_______________________________________________________________
 |
 |
 |  http://www.eurolegal.org/usmideast8.htm (now a dead link)
 |  [ Also see:  http://www.eurolegal.org/useur/bbnewworld.htm ]
 |
 |
 |  Iraq War - Legality without a UN Mandate
 |
 |
 |
 |  [Note: Last Update to this page: 23.10 BST 30 March 2003]
 |
 |
 |
 |
 |  Introduction
 |
 |  This page seeks to collect together in one convenient place,
 |  relevant materials on the legal issue whether the United
 |  States of America and the United Kingdom presently have
 |  lawful authority to comenence warlike operations against the
 |  State of Iraq and, if not, what they would need for such
 |  operations to be lawful.
 |
 |  Please note that this page may duplicate partial information
 |  elesewhere on this site - at least until we can tidy up the
 |  pages.
 |
 |  This page addresses the question how and when warlike
 |  operations become lawful as a matter of public international
 |  law.  The issue whether such operations are lawful as a
 |  matter of domestic or internal law of the United States of
 |  America or the United Kingdom is a different question. 
 |  Warlike operations can be lawful as a matter of internal or
 |  domestic law and yet be unlawful as a matter of public
 |  international law.
 |
 |  There are lawyers who argue that there cannot be law without
 |  a court to enforce it and thus that there is no such thing
 |  as public international law which is no more than a law
 |  professors' attempt at codification of the customs of states
 |  when dealing with each other.  It is not an argument which
 |  nowadays really stands up to much scrutiny because there are
 |  now various, albeit imperfect, international courts and
 |  tribunals which can enforce international law.
 |
 |  However, it is true that in determining authoritatively what
 |  international law might be there are often not as many
 |  precedents (i.e., prior decisions of a court of competent
 |  jurisdiction) to guide a common lawyer as he or she might
 |  like.  Lawyers from the civil law traditions, who are much
 |  more used to arguing from first principles, do not find that
 |  dearth of authority quite as worrying.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |
 |  "War" is not a Fashionable Word
 |
 |  As we point out in a little more detail on our New World
 |  Order page [ http://www.eurolegal.org/uscivilrightspage4.htm
 |  ( now a dead link, instead go to
 |  http://legal.lege.net/new_world_order/ or to
 |  http://www.eurolegal.org/useur/bbnewworld.htm ) ], the old
 |  rules about declarations of war have fallen into disuse.
 |  Because the United Nations Charter broadly outlines war,
 |  20th Century warlike operations have been conducted without
 |  declaring war.  Everybody speaks of "the Vietnam War", yet
 |  the United States never declared war on North Vietnam.  So
 |  far as we can tell the last major conflict in which war was
 |  formally declared was World War II, which led in turn to the
 |  establishment of the United Nations.
 |
 |  It is perhaps now necessary to define a few terms in the
 |  language of the international community of the United
 |  Nations so as to clarify some of the issues arising in the
 |  present debate between world leaders.
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  UN-Speak - How the UN uses language
 |
 |  Belligerant
 |
 |  A country engaged in war or hostilities - but not a country
 |  engaged in peace enforcement, therefore a term of
 |  disapproval.
 |
 |  War
 |
 |  This is by definition an unlawful act in UN terms.  By the
 |  terms of the UN Charter, Member States have bound themselves
 |  to renounce warfare as a means of resolving their disputes. 
 |  So, when the United Nations uses the expression "war" it
 |  means something unlawful.
 |
 |  Hostilities
 |
 |  This is the expression the UN tends to use as a neutral
 |  expression to denote a war without pronouncing on the
 |  merits.
 |
 |  Peacekeeping
 |
 |  This is the expression the UN uses when, for example, it
 |  places lightly armed forces under UN command between the
 |  armed forces of states in conflict to keep them apart.  The
 |  actual armed forces are provided by member states, but they
 |  all wear blue UN berets and their vehicles are painted white
 |  and marked with UN insignia.  There have been a number of
 |  highly successful UN peacekeeping operations of which the
 |  longest running is on the island of Cyprus.  There have also
 |  been failures, one of the most recent in Bosnia.
 |
 |  Peace Enforcement
 |
 |  This is UN speak for what the public calls a UN mandated
 |  war.
 |
 |  Serious Consequences
 |
 |  This is the language used in UN Security Council resolutions
 |  to warn the state addressed that if it does not comply with
 |  the will of the United Nations, the Security Council will
 |  consider the use of force.  Note that the use of the
 |  expression "serious consequences" DOES NOT itself authorise
 |  the use of force - it is an expression of a final warning
 |  that the use of force will be considered by the Security
 |  Council.
 |
 |  All Necessary Means
 |
 |  This is the language used in UN Security Council resolutions
 |  when a mandate is given for the use of force.  This is
 |  UN-Speak for what the public calls war.
 |
 |  Automaticity
 |
 |  This is UN-Speak for a resolution that authorises the use of
 |  force without further reference to the Security Council.
 |
 |  |__________________________________________________________|
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |
 |  The United Nations Charter
 |
 |  The fundamental basis on which the United Nations is
 |  organised is that national states are sovereign within their
 |  own borders.  One state must not interfere by military force
 |  within the territory of another state for a matter falling
 |  within the sovereign competence of that state.
 |
 |  It is unquestionable that this national sovereignty
 |  principle leaves open the possibility of horrendous human
 |  rights abuses within the borders of nation states without
 |  there being any remedy.  No one in their right mind would
 |  seek to argue that the United Nations is the perfect vehicle
 |  for resolution of  such issues.  The United Nations was the
 |  product of World War II and UN history since World War II is
 |  littered with examples of evil despotic regimes which have
 |  been tolerated by the UN.
 |
 |  The doctrine of non-interference in the internal affairs of
 |  nation states is difficult to stomach when one considers the
 |  human rights abuses which have taken place inside some
 |  states, both during the cold war and since the cold war
 |  ended.  One can point to the abuses of Stalin in Russia, of
 |  Mao in China, of Saddam Hussein in Iraq, of Milosevic in
 |  former Yugoslavia.
 |
 |  There have been other perpetrators of human rights abuses
 |  albeit on a lesser scale.  None of the former colonial
 |  powers has been entirely free of blame for human rights
 |  abuses committed during the decolonisation process. One
 |  could also point to the activities of the 20th Century's
 |  principal neo-colonial power - the USA - in Cambodia, Laos,
 |  Chile, Honduras and Nicaragua as well as of the USA's
 |  puppet, Israel, in the occupied Palestinian territories.
 |
 |  In fact, since the end of the cold war, the ability of the
 |  United Nations to deal with problems affecting world peace
 |  has much improved.  As Richard Butler points out in an
 |  article on the issue since the end of the Cold War the UN
 |  Security Council has met more frequently and achieved much
 |  more. Only seven vetoes were cast in the post-Cold War
 |  period, versus 240 in the first 45 years of UN life. Twenty
 |  peacekeeping operations were mandated, more than the total
 |  for all the preceding years.
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  Bewitched, Bothered, and Bewildered [
 |  http://www.foreignpolicy200.org/library/issuebriefs/readingnotes/fa_butler.html
 |  ], an article by Richard Butler published in the
 |  September/October 1999 Foreign Affairs magazine gives a good
 |  analysis of the problem and makes sensible suggestions for
 |  improvement.
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  However, the principle on which the United Nations operates,
 |  is that sovereign states cannot be invaded to achieve regime
 |  change unless they pose a threat to world peace - and even
 |  then only with the authority of the Security Council and
 |  under the direction of the Security Council.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |
 |  The United Nations Security Council
 |
 |  Under the UN Charter, all Members of the United Nations
 |  agree to accept and carry out the decisions of the Security
 |  Council which is the UN Organ which has primary
 |  responsibility for ensuring peace between states.
 |
 |  The UN Security Council has 15 members-- five permanent
 |  members and 10 elected by the General Assembly for two-year
 |  terms. Each Council member has one vote. Decisions on
 |  procedural matters are made by an affirmative vote of at
 |  least nine of the 15 members. Decisions on substantive
 |  matters require nine votes, including the concurring (or at
 |  least abstaining) votes of each of the five permanent
 |  members. This is the rule of "great Power unanimity", often
 |  referred to as the "veto" power.
 |
 |  While other organs of the United Nations may make
 |  recommendations to Governments, the Security Council alone
 |  has the power to take decisions which Member States are
 |  obliged under the Charter to carry out.
 |
 |  In order to appreciate the legal position on "peace
 |  enforcement", it is necessary to consider Chapter VII of the
 |  Charter of the United Nations [
 |  http://www.un.org/Overview/Charter/chapter7.html ].
 |
 |
 |
 |  Article 42 of Chapter VII of the Charter authorises the
 |  Security Council to decide to use force to secure compliance
 |  with its will.
 |
 |  Article 46 provides that plans for the use of force are to
 |  be drawn up by the Security Council with the assistance of
 |  its Military Staff.
 |
 |  In fact, the original concept was that the UN would in time
 |  develop its own army and military staff.  The Korean war was
 |  technically fought under UN peace enforcement terms with all
 |  troops provided by member states (eg the US, the UK, Turkey,
 |  etc) wearing UN insignia.
 |
 |  Since then the concept has somewhat foundered.  Member
 |  states have been unwilling to see the UN develop its own
 |  forces and therefore when the UN Security Council wishes to
 |  see force used it has to call upon member states to furnish
 |  the men and machines.  The USA in particular has been very
 |  reluctant to place its forces under UN command and control.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |
 |  The Right of Self Defence
 |
 |  When the Bush Administration decided it would rather like to
 |  start a war with Iraq, it first postulated the theory that
 |  Iraq posed an imminent threat to the security of the United
 |  States of America and therefore that it could invoke an
 |  exception to the general prohibition on waging war contained
 |  in Article 51 of the United Nations Charter.
 |
 |  Article 51 proclaims the "right of self-defence":
 |
 |  "Nothing in the present Charter shall impair the inherent
 |  right of individual or collective self-defence if an armed
 |  attack occurs against a Member of the United Nations, until
 |  the Security Council has taken measures necessary to
 |  maintain international peace and security. Measures taken by
 |  Members in the exercise of this right of self-defence shall
 |  be immediately reported to the Security Council and shall
 |  not in any way affect the authority and responsibility of
 |  the Security Council under the present Charter to take at
 |  any time such action as it deems necessary in order to
 |  maintain or restore international peace and security."
 |
 |  Note that the right is one of "...defence if an armed attack
 |  occurs, until the Security Council has taken measures.." and
 |  for that purpose the defending state has to report the
 |  exercise of the right to the Security Council immediately.
 |
 |  Since there has been no attack by Iraq on the United States
 |  of America, nor any reason to think one is imminent, it is
 |  self-evidenent that Article 51 has no application.
 |
 |  In any event, the need under Article 51, to report to the
 |  Security Council for it to decide upon action, would
 |  preclude unilateral action without at once involving the
 |  Security Council.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |
 |  Collective Security and Humanitarian Grounds
 |
 |  The next suggestions floated in the USA as possible grounds
 |  for going to war against Iraq without involving the UN
 |  Security Council were that it was necessary to achieve
 |  "regime change" in Iraq because the regime was so
 |  objectionable or on humanitarian grounds to benefit the
 |  people of Iraq.
 |
 |  Unfortunately, both arguments had been considered by the
 |  International Court of Justice in Case No 70 of 28th June
 |  1986 - Nicaragua -v- United States of America [
 |  http://legal.lege.net/images/pdf/icj_19860627.pdf
 |  ] [PDF format 137 pages].
 |
 |  This is a case from the time of the Reagan Administration
 |  involving US covert and overt operations in Nicaragua.  It
 |  is a case with which several high officials of the Bush
 |  Administration should be very familiar indeed because they
 |  were personally involved in the activities brought before
 |  the Court.
 |
 |  Two other important findings were made by the International
 |  Court of Justice which are relevant.
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  "263.  The finding of the United States Congress also
 |  expressed the view that the Nicaraguan Government had taken
 |  "significant steps towards establishing a totalitarian
 |  Communist dictatorship".  However the regime in Nicaragua be
 |  defined, adherence by a State to any particular doctrine
 |  does not constitute a violation of customary international
 |  law; to hold otherwise would make nonsense of the
 |  fundamental principle of State sovereignty, on which the
 |  whole of international law rests, and the freedom of choice
 |  of the political, social, economic and cultural system of a
 |  State.  Consequently, Nicaragua's domestic policy options,
 |  even assuming that they correspond to the description of
 |  them by the Congress finding, cannot justify on the legal
 |  plane the various actions of the Respondent complained of. 
 |  The Court cannot contemplate the creation of a new rule
 |  opening up a right of intervention by one State against
 |  another on the ground that the latter has opted for some
 |  particular ideology or political system".
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  Seeking regime change on the basis that you do not like the
 |  ideology of another state is not justifiable in
 |  international law.
 |
 |  The Court also considered allegations that Nicaragua was
 |  violating human rights and held:-
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  "268.  In any event, while the United States might form its
 |  own appraisal of the situation as to respect for human
 |  rights in Nicaragua, the use of force could not be the
 |  appropriate method to monitor or ensure such respect.  With
 |  regard to the steps actually taken, the protection of human
 |  rights, a strictly humanitarian objective, cannot be
 |  compatible with the mining of ports, the destruction of oil
 |  installations, or again with the training, arming and
 |  equipping of the contras.  The Court concludes that the
 |  argument derived from the preservation of human rights in
 |  Nicaragua cannot afford a legal justification for the
 |  conduct of the United States, and cannot in any event be
 |  reconciled with the legal strategy of the respondent State,
 |  which is based on the right of collective self-defence."
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  Thus, while leaving open the door for forms of humanitarian
 |  intervention, the Court held that to be lawful they would
 |  have to be very tightly limited.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |
 |  The UN and Iraq - Security Council Resolutions pre 2002
 |
 |  In the event, the United States concluded that it would be
 |  appropriate to bring the non-compliance of Iraq with the
 |  disarmament imposed on it back before the United Nations, a
 |  very proper way of proceeding.
 |
 |  In order to follow the arguments on the exact position of
 |  Iraq, it is necessary to look at the terms of various UN
 |  Security Council Resolutions already in effect.  UN Security
 |  Council Resolutions are available on line on the UN Security
 |  Council Resolutions page [
 |  http://www.un.org/documents/scres.htm ].  However, if you
 |  are browsing the web from behind a firewall (and in today's
 |  computer virus and worm world, you should be) then you may
 |  need to adjust your firewall settings to access the texts of
 |  resolutions because for some reason the UN site does not
 |  like firewalls.  To save you mucking about with firewall
 |  settings, the most relevant Iraq Resolutions are given
 |  below.  These early resolutions are photocopies in PDF
 |  format.
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  02 Aug 1990
 |
 |  660
 |
 |  This is the Resolution demanding that Iraq withdraw from
 |  Kuwait
 |
 |  "The Security Council...
 |
 |  2. Demands that Iraq withdraw immediately and
 |  unconditionally all its forces to the positions in which
 |  they were located on 1 August 1990."
 |
 |  Full Text in PDF Format [
 |  http://www.eurolegal.org/pdfdocs/unsc660.pdf ( now a dead
 |  link, instead visit
 |  http://legal.lege.net/un_sc_res/660/660.pdf ) ]
 |
 |  ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
 |
 |  06 Aug 1990
 |
 |  661
 |
 |  This is the Resolution imposing economic sanctions on Iraq.
 |
 |  It includes a full trade embargo on Iraq, except for medical
 |  supplies, food and other items of humanitarian need, as
 |  determined by the Security Council sanctions committee.  The
 |  sanctions regime has been modified serveral times since the
 |  Gulf War but sanctions remain in force to this day with
 |  disasterous effects for the Iraqi people.
 |
 |  Full Text in PDF Format [
 |  http://www.eurolegal.org/pdfdocs/unsc661.pdf ( now a dead
 |  link, instead visit
 |  http://legal.lege.net/un_sc_res/661/661.pdf ) ]
 |
 |  ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
 |
 |  29 Nov 1990
 |
 |  678
 |
 |  This is the Resolution authorising the use of force in the
 |  1991 Gulf War.
 |
 |  "The Security Council....
 |
 |  2.  Authorises Member States co-operating with the
 |  Government of Kuwait, unless Iraq on or before 15 January
 |  1991 fully implements...the above mentioned resolutions, to
 |  use all necessary means to uphold and implement Resolution
 |  660 (1990) and all subsequent relevant resolutions and to
 |  restore international peace and security in the area."
 |
 |  Note:  The expression "Authorises....to use all necessary
 |  means to implement ..." is the operative authority for the
 |  use of force.
 |
 |  Full Text in PDF Format [
 |  http://www.eurolegal.org/pdfdocs/unsc678.pdf ( now a dead
 |  link, instead visit
 |  http://legal.lege.net/un_sc_res/678/678.pdf ) ]
 |
 |  ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
 |
 |  03 Apr 1991
 |
 |  687
 |
 |  This is the Resolution implementing the end of hostilities
 |  for the 1991 Gulf War
 |
 |  The Security Council....
 |
 |  33.  Declares that, upon official notification by Iraq to
 |  the Secretary-General and to the Security Council of its
 |  acceptance of the above provisions, a formal-cease-fire is
 |  effective between Iraq and Kuwait and the Member States
 |  cooperating with Iraq in accordance with resolution 678
 |  (1990).
 |
 |  34. Decides to remain seized of the matter and to take such
 |  further steps as may be required for the implementation of
 |  the present resolution and to secure peace and security in
 |  the region."
 |
 |  Full Text in PDF Format [
 |  http://www.eurolegal.org/pdfdocs/unsc687.pdf ( now a dead
 |  link, instead visit
 |  http://legal.lege.net/un_sc_res/687/687.pdf ) ]
 |
 |  |__________________________________________________________|
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |
 |  UN Security Council 1441
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  UN Security Council Meeting - 8th November 2002
 |  Security Council Votes on Iraq Resolution
 |
 |  Click Here For
 |  Text of UN Security Council Resolution No 1441 [
 |  http://www.un.org/News/dh/iraq/iraq-blue-e-110702-1198.pdf ]
 |  [ The UN site doesn't always produce documents, so here's
 |  Local copies:  http://legal.lege.net/un_sc_res/1441/1441.pdf
 |  http://legal.lege.net/un_sc_res/1441/1441.txt
 |  http://legal.lege.net/un_sc_res/1441/provisional_1441.pdf
 |  http://legal.lege.net/un_sc_res/1441/provisional_1441.txt ]
 |
 |  Dr Hans Blix at the Security Council
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  UN Security Council Resolution 1441, does not authorise the
 |  use of force.  It warns Iraq of "serious conseqences" if it
 |  does not comply.  Officials in the Bush Administration and
 |  the Ministers in the Blair Government have sought to argue
 |  that this was sufficient mandate for the use of force.  That
 |  is nonsense.
 |
 |  Neither Resolution 1441, nor the draft Resolution tabled by
 |  Spain, the United Kingdom and the United States of America,
 |  constituted the requisite authority for the use of force.
 |
 |  In an interview with the BBC, Professor Nicholas Grief, who
 |  is head of the law school at Bournemouth University said:
 |
 |  "There is a school of thought that going to war without the
 |  express authority of the Security Council would violate the
 |  UN charter. That could raise serious questions about the
 |  personal responsibility of President Bush and Mr Blair, and
 |  they could have a case to answer. They could be held to
 |  account in years to come. It is something they ought to be
 |  concerned about."
 |
 |  Professor Grief, who is head of the law school at
 |  Bournemouth University, says there would be a further risk
 |  if US and British forces failed to make a proper distinction
 |  between military targets and civilians.
 |
 |  Colin Warbrick, Professor of Law at Durham University,
 |  agrees that the possibility of criminal charges should be
 |  taken seriously.  "It could apply to military commanders in
 |  the field, as well as civilian leaders," he said to the BBC.
 |
 |  Both Professors Warbrick and Grief told the BBC that for the
 |  use of force to be lawful a special kind of further
 |  resolution has to be passed.
 |
 |  "Authorisation by the Security Council for action needs to
 |  be explicit," said.Professor Warbrick.  "The draft
 |  resolution does not contain the authority to use force,
 |  neither does Resolution 1441. Resolution 1441 does talk
 |  about 'serious consequences' for Iraq, but the decision on
 |  what that means should be reserved for the Security Council
 |  It should set precise mandates, time limits, and a mechanism
 |  for accountability."
 |
 |  On 6th March 2003, the Times published a letter from
 |  Professor Robert Black QC confirming our view of the
 |  legality of the use of force under the current resolution
 |  and draft resolution and the Guardian newspaper published a
 |  letter from a group of 16 eminent academic lawyers in
 |  similar vein.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  Legality of action against Iraq
 |
 |  From Professor Robert Black, QC - The Times - March 06, 2003
 |
 |  Sir, Security Council Resolution 1441 does not render lawful
 |  the use of armed force against Iraq (Law, February 25). It
 |  simply provides for ``serious consequences'' if Iraq does
 |  not comply with the obligations placed upon it.
 |
 |  In the context of Chapter 7 of the Charter of the United
 |  Nations, the expression ``serious consequences'' is not
 |  synonymous with, nor a warrant for the use of, armed force.
 |  The recognised UN euphemism for the latter is taking ``all
 |  necessary means'' to secure compliance with the obligation
 |  in question. The form of words in Resolution 1441 was chosen
 |  precisely in order to achieve Security Council consent and
 |  unanimity, which could not have been obtained if armed force
 |  had been expressly or impliedly authorised or threatened in
 |  it by the use of the phrase ``all necessary means''.
 |
 |  Equally, even if the Security Council were to pass the draft
 |  resolution recently submitted by the UK and US Governments,
 |  this would not render lawful the use of armed force against
 |  Iraq. The draft resolution merely states that Iraq has
 |  failed to take the final opportunity afforded to it in
 |  Resolution 1441. It does not go on to authorise or instruct
 |  UN member states to resort to armed intervention or to take
 |  ``all necessary means'' to secure Iraqi compliance. It
 |  accordingly does not constitute a legal warrant for the use
 |  of armed force against that country.
 |
 |  Yours faithfully,
 |
 |  ROBERT BLACK,
 |  School of Law,
 |  The University of Edinburgh,
 |  Old College, South Bridge,
 |  Edinburgh EH89 9YL.
 |  March 4.
 |
 |  ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
 |
 |  Guardian Letters - Legality of the Use of Force
 |
 |  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.
 |
 |  The UN charter outlaws the use of force with only two
 |  exceptions: individual or collective self-defence in
 |  response to an armed attack and action authorised by the
 |  security council as a collective response to a threat to the
 |  peace, breach of the peace or act of aggression.
 |
 |  There are currently no grounds for a claim to use such force
 |  in self-defence.
 |
 |  The doctrine of pre-emptive self-defence against an attack
 |  that might arise at some hypothetical future time has no
 |  basis in international law.
 |
 |  Neither security council resolution 1441 nor any prior
 |  resolution authorises 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.
 |
 |  The prime minister's assertion that in certain circumstances
 |  a veto becomes "unreasonable" and may be disregarded has no
 |  basis in international law.
 |
 |  The UK has used its security council veto on 32 occasions
 |  since 1945.
 |
 |  Any attempt to disregard these votes on the ground that they
 |  were "unreasonable" would have been deplored as an
 |  unacceptable infringement of the UK's right to exercise a
 |  veto under UN charter article 27.
 |
 |  A decision to undertake military action in Iraq without
 |  proper security council authorisation will seriously
 |  undermine the international rule of law. Of course, even
 |  with that authorisation, serious questions would remain.
 |
 |  A lawful war is not necessarily a just, prudent or
 |  humanitarian war.
 |
 |  Prof Ulf Bernitz, Dr Nicolas Espejo-Yaksic, Agnes Hurwitz,
 |  Prof Vaughan Lowe, Dr Ben Saul, Dr Katja Ziegler (University
 |  of Oxford), Prof James Crawford, Dr Susan Marks, Dr Roger
 |  O'Keefe (University of Cambridge), Prof Christine Chinkin,
 |  Dr Gerry Simpson, Deborah Cass (London School of Economics),
 |  Dr Matthew Craven (School of Oriental and African Studies),
 |  Prof Philippe Sands, Ralph Wilde (University College
 |  London), Prof Pierre-Marie Dupuy (University of Paris).
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  Similar legal opinions have been published in the United
 |  States of America, Australia and elsewhere.
 |
 |  Given that both Ministers and Commanders might be vulnerable
 |  to war crimes prosecutions, not only before domestic courts,
 |  but also before international courts and national courts
 |  exercising universal jurisdiction (see the Pinochet
 |  Nightmare Scenario [ http://www.eurolegal.org/uncourts.htm
 |  ( now a dead link, instead go to
 |  http://www.eurolegal.org/internat/intcourts.htm and also the
 |  http://www.eurolegal.org/useur/unlawfulcomb.htm page )] on
 |  our UN Courts page), the legality of action is a matter
 |  which ought to be exercising minds far more than at present
 |  appears to be the case.
 |
 |  In the run up to 7th March 2003, possible illegality
 |  exercised many minds in the UK Government, in the UK
 |  Parliament, in the UK Labour Party and in the United Kingdom
 |  as a whole.
 |
 |  - the Overseas Development Secretary, Claire Short, the
 |  Leader of the House of Commons, Robin Cook, and a number of
 |  junior ministers indicated they would resign if the UK went
 |  to war without an authorising UN Resolution;
 |
 |  - upwards of 100 Labour MP's were expected to vote against
 |  any government resolution authorising the use of UK troops
 |  unless there were an authorising UN Resolution;
 |
 |  - public opinion was against a unilateral war (although much
 |  for favourable to UN mandated intervention);
 |
 |  - there was public concern about US policy - an opinion poll
 |  found that the British felt that George W. Bush was a
 |  greater threat to international peace and security than
 |  Saddam Hussein.
 |
 |  In the event, Claire Short did not resign, Robin Cook, the
 |  Leader of the Commons and former Foreign Secretary, did. 9
 |  other ministers and parliamentary private secretaries also
 |  resigned.  More than the expected number of Labour back
 |  benchers rebelled, but the Government had a substantial
 |  majority thanks to Conservative support (see our Failure of
 |  UK/US Diplomacy page [
 |  http://www.eurolegal.org/usmideast9.htm ( now a dead link )
 |  ]).
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |  Possibility of Action under Resolution 678
 |
 |  Although the UN Charter allows for self-defence in the case
 |  of an armed attack, the consensus of legal opinion is that
 |  international law does not presently permit a pre-emptive
 |  strike against Iraq.
 |
 |  A good analysis of the position in international law is
 |  given by Professor Stephen Zunesr in "Seven Fallacies of US
 |  Plans to Invade Iraq" a scholarly paper published in Foreign
 |  Policy in Focus [ http://fpif.org/ ] which seems to us to be
 |  a good analysis of the international law position.
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  There is no legal justification for U.S. military action
 |  against Iraq.
 |
 |  Iraq is currently in violation of part of one section of UN
 |  Security Council Resolution 687 (and a series of subsequent
 |  resolutions reiterating that segment) requiring full
 |  cooperation with United Nations inspectors ensuring that
 |  Iraq's weapons of mass destruction, delivery systems, and
 |  facilities for manufacturing such weapons are destroyed. The
 |  conflict regarding access for UN inspectors and possible
 |  Iraqi procurement of weapons of mass destruction has always
 |  been an issue involving the Iraqi government and the United
 |  Nations, not an impasse between Iraq and the United States.
 |  Although UN Security Council Resolution 687 was the most
 |  detailed in the world body's history, no military
 |  enforcement mechanisms were specified. Nor did the Security
 |  Council specify any military enforcement mechanisms in
 |  subsequent resolutions. As is normally the case when it is
 |  determined that governments violate all or part of UN
 |  resolutions, any decision about the enforcement of its
 |  resolutions is a matter for the UN Security Council as a
 |  whole -- not for any one member of the council.  The most
 |  explicit warning to Iraq regarding its noncompliance came in
 |  UN Security Council Resolution 1154. Although this
 |  resolution warned Iraq of the ``severest consequences'' if
 |  it continued its refusal to comply, the Security Council
 |  declared that it alone had the authority to ``ensure
 |  implementation of this resolution and peace and security in
 |  the area.''
 |
 |  According to articles 41 and 42 of the United Nations
 |  Charter, no member state has the right to enforce any
 |  resolution militarily unless the UN Security Council
 |  determines that there has been a material breach of its
 |  resolution, decides that all nonmilitary means of
 |  enforcement have been exhausted, and then specifically
 |  authorizes the use of military force. This is what the
 |  Security Council did in November 1990 with Resolution 678 in
 |  response to Iraq's ongoing occupation of Kuwait in violation
 |  of a series of resolutions passed that August. The UN has
 |  not done so for any subsequent violations involving Iraq or
 |  any other government.
 |
 |  If the United States can unilaterally claim the right to
 |  invade Iraq due to that country's violation of UN Security
 |  Council resolutions, other Security Council members could
 |  logically also claim the right to invade other member states
 |  that are in violation of UN Security Council resolutions.
 |  For example, Russia could claim the right to invade Israel,
 |  France could claim the right to invade Turkey, and Great
 |  Britain could claim the right to invade Morocco, simply
 |  because those targeted governments are also violating UN
 |  Security Council resolutions. The U.S. insistence on the
 |  right to attack unilaterally could seriously undermine the
 |  principle of collective security and the authority of the
 |  United Nations and in doing so would open the door to
 |  international anarchy.
 |
 |  There is little debate regarding the nefarious nature of the
 |  Iraqi regime, but this has never been a legal ground for
 |  invasion. When Vietnam invaded Cambodia in 1978 to overthrow
 |  the Khmer Rouge -- a radical communist movement even more
 |  brutal than the regime of Saddam Hussein -- the United
 |  States condemned the action before the United Nations as an
 |  act of aggression and a violation of international law. The
 |  United States successfully led an international effort to
 |  impose sanctions against Vietnam and insisted that the UN
 |  recognize the Khmer Rouge as the legitimate government of
 |  Cambodia for more than a decade after their leaders were
 |  forced out of the capital into remote jungle areas.
 |  Similarly, the United States challenged three of its closest
 |  allies -- Great Britain, France, and Israel -- before the
 |  United Nations in 1956 when they invaded Egypt in an attempt
 |  to overthrow the radical anti-Western regime of Gamal
 |  Abdul-Nasser. The Eisenhower administration insisted that
 |  international law and the UN Charter must be upheld by all
 |  nations regardless of their relations with the United
 |  States. It now appears that the leadership of both political
 |  parties is ready to reverse what was once a bipartisan
 |  consensus.
 |
 |  Link to full text [
 |  http://fpif.org/pdf/reports/PRiraq2.pdf ]
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  The United Kingdom Attorney-General made a little publicised
 |  visit to the USA and it was widely rumoured that the purpose
 |  of the visit was to see if the US Administration could come
 |  up with a justification for the use of force without a UN
 |  Security Council Mandate.
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  Fresh resolution 'gives no authority for war'
 |
 |  Matthew Tempest, The Guardian, Wednesday March 5, 2003
 |
 |  Tony Blair's political dilemmas over a possible military
 |  attack on Iraq increased today, with reports that the
 |  government's attorney general may resign if Britain goes to
 |  war without clear authorisation from the United Nations.
 |
 |  Legal opinion varies on the basis for war under resolution
 |  1441, but yesterday Cherie Booth's own legal chambers,
 |  Matrix, advised there was no authority for war without an
 |  unambiguous fresh resolution.
 |
 |  Now it has emerged that there are fears within the
 |  government's legal service about the exact provisions of
 |  international law for a US-UK attack.  The attorney general,
 |  Lord Goldsmith, has already flown to Washington on an
 |  unpublicised trip to discuss the legal ramifications with
 |  the US attorney general, John Ashcroft.
 |
 |  Lord Goldsmith's job is to advise ministers on the legality
 |  of all their actions, but his office has refused to divulge
 |  his opinion on a future war with Iraq.  This morning he was
 |  forced to deny to the Financial Times rumours that he may
 |  resign if bombs are dropped without a second UN resolution. 
 |  His office is quoted as saying this scenario was "not
 |  something he recognises", but the FT quotes an unnamed
 |  mandarin as saying: "Civil servants are meant to respect the
 |  law. There will be lots of resignations from the government
 |  legal service. Lord Goldsmith could go."  The FT reported
 |  last year that the attorney general warned the cabinet any
 |  war designed primarily to remove Saddam Hussein would be
 |  illegal.
 |
 |  (link to full story [
 |  http://politics.guardian.co.uk/foreignaffairs/story/0,11538,908157,00.html
 |  ])
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  It then appeared that the Bush Administration believed it
 |  had found a tabulam in naufragio in the theory that action
 |  could be taken under the original UN Security Council
 |  Resolution authorising the Gulf War.
 |
 |  See the following press briefing from the White House:-
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  The White House
 |
 |  Extract from Press Briefing by Press Secretary Ari Fleischer
 |
 |  13 March 2003
 |
 |  Legal Authority for Military Action Against Iraq
 |
 |  Q.  Ari, what is the administration's formal legal position
 |  and assessment from the State Department legal advisor, from
 |  the White House counsel about the lawfulness of taking
 |  military action if this resolution were to be voted down in
 |  the teeth of the opposition of the Security Council, either
 |  by a majority or by a veto?
 |
 |  MR. FLEISCHER: You want me to read you a legal sentence?
 |
 |  Q.  Thank you.
 |
 |  MR. FLEISCHER: The United Nations Security Council
 |  Resolution 678 authorized use of all necessary means to
 |  uphold United Nations Security Council Resolution 660, and
 |  subsequent resolutions and to restore international peace
 |  and security in the area. That was the basis for the use of
 |  force against Iraq during the Gulf War.
 |
 |  Thereafter, United Nations Security Council Resolution 687
 |  declared a cease-fire, but imposed several conditions,
 |  including extensive WMD related conditions. Those conditions
 |  provided the conditions essential to the restoration of
 |  peace and security in the area. A material breach of those
 |  conditions removes the basis for the cease-fire and provides
 |  a legal grounds for the use of force.
 |
 |  Q.  Thank you. So it's our assessment that we can go to war
 |  even if the Security Council votes down this second
 |  resolution, should there be a vote.?
 |
 |  MR. FLEISCHER: There is no question, based on both
 |  international law and domestic law that the President has
 |  that authority.
 |
 |  Q.  Thank you. (Laughter.) Is that assessment shared by
 |  Great Britain, Spain and other members of the coalition of
 |  the willing? Or is some of the reason for this talk that
 |  maybe we won't have a vote that their international lawyers
 |  come to a different conclusion, that this war would be
 |  illegal over a U.N. veto?
 |
 |  MR. FLEISCHER: You need to talk to them about their
 |  interpretations of laws. I don't speak for them.
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  The argument that Security Council resolution 678 (1990)
 |  could provide authority for the use of force is wholly
 |  unconvincing. That resolution authorised the American-led
 |  coalition to use in 1990 "all necessary means" to liberate
 |  Kuwait and restore peace and security to the region.
 |
 |  But hostilities in the Gulf war were then terminated by
 |  resolution 687 (1991), which imposed a lengthy list of
 |  obligations on Iraq, including several regarding
 |  disarmament.  Iraq is in breach of those obligations.
 |  Indeed, resolution 1441 found it to be in "material breach"
 |  of them.
 |
 |  The Bush Administration accordingly argues that the
 |  authorisation to use force granted the US and the UK by
 |  resolution 678 has been re-activated.  But resolution 678
 |  did not so provide.  Indeed, by its clause 34, the Security
 |  Council reserved to itself the power to decide further steps
 |  to secure implementation of its will.  It did so by
 |  Resolution 1441.
 |
 |  Thus, this latest argument must be seen for what it is, a
 |  last-ditch attempt to find some semblance of legal cover for
 |  unauthorised action.  We suggest that the argument is even
 |  less respectable than the "unreasonable veto" nonsense
 |  earlier advanced by the Blair Government.
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  Legal basis for use of force against Iraq
 |
 |  17th March 2003
 |
 |  In a written Parliamentary The Attorney General, Lord
 |  Goldsmith, has set out his view of the legal basis for the
 |  use of force against Iraq:
 |
 |  "Authority to use force against Iraq exists from the
 |  combined effect of resolutions 678, 687 and 1441. All of
 |  these resolutions were adopted under Chapter VII of the UN
 |  Charter which allows the use of force for the express
 |  purpose of restoring international peace and security:
 |
 |  1. In resolution 678 the Security Council authorised 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
 |  cooperate 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 authorise force.
 |
 |  I have lodged a copy of this answer, together with
 |  resolutions 678, 687 and 1441 in the Library of both
 |  Houses."
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  In recent days, there has been a lot of Blair Government
 |  spin to the effect that HM Attorney-General's view
 |  represents the law.  It is, of course, part of the skill of
 |  a lawyer to make an arguable case for almost anything.
 |
 |  It is a matter of regret that HM Attorney-General has chosen
 |  not to publish his reasoning to show how he feels able to
 |  discount the preponderance of legal opinion against this
 |  implausible interpretation of international law.  In our
 |  view it stops only just short of being unarguable.
 |
 |  We are comforted in that belief by the following speeches in
 |  the UK House of Lords.  One of the advantages of the present
 |  composition of the House of Lords is the fact that among the
 |  appointees are specialists who have achieved eminence in all
 |  walks of life - including the law.
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  UK House of Lords
 |
 |  17th March 2003
 |
 |  Lord Goodhart * rose to call attention to the obligations of
 |  the United Kingdom under international law concerning the
 |  use of armed force, and to move for Papers.
 |
 |  The noble Lord said:
 |
 |  My Lords, shortly -- in a matter of hours -- President Bush
 |  will no doubt deliver a final ultimatum to Iraq. Within 24
 |  hours of that, probably, there will almost inevitably be war
 |  with Iraq in which British troops will be involved.
 |
 |  As we have just been told, we shall have another debate
 |  tomorrow. The purpose of this debate is limited to one
 |  specific aspect of that wider debate: the legality of the
 |  use of armed force in Iraq without the specific authority of
 |  a further resolution of the Security Council. The Government
 |  have during the past weeks and months laid great stress on
 |  the importance of legality. They have said that they would
 |  not ask the Armed Forces to intervene unless it was lawful
 |  for them to do so.
 |
 |  A second resolution in the Security Council would have given
 |  legitimacy, but it is now clear that no second resolution
 |  will be passed by the Security Council. The Government now
 |  have to face the question of whether force is lawful without
 |  such a resolution. The noble and learned Lord the
 |  Attorney-General says yes, but I must say that I believe he
 |  is wrong.
 |
 |  Can force be justified without United Nations authority in
 |  any circumstances? Sometimes, yes. There is of course the
 |  right of collective dissent under Article 51 of the United
 |  Nations Charter. Another example, although still a
 |  controversial one, is the right of humanitarian intervention
 |  outside the charter, as exercised in Kosovo -- an occasion
 |  on which the noble and learned Lord, Lord Morris, appeared
 |  on behalf of the Government to argue the case in the
 |  International Court of Justice for the existence of the
 |  right of humanitarian intervention.
 |
 |  As I explained in my speech of 26th February in your
 |  Lordships' House, I believe that neither of those grounds --
 |  collective defence nor humanitarian intervention -- can be
 |  relied on to justify the use of armed force against Iraq
 |  today. The Attorney-General does not base his case on either
 |  of those grounds, so I shall not pursue them.
 |
 |  Probably the most important document in international law
 |  today is the United Nations Charter. Under chapter 7 of the
 |  charter, the Security Council deals with threats to peace
 |  and acts of aggression. Article 39 gives the Security
 |  Council power to decide what measures should be taken in
 |  accordance with Articles 41 and 42 to maintain or restore
 |  international peace and security. Article 41 gives the
 |  Security Council power to impose measures not involving the
 |  use of armed force, such as economic sanctions. Finally,
 |  Article 42 states that if the Security Council considers
 |  that the measures provided for under Article 41 would be or
 |  have proved to be inadequate, military action may be taken
 |  to maintain or restore international peace and security.
 |
 |  Those powers were the basis of the Gulf War in 1991 and
 |  subsequent UN action in Iraq. The Attorney-General bases his
 |  case that there is an existing authority to use armed force
 |  on resolutions arising from Iraq's invasion of Kuwait in
 |  1990 and its aftermath. We therefore need to consider those
 |  resolutions.
 |
 |  Resolution 660, adopted on 2nd August 1990, demanded that
 |  Iraq withdraw its forces from Kuwait. Resolution 661 imposed
 |  economic sanctions under Article 41 on Iraq. Resolution 678,
 |  adopted on 28th November 1990, authorised member states,
 |  unless Iraq withdrew from Kuwait by 15th January 1991, "to
 |  use all necessary means to uphold and implement resolution
 |  660 . . . and to restore international peace and security in
 |  the area".
 |
 |  In that context, all necessary means obviously included
 |  armed force.
 |
 |  Resolution 687 was adopted after the end of the war on 8th
 |  April 1991. It affirmed the previous resolutions. It
 |  required Iraq to accept the destruction and removal of
 |  chemical and bacteriological weapons and missiles with a
 |  range of more than 150 kilometres. It required from Iraq a
 |  commitment not to use, develop, construct or acquire banned
 |  weapons, and not to acquire or develop nuclear weapons. It
 |  reaffirmed the economic sanctions, with a relaxation for
 |  foodstuffs, and provided for sanctions to end when Iraq had
 |  completed the required actions.
 |
 |  The resolution declared,
 |
 |  "that, upon notification by Iraq to the . . . Security
 |  Council of its acceptance",
 |
 |  the formal cease-fire would become effective. The motion
 |  also decided that the Security Council would, "remain seized
 |  of the matter and take such further steps as may be required
 |  for the implementation of the resolution and to secure peace
 |  and security in the area".
 |
 |  There is nothing in Resolution 687 that authorises the
 |  further use of armed force against Iraq by member states
 |  without a further resolution of the Security Council. Such
 |  action, would, in my view, be plainly inconsistent with the
 |  terms of the resolution.
 |
 |  We now move to Resolution 1441, adopted on 8th November last
 |  year. It decided that Iraq was in breach of its obligations
 |  under Resolution 687, but should be given a final
 |  opportunity to comply. Paragraph 12 decided that the
 |  Security Council would convene immediately on a report from
 |  the inspectors of non-compliance by Iraq,
 |
 |  "in order to consider the situation and the need for full
 |  compliance with all of the relevant Council resolutions in
 |  order to secure international peace and security".
 |
 |  Paragraph 13 recalled,
 |
 |  "in that context, that the Council has repeatedly warned
 |  Iraq that it will face serious consequences as a result of
 |  its continued violations of its obligations".
 |
 |  By paragraph 14, the Security Council decided,
 |
 |  "to remain seized of the matter".
 |
 |  That is the background. We now have the summary of the
 |  advice given to the Government by the noble and learned Lord
 |  the Attorney-General. We welcome the fact of that
 |  disclosure, although we should have liked to see much more
 |  detail of what must have been a lengthy opinion dealing with
 |  the complex arguments involved in the case and showing
 |  possible qualifications and reservations. All we have seen
 |  is the baldly stated summary. We also regret that the noble
 |  and learned Lord the Attorney-General has not given us the
 |  opportunity to ask questions and to hear his answers.
 |
 |  The Attorney General's opinion reaches a highly questionable
 |  conclusion, which is based on a dubious interpretation of
 |  deliberately ambiguous wording. I do not dispute that some
 |  reputable experts in international law have reached the same
 |  conclusion as the Attorney General. I mention Professor Ruth
 |  Wedgwood, of the law school of Columbia University, for
 |  example. But they are in a minority, especially in the
 |  United Kingdom. The opinion of' 16 leading academic
 |  international lawyers, including the professors of
 |  international law at Oxford, Cambridge and University
 |  College London, in a letter to the Guardian on 7th March,
 |  was contrary to that which the Attorney-General has now
 |  disclosed.
 |
 |  Resolution 687 is crucial because it set up the ban on
 |  weapons of mass destruction. It also set up the inspection
 |  regime. As I said, there is nothing there that constitutes
 |  an authority to go to war without going back to the Security
 |  Council for authoritative act under Article 42.
 |
 |  Resolution 1441 is undoubtedly the most important of all. I
 |  have already read the main provisions of paragraphs 12, 13
 |  and 14. I cannot see how anyone could conclude that a breach
 |  by Iraq was sufficient to justify armed force without
 |  further reference to the Security Council. Paragraph 12
 |  requires the Council to convene on the report,
 |
 |  "in order to consider the situation".
 |
 |  That in itself is inconsistent with an automatic trigger of
 |  further action. The motion says that the Council recalls
 |  that it has warned Iraq of serious consequences as a result
 |  of violations. Indeed, that is the case. This is a further
 |  warning that breaches may well lead to the use of armed
 |  force, but it is no automatic authority to go ahead. The
 |  final paragraph states that the Council decided,
 |
 |  "to remain seized of the matter".
 |
 |  It is plainly not delegating it.
 |
 |  The Attorney-General says that Resolution 1441 would have
 |  said so if a further decision were required. I see no
 |  justification for his argument. Both the United States and
 |  British ambassadors to the United Nations when Resolution
 |  1441 was adopted said that it contained no automaticity. I
 |  believe that there was a clear understanding that Resolution
 |  1441 did not confer a right of action without referring back
 |  to the Security Council. Unless there had been such an
 |  understanding, it would have been difficult if not
 |  impossible to get Resolution 1441 through the Security
 |  Council.
 |
 |  A final decision on the use of armed force requires judgment
 |  as to the seriousness of the breaches by Iraq, the
 |  effectiveness of the inspection system and whether the
 |  breaches could be corrected by means short of war. Those are
 |  difficult decisions. The Attorney General is arguing that
 |  the Security Council has delegated those decisions to the
 |  United Kingdom and the United States of America -- in
 |  effect, to the US alone. I do not believe that that is the
 |  kind of decision that the Security Council could, or would
 |  delegate to any one member, however powerful. A decision to
 |  use armed force under Article 42 in full scale war is the
 |  most solemn decision that the Security Council can ever
 |  take. The idea that vague and ambiguous words in those
 |  resolutions can be read as implying a delegation to the
 |  United States, with or without the United Kingdom, to take
 |  these decisions verges on the absurd.
 |
 |  Where does that leave the Government? I speak as someone who
 |  believes that Saddam Hussein should be disarmed by force if
 |  no other way succeeds. I believe that he does have weapons
 |  of mass destruction. His failure to co-operate with the
 |  inspectors when co-operation would have led to the lifting
 |  of sanctions can have no other rational explanation. But I
 |  also believe in the rule of law. I respect what the Prime
 |  Minister and the Government have done up to now. They have
 |  undoubtedly worked their guts out to achieve a second
 |  resolution, but it is now apparent that they have failed. It
 |  is not the fault of the Government, but mainly that of the
 |  Bush Administration who have have shown contempt for the
 |  United Nations and for international law. To some extent, it
 |  is also the fault of the French Government, who seem
 |  animated more by hostility to Anglo-Americans than by a
 |  willingness to seek a compromise. But failure there has
 |  been.
 |
 |  War and British participation now seems inevitable. The
 |  Government should face up to the fact that what we are about
 |  to do is not lawful. They will have to bear the consequences
 |  of that, and so will we.
 |
 |  *  Lord Goodhart QC is a very senior British lawyer. 
 |  Educated at Eton College, Trinity College, Cambridge (1956
 |  BA, 1957 MA); Harvard Law School (1958 LLM).  He was called
 |  to the Bar in 1957 and appoinied Queen's Counsel in 1997. 
 |  He has been a practising lawyer at the Chancery Bar since
 |  1960.  He was knighted in 1989 and ennobled as a Life Peer
 |  in 1997.
 |
 |  ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
 |
 |  Lord Lester of Herne Hill: **  My Lords, two issues have
 |  been raised by my noble friend's Motion. The first is
 |  whether the use of force against Iraq is lawful under
 |  international law; and the second is that, even if it were
 |  lawful, what are the legal limits governing the use of force
 |  under international humanitarian law? I shall deal with the
 |  second of those issues rather than the first.
 |
 |  As I am sure all noble Lords will agree, it is obviously
 |  essential for members of the Armed Forces and civil servants
 |  to have clear guidance about the legal obligations imposed
 |  on them as we face imminent war against Iraq. The Cabinet
 |  Secretary, Sir Andrew Turnbull, has recognised this in
 |  evidence to a committee in another place and has indicated
 |  that at the earliest opportunity that position will be
 |  clarified in a parliamentary debate. That is why this debate
 |  is particularly timely. I very much hope that the Minister
 |  will reply clearly to both those issues. In the light of
 |  some Questions for Written Answer that I had tabled, I wrote
 |  last Thursday to the noble Baroness asking her to do so.
 |  Having waived privilege in respect of the Attorney-General's
 |  conclusions, I hope that in fairness to the Attorney-General
 |  the Government will publish his full reasons so that we can
 |  see more than the one-page summary.
 |
 |  Forty years ago, I learned the principles of public
 |  international law as I understand them not in this country
 |  but in the United States Harvard law school. My mentors were
 |  two great American jurists, Professor Richard Baxter who
 |  became the American judge on the International Court of
 |  Justice and Professor Louis Sohn, the expert on United
 |  Nations law. On the basis of their teaching and my
 |  subsequent practice, and my reading not only of the various
 |  opinions which have been referred to but also the four
 |  detailed opinions by Rabinder Singh QC and his colleagues, I
 |  agree with the views expressed by my noble friend and the
 |  noble Lord, Lord Brennan. I am not convinced by the summary
 |  reasoning given by the noble and learned Lord the
 |  Attorney-General.
 |
 |  International humanitarian law is inspired by the desire of
 |  all civilised nations to reduce the evils of war by
 |  protecting both combatants and non-combatants from
 |  unnecessary suffering, safeguarding the fundamental human
 |  rights of those who fall into the hands of the enemy,
 |  particularly prisoners of war, the wounded, sick and
 |  civilians, and facilitating the restoration of peace.
 |  English law makes it quite clear that a military commander
 |  is responsible for offences committed by forces under his
 |  effective command and control. English law makes it an
 |  offence to commit crimes against humanity or war crimes. I
 |  am sure the Minister will be able to confirm that there are
 |  effective sanctions under English law for any such offences.
 |  I ask the Minister also to confirm that those principles are
 |  rooted in well-established, customary and conventional
 |  international law; and that Ministers, civil servants and
 |  members of the Armed Forces of this country and the United
 |  States are bound to comply with those obligations.
 |
 |  On Saturday the Financial Times published an important
 |  letter from the Director-General of the International
 |  Committee of the Red Cross in Geneva, Mr Angelo Gnaedinger
 |  who wrote:
 |
 |  "If a war is fought, all combatants must behave in a way
 |  that prevents indiscriminate and excessive suffering and
 |  destruction. International humanitarian law prohibits direct
 |  attacks on civilians and stipulates that everything possible
 |  must be done to minimise incidental civilian deaths and
 |  injuries. Furthermore, combatants must avoid damaging or
 |  destroying vital structures. These provisions can only
 |  become a reality if the warring parties do not use weapons
 |  that indiscriminately kill and maim, cause excessive and
 |  long-lasting suffering and damage or pose long-term threats
 |  to health and security".
 |
 |  The director-general also noted that during the Gulf War
 |  tens of thousands of people from both sides were detained as
 |  prisoners of war or civilian internees. He wrote:
 |
 |  "It is essential that everyone in this situation is treated
 |  humanely and in accordance with the Geneva Conventions. The
 |  potential conflict parties must also do everything possible
 |  to care for the sick and wounded, whether combatants or
 |  civilians, friend or foe. This implies that combatants
 |  respect the work of medical staff and facilities protected
 |  by the Red Cross and the Red Crescent emblems. In addition,
 |  everyone should do their outmost to ensure that humanitarian
 |  organisations can deliver medical care and emergency
 |  relief".
 |
 |  Do the Government accept everything that the
 |  Director-General of the International Committee of the Red
 |  Cross has said is required? I hope and believe that the
 |  answer will be in the affirmative.
 |
 |  Finally, the director-general wrote:
 |
 |  "If war cannot be avoided, everything must be done to
 |  contain its effect on the safety and stability of the
 |  region. Much of this depends on how the hostilities are
 |  conducted and on the space given to human dignity and
 |  integrity in the midst of turmoil".
 |
 |  Do the Government agree with that? Do they accept the
 |  obligation to meet the needs of the people and their rights
 |  for help and protection under international humanitarian
 |  law?
 |
 |  To be just, a war against Iraq would have to respect the
 |  principles and rules of the international rule of law. Even
 |  amid the clash of arms, the laws are not silent. In the
 |  pursuit of the international rule of law, our Government as
 |  well as the Government of the United States must surely be
 |  ruled by international law in war as in peace and must
 |  demonstrate that they will fully comply with those
 |  fundamental principles in their conduct. We are not Romans;
 |  nor are we barbarians; nor, if I may say so, cowboys
 |  enforcing gun law in the Wild West. I hope that the United
 |  States Government will understand in their conduct of this
 |  war that, in Shakespeare's words,
 |
 |  "it is excellent to have a giant's strength, but it is
 |  tyrannous to use it like a giant".
 |
 |  I look forward to the Minister's full explanation of the
 |  Government's understanding of the international legal
 |  obligations imposed upon them and their allies in the use of
 |  armed force and the Government's acceptance of the matters
 |  raised on behalf of the International Committee of the Red
 |  Cross. In case there is any doubt about the matter, I wish
 |  to reiterate that for the reasons already given, and to be
 |  given, my view is firmly that what we are about to do is in
 |  breach of fundamental international legal principles.
 |
 |  ** Lord Lester of Herne Hill QC is also a very senior
 |  barrister speciaising in administrative and European law. 
 |  Educated at the City of London School, Trinity College,
 |  Cambridge (1960 BA) and Harvard Law School (1962 LLM).  He
 |  was called to the Englsih bar in 1963 and appointed Queen's
 |  Counsel in 1975.  He was ennobled as a Life Peer in 1993. He
 |  is a leading human rights specialist and President of
 |  Interights (the International Centre for the Legal
 |  Protection of Human Rights); and on the Council of JUSTICE. 
 |  He is visiting professor of Public Law, University College
 |  London and authored 'Halsbury's Laws', 'Constitutional Law
 |  and Human Rights' 1996; and is co-editor with David Pannick
 |  QC of 'Human Rights: Law and Practice' (Butterworths 1999).
 |
 |  |__________________________________________________________|
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |
 |  The True Position in International Law
 |
 |  Under Articles 42 and 46 of the UN Charter, it is not George
 |  Bush, Tony Blair, Darth Vader Rumsfeld or any other denizen
 |  of some so-called "coalition of the willing" who has the
 |  legal authority to decide whether and if so in what measure
 |  force should be used in the event of non-compliance.  That
 |  power is vested by international law in the Security Council
 |  of the United Nations and in no-one else.
 |
 |  At a Franco-UK summit on 5th February 2003, France again
 |  reiterated its position that it is for the UN Security
 |  Council as a whole to oversee the disarmament process in
 |  Iraq.  President Chirac stated that force might have to be
 |  used, but that every means short of war should be attempted
 |  first, that war is "the worst of all possible options" and
 |  expressed a personal view that the inspectors should be
 |  given more time.
 |
 |  France has held to that position in the UN Security Council
 |  and has thus far been supported by China, Russia, a
 |  substantial number of the non-permanent members and the vast
 |  majority of the General Assembly members who spoke by
 |  invitation at the most recent meeting of the Security
 |  Council
 |
 |  It can be hoped and expected that France will continue to
 |  insist that decisions on the use of force are for the
 |  Security Council as a whole and that if force is authorised
 |  it is for the Security Council to determine mission, means
 |  and command and control arrangements.  It is hoped that
 |  China and Russia will continue to support this position and
 |  use their veto powers if necessary.
 |
 |  The UK Prime Minister's recent argument that the use of
 |  force without United Nations Security Council authority
 |  would be justified if there was "an unreasonable veto"
 |  interposed by a permanent Security Council member is devoid
 |  of any merit.  It begs several questions, in particular:
 |
 |  (i) who decides as a matter of law that the veto was
 |  unreasonable ?
 |
 |  (ii) can any "coalition of the willing" take matters into
 |  their own hands in the face of an "unreasonable" veto - such
 |  as those the United States habitually imposes to protect
 |  Israel ?
 |
 |  The veto power is a right granted by the UN Charter.  The US
 |  has used its veto power 76 times - 36 times to block action
 |  against the State of Israel.  Britain itself has used the
 |  veto power 32 times as opposed to France's 8 times and
 |  China's 5 times.  Were all these votes unreasonable and
 |  would it have been lawful to proceed disregarding the votes
 |  ?
 |
 |  It is also to be hoped that the elected members will hold to
 |  their responsibilities and and resist US/UK bribery and
 |  blackmail.  The US/UK should not be given the cover of a
 |  majority vote for a vetoed resolution as a cover for
 |  unlawful action.
 |
 |  If the rule of international law is to mean anything, it is
 |  for the Security Council to uphold the Charter.  Failure to
 |  do so is a recipe for international anarchy.
 |
 |  As President Eisenhower said when Britain, France and Israel
 |  unlawfully launched the Suez invasion of Egypt in 1956:-
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  "In all the recent troubles in the Middle East, there have
 |  indeed been injustices suffered by all nations involved. But
 |  I do not believe that another instrument of injustice -- war
 |  -- is the remedy for these wrongs.
 |
 |  There can be no peace -- without law. And there can be no
 |  law -- if we were to invoke one code of international
 |  conduct for those who oppose us -- and another for our
 |  friends."
 |
 |  |__________________________________________________________|
 |
 |
 |
 |  |ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ|
 |
 |  Foreign Office adviser resigns
 |
 |  Laura Peek - The Times - 22 March 2003
 |
 |  THE deputy legal adviser to the Foreign Office has resigned
 |  from her job over the Government's position on the legality
 |  of war in Iraq.
 |
 |  Elizabeth Wilmhurst, 54, has been a Foreign Office legal
 |  adviser for 30 years. Her resignation will be a fresh blow
 |  for the Prime Minister and will raise new questions about
 |  the legality of the war.
 |
 |  Ms Wilmhurst is understood to have left her post because she
 |  is unhappy about Tony Blair's argument that he has
 |  sufficient basis for war under UN resolutions.
 |
 |  A spokesman for the Foreign Office said: ``We can confirm
 |  that the deputy legal adviser has resigned. It is a personal
 |  decision and not for us to comment.'' He said that the
 |  resignation did not cast doubts over the legal basis for
 |  war.
 |
 |  ``We stand by the advice the Attorney-General has set out in
 |  his written answer to a parliamentary question on March
 |  17.''
 |
 |  Ms Wilmhurst's departure is likely to encourage anti-war MPs
 |  to renew pressure on Lord Goldsmith, the Attorney-General,
 |  to publish his legal advice to the Government in full.Lord
 |  Goldsmith published a condensed version of his advice to Mr
 |  Blair on Monday following a week of questions about the
 |  legality of going to war without a second UN resolution.
 |  Anti-war MPs and some lawyers believe the full version may
 |  offer a more balanced view.
 |
 |  Two former Foreign Office legal advisers expressed concern
 |  about the advice this week. In a letter to The Times, Sir
 |  Franklin Berman and Sir Arthur Watts expressed regret that
 |  the pursuit of a second resolution had been abandoned.
 |
 |  |__________________________________________________________|
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |
 |
 |  Uniting for Peace Procedure
 |
 |  What can happen now the USA and/or the UK have decided to
 |  bypass the Security Council and start a war against Iraq
 |  without UN authority ?
 |
 |  While the UN Charter vests in the UN Security Council ``the
 |  primary responsibility for the maintenance of international
 |  peace and security'', there is a backstop procedure to
 |  counter permanent members vetoes within the UN Security
 |  Council.
 |
 |  This is the ``Uniting for Peace'' Resolution 377A (1950)
 |  adopted by the General Assembly by near unanimity in 1950,
 |  largely at the instance of the United States which was at
 |  that time concerned by Soviet use of the veto.  See Text of
 |  Resolution 377A (1950) [
 |  http://www.eurolegal.org/pdfdocs/ares377e.pdf ( now a dead
 |  link, instead visit
 |  http://legal.lege.net/un_ga_res/377A/377A.pdf ) ] in PDF
 |  Format.
 |
 |  The Resolution provides that:-
 |
 |  "...if the Security Council...fails to exercise its primary
 |  responsibility for the maintenance of international peace
 |  and security in any case where there appears to be a threat
 |  to the peace, breach of the peace or act of agression, the
 |  General Assembly shall consider the matter immediately with
 |  a view to making appropriate recommendation to Members for
 |  collective measures".
 |
 |  This procedure was used with great success by the Eisenhower
 |  Administration to counter the vetoes of France and the UK in
 |  relation to their unlawful Suez canal adventures.
 |
 |  Given that history, it might be difficult for the USA and UK
 |  to ignore a General Assembly resolution under this
 |  procedure, especially if passed by a substantial majority
 |  and, if the tenor of the speeches of General Assembly
 |  members at the Security Council is anything to go by, the
 |  majority would be substantial.
 |
 |
 |  ____________________________________________________________
 |  ŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻŻ
 |
 |  (In accordance with Title 17 U.S.C. Section 107, this
 |  material is distributed without profit to those who have
 |  expressed a prior interest in receiving the included
 |  information for research and educational purposes.)
 |______________________________________________________________