Memorandum from Professor Sir Adam Roberts
INTERNATIONAL LAW AND THE IRAQ WAR 2003
1. My job is Montague Burton Professor of
International Relations at Oxford University. I have written extensively
on strategic issues, on terrorism, and on wars and military occupations
in the Middle East. My principal publications relevant to this
memorandum are (co-edited with Benedict Kingsbury), United
Nations, Divided World: The UN's Roles in International Relations,
2nd edition, Oxford University Press, 1993. In connection with
the present Inquiry, on 4 December 2001. I already submitted to
the committee a memorandum on "Application of Laws of War"[9].
2. The present memorandum is a short examination
of the question of the legitimacy in international law of the
decision to use force in Iraq. Paragraphs seven-22 incorporate
(in substantially revised and updated form) some material from
my article "Law and the Use of Force After Iraq", Survival
(quarterly journal of the International Institute for Strategic
Studies, London), Summer 2003, pp 31-53.
3. I have been asked to submit this paper
in connection with the Committee's Inquiry into Foreign Policy
Aspects of the War Against Terrorism. I must therefore be clear
from the outset that the connection between the war against Iraq
and the war on terrorism, an acutely controversial issue, is not
the subject of this paper. There has of course been international
concern for decades about Iraq's involvement in international
terrorism; and this concern may have contributed to the willingness
of UN Security Council members to impose limits of Iraq's possession
of weapons of mass destruction. However, the main focus of this
paper is on the disarmament regime itself as a possible justification
for military action against Iraq.
4. In this memorandum I attempt to outline
the 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. I consider that this concept constitutes
the strongest available basis for justifying the US-led use of
force against Iraq. I had first argued this in an article in The
Guardian on 17 September 2002 (at a time when Iraq had been
refusing co-operation with UN inspectors). It is essentially the
same concept as that in the Attorney General's one-page answer
of 17 March 2003. Although the Iraq war 2003 was seen by many
(especially its critics) as the first war based on the Bush doctrine
of pre-emption, and as supposedly part of the war on terror, the
formal legal justifications made for it were based largely on
the separate basis of "continuing authority". These
justifications were thus particular to the case of Iraq.
5. The concept of "continuing authority"
on which this paper focuses has not been widely accepted. Some
states have simply viewed the US-led military action in Iraq as
unlawful. In addition, as indicated in the text that follows,
many respected international lawyers are sceptical about the concept.
The opposition to any idea or practice of "continuing authority"
has been strengthened by the fact that the particular application
of this concept in the Iraq crisis in March 2003 was highly problematical.
Yet despite all this opposition, I have not yet seen a detailed
and thorough critique of the concept of "continuing authority"
as it has been advanced in the Iraq crisis.
6. There has been a tendency in the Iraq
crisis to debate the question of the use of force largely in terms
of its international legality or illegality. Although this paper
reflects that tendency, I recognize that such an approach, while
necessary, is not sufficient for a full evaluation of the decision
to use force. The fact that in principle the coalition powers
had a degree of "continuing authority" in respect of
Iraq does not necessarily mean that they exercised this authority
with wisdom or prudence. Any evaluation of how the US and UK used
their "continuing authority" must encompass consideration
of two key supplementary questions: (a) Was the decision to use
force based on a thorough and conscientious appraisal and presentation
of the evidence available at the time regarding Iraqi weapons
of mass destruction?[10]
(b) Was the use of force exercised responsibly, and in particular
was there serious planning and organization of the occupation
phase? This paper does not explore these questions, but their
troublesome nature and crucial importance is recognized. If the
answer to either question is negative, then in prudential terms,
however good the concept of "continuing authority",
the justifiability of the war is called into question.
7. In the period before the 2003 Iraq war,
when it became apparent that a specific UN Security Council authorisation
was unlikely, states and international lawyers criticised the
proposed US-led military action in Iraq as unlawful[11].
Since this action was not a case of self-defence against an actual
armed attack by Iraq, and did not have the recent and specific
authorisation of the UN Security Council, it could easily be viewed
as having at best a doubtful basis in international law. Nevertheless,
in most cases, the expression of this view did not include a detailed
response to the strongest part of the legal case for military
action against Iraq. Such an omission is not surprising, as the
debate about the reasons for, and legitimacy of, attacking Iraq
lacked a clear focus.
8. Especially in the US, discussion of possible
action against Iraq had long encompassed many different lines
of argument. In the intense debate about Iraq from summer 2002
onwards, members of the Bush administration variously suggested
that military action was necessary and justified because of the
urgent need for an end to the repression of the Iraqi people,
for regime change, for preventive war to stop a possible future
threat, and for anticipatory self-defence against an imminent
threat. They also spoke of Iraq as the "next phase"
of the war on terrorism. Finally, they stressed the importance
of securing the implementation of Security Council resolutions
on Iraq. The range of rationales reflected accurately the extraordinary
number of issues involved in the Iraq crisis, but meant that for
a long time the debate lacked legal clarity. Yet the reduction
of this range of issues to the one issue that was really powerful
in international law—Iraq's violations of Security Council
resolutions on prohibited weapons—had the effect of artificially
narrowing the grounds to an assault on Iraq to the weapons issue,
and perhaps putting more weight on that one issue than it could
take. In the current state of international law they had little
alternative.
9. In March 2003, when the US and the UK
finally took military action against Iraq, the two governments
relied on one main legal rationale: Iraq's failure to implement
certain UN Security Council resolutions especially as regards
prohibited weapons, and the coalition's continuing authority to
use force based in particular on resolutions 678, 687 and 144l[12].
It is odd that they did not also place emphasis on some of the
intermediate resolutions, including Resolution 707 of 15 August
1991 and Resolution 1205 of 5 November 1998, both of which are
mentioned in paragraph 11 below.
10. The argument 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, may seem tortuous, but an examination of their terms suggests
that there is some substance to it. In 1990, immediately following
the occupation of Kuwait, a Council resolution had affirmed "the
inherent right of individual or collective self-defence, in response
to the armed attack by Iraq against Kuwait"[13]
Against this background, further authorisation was not essential
as a basis for military action to achieve the restoration of Kuwait.
However, Resolution 678 of 29 November 1990, in authorising member
states to use force, specified that this was not just to secure
Iraqi withdrawal from Kuwait, but also "to restore international
peace and security in the area". This was a prudent recognition
of the need for a range of measures to ensure stability. This
resolution, including its reference to restoring peace and security,
was reaffirmed in Resolution 686 of 2 March 1991, concluded at
the end of the campaign to expel Iraq from Kuwait. Then Resolution
687 of 3 April 1991, "the mother of all resolutions",
spelled out the detailed terms of the cease-fire, covering such
matters as boundary demarcation, a demilitarised zone, and renunciation
of terrorism. In requiring Iraq to renounce unconditionally any
biological, chemical or nuclear weapons programmes, it provided
for a system of international inspection and weapons destruction
by the UN Special Commission, and imposed time limits for Iraqi
disarmament, much of which should have been completed by August
1991.
11. Thereafter, numerous Security Council
resolutions found Iraq to be in breach of its cease-fire commitments.
Many of them were passed unanimously. For example, Resolution
707 of 15 August 1991 condemned Iraq's violations of 687 and proclaimed
Iraq to be in "material breach" of that resolution that
had established the basis of the cease-fire[14].
In 1998, when Iraq ceased cooperation, Resolution 1205 of 5 November
1998 condemned Iraq as "in flagrant violation" of its
commitments. Resolution 1441 of 8 November 2002 proclaimed Iraq
to be in "material breach of its obligations under relevant
resolutions"; recalled that in its Resolution 687 "the
Council declared that a ceasefire would be based on acceptance
by Iraq of the provisions of that resolution"; and offered
Iraq "a final opportunity to comply with its disarmament
obligations". Resolution 1441, taken on its own, was not
a clear authorisation to use force; but, apart from its requirement
that the Council reconvene if Iraq failed to comply fully, it
did not weaken any authorisation based on earlier resolutions[15].
12. 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"—which would actually have been the eighteenth
regarding the use of force and Iraqi compliance with disarmament
terms. Such a resolution would have determined (once again) that
Iraq was in breach of its obligations, and might also have specifically
authorised the use of force.
13. However, for many members of the Security
Council this was a resolution too far. France, Russia and China,
as well as several of the non-permanent members including Germany,
were plainly sceptical or totally opposed. This was not surprising,
given their different interests, their different views of war,
their different assessments of any threat posed by Iraq, and their
stated concerns about US dominance. It is asking a lot of major
states that they should formally approve the initiation of a war
by another power, especially when it is a hyper-power about whose
policies they in any case have reservations. The effect, naturally,
was to encourage a US belief in the inadequacies of certain international
institutions.
14. At the Security Council meeting on 17
March, the US and UK governments had to face the consequences
of defeat in their efforts to obtain a second resolution. It was
small consolation that they had stated on several occasions that
such a resolution would be politically desirable but was not legally
necessary.
15. In principle, can the violation of certain
terms of a cease-fire constitute a justification for an eventual
use of force against the violator? A provision in the chapter
on armistices in the 1907 Hague Regulations on land war suggests
an affirmative answer: "Any serious violation of the armistice
by one of the parties gives the other party the right of denouncing
it, and even, in cases of urgency, of recommencing hostilities
immediately"[16].
Against this, it can be argued that the post-Charter legal order
creates a presumption against the use of force by states; that
the decision to resume hostilities should be in the hands of the
Security Council, especially in circumstances where the legitimacy
of the use of force before the cease-fire depended significantly
on authorization by the Council; and that, although the cease-fire
was between Iraq and the coalition which had fought against it,
the Security Council had defined the terms of the cease-fire,
was itself a party to it, and should determine how to respond
to violations.
16. 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. Thus, on 14 January 1993, in response
to an attack the previous day by the US, UK and France on Iraqi
missile launchers, UN Secretary-General Boutros Boutros-Ghali
said: "The raid, and the forces that 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 cease-fire. 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."[17]
17. The argument of continuing authority
was also advanced at the time of the December 1998 crisis over
inspections, when the US and UK launched Operation Desert Fox
against Iraq. It was contested in the Security Council, most
notably by Russia, which asserted that the US and UK had no right
to act independently on behalf of the UN or to assume the function
of "world policeman".
18. Despite such criticisms, 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[18].
19. How should the nature of the claimed
authorisation be characterised? One critic of the concept has
referred to it as "implied authorisation to use force"[19].
She has likened the US—UK position in the Iraq crisis in
late 2002 to that of the NATO countries in respect of the military
action against Serbia in 1999, stating that "this doctrine
of implied authority to use force is itself extremely controversial;
it may involve the distortion of the words of the relevant resolutions
and ignore their drafting history.[20]"
While this warning is important, there is a difference between
the cases of Serbia and Iraq. In 1999, the UN Security Council
had not specifically authorised the use of force against Serbia,
whereas in November 1990 it had authorised force against Iraq.
The question regarding Iraq in 2003 was whether that authority
dating back to 1990 could be said to have continued or resumed.
Thus, what was at issue regarding Iraq in 2003 was as much a claim
of "existing authority" or "continuing authority"
as of "implied authority".
20. How much weight attaches to the past
decisions of the Security Council in authorising force? Numerous
resolutions, including 687, state that the Security Council has
decided "to remain seized of the matter". This could
be interpreted as meaning that only the current Security Council
can provide authorization for a use of force. Such a doctrine,
while attractive, would leave only a negative answer to the following
key question. If the Council authorises certain member states
to undertake a task, but is then unable to agree on follow-up
action, does the original authorisation still stand? The simple
guiding principle has to be that a resolution, once passed, remains
in effect. In the absence of a new resolution repudiating earlier
positions (which will always be hard to achieve, granted the existence
of the veto) a presumption of continuity is plausible.
21. 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. Problems that have
emerged have included the question of what consequences flowed
from the Iraq breaches: in particular, even if the US and partners
have continuing authority to use force, it remained a question
whether that entitles them to launch a full-scale attack to achieve
regime change. In addition the notion of "continuing authority"
might seem to be undermined by the doubtful quality of the evidence
that Iraq still possessed weapons of mass destruction in significant
quantities. Some unconvincing US and UK reports and presentations
before the war weakened the case. There was, inevitably, scope
for disagreement as to whether the UN verification system operating
under Resolution 1441 should have been set aside in favour of
a use of force when the inspectors were able to visit sites throughout
Iraq and the disarmament process had produced at least some results.
As circumstances change after the war, it is possible that ex
post facto other justifications for resort to force will look
more convincing.
22. A strong argument for some concept of
continuing authority is as much strategic as legal. If a major
power acts on behalf of the Security Council, as the US undoubtedly
did in liberating Kuwait in 1991 and in acting in effect as a
guarantor of the 1991 cease-fire terms, to what extent can its
hands then be tied? The question is complicated by the fact that
Iraqi compliance in matters relating to disarmament was almost
always the result of external military pressure. Up to a point,
this was accepted by members of the Security Council, who have
at times been prepared to see the US and its partners threaten
the use of force. Many, however, have not been willing to countenance
full-scale war. The result was a stalemate in which the US found
itself keeping large forces tied up in neighbouring countries,
its credibility called into question by the drawn-out saga of
an Iraqi disarmament process. In that perspective, the issue was
not so much Iraq's actual weapons of mass destruction, but rather
its failure to comply fully with the verification process, and
the consequent impossibility of reaching any kind of closure.
23. There is little prospect that all major
states will agree either on the concept of continuing authority
in general, or on its particular application in the Iraq crisis
in 2003. They have rootedly different views of these matters,
and of the proper role of the US in the world. However, some degree
of recognition that there is a serious international debate to
be conducted on the subject of continuing authority may be possible.
Such a debate may help to move the refocus of discussion about
Iraq on questions of prudence as much as of law; and it may also
be important for the future effective functioning of the UN Security
Council.
Professor Sir Adam Roberts
Balliol College, Oxford
24 June 2003
9 Foreign Affairs Committee, Seventh Report of Session
2001-02, Foreign Policy Aspects of the War against Terrorism,
HC 384, Ev 84. Back
10
In a paper at the FCO Leadership Conference in London on 6-7
January 2003 I noted the rather obvious danger that a US-led assault
on Iraq might happen in circumstances which large numbers of people
and states considered did not justify such action. Back
11
See eg letter from 16 international law teachers, The
Guardian, London, 7 March 2003, p 29. Back
12
See Letter dated 20 March 2003 from the Permanent Representative
of the United States of America to the United Nations addressed
to the President of the Security Council. See also President
George W. Bush, Address to the Nation, 17 March 2003, available
at www.whitehouse.gov. See too the five-page document entitled
"Iraq: Legal Basis for the Use of Force", also dated
17 March 2003 and provided to the House of Commons Foreign Affairs
Committee on that date. House of Lords Hansard, written
answers, 17 March 2003, Col. WAl. Also available at www.fco.gov.uk. Back
13
Security Council Resolution 661 of 6 August 1990. Back
14
In its operative paragraphs 1 and 33, Resolution 687 was explicit
that it established the basis of the cease-fire (which had actually
begun earlier). Back
15
Resolution 1441 recalls in its fourth preambular clause the 1990
authorisation of states to use force; and in its fifth and tenth
preambular clauses the obligations on Iraq and the conditional
nature of the 1991 cease-fire. Back
16
Article 30 of the 1907 Hague Regulations on land war, annexed
to 1907 Hague Convention IV Respecting the Laws and Customs of
War on Land. Back
17
Boutros Boutros-Ghali, 14 January 1993. Cited in Simon Chesterman,
Just War or Just Peace? Humanitarian Intervention and International
Law (Oxford: Oxford University Press, 2001), p 201, where
he comments that "it is unclear what status should be accorded
to such a pronouncement by the Secretary-General". Back
18
This is also the conclusion of Christopher Greenwood in "International
Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and
Iraq", San Diego International Law Journal, University
of San Diego School of Law, vol 4, 2003, at pp 33-6. Back
19
Christine Gray, International Law and the Use of Force (Oxford:
Oxford University Press, 2000), pp 191-5. Back
20
Christine Gray, "The US National Security Strategy and
the New `Bush Doctrine' on Preemptive Self-Defense", Chinese
Journal of International Law, Boulder, Colorado, vol 1, no
2 (2002), p 444. The article was completed on 15 November 2002.
Available at www.chinesejil.org/gray.pdf. Back
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