2003 Iraq War; Iraq War - Legality without a UN Mandate, http://www.eurolegal.org/usmideast8.htm (now a dead link), local transcript:
[ 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]
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.
"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.
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.
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.
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.
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.
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.
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:-
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.
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.
UN Security Council 1441
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.
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.
School of Law,
The University of Edinburgh,
Old College, South Bridge,
Edinburgh EH89 9YL.
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).
Copyleft © 2003 Leif Erlingsson or author.
Updated 27 October 2003