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 beenat
least in parta 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
to work closely with the United States, to produce
a strong and unanimous Security Council Resolution establishing
an unconstrained weapons inspections regime and demanding Iraq's
full disarmament of Weapons of Mass Destruction.[86]
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
currently accurate, full, and complete declaration
of all aspects of its programmes to develop chemical, biological,
and nuclear weapons, ballistic missiles, and other delivery systems,[89]
and the compliance with the inspectors set out in paragraphs
5 through to 8 and so on, and then a definition in paragraph 4
of what is a further material breach.[90]
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]
you then have the Council meeting for an assessment
of the situation in accordance with paragraphs 11 and 12. But
what the Council has to do under 12 is to consider the situation,
not necessarily to pass a second resolution.[92]
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
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.[94]
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 resolutionsmany
of them passed unanimouslyfound 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
the strongest case for the legality of military
action against Iraq in 2003 rested, not on any general propositions
about preventive defence, nor on Resolution 1441 taken in isolation,
but upon Iraq's violations of specific UN resolutions and on the
continuing authority contained in certain resolutions.[99]
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
The greatest difficulty with 'continuing authority'
in the light of events in Iraq in 2003 concerns not so much the
proposition itself which is fundamentally strong, but its particular
invocation in this crisis.[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.
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