House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Tenth Report

JANUARY-JUNE 2003: ADDRESSING THE THREAT FROM IRAQ

THE DECISION TO SEEK A 'SECOND RESOLUTION'

58. On 24 February, Britain, the United States and Spain circulated a new draft Security Council resolution relating to Iraq. The draft resolution recalled Iraq's failure to comply with successive Security Council resolutions, noted Iraq's "false statements and omissions" in its declaration to the Council, recognised that Iraq posed a threat to international peace and security, and decided that "Iraq has failed to take the final opportunity afforded to it in resolution 1441 (2002)". The draft resolution was interpreted as an attempt by the US and the United Kingdom to secure Security Council backing for military action against Iraq.

59. The Government insisted that its objective in circulating the draft resolution was not to obtain legal authority for military action—which, in its view, had already been secured through successive Security Council resolutions since the 1991 Gulf War.[53] The Government was, instead, seeking a resolution "Because, politically, it is a better way of binding in the international community".[54]

60. In response to this initiative, the French government produced a memorandum, which was backed by Russia and Germany. It stated that "While suspicions remain, no evidence has been given that Iraq still possesses weapons of mass destruction or capabilities in this field." It went on:

61. The French memorandum called for a clear programme of action for the inspections; the adoption of further measures to strengthen inspectors; the implementation of a programme of work according to a realistic and rigorous timeline; and a report by UNMOVIC and IAEA to the Security Council 120 days after the adoption of the programme of work—an explicit reference to the timetable established by the Security Council in Resolution 1284.

62. The French government had insisted earlier in the month that the French and US governments "disagree on one issue, one issue only, what is the timing to decide to move from the inspections to the use of force."[56] The 24 February memorandum stated that

63. The Prime Minister's argument with the French memorandum was that "the call is for more time—up to the end of July at least." France, Germany and Russia "say the time is necessary 'to search out' the weapons." However, "to sniff out" Saddam's weapons

The FCO spelled out this message again, in a memorandum to us on 28 April:

64. The call for more time was strengthened, according to some commentators, by the argument that the Iraqi regime was being contained by the presence of inspectors.[60] Dr Blix had made this point on 19 December 2002, when he told the Security Council that

65. On 7 March, Dr Blix spoke again of the possibility of containment. He discussed the authority given in "the governing resolutions"—i.e. 1284 and 1441—that

66. The Government continued to reject the containment option, however. On 26 February, the Foreign Secretary told the House that

67. The Prime Minister told the House on 26 February that any country that supported resolution 1441 should support a second resolution that flows from it, and that

68. On 4 March, the Foreign Secretary remained confident that the Government would secure the 'second resolution'. He told us that "We tend not to put forward resolutions with the idea that they will be repudiated, and there are intensive discussions currently taking place."[65] He also recalled that

69. Less than a week later, however, the Government's chances of securing its second resolution were dashed when President Chirac of France told a French television station that

70. On 12 March, in a final attempt to secure consensus in the Security Council, the Foreign Secretary announced that the Government was circulating "six tests by which Iraqi compliance would be measured." He described these tests as "demanding but deliverable". Iraq was asked to provide a statement by Saddam Hussein admitting that he had concealed weapons of mass destruction, but would no longer produce or retain weapons of mass destruction; to deliver at least 30 scientists for interview outside Iraq, with their families; to surrender all anthrax, or credible evidence of destruction; to complete the destruction of all Al Samoud missiles; to account for all unmanned aerial vehicles, including details of any testing of spraying devices for chemical and biological weapons; and to surrender all mobile chemical and biological production facilities.[68]

71. This effort to secure consensus in the Council did not yield results. The Government did not table its draft resolution, and was thus not required to employ the argument, put forward by the Prime Minister on 26 February, that an "unreasonable veto" would not invalidate efforts to reach international agreement over Iraq. The Government may have concluded that it would not have obtained enough votes in the Council even to secure a majority.

72. On 14 March, in an interview published in The Guardian, the Foreign Secretary described President Chirac's statement as

73. Should the Government have predicted that France would refuse to support its 'second resolution'? According to the French Ambassador to the United States, France had been warning for some time that it would not sign up to a second resolution. On 25 March, at a meeting at the Council on Foreign Relations in Washington, the French Ambassador said:

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74. On 29 April, we asked the Foreign Secretary why, despite indications from the French government that they would not support the second resolution, the Government decided to circulate such a resolution in late February. He replied that "until you put people to the test you do not know … for certain" what they will do. He went on:

75. In our December 2002 Report, we commended the Government's decision to work closely with the United States,

We conclude that it would have been highly desirable to obtain a further Security Council resolution before taking military action in Iraq.

76. We further conclude that seeking a Security Council resolution and then failing to secure its adoption in the Council highlighted the profound disagreements that had emerged between its members by late February 2003.

77. We note the Foreign Secretary's comment that the United Kingdom tends "not to put forward resolutions with the idea that they will be repudiated", and recommend that the Government in its response to this Report state whether the failure to secure a 'second resolution' on Iraq in February 2003 should have been anticipated.

THE US AND UK DECISION TO GO TO WAR IN MARCH 2003

78. On 16 March, the Prime Minister met with his US and Spanish counterparts in the Azores. In a statement issued after their meeting, he declared that

we have reached the point of decision … We will do all we can in the short time that remains to make a final round of contacts to see whether there is a way through this impasse. But we are in the final stages because after twelve years of failing to disarm him, now is the time when we have to decide.[

The United Kingdom, the US and Spain stated that they "would undertake a solemn obligation to help the Iraqi people build a new Iraq at peace with itself and its neighbours."[75] The following day, President Bush addressed the United States, calling for Saddam Hussein and his sons to leave Iraq within 48 hours. "Their refusal to do so will result in military conflict, commenced at a time of our choosing."[76]

79. On 18 March, the Government asked the House to consider whether the United Kingdom should join the United States in a war against the government of Iraq. In its motion, the Government stated that

Iraq's weapons of mass destruction and long range missiles, and its continuing non-compliance with Security Council Resolutions, pose a threat to international peace and security; notes that in the 130 days since Resolution 1441 was adopted Iraq has not co-operated actively … and is in further material breach of its obligations under successive mandatory UN Security Council Resolutions; regrets that … it has not proved possible to secure a second Resolution in the UN because one Permanent Member of the Security Council made plain in public its intention to use its veto whatever the circumstances; notes the opinion of the Attorney General that … the authority to use force under Resolution 678 has revived and so continues today and endorses the use of all means necessary to ensure the disarmament of Iraq's weapons of mass destruction.

The House voted; 412 members supported the motion, and 149 opposed. Two days later, the war in Iraq began.

WHY DID SUCH A DEEP SPLIT DEVELOP BETWEEN SECURITY COUNCIL MEMBERS OVER THE DECISION TO GO TO WAR IN MARCH 2003?

80. Security Council members clearly differed in their assessments of the threat from Iraq. In our Inquiry into 'The Decision to go to war in Iraq', we concluded that the Government did believe that Iraq possessed weapons of mass destruction: "the threat posed to United Kingdom forces was genuinely perceived as a real and present danger and that the steps taken to protect them were justified by the information available at the time."[77] However, the view—held by the French government—that the threat from Iraq was contained, rather than increasing, was supported by evidence from the former Foreign Secretary, Robin Cook, who also told us that "containment by sanctions … worked"[78] between 1998 and 2003, and that "All we have learnt since we went into Iraq is actually it worked rather better than we had hoped."[79] Mr Cook also told us that he had "seen nothing to suggest it was right to replace that policy of containment with a major armed invasion of the territory of another state."[80]

81. The Government also disagreed with France, Russia and other Security Council members over whether weapons inspectors would be unable to find and destroy these weapons without full and complete co-operation from Iraq. According to the reports of Dr Blix, the weapons inspectors were making progress.[81] However, the Government's view was supported by evidence from the former chief of UN weapons inspections, Terence Taylor. We asked Mr Taylor whether the UNMOVIC inspections from November 2002 until the conflict started were "doomed to failure from the start." Mr Taylor replied that "Their chances of success were low. [Their success] would require a strategic decision by Saddam Hussein himself. On 7 December when they presented their so-called full, final and complete declaration, this was the last chance for immediate compliance and I registered with great disappointment that that declaration was well short … my personal view was that, given the pattern of behaviour, inspections were very unlikely to succeed" after this point.[82]

82. Before the war in Iraq, there was evidence from authoritative sources to support both sides to the argument about whether Iraq posed a grave threat to peace and security. In our Report on 'The Decision to go to war in Iraq', we discuss the difficulties inherent in determining the threat from Iraq, which arise from the limited access Western governments had to reliable human intelligence.[83] We conclude that the divisions that emerged among Security Council members between January and March 2003 over how to deal with the threat from Iraq are likely to have been a consequence of genuinely different assessments of the nature and extent of that threat.

WAS THE WAR LAWFUL?

83. The United Nations Security Council is the only body able to provide a legal basis for the use of force in the maintenance of peace and security, beyond the circumstances described in the UN Charter.[84] The US government's decision to address the question of Iraq through the UN Security Council is widely considered to have been—at least in part—a consequence of pressure from the United Kingdom.[85] The Government has stressed repeatedly throughout the Iraq crisis that it intends to work within the boundaries of international law. While stressing that agreement in the Security Council was not necessary to ensure the legality of military action against Iraq, the Government made substantial efforts to secure agreement on the international response to the threat from Iraq in the Security Council during late 2002 and early 2003.

84. At the end of 2002, after the adoption of resolution 1441, the Government's policy appeared to be bearing fruit; in our last Report on this subject, we accordingly commended the Government's decision

85. As we note above, the United Kingdom undertook military action in March 2003 without obtaining explicit support from the Security Council. We note the Foreign Secretary's recollection that before the adoption of 1441, there had been a

very intense debate … about whether the resolution that became 1441 should explicitly say, in terms, that military action to enforce this resolution could only be taken if there were a second resolution.

According to the Foreign Secretary, this proposition "was not acceptable to a majority of members of the Security Council [and] it was never put before the Security Council."[87]

86. Instead, the Council agreed to "the scheme laid out in the operative paragraphs of 1441 which set very clear obligations on Iraq."[88] These included submission of a

The Foreign Secretary told us that "In … circumstances where you have got a further material breach"—as defined by operative paragraph 4 of 1441[91]—

87. The Government stated consistently that it sought a 'second resolution' for political reasons, but that such a resolution was not legally necessary.[93] On 17 March, when it was clear that efforts to convince the Security Council to adopt such a resolution had failed, the Attorney General, Lord Goldsmith, set out his views of the legal basis for the use of force against Iraq. He stated that

88. Professor Sir Adam Roberts wrote to us that although the

legal justification for the US-led military action initiated in March 2003 would have been significantly simpler if the US and UK had succeeded in their efforts to persuade the UN Security Council to follow up with a so-called 'second resolution',

there is "some substance" to the argument put forward by the Attorney General that that "past Security Council resolutions provide a continuing, or revived, authority to use force, in a different situation and a dozen years after they were passed".[95] In his memorandum, Professor Roberts outlines a "concept of what I term a 'continuing authority' given by the UN Security Council to certain states to take military action in respect of Iraq." He considers "that this concept constitutes the strongest available basis for justifying the US-led use of force against Iraq."[96]

89. Professor Roberts examines the resolutions adopted by the Security Council during the crisis following Iraq's invasion of Kuwait. Resolution 678 of 29 November 1990 authorises UN member states to use force not just to expel Iraqi forces from Kuwait, but also "to secure international peace and security in the area". Resolution 687, adopted after the expulsion of Iraq from Kuwait, set out the terms of the cease-fire in some detail. Thereafter, numerous Security Council resolutions—many of them passed unanimously—found Iraq to be in breach of these cease-fire commitments.[97]

90. According to Professor Roberts, a provision in the chapter on armistices in the 1907 Hague Regulations suggests that the violation of certain terms of a cease-fire can constitute a justification for an eventual use of force against the violator.[98] He further notes that

The argument that there can be a continuity and resumption of the authority to use force contained in previous UN Security Council resolutions was asserted repeatedly in crises over Iraq in the 1990s,

including that concerning weapons inspections in Iraq in 1998, when the US and the United Kingdom launched Operation Desert Fox. The conclusion Professor Roberts draws is that

91. Professor Roberts points out that the "concept of 'continuing authority' on which this paper focuses has not been widely accepted." He also notes that

100

There is nothing in his memorandum, however, that contradicts the Attorney General's assertion that the United States and the United Kingdom had legal authority to use force in March 2003 on the basis of Iraq's violation of Security Council resolutions 678, 687 and 1441.

53 The question of the legality of military action is discussed at 83-91 below Back

54 Foreign Secretary, 4 March 2003, Q 155 Back

55 Iraq: French-German-Russian Memorandum, February 24th, 2003, available at: http://special.diplomatie.fr/article_gb134.html Back

56 Address by Jean-David Levitte, Ambassador of France to the US, at the US Institute of Peace, Washington DC, 7 February 2003, available at: http://www.info-france-usa.org/news/statmnts/2003/levitte_iraq020703.asp Back

57 'Iraq: French-German-Russian memorandum', 24 February 2003, available at: http://special.diplomatie.fr/article_gb134.html Back

58 HC Deb, 25 February, col 125 Back

59 Ev 69 Back

60 The Carnegie Endowment for International Peace, for example, argued that "With tens of thousands of troops around Iraq, an international coalition united in support of the inspection process, and now hundreds of inspectors able to go anywhere at any time, Saddam is unable to engage in any large-scale development or production of chemical, biological or nuclear weapons."Carnegie Endowment for International Peace, Iraq: What next?, Washington DC, January 2003, p.12 Back

61 Hans Blix, Briefing notes to the Security Council, 19 December 2002, available at: http://un.org/depts/unmovic/index.htm Back

62 Hans Blix, Report to the Security Council, 7 March 2003, available at http://un.org/depts/unmovic/index.htm Back

63 HC Deb, 26 February, col 273 Back

64 HC Deb, 26 February, col 251 Back