Examination of Witnesses (Questions 84-99)
PROFESSOR CHRISTOPHER
GREENWOOD AND
PROFESSOR IAN
BROWNLIE
THURSDAY 24 OCTOBER 2002
Chairman: We welcome you both to the Committee
and look forward to hearing your weighty opinions in respect of
the international law aspects of the war against terrorism.
Mr John Maples
84. I would like to explore with both of you—particularly
if you disagree—the two main bases on which it is suggested
that international law might permit military intervention by the
United States and its allies. Looking at the right of anticipatory
self-defence, it seems that military technology has moved on a
lot since the Caroline case. Can you tell us if there has
been any international law case that has come before a court?
The Caroline case did not come before a court, as I understand
it. I think there was some passing reference in the case to Nicaragua.
Have there been any cases in which either in an international
court or a national court, this issue has been judged relatively
recently? We hear people saying that if troops are amassing on
your border, maybe you would do something about it and do no have
to wait for them to attack. If we look at that in the light of
modern military technology, troops are not going to amass on borders;
people are going to start aiming missiles and getting ready to
fire them. Therefore, there must be some anticipatory right of
self-defence, and I wonder where you see it beginning and stopping.
(Professor Brownlie) It is a great honour
to be asked to give evidence to this Committee. I am now Chichele
Professor Emeritus and my main public role in international law
is as a member of the International Law Commission of the United
Nations. There are at least two cases of some relevance, which
have been heard in fairly recent times in the International Courts.
The famous one is the Nicaragua v. United States case.
That, I do not think is of enormous assistance. The complaints
by Nicaragua concerned the mining of Nicaraguan harbours at a
time when there was no state of war between the two states, and
also the question of United States covert assistance to Nicaraguan
rebels, some of them working from outside Nicaragua, from Honduras,
and others within Nicaragua. I have to say that I was counsel
for Nicaragua, and Nicaragua did obtain quite a strong judgment
in its favour. I do not feel the need to pursue that case because
I do not think it provides material assistance on issues of self-defence.
There is another case currently before the court, brought by the
Congo against Uganda, in which the pleadings are quite well advanced.
I have to confess that again I am counsel for Uganda—this
is the sort of world I work in. Uganda has advanced some quite
developed legal justifications precisely on the basis that over
a period of many years, but particularly in the recent past, the
Congo harboured armed bands which raided regularly into Uganda.
Again, there will not be a judgment for some time—the pleadings
are not yet closed. For that reason, and because of my involvement,
I do not think I need pursue that either. I leave it to Chris
to add anything on relevant cases.
(Professor Greenwood) I am also honoured to be asked
to give evidence before you again. The short answer to Mr Maples's
question is that there are no cases in recent times that have
considered this. The Nicaragua case has a lot to say about
self-defence, but the court expressly stated that it was leaving
open the question of anticipatory self-defence because it simply
did not arise on the facts of that case. As far as the underlying
issues are concerned, I entirely agree with the suggestion that
was put to us that there must be a right of anticipatory self-defence
and that in assessing its limits one has to take account of military
developments since Caroline. That involved the risk of
a group of men with rifles crossing the great lakes and shooting
people in parts of British Canada. What we are looking at at the
moment is the prospect of a nuclear weapon being dropped somewhere,
or a chemical or biological weapon being detonated, perhaps by
terrorist means. It is much more difficult to detect, much more
difficult to determine the timescale, and much more damaging if
the threat is allowed to materialise.
85. Would the right of anticipatory self-defence
be stronger if it were Kuwait that were trying to exercise it
rather than the US or the United Kingdom?
(Professor Greenwood) I do not think it would on these
facts because what is at issue here is not the conventional cross-border
invasion that you saw in 1990, when Iraq invaded Kuwait, but more
the possibility of a missile attack and more states than just
Kuwait are within range of missiles that Iraq has retained; or
there is the possibility of an attack using terrorist means, which
would be just as likely to materialise in New York as it would
in Kuwait city.
Chairman
86. Israel's bombing of the nuclear reactor
in 1981 presumably anticipated that that nuclear reactor would
lead to nuclear weaponry against Israel. Where would that stand?
(Professor Greenwood) That was condemned unanimously
by the Security Council as unlawful, 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. Of course,
that was an attack on a reactor which might have been used to
produce a nuclear weapon at some stage in the future, which weapon
might at some stage beyond that have been used against Israel.
It is a lot further down the road than the sort of risks we are
talking about at the moment.
Mr John Maples
87. If I could move you on to the other basis,
which is the United Nations Security Council resolutions; it seems
clear that Iraq is in breach of resolution 687 in various ways,
and that resolution 687 did revive and leave extant—as it
says, it affirms all 13 resolutions "noted above", and
Iraq is in breach of many of those too. It is clear that if there
is a new Security Council resolution, that could provide a legal
basis for action, but do the existing Security Council resolutions
provide a basis for action, and does it make a difference that
resolution 687 was effectively the terms of a cease-fire in a
war or an armed conflict that had been going on up to that point?
One could argue that not only was Iraq in breach of UN Security
Council resolutions before and after the event, but it is also
in breach of the cease-fire agreement; and that as a result of
it being in breach of that cease-fire agreement, various air bombardment
operations have continued, particularly Desert Fox, which relied
on these resolutions as part of their legal justification for
doing that. How do you see the strength or weakness of relying
on existing Security Council resolutions, and in that context
does it make a difference that one of them was a cease-fire agreement?
(Professor Brownlie) I will answer that question,
but can I revert to the anticipatory self-defence question? As
Christopher will expect, I do not agree with him on that. The
governing rules are in the UN Charter, and the UN Charter, I regret
to say, is not often quoted verabatim in public documents
these days. Article 51 reserves the right of individual and collective
self-defence if an armed attack occurs. There is a margin of situations
in which an armed attack has almost certainly occurred without
the border of the target state having been crossed, where the
aggressor state has made her intentions unequivocally clear, and
its naval vessels or its missiles are on the way. There has always
been, even under the concept of armed attack, a margin of situations
which would allow for sensible reaction. However—and this
would be my main point, but I fear I may not be asked this question—the
question is, how do you classify the problem? It is probably the
first lesson you try to give any student. First of all, you classify
the problem. You have to ask the right question. It is my view
that the public papers available in the form of speeches by President
Bush and by other relevant statesmen, simply do not refer to any
form of pre-emptive action in the way in which those words are
normally used, either by lawyers or by politicians. 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.
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.
It is a long-term regime. I am not suggesting on that basis it
would be illegal. I am simply saying 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 self-defence or anticipatory
self-defence can be helpfully applied. What that means, if I am
right, is that only a Security Council resolution could justify,
could provide a proper legal basis for the type of action proposed.
Thank you.
Mr Maples
88. Article 51 implies there is an inherent
right of self-defence which goes wider than responding to an armed
attack, it says, "nothing in the Charter shall impair the
inherent right of self-defence". Would you think there would
be a difference if it was Kuwait. If Kuwait had evidence that
these missiles were being pointed at them and armed would they
have an anticipatory right to self-defence in those circumstances?
(Professor Brownlie) With respect the difficulty is
I do not believe that the drafters of the Charter had such a loose
regime in view. The phrase, "if an armed attack occurs"
was really carefully chosen by the draftsman. Could I point out
that in the heady days of the Cold War in 1962, when the US had
intermediate range ballistic missiles in Turkey, and possibly
Italy, and the Soviet Union was in the business of placing them
in Cuba, if the presence of ballistic missiles, no doubt already
targeted at one of the parties, on any view any attack could be
launched on any day on the basis that anticipatory self-defence
was necessary. This is the problem. President Bush himself in
I think the speech he made on 1 June did say that the right of
what he called pre-emptive action should not be abused.
(Professor Greenwood) Might I pick that up briefly
before turning to the questions about the Security Council resolution.
It may surprise Professor Brownlie if I say that I agree with
much, although not all, of what he said. I agree that one has
to start with Article 51, and you will find the text of it in
paragraph 20 of my memorandum. That is a provision that has to
be interpreted in the light not only of what went before and the
intentions of the draftsman but also in the way it has been interpreted
by states since 1945 and in the light of common sense. As Judge
Rosalyn Higgins said in her book on Problems and the Process
of International Law, "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".
Where I agree with Professor Brownlie is that the right of anticipatory
self-defence only applies where there is an imminent threat of
an armed attack; it could not be used as the basis for some kind
of longer term programme of disarmament. That is why I responded
to the question about the Iraqi reactor. I think there is a danger
here of confusing two different elements in what is being said
in public. The disarmament aspect relates to Iraq's obligations
under Security Council Resolution 687, where the Council has prohibited
Iraq from possessing weapons it would otherwise be entitled to
possess, as well as repeating the prohibition on weapons that
it is not allowed to have. That can only be enforced through the
medium of the Security Council or the under the authority of the
existing Security Council resolutions, it is an entirely separate
matter from self-defence. At the same time if there is evidence
of an imminent armed attack emanating from Iraq against Britain
or one of its allies then I think the right of anticipatory self-defence
does come out into play. One needs to separate out those two strands
in what we are discussing.
Mr Illsley
89. If you enter resolutions which relate to
disarming they give the United States authority to launch military
action, that is the defensive proposition that you are advocating.
(Professor Greenwood) The position is 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 on-going 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.
(Professor Brownlie) Very briefly, I really do find,
and I know a lot of people who find, that interpretation of those
two resolutions to be very problematical. The situation we are
dealing with now is very difficult to tuck under the umbrella
of the former conflict between Iraq and Kuwait. If I were writing
an opinion for a third state not involved in the situation directly
I would say that the evidence of the meaning and application of
those resolutions would include the views of Member States generally
and in particular the views of Member States who are neighbours
of Iraq. As reported in the Times in the recent curious
conference involving the Security Council and the non-aligned
movements. Kuwait itself opposed any idea of a pre-emptive strike
outside the terms of a resolution.
Andrew Mackinlay
90. Listening to you Professor Brownlie it seems
to me in plainman's language you are saying, if you had been counselling
the United States you might say we can advance this law but presentationally
what is good politics, good politics is that you go do not go
on the business of pre-emptive action or self-defence, we really
ought to be focusing on the compliance with what was armistice,
which is the Resolution 687. As a politician I think the United
States have been clumsy from their own point of view of advancing
this, which I think is very difficult to justify, what would put
them on the side of the angels is arguing that you should have
compliance with an armistice, it was not a treaty, it was not
something that was freely negotiated, we stopped where we did
and they signed up to agree to certain things. If you break an
armistice you might debate how you enforce it, am I correct in
the Treaty of Versailles when the Germans scuttled their ships
in Scapa Flow that breached the armistice. There was contemplation
of sanctions but that was an absolute breach. Is that not the
sort of matter we ought to be focusing on now?
(Professor Brownlie) With respect, I think the difficulty
is the connection between finding a trigger or an excuse, if you
like, a reason, to launch military action against Iraq with the
apparent objective of occupying Iraq and installing an occupation
regime and the actual objective. The actual objective, as I understand
it, and I personally have no great objections to the concept,
is compulsory disarmament with some kind of forward reach. If
that type of regime is applied symmetrically to other countries
presenting similar threats it seems to me perfectly sound in terms
of public order. There has to be some visible link even at the
level of public relations between the triggering reason for taking
armed action on a massive scale and the legitimate public order
objective, which is imposing a disarmament regime of an effective
kind on a country.
91. I am surprised you have not answered the
question I asked, I am not disappointed you have not given me
the reply I would like, why can we not focus on 678? We stopped,
they waved the white flags, they signed up to some conditions
which they have not complied with, why are the United States and
the United Kingdom focusing on that?
(Professor Brownlie) With respect I think the short
answer is that, if there is not a clear link between the public
relations element and the ultimate objective then the public relations
element is weakly presented. There is a connection between the
ultimate, legitimate, public order objective and the reason given
for launching military action in the first place.
(Professor Greenwood) I must say I read Resolution
678 rather differently from the way my colleague does. I do not
think it is for either of us to tell this Committee what is presentationally
attractive or not. Resolution 678 was not just about Kuwait. It
was Kuwait that triggered the whole thing but by 29 November 1990
there were real concerns about Iraq's threat to peace and security
going far beyond Kuwait, there were threats to its other neighbours,
the threat it had already made explicit of military action against
Israel, its record of the attacks on Iran during the war with
Iran during the 1980s. It seems to me quite clear that the terms
laid down in that resolution formed an authority to use force
to liberate Kuwait and to restore peace and security in the area.
In Resolution 687, the armistice, the cease-fire resolution, the
Security Council said, "This is what is necessary to restore
peace and security in the area and because you are going to do
this the fighting will stop". They have not done it. It is
not simply a case of a breach today. Iraq has never at any time
since 1991 been in compliance with Resolution 687. Although I
would not put it in quite the terms of the analogy with the armistice
of 1919, because the law has changed since then as a result of
the Charter, the underlying point is the same, the Security Council
laid down these terms, Iraq has not complied with them. Its non-compliance
is a threat to international peace. It does not comply with other
requirements as well, for example the return of Kuwaiti property
or cooperation about missing persons, which is a vital issue but
not one that goes to peace and security in the area. So long as
the Security Council finds that it is in breach of international
peace and security in this way then I think Resolution 678, the
authority to use force, remains in being. I do think it needs
to be triggered by a determination on the part of the Security
Council that that is the case.
92. Can I go on to Article 7 resolution, which
we just spoken about. That is the nearest thing to statute law
in the United Nations. It seems to me to be unambiguous. There
are only a few other resolutions which are part of the United
Nations and some people sign up to them. This is absolute black
and white, is it not?
(Professor Brownlie) These are binding resolutions
under Chapter 7. There is still a difficulty because 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. It is not clear that what is envisaged for
Iraq—like a semi-permanent occupation with a supreme commander
acting like the supreme commander in occupied Japan—it is
not clear what the link would be between reimposing, as it were,
the demands of 687 and the long-term objectives of governing Iraq
from the outside.
93. I am bewildered because all of our questions
and the presumptions over the past few weeks we moved from regime
change. Nobody is talking about General MacArthur being in Baghdad,
that is a different ball game. If Saddam complies he goes on,
does he not, he survives. Nobody is suggest there is a resolution
saying get this fella out. Am I right, perhaps I have been misreading
the tea leaves? That is the way I understand it.
(Professor Brownlie) I think if 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.
94. A final question—and you might help
me on this, Chairman—our colleague Ann Clwyd has been raising
the question about the campaign by Indict into the past war crimes
of Saddam Hussein—I think this is a system of international
indictment which has been used again Milosovic—against,
for instance, the Kurds. Is there not a case and can we not bring
some indictment in the West? You might think it is merely a shibboleth
but sometimes it really ought to be flagged up, partly to concentrate
and focus the minds of commanders in the Iraqi army and other
politicians that they face international indictment. Can either
of you help us on that?
(Professor Greenwood) Can I answer that, Chairman,
because I had a part in something similar when I acted for the
Government of Spain in the Pinochet proceedings in another place.
It is immensely desirable that it should happen, in my opinion,
but the difficulty with it is two-fold. There is no international
court which would have jurisdiction. Milosovic is standing trial
before a tribunal that is specifically designed for jurisdiction
over crimes committed in Yugoslavia. It has no jurisdiction over
what has happened in Iraq. The International Criminal Court will
not have a retrospective jurisdiction so its jurisdiction will
not cover the events that we have been talking about. The only
tribunals that exist at the moment that have jurisdiction would
be domestic courts and, so long as Saddam Hussein remains the
head of state, then, under a recent decision of the International
Court of Justice, there will be real problems about whether he
would be entitled to sovereign immunity. General Pinochet, of
course, was a former head of state and that is what made his immunity
more restricted.
Sir John Stanley
95. I would like to go to the general, but critically
important, international legal issues as to in what circumstances
in this day and age pre-emptive strike is legal, and I want to
ask this not in an Iraq context only. We have already made it
quite clear that in this day and age of proliferating nuclear,
chemical and biological weapons, in this day and age of both state-backed
terrorist organisations and non-state terrorist organisations,
that the present boundary is unworkable. The American Government
in their National Security Strategy published last month
makes the point on page 15: "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. We must
adapt the concept of imminent threat to the capabilities and objectives
of today's adversaries." I do not think it can be disputed
that in the world of today, however appalling and regrettable,
that that world is the reality to which I have just referred,
and reliance on imminent threat is simply not a realistic legal
basis or security basis to defend your population. There is not
going to be, in all likelihood, any ability to detect imminent
threat. It may well be that the first indication of a CW or a
BW attack on a major city is going to be, tragically, very large
numbers of people suddenly being found dying of toxic chemicals
or fatal bacteriological substances, and that may be the first
indication you get that an attack has actually taken place. However,
if you go to the lengths that the Americans are perhaps suggesting,
pushing out the frontier of legality, if you start resting on
the capabilities and objectives of today's adversaries, then in
terms of capabilities, we have got a very considerable number
of states which hold weapons of mass destruction. Surely you just
cannot make legal pre-emptive strikes because, for example, of
the possession of WFD weapons, and when you get into objectives
then of course you are in a very big area of subjectively as to
what a particular state's or organisation's objectives are. I
think this is one of the most critical issues in international
law, and we are very very dependent on people such as yourselves;
where do you believe, in present day circumstances, the new boundary,
which can no longer rest on imminent threat if we are going to
be able to protect the people of our country and everybody else's
in law-abiding societies, the boundary can properly be set? Surely,
you would not agree that it just goes on capabilities and objectives
because that could legalise, for example, a nuclear exchange between
India and Pakistan because both possess the capabilities for nuclear
warfare, but that clearly would be utterly unacceptable legally.
How far do we progress legally beyond imminent threat?
(Professor Brownlie) I have a rather more conservative
view than my friend and colleague Professor Greenwood, but even
on his view there was always a concern that it should not become
a purely subjective matter. The Caroline incident, which was mentioned
by Christopher, is very important but it is still question-begging.
It simply says there has to be absolute necessity which you cannot
ignore, but it is still rather circular and begs the question
as to what the level of necessity should actually be. This is
the difficulty because the fact is, of course, that only relatively
strong states within a given region will have this privilege of
using such a loose doctrine and, as I have said before, even President
Bush is careful to say that a broad doctrine of pre-emptive action
would be open to abuse and should not be abused. The fact is that
in the Cuban missile crisis I think I can say the states concerned
did show considerable care in handling the situation. My feeling
is that 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. It would be much better to 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.
96. That is a very interesting answer. What
you are saying is that do not move the legal boundaries and you
rest on the facts and the policy in that particular case. Yes,
thank you.
(Professor Greenwood) I do not take as pessimistic
a view about the ability of the existing law to respond to the
situations that Sir John has just outlined. First of all, the
Security Council has the power to take or to authorise action
whenever it determines there is a threat to international peace.
You do not have to look here at imminent threats of armed attack.
The Security Council's responsibilities and its powers go far
broader than that. So within the framework of the Security Council
it is certainly possible to impose a regime of disarmament upon
a state which has violated international order in the past. It
is certainly possible to organise pre-emptive military action.
The imminent armed attack rule is one which applies only where
a state acts on its own under the rubric of self-defence. There,
I take the point entirely that 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. That is why I suggested
that when you come to assess what is a threat of an imminent armed
attack, what you have to look at includes the nature of the threat,
the method of delivery, and the gravity of that threat. Obviously,
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. If you look at chemical weapons for example, Iraq has
made very free use of chemical weapons during the 1980s. That
gives you some indication of what its intentions might be at the
moment.
(Professor Brownlie) The International Court was asked
to give an advisory opinion on the legality of the threat of use
and even the possession of nuclear weapons. It did not speak clearly
on all aspects of those matters but in 1996 it did not regard
the mere possession of nuclear weapons as unlawful. That, as far
as I know, is quite a general view. Chemical weapons have been
prohibited per se, bacteriological weapons way back in 1972 were
prohibited per se, but nuclear weapons have not been prohibited
per se.
Chairman
97. In trying to examine intention, presumably,
as Professor Greenwood was saying, you could look at all the circumstances
including that being the natural consequence of the possession
and a past record of using it against one's own people or neighbours?
(Professor Brownlie) I think, though, there is a special
element here which is not really appreciated sufficiently, if
I may say so, which is that here non-regional powers are purporting
to act, so to speak, on behalf of Kuwait. Kuwait and other neighbours
of Iraq have not accused Iraq of an imminent attack and that is
a central reason we have to stay close to commonsense. I accept
that all the circumstances must count, but those circumstances
must surely include the attitude of Iraq's neighbours, not least
that of the original victim of Iraqi aggression—Kuwait.
Mr Mackinlay
98. Two quick final points. On your definition
of the nature of the case, which is compulsory disarmament, there
is the fact that compulsory disarmament was part of the package
in Security Council resolution 687, and clearly the Iraqi Government
is in breach of 687. Are you saying there has to be a further
trigger and that it has to go back to the Security Council for
enforcement?
(Professor Brownlie) I accept that there are breaches
of 687, that is self-evident. What I find difficult is the link
between the trigger, the arguments about a breach of the cease-fire
where it might be there is a need for anticipatory self-defence,
and the nature of the permanent disarmament regime which emerges
from at least some official statements from various governments.
The problem I have is the link between the trigger, the reason
for the armed action that might be taken, and the long-term objectives
which, are not linked clearly, for my money, to a simple restoration
of the cease-fire regime.
99. But your are reading now further along the
road, you are reading into it regime change—
(Professor Brownlie) Yes I am.
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