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Case Against War"
IN
THE MATTER OF THE POTENTIAL USE
OF ARMED FORCE BY THE UK AGAINST IRAQ
AND THE DRAFT US/UK RESOLUTION
PUBLISHED
ON 24 FEBRUARY 2003
_________________
OPINION
_________________
Further to our previous advice (OP1441) on whether the United Kingdom
(UK) can rely on United Nations Security Council Resolution 1441 (Resolution
1441) to use force against Iraq,
we are asked to advise the Campaign for Nuclear Disarmament on whether the draft
resolution released by the United States and the United Kingdom on 24 February 2003 (the “Draft
Resolution”) would, if adopted by the United Nations Security Council, authorise
the US and the UK to take military action against Iraq.
Summary of advice
For the reasons set out below, our opinion is that:
(1) The
Draft Resolution would not authorise the US and the UK to use force
against Iraq if it were adopted.
(2) In the
present circumstances as known to us, if there is no further Resolution clearly
authorising force, the US and the UK would be acting in violation of international
law if they were to attack Iraq .
The text of the Draft Resolution
The Draft Resolution comprises a long preamble and two short operative
paragraphs. The preamble ‘recalls’ all the Security Council’s previous
relevant resolutions, and continues:
“Recalling that in its
Resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance
by Iraq
of the
provisions of that resolution, including the obligations on Iraq contained therein,
"Recalling that its
Resolution 1441 (2002), while acknowledging that Iraq has been and remains in material
breach of its obligations, afforded Iraq a final opportunity to comply with its
disarmament obligations under relevant resolutions,
"Recalling that in its
Resolution 1441 (2002) the Council decided that false statements or omissions in the
declaration submitted by Iraq pursuant to that resolution and failure by Iraq at any time
to comply with, and to cooperate fully in the implementation of that resolution would
constitute a further material breach,
"Noting, in that context,
that in its Resolution 1441 (2002), the Council recalled that it has repeatedly warned Iraq that it will face
serious consequences as a result of its continued violations of its obligations,
"Noting that Iraq has submitted a
declaration pursuant to its Resolution 1441 (2002) containing false statements and
omissions and has failed to comply with, and cooperate fully in the implementation of that
resolution,
"Reaffirming the commitment
of all member states to the sovereignty and territorial integrity of Iraq , Kuwait and the neighbouring
states,
Mindful of its primary
responsibility under the charter of the United Nations for the maintenance of
international peace and security,
"Recognising the threat of Iraq 's non-compliance
with Council resolutions and proliferation of weapons of mass destruction and long-range
missiles poses to international peace and security,
"Determined to secure full
compliance with its decisions and to restore international peace and security in the area,
…”
The operative part of the Draft
Resolution states that the Security Council:
“Acting under Chapter VII of
the charter of the United Nations,
(1) Decides that Iraq has failed to take
the final opportunity afforded to it in Resolution 1441 (2002),
(2) Decides to remain seized of
the matter."
In an article in the Guardian dated 25
February 2003 Julian Borger reported that the Draft Resolution
was far milder than the US originally
had in mind. The article reported that prior to the report of Hans Blix on 14 February
2003 the US had considered going
further, ‘demanding the security council approve the use of “all necessary
means” to enforce its will.’ A British official was reported as saying,
“The Americans’ original language was quite tough on requiring the words
‘material breach’ and so on. We said you simply have to refer back to resolution
1441 otherwise you’re simply not going to get the nine votes.” (Emphasis added)
Newspaper reports suggest that it is anticipated that the Draft Resolution
will be put to the vote at the Security Council in the week beginning 10 March 2003, and
that war will begin shortly afterwards.
Issues
In our earlier opinion OP1441 we concluded that Resolution 1441 did not
authorise the US and the UK to use force against Iraq
in the event that it breached the terms of Resolution 1441. We
concluded that a further Security Council Resolution clearly authorising force would be
needed.
The Draft Resolution appears to be the US and the UK ’s
proposal for meeting this requirement. It
seems clear that, if it is adopted by the Security Council, the US
and the UK will
seek to rely on the Draft Resolution either on its own or in conjunction with Resolution
1441 as authorising them to attack Iraq .
The crucial question therefore is whether the Draft Resolution would in fact
authorise the use of force against Iraq .
Legal Background
The United Nations Charter provides the framework for the use of force in
international law.
Article 1 states:
“The Purposes of the United Nations are:
(1) To
maintain international peace and security, and to that end: to take effective collective
measures for the prevention and removal of threats to the peace, and for the suppression
of acts of aggression or other breaches of the peace, and to bring about by peaceful
means, and in conformity with the principles of justice and international law, adjustment
or settlement of international
disputes
or situations which might lead to a breach of the peace.”
Article 2(4) states:
“All
Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.”
Chapter VII of the Charter (Articles 39-51) confers on the Security Council
the duty of determining the existence of any threat to the peace, breach of the peace, or
act of aggression, and of deciding what action should be taken to maintain or restore
international peace and security.
Article 39 states
“The
Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall
be taken in accordance with Articles 41 and 42, to maintain or restore international peace
and security.”
Article 41 states
“The
Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete or partial interruption of
economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations.”
Article 42 states
“Should the Security
Council consider that measures provided for in Article 41 would be inadequate or have
proved to be inadequate, it may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of
the United Nations.”
Advice
What is the effect of a breach by Iraq of Resolution 1441?
Much of the Draft Resolution refers back to Resolution 1441. It is important
therefore to examine the meaning of that Resolution.
In OP1441 we considered whether
Resolution 1441 authorised the use of force in the event that Iraq
failed to comply with its terms. We concluded that it did not for three
principal reasons.
First, Resolution 1441 does not expressly authorise Member States to use
force. The resolutions adopted by the Security Council over the years, including
Resolution 678, show that that the language used to authorise force is bold and
consistent. Member states are ‘authorised’ to ‘use all necessary
means’ or ‘take all necessary measures’ in pursuit of a
specified goal. These words are manifestly absent from Resolution
1441.
Secondly, as a matter of principle international law precludes Member States
from relying on any implied authorisation to use force. The prohibition on the use of
force contained in Article 2(4) of the UN Charter is one of the most fundamental
principles in the Charter. Member States may only derogate from that prohibition in
self-defence or following an authorisation from the Security Council to use force made
under Chapter VII of the Charter.
The fundamental nature of the prohibition against the use of force means that
if a resolution is ambiguous on the question of whether force is authorised, then it
should be assumed that force is not authorised. Furthermore
the power given to the Security Council alone under Chapter VII to decide to use force to
restore peace is intended to ensure that any decisions on the use of force are reached collectively.
Article 1 of the Charter which sets out the Purposes of the UN makes it clear that
collective measures are all that is envisaged by the Charter. Use of force without clear
collective authorisation would therefore be in conflict with the fundamental principles of
the Charter and in violation of international law.
Thirdly, even if implied authorisation to use force were permissible under
international law, Resolution 1441 does not contain such an implied authorisation. The
wording and scheme of Resolution 1441 and the discussions leading up to its adoption make
it abundantly clear that any decision on the actions to be taken in the event of breach of
Resolution 1441 by Iraq will be taken by the Security Council. Paragraphs 4 and 11 provide
that, in
the event of false statements or omissions in Iraq
’s
weapons declaration or non-compliance with its disarmament obligations, either UNMOVIC
or the IAEA will make a report to the Security Council. Paragraph 12 of Resolution 1441 provides as follows:
12.[The Security Council] Decides
to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11
above, in order to consider the situation and the need for full compliance with all of the
relevant Council resolutions in order to secure international peace and security”.
This contemplates that the Security Council, not Member States acting
unilaterally, will decide on any further action to be taken against Iraq in the event of any non-compliance by Iraq with its obligations under Resolution 1441. In
other words Resolution 1441 does not set out what will happen if it is breached, but
leaves it to the Security Council to decide.
We also made it clear in OP1441 that in our view the use of the word
‘serious consequences’ in paragraph 13 of Resolution 1441 does not amount to an
authorisation to Member States to use force. 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 Resolution 1441. In any event, this paragraph does not itself warn
of serious consequences but is a reference to warnings made on previous occasions which
this part of the Resolution “recalls”. The
new Draft Resolution simply “notes” in the preamble that that is what Resolution
1441 said and does not itself authorise “serious consequences”.
In summary the effect of Resolution 1441 in international law is as follows.
If Hans Blix (for UNMOVIC) or Mohamed El-Baradei (for IAEA) conclude that Iraq is not complying with the terms of Resolution
1441 they will make a report to the Security Council. The Security Council will then
consider the situation and the need to secure full compliance with its resolutions and
will decide, in accordance with Chapter VII of the UN Charter, what action to take. Iraq is reminded that the consequences of breach
will be serious, but it remains a matter for the Security Council to determine what the
precise consequences will be and when they will take effect.
The question arises, therefore, of what the Security Council will have
determined if it adopts the Draft Resolution.
Does the
Draft Resolution authorise force?
It is clear that the Draft Resolution does not expressly authorise force any
more that Resolution 1441 does. There is no paragraph which authorises Member States to
use “all necessary means” or “take all necessary measures”.
Indeed the newspaper report referred to above indicates that this wording was contemplated
by the US but not pursued on the
grounds that it would not receive the full support of the Security Council.
In our view, if wording exists which clearly authorises force, and this
wording has not been pursued in favour of alternative wording which does not, then this is
the clearest indication that, if adopted, this Draft Resolution would do something less
than authorise force. To conclude otherwise not only flies in the face of common sense but
severely undermines the fundamental principles of the Charter for the reasons set out
above (see also OP1441). Those principles require that decisions on the use of force be
taken by the Security Council, not Member States, and that the authorisation of force be
enunciated in the clearest of terms so that it is beyond doubt that the Security Council
has in fact authorised the use of force. They
also enable the Security Council to retain control and supervision over such use of force
as it does authorise, for example with clear timescales set out in its resolutions. In contrast, unilateral use of force by one or
more Member States carries the serious risk that there will be a “free for all”,
threatening rather than maintaining international peace and security.
Eve n assuming this argument is wrong, however, in
our view the Draft Resolution cannot be construed as authorising force either alone or in
combination with Resolution 1441.
The bulk of the Draft Resolution is the Preamble. Preambles do not have
operative effect, and cannot therefore be relied upon as authorising action of any kind.
Where the words of the operative part of the Resolution are ambiguous, however, the
Preamble may be used as a tool of interpretation.
The Preamble to the Draft Resolution sets out the history of Iraq’s
international obligations and failure to comply with those obligations and at Preamble
paragraph 9 ‘recognises’ the threat to international peace and security
posed by Iraq’s non-compliance with Security Council resolutions.
Operative paragraph 1 in the Draft Resolution then states that the Security
Council acting under Chapter VII of the UN Charter “Decides that Iraq has failed to take the final
opportunity afforded to it by Resolution 1441.”
This is a decision as to a question of past fact, not an authorisation as to
future action by other Member States.
All that paragraph 1 does is refer back to the “final opportunity”
afforded in Resolution 1441. As set out above, however, Resolution 1441 does not authorise
force in the event that Iraq fails to take the final opportunity afforded to it, but
expressly envisages that a further decision will be taken by the Security Council as to
what steps should be taken under Chapter VII.
In our view the most that
paragraph 1 of the Draft Resolution can be said to determine, when read in conjunction
with the Preamble, is that Iraq poses
a threat to the peace. Paragraph 1 of the Draft Resolution might therefore be said to be a
determination under Article 39 of the Charter, which determination is a prerequisite to
any decision to use measures short of force under Article 41 or force under Article 42 of
the Charter. What paragraph 1 clearly does not do, however, is go on to decide what
measures shall be taken in accordance with Articles 41 and 42 in order to restore
international peace and security.
This interpretation is reinforced by the consideration that it would have
been very easy for the Draft Resolution to include an operative paragraph setting out what
it was that it authorised in the form of future action by Member States. That paragraph would state what measures the
Security Council should take in the light of its decision under paragraph 1. The Security
Council might decide to take measures under either Article 41 (for example, further
sanctions or an enhanced weapons inspection regime) or under Article 42 (blockades or
military action).
In our view the fact that the words ‘final opportunity’ are used
cannot mean that force automatically follows. The Security Council might, for example,
decide to take measures under Article 41 before it takes measures under Article 42. Under
Article 42, it might decide to mount a blockade before it takes military action. A determination that there has been a breach
of the peace under Article 39 does not automatically entail military action. That is why
Article 39 expressly provides that the Security Council should make recommendations or
decide what measures to take.
It is not open to the US and
the UK to simply assume that the
Security Council has authorised measures under Article 42. Those measures are for the
Security Council to decide upon. Eve n
if the Security Council were to decide to authorise measures under Article 42 it might,
for example, wish to limit the measures to action by land in order to minimise civilian
casualties, bearing in mind its obligation to take into account human rights and
humanitarian considerations under Article 1 of the Charter.
Nor in our view does the reference to ‘serious consequences’
in Resolution 1441 mean that, once Iraq has been declared by the Security Council to have failed to take the final
opportunity afforded to it, those ‘serious consequences’, whatever they
are, will automatically ensue. As set out above, the context in which the ‘serious
consequences’ were referred to in paragraph 13 of Resolution 1441 makes it clear
that the Security Council was to decide upon what those serious consequences would be and
when they would ensue. Indeed, as explained above, any other interpretation of that
paragraph would be in conflict with Articles 39, 41 and 42 of the UN Charter.
Conclusion
In our view, the Draft Resolution, if adopted, would not provide the US and the UK with an authorisation to use force against Iraq
, either alone or in conjunction with Resolution 1441. Nor does Resolution 1441 authorise force in the
event that it is breached by Iraq .
Any attack by US and the UK on Iraq in reliance on
the Draft Resolution either alone or in conjunction with Resolution 1441 would be in
breach of international law.
RABINDER SINGH QC
CHARLOTTE KILROY
Matrix Chambers
Griffin Building
Gray’s Inn
3 March 2003
Dated 15 November 2002
See inter alia S/Res/940 ( Haiti ), S/ Res/1264 ( East Timor ), S/Res/1080 (The Great Lakes).
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