It is one of those anniversaries not worth celebrating. But one that must be remembered. Three years have lapsed since the US-led invasion of Iraq. The legality of the invasion has been justified on various occasions by the Bush-Blair administrations through a combination of UN Security Council resolutions.
There is an inherent flaw in the reasoning that we cannot afford to forget. The following is a report from the Guardian (March 17, 2003)
The attorney general, Lord Goldsmith, said in a written parliamentary answer that the authority to use force against Iraq stemmed from the combined effect of resolutions 678, 687 and 1441.
Lord Goldsmith stated: "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."
The actual advice passed by the attorney general to the prime minister has not been made public, but the official response given today reverses previous speculation that Lord Goldsmith may fail to find legal justification for an attack.
In his written answer, Lord Goldsmith stated: "In resolution 678 the security council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area.
"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.
"A material breach of resolution 687 revives the authority to use force under resolution 678.
"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.
"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."
Lord Goldsmith's statement continued: "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.
"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.
"Thus, the authority to use force under resolution 678 has revived and so continues today.
"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."
The reasoning above is clearly false if one reads the relevant resolutions referred to by Lord Goldsmith.
To being with, the use of force is only justifiable by a nation under the UN Charter if it is for self defence under Article 51. The only other justification for the use of force is through the action of the Security Council (not unilaterally through the action of any state or combination of states).
The following are relevant Clauses in Resolution 687…
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 provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait 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 area.
By Clause 33 a formal cease fire would have come into effect upon official notification by Iraq to the Secretary-General of its acceptance of the post war terms set forth in Resolution 687. The official notification was provided on behalf of Iraq by the Minister for Foreign Affairs in a letter dated 6 April 1991 addressed to the Secretary-General of the United Nations and to the President of the Security Council
It is difficult to see how a material breach of Resolution 687 could revive Resolution 678 when there was an effective ceasefire under 687 and clause 34 of Resolution 687 further reserves the for the Security Council the right to “take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area”
The operative words “to take further steps” would imply some further formal declaration of war or declaration of use of force rather than a mere “automatic” revival of the use of force clause in Resolution 678. Clearly a deliberate act is envisaged on the part of the Security Council rather than a revival of previous provisions.
The relevant clauses in Resolution 678 are as follows:
The Security Council:
Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwil, to do so;
2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, 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;
3. Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 of the present resolution;
4. Requests the States concerned to keep the Security Council regularly informed on the progress of actions undertaken pursuant to paragraphs 2 and 3 of the present resolution;
Note that the authorization to use “all necessary means” relates to the upholding and implementation of Resolution 660 and to the restoration of “international peace and security in the area.” This must be seen in the context of Resolution 660 which calls for the withdrawal of Iraq from Kuwait. Surely the restoration of “international peace and security in the area” would involve restoring the nations back to their status quo prior to the invasion of Kuwait by Iraq.
Resolution 660 (1990) is as follows:
The Security Council:
1. Condemns the Iraqi invasion of Kuwait;
2. Demands that Iraq withdraw immediately and unconditionally all s its forces to the positions in which they were located on 1 August 1990;r
3. Calls upon Iraq and Kuwait to begin immediately intensive negotiations for the resolution of their differences and supports all efforts in this regard, and especially those of the League of Arab States;
4. Decides to meet again as necessary to consider further steps with to ensure compliance with the present resolution.
Leaving aside the question of whether or not Iraq was in breach of Resolution 1441 (which was the final Resolution relating to Iraq before the Bush-Blair coalition went to war), lets examine Lord Goldsmith’s argument that Resolution 1441 does not require further action before any use of force against Iraq. He states the if the Security Council intended a further decision before any use of force, this would have been expressly stated. "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."
This doesn’t sit well with the actual negotiation between the Security Council members. Resolution 1441 was drafted as a compromise between the Council members so as to avoid giving the Americans and the British an automatic right to invade. The US sponsored a text that would automatically trigger the use of force and they did not procure that in the eventual watered down resolution that was passed. In fact, by Resolution 1441, the USA & Britain had been bound to return to the Security Council to make a collective decision
The relevant clauses of Resolution 1441 are 11, 12 and 13. They deal with the consequences that would follow as a result of Iraqi non-compliance:
"11. Directs the Executive Chairman of UNMOVIC and the Director-General of the IAEA 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, including its obligations regarding inspections under this resolution;
12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, 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;
13. Recalls, 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."
Resolution 1441 does not state that use of force is authorized in the event that there is a breach. Resolution 1441 does not state that “serious consequences” would result in the event that there is a breach. It merely recalls the fact that Iraq had been warned on other occasions by the Security Council. What the Resolution in fact decided is in found in Clause 12: Upon receipt of a report from UMOVIC and IAEA, the Security Council would “convene immediately” “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”
The Resolution of the Security Council in 1441 was therefore a decision to consider the next step to be taken after a report from UMOVIC and IAEA. Where is the authorization to use force. How could logic and reason justify such use of force as being legal under International Law?
Questioning the legality of the war should not be sidelined as being academic now. If there are nations (i.e. “Coalition of the willing”) which have commenced a war that was not sanctioned under the UN Charter, then these nations are themselves answerable for this breach of International Law.