Select Committee on Foreign Affairs Written Evidence


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


 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2003
Prepared 31 July 2003