Supplementary memorandum from the Foreign
and Commonwealth Office
Letter from the Foreign Secretary to the
Chairman of the Committee
IRAQ: LEGAL
POSITION CONCERNING
THE USE
OF FORCE
As you may be aware, the Attorney General, Lord
Goldsmith, has this morning answered a Question in the Lords setting
out his views of the legal basis for the use of force against
Iraq.
I now enclose a copy of his Answer, together
with a paper which gives the legal background in more detail,
for the information of your Committee.
You will also wish to be aware that I am this
morning publishing a Command Paper (CM5785) "Iraq—UN
Documents of early March 2003". This supplements the Command
Paper I published last month.
I am placing a copy of this letter and enclosures
in the Library.
Rt Hon Jack Straw MP
Foreign and Commonwealth Office
March 2003
HOUSE OF
LORDS QUESTION:
17 MARCH 2003
Question: To ask Her Majesty's Government
what is the Attorney General's view of the legal basis for the
use of force against Iraq
Answer: The Attorney General (Lord Goldsmith):
Authority to use force against Iraq exists from
the combined effect of resolutions 678, 687 and 1441. All of these
resolutions were adopted under Chapter VII of the UN Charter which
allows the use of force for the express purpose of restoring international
peace and security:
1. In resolution 678 the Security Council
authorised force against Iraq, to eject it from Kuwait and to
restore peace and security in the area.
2. In resolution 687, which set out the
ceasefire conditions after Operation Desert Storm, the Security
Council imposed continuing obligations on Iraq to eliminate its
weapons of mass destruction in order to restore international
peace and security in the area. Resolution 687 suspended but did
not terminate the authority to use force under resolution 678.
3. A material breach of resolution 687 revives
the authority to use force under resolution 678.
4. In resolution 1441 the Security Council
determined that Iraq has been and remains in material breach of
resolution 687, because it has not fully complied with its obligations
to disarm under that resolution.
5. The Security Council in resolution 1441
gave Iraq "a final opportunity to comply with its disarmament
obligations" and warned Iraq of the "serious consequences"
if it did not.
6. The Security Council also decided in
resolution 1441 that, if Iraq failed at any time to comply with
and cooperate fully in the implementation of resolution 1441,
that would constitute a further material breach.
7. It is plain that Iraq has failed so to
comply and therefore Iraq was at the time of resolution 1441 and
continues to be in material breach.
8. Thus, the authority to use force under
resolution 678 has revived and so continues today.
9. Resolution 1441 would in terms have provided
that a further decision of the Security Council to sanction force
was required if that had been intended. Thus, all that resolution
1441 requires is reporting to and discussion by the Security Council
of Iraq's failures, but not an express further decision to authorise
force.
I have lodged a copy of this answer, together
with resolutions 678, 687 and 1441 in the Library of both Houses.
NOTE FROM
THE FOREIGN
AND COMMONWEALTH
OFFICE: IRAQ:
LEGAL BASIS
FOR THE
USE OF
FORCE
Summary
1. The legal basis for any military action
against Iraq would be the authorisation which the Security Council,
by its resolution 678 (1990), gave to Member States to use all
necessary means to restore international peace and security in
the area. That authorisation was suspended but not terminated
by Security Council resolution (SCR) 687 (1991), and revived by
SCR 1441 (2002). In SCR 1441, the Security Council has determined—
(1) that Iraq's possession of weapons of
mass destruction (WMD) constitutes a threat to international peace
and security;
(2) that Iraq has failed—in clear violation
of its legal obligations—to disarm; and
(3) that, in consequence, Iraq is in material
breach of the conditions for the ceasefire laid down by the Council
in SCR 687 at the end of the hostilities in 1991, thus reviving
the authorisation in SCR 678.
The extent of the authority to use force contained
in SCR 678
2. Chapter VII of the United Nations Charter
gives the Security Council the power to authorise States to take
such military action as may be necessary to maintain or restore
international peace and security.
3. In the case of Iraq, the Security Council
took such a step following the Iraqi invasion of Kuwait. Paragraph
Two of SCR 678 authorised "Member States cooperating with
the Government of Kuwait . . . 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." The phrase "all necessary means" was
understood then (as it is now) as including the use of force.
4. Following the liberation of Kuwait, the
Security Council adopted SCR 687. This resolution set out the
steps which the Council required Iraq to take in order to restore
international peace and security in the area. Iraq's acceptance
of those requirements was the condition for the declaration of
a formal ceasefire. Those steps included the destruction of all
WMD under international supervision and the requirement that Iraq
should not attempt to acquire such weapons or the means of their
manufacture. As a means to achieving the disarmament required
by the Security Council, SCR 687 also required Iraq to submit
to extensive weapons inspection by UNSCOM (now UNMOVIC) and the
IAEA. The Security Council was quite clear that these steps were
essential to the restoration of international peace and security
in the area.
5. SCR 687 did not repeal the authorisation
to use force in paragraph 2 of SCR 678. On the contrary, it confirmed
that SCR 678 remained in force. The authorisation was suspended
for so long as Iraq complied with the conditions of the ceasefire.
But the authorisation could be revived if the Council determined
that Iraq was acting in material breach of the requirements of
SCR 687. Although almost twelve years have elapsed since SCR 687
was adopted, Iraq has never taken the steps required of it by
the Council. Throughout that period the Council has repeatedly
condemned Iraq for violations of SCR 687 and has adopted numerous
resolutions on the subject. In 1993 and again in 1998 the coalition
took military action under the revived authority of SCR 678 to
deal with the threat to international peace and security posed
by those violations.
6. In relation to the action in 1993, the
Minister of State at the Foreign and Commonwealth Office wrote:
"The Security Council determined in its statements of 8 and
11 January that Iraq was in material breach of resolutions 687
and its related resolutions, and warned Iraq that serious consequences
would ensue from continued failure to comply with its obligations.
Resolution 687 lays down the terms for the formal ceasefire between
the coalition states and Iraq at the end of the hostilities mandated
by the Security Council in resolution 678. These terms are binding
in themselves but have also been specifically accepted by Iraq
as a condition for the formal ceasefire to come into effect. In
the light of Iraq's continued breaches of Security Council resolution
687 and thus of the ceasefire terms, and the repeated warnings
given by the Security Council and members of the coalition, their
forces were entitled to take necessary and proportionate action
in order to ensure that Iraq complies with those terms."
7. On 14 January 1993, in relation to the
UK/US military action the previous day, the then UN Secretary-General
said: "The raid yesterday, and the forces which carried out
the raid, have received a mandate from the Security Council, according
to resolution 678, and the cause of the raid was the violation
by Iraq of resolution 687 concerning the ceasefire. So, as Secretary-General
of the United Nations, I can say that this action was taken and
conforms to the resolutions of the Security Council and conforms
to the Charter of the United Nations."
8. In relation to the military action undertaken
in 1998, the then Parliamentary Under-Secretary of State (now
Minister of State) at the Foreign and Commonwealth Office, Baroness
Symons of Vernham Dean stated: "In our previous discussions
in this House some of your Lordships asked about the legality
of our action. Any action involving UK forces would be based on
international law. The Charter of the United Nations allows for
the use of force under the authority of the Security Council.
The Security Council resolution adopted before the Gulf conflict
authorised the use of force in order to restore international
peace and security in the region. Iraq is in clear breach of Security
Council resolution 687 which laid down the conditions for the
ceasefire at the end of the conflict. Those conditions included
a requirement on Iraq to eliminate its weapons of mass destruction
under international supervision. Those conditions have been broken."
Security Council Resolution 1441 (2002)
9. It is against that legal background that
United Kingdom and the United States brought to the Council the
draft resolution which was eventually adopted unanimously as SCR
1441 on 8 November 2002. The preamble to that resolution again
expressly referred to SCR 678, confirming once more that that
resolution was still in force. It also recognised the threat that
Iraq's non-compliance with Council resolutions posed to international
peace and security; and it recalled that SCR 687 imposed obligations
on Iraq as a necessary step for the achievement of its objective
of restoring international peace and security. In paragraph I
the Council went on to decide that Iraq "has been and remains
in material breach" of its obligations under SCR 687 and
other relevant resolutions. The use of the term "material
breach" is of the utmost importance because the practice
of the Security Council during the 1990's shows that it was just
such a finding of material breach by Iraq which served to revive
the authorisation of force in SCR 678.
10. On this occasion, however, the Council
decided (in paragraph two of SCR 1441) to offer Iraq "a final
opportunity to comply with its disarmament obligations."
Iraq was required to produce an accurate, full and complete declaration
of all aspects of its prohibited programmes (paragraph three),
and to provide immediate and unrestricted access to UNMOVIC and
IAEA (paragraph five). Failure by Iraq to comply with the requirements
of SCR 1441 was declared to be a further material breach of Iraq's
obligations (paragraph four), in addition to the continuing breach
already identified in paragraph 1. In the event of a further breach
(paragraph four), or interference by Iraq with the inspectors
or failure to comply with any of the disarmament obligations under
any of the relevant resolutions (paragraph 11), the matter was
to be reported to the Security Council. The Security Council was
then to convene "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" (paragraph
12). The Council warned Iraq (paragraph 13) that "it will
face serious consequences as a result of its continued violations
of its obligations".
11. It is important to stress that SCR 1441
did not revive the 678 authorisation immediately on its adoption.
There was no "automaticity". The resolution afforded
Iraq a final opportunity to comply and it provided for any failure
by Iraq to be "considered" by the Security Council (under
paragraph 12 of the resolution). That paragraph does not, however,
mean that no further action can be taken without a new resolution
of the Council. Had that been the intention, it would have provided
that the Council would decide what needed to be done to restore
international peace and security, not that it would consider the
matter. The choice of words was deliberate; a proposal that there
should be a requirement for a decision by the Council, a position
maintained by several Council members, was not adopted. Instead
the members of the Council opted for the formula that the Council
must consider the matter before any action is taken.
12. That consideration has taken place regularly
since the adoption of SCR 1441. It is plain, including from UNMOVIC's
statements to the Security Council, its Twelfth Quarterly Report
and the so-called "Clusters Document", that Iraq has
not complied as required with its disarmament obligations. Whatever
other differences there may have been in the Security Council,
no member of the Council has questioned this conclusion. It therefore
follows that Iraq has not taken the final opportunity offered
to it and remains in material breach of the disarmament obligations
which, for twelve years, the Council has insisted are essential
for the restoration of peace and security. In these circumstances,
the authorisation to use force contained in SCR 678 revives.
Foreign and Commonwealth Office
17 March 2003
| 
