Memorandum from Professor Ian Brownlie
QC
IRAQ AND WEAPONS OF MASS DESTRUCTION AND
THE POLICY OF PRE-EMPTIVE ACTION
A. THE NATURE
OF THE
THREAT CONCERNED
Reply from the U.S. Embassy to the Committee's
questions:
21. Saddam Hussein's regime remains a threat
to the Iraqi people, to Iraq's neighbours, and to international
peace and stability. As the President and Secretary of State Powell
have many times underscored, Iraq is a country that not only pursues
weapons of mass destruction (WMD), but has shown no reluctance
to use them—even against its own people.
22. Because of the vigilance of the international
community, this regime is no longer the conventional threat that
it was 10 years ago. That said, we remain concerned about Iraq's
efforts to develop weapons of mass destruction, and we continue
to work closely with our allies and the international community
to secure Iraq's compliance with its UN Security Council Resolution
obligations to declare and destroy fully its WMD.
23. We are not able to discuss what we know
from sensitive intelligence. We note, however, that Iraq has long
been on our State Sponsors of Terrorism List, and we continue
to be focused on Iraq's support for international terrorism. (Ev.103)
B. THE PROVISIONS
OF THE
UN CHARTER IN
RELATION TO
PRE-EMPTIVE
ACTION
`Article 2
The Organisation and its Members, in pursuit
of the Purposes stated in Article I, shall act in accordance with
the following Principles:
[...]
4. 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.
[...]
Article 51
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.'
This language effectively excludes the legality
of pre-emptive action.
There is, however, a margin of situations in
which a clear intention to attack is accompanied by measures of
implementation not involving crossing the boundary of the target
State. Thus a naval force of a State which has stated its intention
to attack, approaching territorial waters, might be regarded as
offensive and intercepted on the high seas.
These issues will not be pursued because the
U.S. concept of pre-emptive action is qualitatively different.
As President Bush observes in a statement on
1 June this year:
`We must adapt the concept of imminent threat
to the capabilities and objectives of today's adversaries. Rogue
states and terrorists do not seek to attack us using conventional
means. They know such attacks would fail. Instead, they rely on
acts of terror and, potentially, the use of weapons of mass destruction—weapons
that can be easily concealed, delivered covertly, and used without
warning.
`The targets of these attacks are our military
forces and our civilian population, in direct violation of one
of the principal norms of the law of warfare. As was demonstrated
by the losses on September 11, 2001, mass civilian casualties
is the specific objective of terrorists and these losses would
be exponentially more severe if terrorists acquired and used weapons
of mass destruction.
`The United States has long maintained the option
of pre-emptive actions to counter a sufficient threat to our national
security. The greater the threat, the greater is the risk of inaction—and
the more compelling the case for taking anticipatory action to
defend ourselves, even if uncertainty remains as to the time and
place of the enemy's attack. To forestall or prevent such hostile
acts by our adversaries, the United States will, if necessary,
act pre-emptively.
`The United States will not use force in all
cases to pre-empt emerging threats, nor should nations use pre-emption
as a pretext for aggression. Yet in an age where the enemies of
civilisation openly and actively seek the world's most destructive
technologies, the United States cannot remain idle while dangers
gather.'
(The National Security Strategy of the United
States of America, p.15)
C. SECURITY COUNCIL
RESOLUTIONS AS
A COLLATERAL
SOURCE OF
LEGALITY
Refer to the FCO Memo. Quoted in the Seventh
Report of Session 2001-02, at page 53.
FCO Thesis: a violation by Iraq of obligations
which undermine the basis of the ceasefire contained in S.C. Resolution
687 (1991) can revive the authorisation to use force in Resolution
678 (1990).
Two points by way of commentary:
(a) The interpretation of the Resolutions
is problematical in legal terms, not least because the Resolutions
relate to threats to Kuwait. There is no evidence available of
a threat to Kuwait by Iraq.
(b) Relevant evidence on the general issue
includes the attitudes of Kuwait and other interested States in
the region. Kuwait does not support pre-emptive action. Nor do
any other of Iraq's neighbours. The strong implication is that
Kuwait does not support the interpretation referred to above.
D. THE NEED
FOR AN
EFFICIENT CHARACTERISATION
OF THE
ACTION PROPOSED
A major necessity is to classify the action
proposed. The purposes of the action, as advertised, are the compulsory
disarmament of Iraq on a permanent basis and, perhaps as a part
of the enterprise, forcible regime change.
These purposes do not conform to any known concept
of pre-emptive action. Iraq has not threatened to attack any other
State. In respect of the WMD it is far from clear which weapons
are possessed and, in any event, Iraq is to be occupied in order
to prevent the possible development of weapons in the
future.
It would be more appropriate to characterise
the proposed action as compulsory disarmament enforced by one
or more States (perhaps with the authorisation of the Security
Council).
Pre-emptive action in the normal mode would
involve a response to some initiative and a temporary purpose.
It would not involve regime change.
E. ACTION OF
THE TYPE
AND WITH
THE PURPOSES
ENVISAGED WOULD
STILL BE
SUBJECT TO
CERTAIN LEGAL
CONSTRAINTS
In particular, the following constraints would
apply:
(a) The action should relate to the specific
purpose of disarmament and the emplacement of an inspection regime.
(b) The action should not take the form of
regime change.
(c) The action should not take the form of
intervention in a civil war.
(d) The action should not involve ultra
vires acts such as the expropriation or exploitation of natural
resources.
(e) The action should not include armed action
in support of ethnic minorities or indigenous peoples.
(f) The action should not involve the destruction
of the infrastructure of the State.
(g) The measures taken should not involve
military occupation beyond the purpose of disarmament.
These constraints would also apply as a matter
of ordinary logic: in other words they simply reflect the outlines
of an enterprise confined to the purpose of disarmament. On the
assumption that any action against Iraq was authorised by a Security
Council Resolution, the constraints chronicled above would apply
as they also reflect applicable principles of general international
law. Even the political organs of the United Nations are subject
to the principles of the Charter: see Article 2 thereof, quoted
above.
PROPOSITIONS
1. A pre-emptive attack of the type envisaged
in U.S. policy statements would be in violation of the U.N. Charter.
2. Compulsory disarmament of the type envisaged
could only be lawful if based upon a SC Resolution.
3. Any such regime of disarmament, including
one based upon a SC Resolution, would only be lawful if certain
constraints were observed (see above).
Professor Ian Brownlie QC
October 2002
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