original, twelve year old mandate for violence.
The U.N. Charter's main rule is that states should solve their quarrels with peaceful means. If there is ambiguity or difference of opinion whether there exists a mandate for violence or not this means that the rule shall be interpreted so that preference is given to the peaceful, non- military alternative.
This does not mean that the U.N. Charter excludes military action. On the contrary, the whole charter is built on the possibility to use military means of coercion when there are no other ways to leverage pressure.
One can even say that the U.N. Charter presumes that it's member states will assist the organization with military means. That individual states have the right to individual and collective self defense is a matter of course, that is also written into the U.N. Charter.
But it is up to the U.N. Security Council to decide when and if the time is ripe for exercising military means to restore or keep international peace and security.
In the debate it's been said that the Human Rights for the people of Iraq have been sacrificed on the altar of International Law. But there is no opposition between International Law and Human Rights. On the contrary: Human Rights is one of the basic pillars of International Law. [Translators comment: In Swedish the word for "International Law" is "folkrätt", which literally translates to "peoples rights", and since Swedes where among the people that drew up the original U.N. Charter, this "peoples rights" thinking has permeated the document.]
There can however be an opposition between the state sovereignty and the Human Rights. If individual Human Rights are threatened because a specific country does not live up to it's responsibility, there are a number of ways to try to end the violations.
One is political pressure, like in the U.N. Commission for Human Rights. Another is legal actions or sanctions.
If the crimes against the Human Rights becomes serious enough that the situation threatens international peace and security, then the Security Council can and should act.
This means that humanitarian situations can arise when exceptions from the prohibition against violence must be accepted. These exceptions are however not codified in any way in existing International Law, but are exception situations that have grown, or are growing from a conviction in the international community that there can be urgent emergency situations when people acutely is threatened by serious and systematic violations of Human Rights.
For example, it's not reasonable in todays world to passively observe a threatening genocide just because the Security Council is paralyzed. Such was the case in the Kosovo case. [Translators comment: This view is far from uncontroversial. A number of top U.S. diplomats resigned in protest against how this was handled and it appears from some later analyzes that the large scale genocide was triggered (i.e. caused) by the intervention and not the other way around. ]
At the time we faced an acute humanitarian catastrophe, where a whole population group were under threat to be driven away and where the systematic and large-scale violations of human rights became increasingly worse. A violent intervention was performed to prevent the catastrophe from becoming an irreparable fact. [ Translators comment: Again, critics say that diplomacy wasn't given a proper chance. ]
In the Iraq case, we certainly are dealing with one of the worlds worst dictatorships -- a country where the crimes against Human Rights is also systematic and blatant. But the acute emergency situation that were present in the Kosovo case is not deemed to be the case today in Iraq. [ Translators comment: April 1, 2003. ]
Which is why none of the states that take part in the military alliance have attempted to legitimize their actions by describing the situation as a "humanitarian intervention".
Sweden have never excluded the possibility that in the end some sort of military action might be needed in order to disarm Iraq. However, all peaceful means to achieve this was not yet exhausted, and it was in the hands of the Security Council to decide when and if military intervention should be used.
In March, the members of the Security Council was not prepared to give a new mandate for violence. Most of the members of the council had listened to Hans Blix's wish for more time. It was consequently in violation of International Law [ Translators comment: Literally "peoples rights" ] that individual countries bypassed the Security Council and applied military force.
Carl-Henrik Ehrenkrona
Law Supervisor at the Swedish Foreign Office
Marie Jacobsson
International Law advisor at the Swedish Foreign Office
[ Translator and adder of comments: Leif Erlingsson, 07 May 2003. ]
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Updated 27 October 2003