2003 Iraq War; Iraq War - Legality without a UN Mandate, (now a dead link), local transcript:

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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 [ ( now a dead link, instead go to or to ) ], 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.

UN-Speak - How the UN uses language


A country engaged in war or hostilities - but not a country engaged in peace enforcement, therefore a term of disapproval.


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.


This is the expression the UN tends to use as a neutral expression to denote a war without pronouncing on the merits.


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.


This is UN-Speak for a resolution that authorises the use of force without further reference to the Security Council.

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.

Bewitched, Bothered, and Bewildered [ ], 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.

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 [ ].

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 [ ] [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.

"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:-

"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.

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 [ ]. 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.

02 Aug 1990


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 [ ( now a dead link, instead visit ) ]

06 Aug 1990


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 [ ( now a dead link, instead visit ) ]

29 Nov 1990


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 " use all necessary means to implement ..." is the operative authority for the use of force.

Full Text in PDF Format [ ( now a dead link, instead visit ) ]

03 Apr 1991


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 [ ( now a dead link, instead visit ) ]

UN Security Council 1441

UN Security Council Meeting - 8th November 2002
Security Council Votes on Iraq Resolution

Click Here For Text of UN Security Council Resolution No 1441 [ ] [ The UN site doesn't always produce documents, so here's Local copies: ]

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.

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,

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 [ ( now a dead link, instead go to and also the 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 [ (now a dead link) ]).

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 [ ] which seems to us to be a good analysis of the international law position.

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 [ ]

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.

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 [,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:-

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.

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.

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).

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:-

"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."

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.

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) [ ( now a dead link, instead visit ) ] 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.

(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.)

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Updated 27 October 2003