Memorandum by Professor Christopher Greenwood,
CMG, QC
THE LEGALITY OF USING FORCE AGAINST IRAQ
I. INTRODUCTION
AND SUMMARY
1. This memorandum reviews, in summary form,
the international law arguments regarding possible military action
against Iraq. It does not deal with considerations of United Kingdom
domestic law. While I am aware that a draft Security Council resolution
is currently under discussion in New York, this memorandum was
prepared without my having seen that draft.
2. For the reasons set out in this memorandum,
I believe that military action against Iraq might be justified
(depending on the evidence of Iraq's weaponry and intentions)
on the following grounds:—
(1) if the UN Security Council adopts a fresh
resolution authorizing military action against Iraq and any conditions
set out in that resolution are met; or
(2) under existing Security Council resolutions
on the basis that the Security Council considered that (a) Iraq
is in material breach of those resolutions and (b) that breach
constitutes a threat to international peace and security in the
Gulf area. This would not require a fresh Security Council authorization
of military action; or
(3) under the right of self-defence if an
armed attack by Iraq against the United Kingdom or one of its
allies was reasonably believed to be imminent. This would not
require any action by the Security Council.
In my opinion, international law would not permit
recourse to force against Iraq on the basis that the United Kingdom
and its allies were still engaged in a "war" dating
back to 1990-91 (a different argument from (2) above), on the
basis of any theory based on the notion of a "war against
terrorism" or on the basis of a "doctrine of pre-emption".
I have set out my reasoning on all of these points below.
II. BACKGROUND
3. The possibility of military action in
2002 has to be seen in the context of the actions taken by the
UN Security Council and by a number of States, including the United
Kingdom in the aftermath of the Iraqi invasion of Kuwait in 1990.
That invasion, which was a flagrant violation of international
law, was condemned by the Security Council in Resolution 660 (1990),
which required Iraq to withdraw from Kuwait. In common with most
of the subsequent resolutions on Iraq, this resolution was adopted
under Chapter VII of the UN Charter and its provisions were therefore
legally binding on Iraq.
4. When Iraq ignored the requirement that
it withdraw, the Security Council adopted a series of further
resolutions, including Resolution 678 (1990) by which the Council—
"Authorizes Member States co-operating with
the Govt of Kuwait, unless Iraq on or before 15 January 1991 fully
implements, as set forth in para 1 above, 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."
(Emphasis added)
The reference to "all necessary means"
was clearly understood to be an authorization of military action.
The passage emphasised shows that that authorization was not limited
to the liberation of Kuwait but included an authority to use all
necessary means for the purpose of restoring peace and security
in the area.
5. Following the end of the fighting in
March 1991, the Council adopted Resolution 687 (1991). That resolution
referred to all of the earlier resolutions on Iraq, including
678. In paragraph 1 the Council—
"Affirms all thirteen resolutions noted
above, except as expressly changed below to achieve the
goals of the present resolution, including a formal ceasefire."
(Emphasis added)
Resolution 687 did not repeal Resolution 678.
That resolution remained in force to the extent that one of its
objectives, namely the restoration of international peace and
security in the area had not yet been achieved.
6. Resolution 687 then laid down what the
Council considered Iraq had to do in order to ensure the restoration
of international peace and security in the area. The Council required
that Iraq—
"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 and components
and all research, development, support and manufacturing facilities
related thereto;
(b) all ballistic missiles with a range greater
than one hundred and fifty kilometres, and related major parts
and repair and production facilities." (Paragraph 8)
7. In addition, paragraph 12 required Iraq—
"not to acquire or develop nuclear weapons
or nuclear weapon usable material or any subsystems or components
or any research, development, support or manufacturing facilities
related to the above."
8. As a means to achieving this partial
disarmament, Resolution 687 also required Iraq to submit to intrusive
weapons inspection initially by UNSCOM and the IAEA. The details
of this requirement were set out in Resolution 715 (1991). Other
provisions of Resolution 687 required Iraq not to commit or support
any act of terrorism and not to permit any terrorist organization
to operate from its territory (paragraph 32).
9. Iraq formally accepted these requirements
but Resolution 687 is legally binding because of Chapter VII of
the UN Charter, not because of Iraq's acceptance of it; it is
not the equivalent of an agreement.
10. Iraq has never complied with these ceasefire
conditions and has repeatedly been found to be in breach of the
requirements of Resolution 687 regarding international peace and
security. See, for example, Resolutions 949 (1994), 1060 (1996),
1115 (1997) and 1137 (1997). In 1998 the UN Secretary-General
drew up a Memorandum of Understanding with Iraq regarding weapons
inspections. The Security Council then, in Resolution 1154—
"stresses that compliance by the Government
of Iraq with its obligations, repeated again in the Memorandum
of Understanding, to accord immediate, unconditional and unrestricted
access to the Special Commission and the IAEA in conformity with
the relevant resolutions is necessary for the implementation of
Resolution 687 (1991), but that any violation would have the severest
consequences for Iraq."
11. In fact, Iraq continued to violate its
obligations; see, eg, Resolution 1205 (1998). After yet another
attempt to resume inspections, UNSCOM reported to the Security
Council on 15 December 1998 that—
"As is evident from this report, Iraq did
not provide the full co-operation it promised on 14th November
1998.
"In addition, during the period under review,
Iraq initiated new forms of restrictions upon the Commission's
work. Amongst the Commission's many concerns about this retrograde
step is what such further restrictions might mean for the effectiveness
of long-term monitoring activities.
"In spite of the opportunity presented by
the circumstances of the last month, including the prospect of
a comprehensive review, Iraq's conduct ensured that no progress
was able to be made in either the fields of disarmament or accounting
for its prohibited weapons programmes.
"Finally, in the light of this experience,
that is, the absence of full cooperation by Iraq, it must regrettably
be recorded against [sic] that the Commission is not able to conduct
the substantive disarmament work mandated to it by the Security
Council and, thus, to give the assurances it requires with respect
to Iraq's prohibited weapons programmes." (UN Doc. S/1998/1172,
pp. 7-8)
12. This report was followed by the withdrawal
of the UNSCOM inspectors and US/UK military action (Operation
Desert Fox).
13. SCR 1284 (1999) replaced UNSCOM with
UNMOVIC and required that Iraq allow UNMOVIC unrestricted access.
Iraq, however, has refused—until September 2002—to
permit UNMOVIC to operate within Iraq.
III. ACTION UNDER
A NEW
UN SECURITY COUNCIL
MANDATE
14. There is no doubt that the Security
Council has the authority under Chapter VII of the UN Charter
to adopt a fresh resolution authorizing military action against
Iraq. Chapter VII gives the Security Council that power if it
determines that there is a threat to international peace and security
(Article 39) and that military action is necessary to deal with
that threat (Article 42). The Council has already determined,
in Resolution 687 (1991), that the removal of certain types of
weapon from Iraq is necessary for the restoration of peace and
security and that, to date, Iraq has not complied with its obligations
in that regard.
15. In my opinion, it is clear that military
action taken in accordance with a fresh mandate from the Security
Council would be lawful. Like all military operations, it would,
of course, have to be conducted in accordance with the Geneva
Conventions, 1949, and other applicable rules of international
humanitarian law.
IV. ACTION UNDER
THE EXISTING
SECURITY COUNCIL
RESOLUTIONS
16. Nevertheless, I do not believe that
a new resolution expressly authorizing military action is necessary
as a matter of international law. In my opinion, the authorization
to use "all necessary means" contained in Resolution
678 (1990) (quoted in paragraph 4, above) has not been terminated
by the Security Council. The imposition of a ceasefire by Resolution
687 (1991) suspended hostilities and thus suspended the authority
to use force but Resolution 687 reaffirmed Resolution 678 (see
paragraph 5, above) and thus left open the possibility of further
military action to achieve the objectives of Resolution 678 in
the event of Iraqi violation of the ceasefire terms.
17. Contrary to what is frequently suggested,
Resolution 678 was not solely about the liberation of Kuwait and
the authorization to the coalition to use force went beyond the
goal of liberating Kuwait and authorized military action for the
purpose of restoring international peace and security in the area.
Resolution 687 (1991) then determined that the restoration of
international peace and security required the partial disarmament
of Iraq and (separately) its renunciation of any involvement in
or support for terrorism. Resolution 687, paragraph 1 affirmed
Resolution 678 except to the extent that the other provisions
of Resolution 687 expressly changed Resolution 678. The text of
Resolution 687 contains nothing which expressly (or impliedly)
indicates that the Council either considered that the mandate
contained in Resolution 678 had been discharged or that it could
not be relied upon in the event of Iraq continuing to pose a threat
to international peace and security.
18. It is, of course, true that Resolution
678 is now nearly twelve years old and was almost certainly not
intended to remain in force indefinitely. But the fact that it
is still relevant today is due solely to Iraq's persistent violation
of its obligations under Resolution 687. The effect of some of
those violations (primarily those in respect of disarmament) is
that the threat to international peace and security which Iraq
posed in 1990-91 has continued until the present day.
19. On that basis, it is open to the Security
Council to determine that Iraq continues to be in breach of the
ceasefire conditions in Resolution 687 and that that breach involves
a threat to international peace and security which peaceful means
have failed to resolve. The effect of such a determination would
be that the authorization of military action in Resolution 678
would again be rendered active. That would not necessarily require
a Security Council resolution. It could be done by means of a
Presidential Statement (which would require a consensus in the
Council). Moreover, a resolution stipulating that Iraq must take
certain steps by a prescribed date could (depending on its wording)
mean that the Council was determining that failure by Iraq to
take such steps was a breach threatening international peace and
security.
V. MILITARY ACTION
IN SELF-DEFENCE
20. Article 51 of the UN Charter provides
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 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 to maintain
or restore international peace and security."
It was in the exercise of this right that the
United Kingdom took military action in Afghanistan in October
2001.
21. The question is whether the right of
self-defence under customary international law which is preserved
by Article 51 of the Charter would justify military action against
Iraq on the basis of a threat of armed attack. In my opinion,
it would do so if the threat was of an imminent armed attack but
not otherwise.
22. Although Article 51 refers to the right
of self-defence "if an armed attack occurs", the United
Kingdom has consistently maintained that the right of self-defence
also applies where an armed attack has not yet take place but
is imminent. A large number of other governments (including those
of the USA, France, other NATO States and the former USSR) have
espoused this view. It also has strong support from commentators.
Thus, Judge Rosalyn Higgins (writing before her election to the
International Court of Justice) has said that—
". . . in a nuclear age, 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. And, even in the face of conventional warfare,
this would also seem the only realistic interpretation of the
contemporary right of self-defence. It is the potentially devastating
consequences of prohibiting self-defence unless an armed attack
has already occurred that leads one to prefer this interpretation—although
it has to be said that, as a matter of simple construction of
the words alone, another conclusion might be reached." (Problems
and Process (1994), p. 242)
The same view has been taken by Sir Humphrey
Waldock (81 RC (1952-II) 496-8), Judge Schwebel (136 RC (1972-II)
478-83), Sir Gerald Fitzmaurice (92 RC (1957-II) 171), Sir Robert
Jennings and Sir Arthur Watts (Oppenheim's International Law,
9th ed., 1992, vol. I, p. 421) and Sir Derek Bowett (Self-Defence
in International Law (1958) 187-92). Waldock, Schwebel and
Jennings are all past Presidents of the International Court of
Justice.
23. I accept that other writers, notably
Professor Ian Brownlie (International Law and the Use of Force
by States (1963) 257-61), have taken the contrary view but,
with great respect to them, I believe that the view expressed
by Judge Higgins and the other writers quoted above accords better
with State practice and with the realities of modern military
conditions.
24. Nevertheless, the right of anticipatory
self-defence is quite narrowly defined. Ever since the United
Kingdom-US exchange in what has become known as the Caroline
case in 1837-38, the right has been confined to instances
where the threat of armed attack was imminent. In my opinion,
that still reflects international law and, in so far as talk of
a doctrine of "pre-emption" is intended to refer to
a broader right to respond to threats which might materialise
some time in the future, I believe that such a doctrine has no
basis in law.
25. In assessing what constitutes an imminent
threat, however, I believe that 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. These would be material
considerations in assessing whether Iraq posed an imminent threat
to the United Kingdom or its allies.
26. 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. The degree of force
used would have to be proportionate to the threat and no more
than necessary to deal with that threat (including preventing
a recurrence of the threat). In addition, the use of force would
have to comply with the separate requirements of the Geneva Conventions
and other applicable rules of international humanitarian law.
V. MILITARY ACTION
ON OTHER
GROUNDS
27. In my opinion, the other legal grounds
which have sometimes been advanced in discussion as a basis for
military action against Iraq are unconvincing.
28. The suggestion that, because Iraq has
violated the terms of the ceasefire embodied in Resolution 687
(1991), any of the coalition States which were engaged in the
hostilities of 1990-91 would be justified in resuming hostilities
seems to me to be based on a pre-1945 view of international law
which cannot prevail against the clear language of the UN Charter.
Violation of a ceasefire does not in itself justify reversion
to military action today unless the original legal basis for the
use of force remains in place. Accordingly, the United Kingdom
might be entitled to resort to military action on the basis of
Resolution 678 (1990), under the conditions set out above. It
does not have an automatic right to resume belligerency simply
because it was a party to the 1990-91 hostilities and Iraq has
violated the ceasefire.
29. Nor, in my opinion, do references to
a "war against terrorism" provide a basis for renewed
military action against Iraq. If there were evidence of close
Iraqi involvement in terrorism and a threat of imminent terrorist
attack supported by Iraq, then that would justify military action
by way of self-defence and, in certain circumstances, under Resolutions
678 (1990) and 687 (1991) (see paragraph 8, above). But the concept
of a "war against terrorism", even if it has any international
legal content at all, is, in my view, far too vague to serve as
a basis for legal action where the criteria for self-defence are
not met.
30. Finally, references to "regime
change" do not, in my opinion, furnish a free-standing justification
for military action. It is possible that the only way of achieving
international peace and security might be to change the government
of Iraq. Likewise, if action were taken in self-defence, there
are circumstances in which self-defence might justify imposing
a change of government (if that were the only way of removing
the threat of armed attack from Iraq). However, the nature of
the Iraqi regime does not, in my opinion, furnish a legal justification
for military action in and of itself.
VI. CONCLUSIONS
31. Accordingly, my conclusion is that military
action against Iraq would be justified if:—
(1) The Security Council gave a fresh authorization
to use force and military action was taken in accordance with
that resolution; or
(2) The Security Council indicated that Iraq
was in material breach of Resolution 687 (1991) and that breach
entailed a threat to international peace and security, in which
case action would be justified within the framework of Resolution
678 (1990); or
(3) Iraq posed a threat of an imminent armed
attack against the United Kingdom or its allies and military action
could therefore be taken under the right of self-defence.
Christopher Greenwood, CMG, QC
24 October 2002
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