Select Committee on Foreign Affairs Second Report

DISARMING IRAQ

Prospects for disarmament of Iraq: the UN route, and UN weapons inspections

111. President Bush and senior administration figures have stressed throughout the year that the United States' official policy towards Iraq is "regime change."[134] [135] The US administration's robust statements have provoked much speculation about how it would attempt to remove Saddam Hussein, the risks inherent in such a venture, whether and how it would seek allies to assist it in this endeavour, and the nature of any successor regime.[136] Debate intensified in August and September, when prominent US politicians—including some known to be close to the first President Bush—expressed grave concerns about the possible consequences of war with Iraq.[137]

112. After visiting Washington DC in March 2002, we concluded that few of those with whom we met there "had faith in the UN route towards control of Iraq's weapons of mass destruction."[138] On 12 September 2002, however, President Bush announced what many commentators interpreted as a shift in US policy towards Iraq. In his address to the General Assembly of the United Nations, the President reiterated his belief that "Saddam Hussein's regime is a grave and gathering danger." He then called for the enforcement of Security Council resolutions relating to Iraq, promising that the United States would "work with the UN Security Council to meet our common challenge. If Iraq's regime defies us again, the world must move deliberately, decisively to hold Iraq to account."[139]

113. President Bush's UN speech initiated eight weeks of "intensive negotiations"[140] in the Security Council over how to disarm Iraq. Shortly after the address, US Secretary of State Colin Powell met with his counterparts from the other Permanent Members of the Security Council, to discuss how best to proceed.

114. The Government worked closely with the United States during this period. The United Kingdom and the United States began to circulate "elements of a draft resolution" to other Security Council members on 25 September.[141] The text of this draft was leaked to the Financial Times on 2 October 2002.[142] According to the terms specified in the leaked draft resolution, the Council would demand a statement by Iraq of all weapons programmes, followed by the granting of "immediate, unconditional, and unrestricted access to all areas" in Iraq by a considerably enhanced inspections regime. Crucially, the initial draft resolution specified that any "false statements or omissions in the declaration submitted by Iraq to the Council and failure by Iraq at any time to comply and cooperate fully in accordance with the provisions laid out in this resolution, shall constitute a further material breach of Iraq's obligations, and that such breach authorises member states to use all necessary means to restore international peace and security."

115. France led resistance to the adoption of these provisions by the Security Council, though Russia expressed much sympathy with the French position. In early September, French President Jacques Chirac had proposed a two stage process in the Security Council, with a first resolution setting a three week deadline, before which Iraq would have to allow UN weapons inspectors to return. According to this plan, if Iraq refused to co-operate the Security Council would reconvene to adopt a second resolution, this time authorising the use of military force. On 1 October—after the initial circulation of the UK-US draft—French foreign minister Dominique de Villepin wrote in Le Monde that "The two-step approach proposed by President Chirac ... is the only one capable of ensuring control at every stage of the crisis ... We do not want to give a blank cheque to military action, since we want to shoulder our responsibility to the end. This is why we cannot accept a resolution authorizing right now the recourse to force, without going back to the United Nations Security Council."[143]

116. The French conditions have been met to some extent in Security Council Resolution 1441, which was adopted unanimously on 8 November 2002.[144] US Ambassador John Negroponte has stated that UNSCR 1441 "contains no 'hidden triggers' and no 'automaticity' with respect to the use of force. If there is a further Iraqi breach, reported to the Security Council by UN Monitoring, Verification and Inspection Commission (UNMOVIC),[145] the International Atomic Energy Authority (IAEA) or a member state, the matter will return to the Council for discussion as required in paragraph 12" of Resolution 1441.[146] The French Ambassador Jean-David Levitte subsequently welcomed the fact that "all elements of automaticity have disappeared from the resolution."[147] Syria, the Arab League non-permanent member of the Council, also voted for the adoption of Resolution 1441.

117. Security Council Resolution 1441 established an enhanced inspection regime for Iraq's disarmament. In this Resolution, the Security Council recalls its previous Resolutions relating to Iraq's weapons of mass destruction passed since the end of the Gulf War in 1991, and asserts its determination to ensure Iraq's full compliance with these Resolutions. Iraq, it asserts, has been and remains "in material breach of its obligations under relevant resolutions ... in particular though [its] failure to cooperate with the United Nations inspectors and the IAEA", and to disarm according to its obligations in UNSCR 687 (1991).[148] The text affords Iraq a final opportunity to comply with its disarmament obligations, sets out specific obligations which Iraq must now fulfil, and "Recalls ... that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." UN Security Council Resolution 1441 is discussed further in paragraphs 129-40 and 162-73 below.

118. The British Government played an extremely active role in the negotiation of Security Council Resolution 1441. The Foreign Secretary informed the House on 7 November that "Throughout these two months, my right hon. Friend the Prime Minister has spoken to President Bush and other Heads of Government at regular intervals. I have been in daily contact with the US Secretary of State, Colin Powell, and I have had detailed discussions on numerous occasions with my French, Russian and Chinese counterparts and with Foreign Ministers of the elected 10 of the Security Council. Our UN ambassador, Sir Jeremy Greenstock, and his team have worked tirelessly in New York."[149]

119. We note the Church of England House of Bishops' conclusion that "the very fact that Bush has sought UN authorisation is seen as a success in and of itself, and a slight redressing of the imbalance of political power within the Bush Administration in favour of the doves. If this is the case then this is in no small part due to the moderating influence exerted by the UK Prime Minister."[150]

120. We commend the Government's decision to work closely with the United States, to produce a strong and unanimous Security Council Resolution establishing an unconstrained weapons inspections regime and demanding Iraq's full disarmament of Weapons of Mass Destruction.

THE ENHANCED UN WEAPONS INSPECTIONS REGIME

121. The UN Monitoring, Verification and Inspection Commission (UNMOVIC) must now find and eliminate the weapons of mass destruction programmes described in the three dossiers outlined above. The problems facing the inspectors are formidable, particularly in the sphere of biological weapons. Unlike chemical and nuclear weapons, biological weapons can be manufactured using relatively little equipment and basic facilities. In 1995, the United Nations Special Commission (UNSCOM), the earlier UN inspection regime, was ready to declare Iraq free of biological weapons until they received crucial information from a senior defector from the Iraqi regime—namely, Saddam Hussein's son-in-law.[151] We have heard during the course of our Inquiry that the Iraqi regime has probably developed highly mobile biological weapons manufacturing capabilities, which would make detection of the BW programme even more difficult than it was in 1995.[152] The 'cookery books' detailing the methods for manufacture of such weapons, and the expertise of technicians, are both crucial for the development of biological weapons. These have not been destroyed or removed by the earlier UN inspections.

122. During our visit to the United States in October, we were concerned to hear from some of those with whom we met that the capability of UNMOVIC may now be less than that of the previous inspections regime, UNSCOM. Such views were also expressed by a panel of former UNSCOM inspectors, mainly from the United States, who assembled under the auspices of a Washington-based Wisconsin Project in June 2002. The Wisconsin Project panel drew a number of alarming conclusions, stating in its report that "UNMOVIC ... is not set up to use intelligence information effectively, and may therefore have difficulty receiving such information", because—unlike UNSCOM—the new organisation's structure precludes the receipt by individual inspectors of intelligence from national agencies. Because all UNMOVIC inspectors are required to share intelligence with their colleagues, "there will not be the same level of confidence that the information will be protected."[153] The director of UNMOVIC, Hans Blix, has himself indicated the importance to his organisation's effectiveness of information from satellite images and other national intelligence sources.[154]

123. The Wisconsin Project panel also expressed concern that UNMOVIC may not have the personnel needed to defeat Iraqi concealment efforts. While UNSCOM became a "state-of-the-art operation at launching surprise inspections ... Most of the UNMOVIC inspectors have either limited or no experience in Iraq." UNMOVIC are "a team of rookies going to bat against a world-class intelligence organisation highly practiced at foiling inspections."[155]

124. We asked Dr Samore about the likely effectiveness of UNMOVIC. He replied that the inspectors' "greatest weakness right now is lack of expertise. That is something that they will have to develop, both in terms of drawing fresh recruits who have that expertise, from member governments that are prepared to make those people available, but also just time on the ground." Dr Samore stated—in our view, very plausibly—that "it takes a while to learn the trade-craft necessary to carry out successful inspections against the Iraqi regime, which has a lot of practice fooling inspectors and hiding things. I think that over time they will gain that experience, but in the beginning it is likely to take them some time to learn how to handle it."[156]

125. Dr Chipman reminded us that UNSCOM was reliant on information provided to it by intelligence sources and from defector information. " UNMOVIC, if it were to re-enter Iraq, ... would depend essentially on the same two primary potential sources of information. The degree to which the United States and others might be willing to provide information to UNMOVIC to assist it in its work, and the degree to which there might still be available relevant and reliable defector information on which they could act, are two important points that would no doubt guide the inspectors."[157] Dr Samore expressed the "hope that Western governments would provide [UNMOVIC] with the kind of intelligence information that would allow them to seek access to undeclared facilities, to individuals and to documents, which would put the Iraqis on the spot to either demonstrate co-operation or to fail to co-operate and therefore provide a clear causus belli for military action."[158]

126. Dr Samore also told us that "the principle of making it possible for the UN inspection agencies to interview Iraqi scientists in a way that will allow them to give free and accurate information is very important if we are going to ensure the best possible chances for the inspection organisations to be successful."[159] He was not optimistic that the inspectors would be able rapidly to provide answers to the UN Security Council: "In terms of getting to the bottom of whatever amounts of chemical or biological weapons or missiles the Iraqi regime is hiding, I think that is very likely to take longer than thirty days."[160]

127. We asked the Foreign Secretary about his own perception of the problems inspectors now face. He replied that "A great deal of work here is going on to make sure that the skills and numbers of people available to the inspection regime are similar to if not greater than those available to UNSCOM, and also, in respect of the IAEA, the International Atomic Energy Agency will be conducting inspections alongside it. We are obviously aware of the need for high level human capability as well as other resources."[161] He also told us that he has "considerable confidence both in the IAEA and in UNMOVIC"[162] The likelihood of the inspectors' effectiveness has also been enhanced considerably by the "understanding amongst the P5 that if there are to be proper inspections they have to include the presidential palaces"[163]: under previous regimes, inspectors were excluded from Saddam Hussein's 'palaces', some of which covered areas "the size of Blackpool."[164]

128. We conclude that the difficulties faced by UN weapons inspectors are formidable. We urge the Government to offer every assistance to facilitate the inspectors' work, provided that such assistance does not compromise United Kingdom intelligence assets.

Possible military action to disarm Iraq

UNDER WHAT CIRCUMSTANCES WOULD MILITARY ACTION BE LEGAL?

129. On 7 December, Iraq submitted a declaration of its weapons programmes to UNMOVIC in Baghdad, as required by Security Council Resolution 1441.[165] The 12,000 page document and CD-ROMs were flown immediately to UN Headquarters in New York. The Security Council met on 8 December, and all its members except Syria agreed to grant its five permanent members (P5) full and uncensored access to the Iraqi declaration. This decision was taken because the P5 have sufficient technical expertise to assess the potential risks involved in releasing the documents to other UN member states.[166]

130. The current President of the Security Council, Colombian Ambassador Alfonso Valdivieso, agreed to allow the unedited copy of the Iraqi declaration to be taken to Washington DC to ensure that it was copied in a secure environment.[167] This treatment of the Iraqi document by the United States prompted some expressions of concern by a number of non-permanent members, notably Syria.[168] The UN Secretary-General, Kofi Annan, said that although the decision to allow the US to take the document to Washington was 'fine', the US government's 'approach and style were wrong.'[169] The US subsequently forwarded full copies of the document to the other four members of the Security Council; non-permanent members will receive an edited version at a later date.

131. President Bush stated on the day of the Iraqi declaration that "We will judge the declaration's honesty and completeness only after we have thoroughly examined it, and that will take some time. The declaration must be credible and accurate and complete, or the Iraqi dictator will have demonstrated to the world once again that he has chosen not to change his behaviour."[170] On 8 December, the Foreign Secretary set out the procedures to be followed in response to the Iraqi declaration: "the initial reflections on the disclosure have to come from the [UN weapons] inspectors ... Whether there has been a material breach is ultimately a matter for members of the Security Council and indeed because the Security Council Resolution is silent on this, the international community at large ... there's a very clear procedure set out in the Resolution 1441 that if either members of the Security Council or the inspectors believe that there has been some failure of Iraq's obligations then they have to make a report to the Security Council and the Security Council has to convene to consider the matter ... Dr Al-Baradei [head of the International Atomic Energy Authority] and Dr Blix [head of UNMOVIC] will themselves be making an initial report to the Security Council about their own initial findings with respect to disclosure pretty shortly."[171]

132. UN inspectors, who are now operating inside the country, will make their first assessment of the extent of Iraq's WMD programmes to the Security Council on 21 February. If weapons inspectors face obstruction before this date, however, the United States may well advocate military action. In November, the US administration claimed that Iraq had already committed further 'material breaches' of UN Security Council Resolutions including UNSCR 1441 by firing on US and British aircraft in the no-fly zones,[172] through the UN Secretary General quickly refuted this assertion.[173]

  

133. Before the adoption of UNSCR 1441, two possible legal justifications for such action were mooted. These arguments are likely to be revived if, for any reason, the United States judges that military action against Iraq is necessary.

134. The first argument relates to the disarmament of Iraq. Iraq has broken the post-Gulf War cease-fire, through its non-compliance with the terms specified in UN Security Council Resolution 687 and subsequent Resolutions. Military action could, according to this argument, be justified on the basis of Iraq's non-compliance with these resolutions and its breach of the 1991 cease-fire.

135. The second legal argument is based on the right to self-defence against future aggressive actions by the Iraqi regime. The rationale underlying this argument is set out in the United States National Security Strategy, which states that "Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today's threats, and the magnitude of potential harm that could be caused by our adversaries choice of weapons, do not permit that option¼ To forestall and prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively."[174] According to this argument, an attack on Iraq could be justified on the grounds of its illegal possession of weapons of mass destruction, combined with its previous use of weapons of mass destruction, and its history of enmity with the United States and its allies. These factors, it is argued, imply that the Iraqi regime represents a grave danger which must be removed before it commits further acts of aggression.

The disarmament argument: Iraq's 'material breach' of post-Gulf War Security Council Resolutions

136. The validity of the first argument appears to have been reinforced by the unanimous adoption by the Security Council of Resolution 1441. This resolution states that—acting under Chapter VII of the UN Charter—the Security Council "Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991)." Any "false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations." The Executive Chairman of UNMOVIC and the Director General of the IAEA must "report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations." In the event of either of the two eventualities described above, the Security Council will reconvene "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." Iraq is reminded that "it will face serious consequences as a result of its continued violations of its obligations."

137. While Resolution 1441 does not authorise the automatic use of force in the event of further "material breaches" by Iraq, US Secretary of State Colin Powell has stated that "the United States retains its option to act if the Security Council doesn't act."[175] Secretary Powell has made clear that, although the Resolution specifies that the Security Council will reconvene in case of Iraqi non-compliance with its conditions, "if the Council is unable to agree on a second resolution, the United States believes, because of past material breaches, current material breaches, and new material breaches, there is more than enough authority for it to act with likeminded nations, if not with the entire Council supporting an all necessary means new resolution."[176]

138. Professor Christopher Greenwood supports the United States' view. On 24 October, he argued that "the existing Security Council resolutions 678 and 687 remain in force. They require Iraq to take certain disarmament steps as a necessary means of restoring international peace and security in the area and Iraq has plainly not taken those steps. If the Security Council determines, maybe in another resolution or maybe by way of presidential statement or in some other form, that there is an on­going violation by Iraq, that that violation threatens international peace, and that peaceful means have failed to resolve the situation, then I do not think the Security Council needs to go further than that and actually adopt a new authorisation of military action. I think if those conditions are met it would be legitimate to rely on the existing authority in Resolution 678."[177]

139. In contrast, Professor Brownlie argued on 24 October that "The situation we are dealing with now is very difficult to tuck under the umbrella of the former conflict between Iraq and Kuwait."[178] In his view, "if action is taken on the basis of 687 and the reimposition, if you like, of an effective cease-fire that, presumably, is limited by the needs of the case." Because it is "not clear that what is envisaged for Iraq ... it is not clear what the link would be between reimposing, as it were, demands of 687 and the long­term objectives of governing Iraq from the outside."[179] If, however, "there were a resolution which was more tailor-made and which had adequate contemporary support from the international community, both the law and the public relations would be better served."[180]

140. It is not clear that the adoption of UNSCR 1441 meets all the concerns expressed by Professor Brownlie over United States policy towards Iraq. UNSCR 1441 does not legitimise "regime change." It does, however, provide a very strong endorsement of the United States' objective of Iraqi disarmament. Furthermore, the US President has stated that if Saddam Hussein were to rid Iraq of weapons of mass destruction, according to the demands of the United Nations, then this itself would signal that the Iraqi regime had changed.[181]

Pre-emptive self-defence

141. Though the United States now appears to be stressing that its policies towards Iraq are driven by the need for disarmament on the basis of existing Security Council resolutions, senior administration figures have also suggested that the United States has a right to change the Iraqi regime—or other threatening states—in self-defence. As we observed in paragraph 49 above, United States policy is now to "forestall or prevent ... hostile acts" by adversaries, because "in an age when the enemies of civilisation openly and actively seek the world's most destructive technologies, the United States cannot remain idle while dangers gather."[182]

142. This assertion of the right to act pre-emptively to address potential rather than imminent security threats arguably constitutes a challenge to established international law governing the legitimate use of force by states, as set out in the Charter of the United Nations. The Charter states that "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."[183] There are only two exceptions to this prohibition in the Charter. First, the Security Council may authorize the use of force if it does so explicitly through a resolution adopted under Chapter VII.[184] The second exception is the right to self-defence, which is set out in Article 51 of the Charter. Article 51 states that "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."[185]

143. In addition to these two exceptions to the UN Charter's prohibition on the use of force, a new principle of armed intervention for humanitarian purposes has been proposed by some international legal experts. This debate became particularly heated following NATO's Operation Allied Force, which expelled the Yugoslav National Army from Kosovo in 1999.[186] Operation Allied Force was undertaken without prior authorisation by the Security Council, because the Russian Federation—a permanent member of the Security Council—opposed military action against the regime of Slobodan Milosevic.[187]

144. We discussed the question of pre-emptive self-defence at some length during our evidence session on 24 October, first with respect to the case of Iraq, and then more generally.

Pre-emptive self-defence and the case of Iraq

145. In Professor Brownlie's view, the notion of defensive action—pre-emptive or otherwise—cannot usefully be applied to the case of Iraq under current circumstances. Professor Brownlie argues, on the basis of speeches and policy statements by President Bush and other "relevant statesmen," that "What is envisaged is compulsory disarmament of Iraq, with a future reach of course, enforced by one or more member states of the United Nations, perhaps with or perhaps without the benefit of a Security Council resolution." This is different from defensive action: "I do not see what is proposed as any form of pre-emptive attack; it is simply the imposition of a compulsory regime of disarmament. It is not only related to weapons which Iraq may now possess; it is directed to preventing Iraq producing weapons in the future." The proposed action comprises the imposition of "a long-term regime," rather than a defensive action. Professor Brownlie does not believe that such a regime would necessarily be illegal, but that "if you are going to consider the legality, or otherwise, of what is proposed you have to classify the situation accurately in the first place. I really do not see how the law relating to self­defence or anticipatory self­defence can be helpfully applied."[188]

146. Professor Greenwood agrees that "the right of anticipatory self­defence only applies where there is an imminent threat of an armed attack [so] it could not be used as the basis for some kind of longer term programme of disarmament."[189] In his view, it is important to separate the question of disarmament of Iraq—as demanded by UN Security Council Resolutions—from questions of self-defence.

147. However, Professor Greenwood's views differ somewhat from those of Professor Brownlie over the interpretation of international law with respect to self-defence. Professor Greenwood argues that Article 51[190] "is a provision that has to be interpreted in the light not only of what went before and the intentions of the draftsman [of the United Nations Charter] but also in the way it has been interpreted by states since 1945 and in the light of common sense."[191] He quoted with approval the assessment of Judge Rosalyn Higgins, that "Common sense cannot require one to interpret an ambiguous provision in a text in a way that requires a state passively to accept its fate before it can defend itself."[192]

148. In assessing the limits of the right to self-defence, Professor Greenwood told us that "one has to take account of military developments since Caroline" (the 1837 case which is frequently cited as the classical definition of self-defence).[193] It is "necessary to take account of two factors which did not exist at the time of the Caroline. The first is the gravity of the threat; the threat posed by a nuclear weapon or a biological or chemical weapon used against a city is so horrific that it is in a different league from the threats posed by cross-border raids by men armed only with rifles (as in the Caroline). The second consideration is the method of delivery of the threat. It is far more difficult to determine the time scale within which a threat of attack by terrorist means, for example, would materialise than it is with threats posed by, for example, regular armoured forces."[194]

149. These questions "would be material considerations in assessing whether Iraq posed an imminent threat to the United Kingdom or its allies." In Professor Greenwood's view, "If Iraq did pose such an immediate threat then, in my opinion, military action against Iraq for the purpose of dealing with that threat would be lawful."[195] Professor Greenwood did not state, however, that Iraq currently does pose such a threat to the United States or the United Kingdom: responsibility for taking this kind of judgement lies with governments rather than lawyers.

150. In the Government's view, the United States' doctrine of pre-emptive self-defence has no bearing whatsoever on the legality of a possible war with Iraq. The Foreign Secretary told us on 25 September that "The issue of pre or post-emption in respect of Iraq, I do not quite see the relevance. The issue is that here you have a regime which is in clear breach of an endless number of Security Council Resolutions requiring them to do certain things under Chapter 7, the mandatory chapter of the United Nations Charter ... the question of pre-emption does not arise."[196]

Pre-emptive self-defence as a new development in international law

151. There is broad agreement that states have a right to act in self-defence if they perceive "a clear intention to attack ... accompanied by measures of implementation not involving crossing the boundary of the target state,"[197]—for example, "where the aggressor state has made her intentions unequivocally clear, and its naval vessels or its missiles are on the way."[198] In Professor Brownlie's view, however, US policy on pre-emptive self-defence goes far beyond such situations. He argues that pre-emptive attacks "of the type envisioned in US policy statements would be in violation of the UN Charter" and hence illegal.[199]

152. The United States is arguing that this area of international law must change, to enable states to address new security threats. As the National Security Strategy states, "Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat, most often and visible the mobilisation of armies, navies and air forces preparing to attack." This is no longer adequate: "We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries."[200]

153. The publication of the National Security Strategy elicited heated debate about the implications of this proposed change to established principles guiding the use of force. Where would the limits of such a doctrine be set? Would India cite the right of 'pre-emptive self-defence' in justification for military action against Pakistan? Could China use the doctrine to justify an invasion of Taiwan? After the establishment of such a doctrine, how could the United States and its allies credibly oppose a Russian invasion of Georgia? Citing such threats, the House of Bishops of the Church of England wrote to us that "Unless the US shows restraint, it will become increasingly hard to ask it of others."[201]

154. We conclude that should the US, British and other governments seek to justify military action against Iraq for example, on an expanded doctrine of 'pre-emptive self-defence,' there is a serious risk that this will be taken as legitimising the aggressive use of force by other, less law-abiding states.

155. Professor Brownlie argues that any attempt to introduce a universal doctrine of pre-emptive self-defence should be resisted. It "would be much better not to invent some new umbrella of subjective action which would have a pseudo-legality which could be used on almost any occasion providing the acting state was powerful enough." Instead, the United States and its allies should keep the existing legal boundaries in place, and—if military action against Iraq or other states were judged to be necessary—"be honest and say what we need to do and what we intend to do, and if that is enforcing the compulsory disarmament of a state, which has happened before—it happened after the Second World War, in some form at least—it is much better from the public order point of view to be clear about the objectives and not to disguise those objectives under some form of expanded self-defence."[202]

156. In Professor Greenwood's view, we have to "steer a course between, on the one hand, the rock of too loose a definition, which means that every state can use this as a licence for action and, on the other hand, the whirlpool of a definition which is so restrictive it does not fit the conditions of today."[203] As we point out in paragraphs 147-49 above, in Professor Greenwood's opinion the notion of imminence does need to be reconsidered in the light of current threats, which are very different from those envisaged by those who drafted the United Nations Charter. Professor Greenwood sketched some considerations which might be brought to bear if a state were being considered a subject for 'pre-emptive' military action: "mere possession of a weapons capability is not sufficient; one has to have some indication of an intention to use that. Of course that indication can come in part from a state's past record and the fact that a state has itself been involved in activity of this kind."[204] Furthermore, a sole state could not, in his view, legitimately take on the role of unilateral enforcer: instead, such decisions should be made collectively. In the case of Iraq, for example, "the Security Council on behalf of the international community" could authorise the use of force if it "determines that there is a continuing threat to international peace posed by Iraq's violations."[205]

157. Though the attacks of 11 September 2001 have prompted this recent focus on pre-emptive self-defence against attack by weapons of mass destruction, the issue is not new. The same question arose in June 1981, when Israeli armed forces attacked the Osirak nuclear plant in Iraq. This attack was condemned unanimously by the United Nations Security Council as unlawful. Sir Anthony Parsons, then British Ambassador to the UN, described the attack in the following terms: "It has been argued that the Israeli attack was an act of self-defence. But is was not a response to an armed attack on Israel by Iraq. There was no instant or overwhelming necessity for self-defence. Nor can it be justified as a forceful measure of self-protection. The Israeli intervention amounted to a use of force which cannot find a place in international law or in the Charter."[206] In this statement, Sir Anthony Parsons states implicitly that although the Israeli attack was not legal, states do have a right to take 'forceful measures of self-protection.' This appears to substantiate Professor Greenwood's claim that, on this occasion, the Security Council—including, of course, the United Kingdom—condemned the Israeli attack on Osirak "not on the ground that there was no right of anticipatory self-defence but rather on the ground that the risk was too distant, too far in the future."[207]

158. Australia has been hit hard by terrorist action: most of the victims of the Bali attack were Australian citizens. The Australian prime minister, John Howard, has stated that he would employ military force to pre-empt possible terrorist attacks which might be launched from neighbouring countries. On 1 December, he said in a television interview that "It stands to reason that if you believe that somebody was going to launch an attack on your country, either of a conventional kind or a terrorist kind, and you had a capacity to stop it and there was no alternative other than to use that capacity, then of course you would have to use it."[208] Australia's neighbours Indonesia, Malaysia, the Philippines and Thailand reacted angrily; Malaysia's prime minister, Mahathir Mohammed, said that if Australia "used rockets or pilotless aircraft to carry out an assassination, then we will consider this an act of war and we will take action according to our laws to protect the sovereignty and independence of our country."[209]

159. In our Seventh Report, we asked the Government to set out its views as to the circumstances in which a pre-emptive military strike would be legally justified.[210] The Government replied that it would regard the use of force against any state as lawful "if it had been authorised by the United Nations Security Council, or were in exercise of the inherent right of individual or collective self-defence, or, exceptionally, were carried out to avert an overwhelming humanitarian catastrophe."[211] The Foreign Secretary appears to accept the principle of pre-emption, as set out in the National Security Strategy of the United States. He told us on 25 September that "If any nation feels that it is threatened in a direct way then under Article 51 it has an inherent right to take action pre-emptively."[212] The Prime Minister has also asserted that "The one thing we have learned post-11 September is that to take action in respect of a threat that is coming may be more sensible than to wait for the threat to materialise and then to take action."[213]

160. We recommend that, in its response to this Report, the Government set out in detail the thinking behind its policy on the pre-emptive use of military force, and whether this policy has been reviewed following the publication of the United States National Security Strategy in September 2002.

161. The United States National Security Strategy states that "We must adapt the concept of imminent threat to the capabilities and objectives of today's adversaries."[214] We conclude that the notion of 'imminence' should be reconsidered in light of new threats to international peace and security—regardless of whether the doctrine of pre-emptive self-defence is a distinctively new legal development. We recommend that the Government work to establish a clear international consensus on the circumstances in which military action may be taken by states on a pre-emptive basis.

THE DECISION TO TAKE MILITARY ACTION

162. We hope that the Iraqi regime now understands that its only hope of avoiding war is the removal and destruction of all its weapons of mass destruction facilities and programmes. The unanimous adoption by the UN Security Council of Resolution 1441, the US Government's rhetoric throughout the year, and the current US military build up in the Gulf region should certainly have conveyed an unambiguous message to the Iraqi dictator of the seriousness of the international community's intent.

163. The Foreign Secretary assured us in late October that "All the evidence is that [Saddam Hussein] does understand when there is a clear threat of force." President Bush's robust words at the UN on 12 September prompted a reversal of the Iraqi regime's policy, and permitted the return of UN weapons inspectors. In the Foreign Secretary's view, this policy reversal arose because the Iraqis "had suddenly digested the fact that the international community was getting extremely impatient with the excuses, lies and prevarication from the Iraqi regime and that there had to be the beginnings of compliance." The Iraqi regime does react when it is subjected to an unambiguous threat of force. In the Foreign Secretary's view, the regime also understands that that threat is now a genuine one, and they know the consequences of failing to comply with the Security Council's demands: "Have they been told about the consequences? Yes. I know that. I have had it from people who have spoken to them."[215]

164. Despite this reassurance, it remains possible that Saddam Hussein will refuse to comply with the demands of the UN Security Council, set out in Resolution 1441—indeed, in a letter to the UN Secretary-General of 23 November, the Iraqi foreign minister Naji Sabri disputed the content of the resolution, arguing that paragraph 10 of the resolution "aims at destroying co-operation between Iraq and UNMOVIC and IAEA and gives some countries pretexts to interfere in their work."[216]

165. Saddam Hussein has miscalculated before. The Iraqi regime is likely to prevaricate, delay, and attempt to hide documentation and facilities from the UN weapons inspectors. Some members of the Security Council may be more tolerant of such behaviour than the United States. Clearly Saddam Hussein will strive to promote divisions in the Security Council. The United States recognises this; it has already stated that "if the Council is unable to agree on a second resolution, the United States believes ... there is more than enough authority for it to act with likeminded nations, if not with the entire Council supporting an all necessary means new resolution."[217] [218]

166. In the Foreign Secretary's view, if the Iraqi government commits a further 'material breach' of relevant UN Security Council Resolutions—for example, "action ... seriously to obstruct or to impede the inspectors, to intimidate witnesses, or a pattern of behaviour ... that shows Iraq's intention not to comply"—then "action will follow." The "preference of the Government in the event of any material breach is that there should be a second Security Council Resolution authorising military action,"[219] and the Foreign Secretary has indicated that the United Kingdom would move such a resolution.[220] However, the United Kingdom "must reserve [its] position in the event that [the Security Council] does not [adopt a further resolution]. That is the reason why the language of 'serious consequences' is used in paragraph 13 in the event of [Saddam Hussein's] non-compliance."[221] [222]

167. In the debate in the House on UNSCR 1441, the Foreign Secretary pointed out that "No draft resolution proposing that there could be military action only if there were a further Security Council resolution was either tabled before the Security Council—it could easily have been—or voted on."[223] This suggests that, in his view, no Security Council member had attempted to prohibit the use of force to disarm Iraq without an "all necessary means" resolution.

168. In the same debate, the Foreign Secretary cited the example of Operation Allied Force in Kosovo, which, he argued, demonstrated that military action could legitimately be taken without prior authorisation by the Security Council, or under the other circumstances specified in the United Nations Charter.[224] In the case of Kosovo, the "judgement was that international community could take action , and that has never been challenged... had we not [reserved the right to use force] in 1999, no military action against Milosevic would have been possible in respect of Kosovo, and that tyrannical dictator would still be ruining the lives of millions of people in the Balkans."[225]

169. The Foreign Secretary further argued that whether or not a new Security Council resolution were obtained, enforcement of UNSCR 1441 was necessary "to sustain the authority of the United Nations."[226]

170. We commend the Government's decision, in its efforts to address the threat from the Iraqi regime, to focus on Iraq's persistent violation of UN Security Council Resolutions. We conclude that unless new evidence emerges that Iraq poses an imminent threat to the security of the United Kingdom, any military action against Iraq should be taken on the basis of Iraq's violation of successive Security Council Resolutions, culminating to date in UNSCR 1441.

171. We conclude that Iraq must not be permitted to continue to defy the authority of the United Nations. The unanimous adoption by the UN Security Council of Resolution 1441 has made the obligation on the Iraqi regime to disarm absolutely clear, and has given the regime a final opportunity to comply with successive UN Security Council resolutions.

172. We further conclude that UN Security Council Resolution 1441 would not provide unambiguous authorisation for military action, were Iraq to fail to comply with its provisions. We therefore recommend that, in the case of Iraq's violation of Resolution 1441, the Government do its utmost to ensure the adoption of a further Security Council resolution authorising the use of "all necessary means" to enforce Iraqi disarmament.

173. We recommend that the Government clarify, in its response to this Report, whether it believes that a further United Nations Security Council Resolution is legally necessary before military action is taken against Iraq.

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134   See Crawford Press Conference, available at: http://www.cnn.com/2002/US/04/06/bush.blair.transcript/. Back

135   Speaking at the West Point military academy in June, President Bush stated that "Containment is not possible when unbalanced dictators with weapons of mass destruction can deliver those weapons on missiles or secretly provide them to terrorist allies... In the world we have entered, the only path to safety is the path of action. And this nation will act." See: http://www.whitehouse.gov/news/releases. Back

136   See for example Joseph R Biden and Richard G Lugar, 'Debating Iraq,' New York Times, 31 July 2002; George Schultz, 'Act now: the danger is immediate. Saddam Hussein must be removed,' Washington Post, 6 September 2002.  Back

137   For example, Brent Scowcroft 'Don't attack Saddam,' Wall Street Journal, 15 August 2002; James Baker, New York Times, 25 August 2002.  Back

138   HC (2001-02) 384, para 203. Back

139   President Bush's remarks at the United Nations General Assembly, New York, 12 September 2002, available at:

http://www.whitehouse.gov/news/releases. Back

140   HC Deb, 7 November 2002, col 431. Back

141   HC Deb, 7 November 2002, col 431. Back

142   See 'US draft of UN resolution on Iraq,' Financial Times, 2 October 2002.  Back

143   Dominique de Villepin, Le Monde, 1 October 2002. Back

144   UN Security Council Resolution 1441 is reproduced in an Annex to this Report.  Back

145   UNMOVIC is responsible for verifying Iraqi disarmament in accordance with Security Council Resolutions adopted since 1991. Further details relating to the Commission's work are provided at paras 121-28 below.  Back

146   Transcript of US Ambassador John Negroponte's speech to the UN Security Council, 8 November 2002.  Back

147   Transcript of French Ambassador Jean-David Levitte's speech to the UN Security Council, 8 November 2002. Back

148   UNSCR 687 set out the terms of the cease-fire following Iraq's withdrawal from Kuwait. The Resolution specifies that inter alia "Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of (a) All chemical and biological weapons and all stocks of agents and all related subsystems... (b) All ballistic missiles with a range greater than one hundred and fifty kilometres... Iraq shall unconditionally undertake not to use, develop, construct, or acquire [chemical and biological weapons and ballistic missiles with a range greater than 150km]... Iraq shall unconditionally agree not to acquire or develop nuclear weapons or nuclear-weapon-usable material."  Back

149   HC Deb, 7 November 2002, col 431.  Back

150   Ev 88, para 33. Back

151   Q 51. Back

152   Q 72. Back

153   Iraq Watch Roundtables, June 2002, available at: http://www.iraqwatch.org. Back

154   See, for example, 'Weapons inspector', BBC News, 22 August 2002; 'Hans Blix: Person of the week', Time, 31 October 2002. Back

155   Iraq Watch Roundtables, June 2002, available at: http://www.iraqwatch.org. Back

156   Q153-54. Back

157   Q 51 [Dr Chipman]. Back

158   Q 59. Back

159   Q 51 [Dr Samore].  Back

160   Q53. Back

161   Q 145. Back

162   Q 148. Back

163   Hans Blix and Mohamed al Baradei, heads of UNMOVIC and the International Atomic Energy Authority respectively, signed a memorandum of understanding with the Iraqi regime on 30 September 2002. The MOU "establishes special procedures for access to eight presidential sites" in Iraq.  Back

164   Q 140 [Foreign Secretary]. Back

165   The Resolution demands that Iraq submit, within 30 days of the adoption of the Resolution, a "currently accurate, full and complete declaration" of its programmes to develop weapons of mass destruction and the means to deliver them. Back

166   See 'Iraq hands over Declaration to UN', UN News Centre, 7 December 2002, and 'Iraq dossier under scrutiny', BBC news, 9 December 2002, available at:

http://news.bbc.co.uk/1/hi/world/middle_east. Back

167   'US gives assurance on Iraq document,' Washington Post, 11 December 2002.  Back

168   'Queries over US co-operation with UN on Iraq dossier,' Financial Times, 11 December 2002, p 8. Back

169   'Annan criticises handling of Iraq files', BBC news, 11 December 2002, available at:

http://news.bbc.co.uk/1/hi/world/middle_east/2564271.stm. Back

170   'Radio address by the President to the Nation',7 December 2002, available at:

http://www.whitehouse.gov/news/releases. Back

171   BBC Breakfast with Frost interview: Jack Straw MP, Foreign Secretary, 8 December 2002. Transcript available at: http://news.bbc.co.uk/1/hi/programmes/breakfast_with_frost. Back

172   See Whitehouse Press Briefing, 18 November 2002, available at: http://www.whitehouse.gov/news/releases. Back

173   Kofi Annan stated that "I don't think that the [Security] Council will say this is in contravention of the resolution of the Security Council." See 'Annan says Iraqi no-fly zone firing no violation', Reuters, 19 November 2002.  Back

174   National Security Strategy of the United States of America, p 15. Back

175   Secretary Colin L Powell, interview on al-Jazeera television, 8 November 2002, available at: http://www.state.gov/secretary. Back

176   Secretary Colin L Powell, interview on CNN's Late Edition with Wolf Blitzer, 10 November 2002, available at: http://www.state.gov/secretary. Back

177   Q 89. Back

178   Q 89. Back

179   Q 92. Back

180   Q 93. Back

181   See US Department of State Press Briefing, 22 October 2002, available at: http://usinfo.state.gov/topical/pol/nato. Back

182   The National Security Strategy of the United States of America, p 15.  Back

183   Article 2(4). Back

184   Article 42. Back

185   Charter of the United Nations (1945), Article 51.  Back

186   The debate over the legality of the use of force for humanitarian purposes was discussed at some length by our predecessor Foreign Affairs Committee, in its Report to the House on Kosovo in May 2000. See Foreign Affairs Committee, Fourth Report of Session 1999-2000, Kosovo, HC 28-i, paras 124-44.  Back

187   The Foreign Secretary brought up the question of the Kosovo intervention during the debate in the House on UN Security Council Resolution 1441. See para. 168 below and HC Deb, 25 November 2002, col 54.  Back

188   Q 87. Back

189   Q 88. Back

190   See para 142 above. Back

191   Q 88. Back

192   Q 88 Back

193   The case of the Caroline is regarded as the classical definition of the right to self-defence in international law, and concerned action taken in 1837 by British forces in Canada against a US merchant vessel moored on the Great Lakes, which was being used by Canadian rebels and their American sympathisers as a base for attacks by the British in Canada. One of the British officers involved in the seizure was arrested by the United States, and threatened with prosecution for murder. In the subsequent negotiations, US Secretary of State, Daniel Webster, wrote to the British Government referring to its need to demonstrate that there was "a necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation." See C Greenwood, 'International law and the war against terrorism', International Affairs, vol 78, No 2, April 2002. Back

194   Ev 20, para 25. Back

195   Ev 20, para 26. Back

196   Q 31. Back

197   Ev 22. Back

198   Q 87. Back

199   Ev 23, proposition 1. Back

200   National Security Strategy of the United States of America, September 2002, p 15. See

www.whitehouse.gov/nsc/nss.pdf. Back

201   Ev 86, para 24. Back

202   Q 95. Back

203   Q 96. Back

204   Q 96. Back

205   Q 101. Back

206   Ev 78. Back

207   Q 86. Back

208   'Australia supports pre-emptive strikes', The Guardian, 2 December 2002. Back

209   'Australia's new "hairy chested" attitude riles its east Asian neighbours', The Guardian, 4 December 2002.  Back

210   HC (2001-02) 384, para 224.  Back

211   Foreign and Commonwealth Office, August 2002, p 13, and HC (2001-02) 384, Ev 99. Back

212   Q 32. Back

213   House of Commons Liaison Committee, Session 2001-02, evidence presented by the Rt Hon Tony Blair MP, Prime Minister, HC 1095, Q 93. Back

214   National Security Strategy of the United States of America, September 2002, p 15. Back

215   Q 150. Back

216   Letter dated 23 November 2002 from the Minister of Foreign Affairs of Iraq addressed to the Secretary-General, distributed to the UN Security Council on 25 November 2002 (document S/2002/1294), available at:

http://www.un.dk/doc/S.2002.1294.pdf. Back

217   Secretary Colin L Powell, interview on CNN's Late Edition with Wolf Blitzer, 10 November 2002, available at: http://www.state.gov/secretary/rm. Back

218   We note with interest that on 19 November, the Campaign for Nuclear Disarmament wrote to the Prime Minister and the Secretary of State for Defence, Geoff Hoon warning that the Government would face a legal challenge by CND unless, within seven days, it supplied a written assurance that it would take no further military action against Iraq without a further Security Council Resolution. The legal challenge would be based on a legal opinion, obtained from Rabinder Singh QC and Charlotte Kilroy, both of Matrix Chambers. The opinion was summarised: "(1) Security Council Resolution 1441does not authorise the use of force by member states of the UN; and (2) The UK would be in breach of international law if it were to use force against Iraq in reliance on Resolution 1441 without a further Security Council Resolution." The full text of the legal opinion is available at: http://www.cnduk.org/briefing/opinion.htm. Back

219   HC Deb, 25 November 2002, col 51-53.  Back

220   HC Deb, 25 November 2002, col 54. Back

221   HC Deb, 25 November 2002, col 51-53.  Back

222   On 10 December, the Financial Times reported comments by the Prime Minister indicating that a further UN Security Council Resolution, while desirable, would not be necessary. The United Kingdom and the United States were prepared to go down the UN route, but if Saddam Hussein did the wrong thing "we are not going to walk away from it." Financial Times,10 December 2002.  Back

223   HC Deb, 25 November 2002, col 58. Back

224   See para. 142 above.  Back

225   HC Deb, 25 November 2002, col 54. Back

226   HC Deb, 25 November 2002, col 58.  Back

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Prepared 19 December 2002