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MPs briefing
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LEGAL BRIEFING GIVEN TO MPs by Rabinder Singh QC at 6pm on 12.03.03 at 1 Parliament St Briefing meeting organised by Campaign for Nuclear Disarmament who had commissioned Rabinder Singh and Charlotte KIlroy to give a legal opinion (notes by K. McVey)
Rabinder Singh QC briefed MPs on the legality of using armed force against Iraq. In short, his view was that the consensus of legal opinion is that Resolution 1441 does not give authorisation for the use of armed force at this time - nor does any previous resolution. He also confirmed that war is not the same thing as armed force and that whilst a further UN resolution could, if appropriately worded, authorise armed force, no resolution, however worded, could authorise war as there is no provision in the UN charter for authorising war. Further details are below. NOTE: The text below is that distributed in a hand-out by the organisers of the briefing meeting - except that parts in square brackets [like this, coloured blue, in italics ] are suggested amendments by me to replace any immediately preceding text coloured blue but not in square brackets. I hope that Rabinder Singh will feel that these suggested amendments reflect his responses to questioning during the briefing, though this has yet to be confirmed by him. K.McVey 13.03.03.
THE LEGALITY OF A WAR [suggest: USING ARMED FORCE] AGAINST IRAQ Frequently Asked Questions
1. Why do the US and UK need authorisation from the UN Security Council to go to war with [suggest: use armed force against] Iraq? The prohibition on the use of force is one of the most important principles in the UN Charter, to which both the US and the UK are signatories. There are only two exceptions in the UN Charter to this prohibition: the right to self-defence which is set out at Article 51, and authorisation from the Security Council under Article 42 (which is in Chapter VII of the UN Charter). The right to self-defence can be invoked if an armed attack takes place against a Member of the United Nations, and is intended to provide states with the ability to defend themselves until the Security Council takes the necessary measures to maintain [suggest: restore] international peace and security. No armed attack by Iraq has taken place against any member of the United Nations, nor is there any suggestion that such an attack is imminent. The right to self-defence cannot therefore be invoked to attack Iraq. Under Article 42 of the UN Charter only the Security Council, and not Member States, can authorise the use of force [suggest: in circumstances other than self-defence].
2. How does the Security Council authorise force? The words consistently used by the Security Council to authorise the use of force over the last twelve years are that Member States are "authorised" to "use all necessary means" or "take all necessary measures" in pursuit of a specified goal. This was true of resolution 678 which authorised the Gulf War in 1990. [suggest: authorised armed force in what became known as the Gulf War in 1990. ] Increasingly authorisations of force are subject to time-limits and have clear goals, making it easier to establish when the authorisation comes to an end.
3. The Security Council has already adopted 17 resolutions concerning Iraq under Chapter VII of the UN Charter. Why can't the US and UK rely on those? The fact that a resolution is adopted under Chapter VII of the UN Charter does not mean that it authorises force. For example, the Security Council's power to order sanctions against a Member State also arises under Chapter VII of the UN Charter, in Article 41. Only one of the previous 17 resolutions on Iraq authorised the use of force. That was resolution 678 adopted in 1990. This resolution authorised Member States acting in co-operation with the Government of Kuwait to use all necessary means to end Iraq's invasion and occupation of Kuwait and to restore peace and security to the area. The authority to use force contained in this Resolution was brought to an end following the success of the Gulf War [suggest: "following the achievement of the goals of the armed intervention" because whether something is judged to be "successful" depends on the criteria used for judging success"] by a ceasefire agreement contained in Resolution 687. Resolution 687 was adopted in 1991.
4. But Iraq is in breach of the ceasefire agreement, isn't it? The ceasefire agreement in Resolution 687 was conditional on Iraq notifying the Security Council of its acceptance of a disarmament programme contained in the resolution. Once Iraq had notified its acceptance to the Security Council, the formal ceasefire was effective, and the authority to use force was terminated. Resolution 687 makes it clear that once the ceasefire was effective, the Security Council, and not Member States, would be responsible for taking any further steps necessary to ensure the implementation of the disarmament programme contained in Resolution687 and to secure peace and security in the area.
5. The Security Council set out again in Resolution 1441 the requirement on Iraq to declare and permit inspection and destruction of its programmes for the development of weapons of mass destruction. It made clear the steps that Iraq had to take. Iraq is in material breach of Resolution 1441. Why can't the US and the UK take action to enforce resolution 1441? Under paragraphs 4 and 11 of Resolution 1441, if Hans Blix and Mohamed El-Baradei discover that Iraq has failed to make a full and complete declaration of its programmes for nuclear, chemical and biological weapons, and conclude that Iraq is not co-operating with the weapons inspectors in revealing and destroying the weapons that it has, then they must report these findings to the Security Council. Under paragraph 12 of Resolution 1441, on receipt of such a report, the Security Council will convene to consider the situation and the need for compliance with all its relevant resolutions. In other words it is the Security Council which will decide whether Iraq is in breach of Resolution 1441, and it is the Security Council which will decide what to do about it. There is no authority in Resolution 1441 for Member States to use force unilaterally [suggest: "or in coalitions of the willing" as George Bush understandably denies that his proposed action would be unilateral if others are willing to join the US in it] even if they themselves conclude that Iraq is not complying with the resolution.
6. But Resolution 1441 warns Iraq of "serious consequences" if it does not comply ? [suggest omit question mark] Paragraph 13 of Resolution 1441 states that the Security Council "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." The words 'in that context', clearly indicate that any serious consequences which Iraq will face are to be decided upon in the context of the discussion by the Security Council envisaged by paragraph 12 of Resolution1441. In other words it is the Security Council which will decide whether serious consequences will follow and what those consequences will be. Paragraph 13 and the use of the words 'serious consequences' does not amount to an authorisation to Member States to use force unilaterally [suggest again: "or in coalitions"] .
7. The people of Iraq have suffered and continue to suffer appalling human rights violations. The UK and the US made a humanitarian intervention in Kosovo without a Security Council Resolution. Why can't the US and the UK make a similar humanitarian intervention to save the Iraqi people? The doctrine of humanitarian intervention as an additional and separate exception to the prohibition on the use of force outlined above, is a new doctrine which was explored at the time of the Kosovo crisis. It is not yet clearly established in International Law. There is, in any event, no foundation for the suggestion that it could apply here. The reason for invoking it in Kosovo was that Milosevic was actively pursuing a policy of ethnic cleansing, and there was no time to wait for a consensus on the Security Council. In Iraq there is no immediate humanitarian crisis which could justify humanitarian intervention without Security Council authorisation. The UN has other mechanisms for dealing with breaches of human rights, for example the Human Rights Committee. If international findings of abuse of human rights were enough to authorise unilateral use of force against another state, many states, including China, Saudi Arabia and Israel would have to fear armed attack as well. 8. If the new draft resolution, the so-called "second resolution" is adopted, does this authorise war [suggest: armed force] ? The "second resolution" as currently drafted does not authorise the use of force. Most international lawyers believe that an authorisation to use force under Chapter VII of the UN Charter must be clearly expressed. Otherwise it is not clear whether the Security Council has in fact authorised the use of force, and the Security Council loses control over how and when a decision to use force is implemented. There is a view, however, that if the "second resolution" is adopted on the clear understanding that it will lead to war [suggest: armed force], and if there is no veto, then a war [suggest: armed force] would be lawful. Even on this view, however, in order for a war [suggest: armed force] to be lawful there would need to be clear statements from those countries voting for the resolution that they believed it authorised war [suggest: armed force]. It is difficult to see why clear words such as "all necessary means" cannot be used if the will of the Security Council is in fact to authorise war [suggest: armed force] at this stage. The use of less clear language ("a fudge") suggests that the will is not there at the moment at least.
9. What if the US and the UK obtain 9 votes for their resolution, but it is "unreasonably" vetoed? Will a war [suggest: armed force] be lawful in these circumstances? There is no foundation in international law for the suggestion that an "unreasonable" veto may be ignored. International law is clear. The five permanent members of the Security Council have the power to veto a resolution under Article 27 of the Charter. For the UK to argue otherwise is dangerous for its own position: since 1945 it has used its veto 32 times even though other states may have thought it was acting unreasonably. If the draft resolution is vetoed then it has no effect in law and may not be relied upon as authorisation for any action.
Suggest the addition of another point as follows: 10. If armed force were to be authorised by a subsequent resolution, would it be true to say that the UN had authorised "war"? No. There is no provision in the UN Charter for authorising war. The word "war" is not used in the UN Charter other than in the phrase "Second World War" and in the first sentence of the preamble, which begins "WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war ..." War differs in several ways from peace enforcement actions - those limited uses of force which may be authorised, under chapter VII of the UN Charter, if certain tests are met and solely for the purpose of maintaining or restoring international peace and security. To explore those differences would require another sets of "FAQs", but they include differences of aim, of method, and of degree as well as differences of legal status. The sorts of armed force which the Security Council can authorise under the UN Charter do not amount to war, and it is not correct to refer to war as if it has been, or could be, authorised by the United Nations.
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