Select Committee on Foreign Affairs Minutes of Evidence

Examination of Witnesses (Questions 84-99)



  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.


  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.


  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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