House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Minutes of Evidence

Written evidence submitted by Professor Philippe Sands QC

INTERNATIONAL LAW AND THE USE OF FORCE

I. INTRODUCTION

1. The United Nations Charter outlaws the use of force with only two established exceptions: individual or collective self-defence in response to an armed attack (Article 51), and action authorised by the UN Security Council as a collective response to a threat to the peace, breach of the peace or act of aggression (Chapter VII). In addition, some have argued that there exists a right to use force to protect against a massive violation of fundamental human rights (humanitarian intervention).

2. On 5 March 2004 the Prime Minister delivered an important speech which raised a number of questions as to the adequacy of international law governing the use of force.[3] The speech was given against the backdrop of the recent use of force in Kosovo, Afghanistan and Iraq. It touched on the three distinct (but related) justifications which may be made for the use of force:

(i) humanitarian intervention;

(ii) anticipatory self-defence; and

(iii) collective security (authorisation by the Security Council).

In this Memorandum I set out my views on the adequacy of the existing rules of international law in these three areas, in the context of the Iraqi conflict (2003).

3. Any consideration of the use of force now has to be seen in relation to two relatively recent developments. The first is the emergence of technologies which permits the spread of weapons of mass destruction (WMD). The second is the emergence of an international order in which non-state actors (in the form of transnational terrorist groups) are able to pose a potentially global threat, coupled with the existence of a growing number of "failed states" as well as "rogue states". These developments pose challenges because the traditional rules of international law are premised on an assumption that states have a monopoly on the use of force and are able to control the spread of technologies. These developments require constant review of the adequacy of the international rules on the use of force, as well as the functioning of institutional arrangements (Security Council in particular). As set out below, I do not consider that the existing rules on the use of force are unable to meet present challenges. I also consider that the adequacy of these rules must be considered in relation to the international legal order as a whole. The rules of international law on the proliferation of weapons of mass destruction, on combating terrorism and on poverty alleviation and the delivery of social justice are closely related to the circumstances in which force will be used. These aspects are beyond the scope of this Memorandum but are a necessary part of the whole picture.

4. This Memorandum is prepared against the background of the Second Report of the House of Commons Select Committee on Foreign Affairs (17 December 2002), together with Memoranda prepared by Professor Ian Brownlie QC and Professor Christopher Greenwood QC (both dated October 2002), which I have had the benefit of reading. The Committee's Second Report was published between the adoption of UN Security Council resolution 1441 (8 November 2003) and the military action against Iraq (March 2004). During that period the Security Council adopted no further resolutions on Iraq.

II. HUMANITARIAN INTERVENTION

5. In his speech on 5 March 2004 the Prime Minister made numerous references to the idea of the use of force to protect fundamental human rights (humanitarian intervention). He said:

"It may well be that under international law as presently constituted, a regime can systematically brutalise and oppress its people and there is nothing anyone can do, when dialogue, diplomacy and even sanctions fail, unless it comes within the definition of a humanitarian catastrophe (though the 300,000 remains in mass graves already found in Iraq might be thought by some to be something of a catastrophe). This may be the law, but should it be?"

And he added: "The UN Universal Declaration on Human Rights is a fine document. But it is strange the United Nations is so reluctant to enforce them".

6. Following the 1999 Kosovo conflict, in September 2000 the Canadian Government established an independent International Commission on Intervention and State Sovereignty, to respond to that challenge of reconciling the international community's responsibility to act in the face of massive violations of humanitarian norms while respecting the sovereign rights of states. The Commission's Report—The Responsibility to Protect—was published in December 2001.[4] It set out the basic principles justifying its conclusion that under certain exceptional and extraordinary circumstances military intervention for human protection purposes could be warranted and may be justified in international law.

7. The Commission's Report provides an appropriate starting point for the future development of any "right to humanitarian intervention", such as it is. It is important to note that—unlike the use of force in Kosovo—the war in Iraq was not justified in legal terms on the need to protect fundamental human rights. Accordingly, it is not appropriate, in my view, to now assess the legality of the Iraq war in those terms, or to suggest that the Iraqi situation (as it was in March 2003) raised new questions as to the adequacy of the international legal order's ability to protect fundamental human rights. In any event, it does not appear that the situation as it then was would have justified the exercise of humanitarian intervention.

III. ANTICIPATORY SELF-DEFENCE/PRE-EMPTION

8. The possibility that terrorist organisations or rogue states might obtain WMD has concentrated minds on the circumstances under which a state is entitled to use force in self-defence to prevent a future attack, within the meaning of Article 51 of the United Nations Charter. Again, this argument was not made in relation to Iraq.

9. The conditions under which self-defence may justify the use of force are set out in the memoranda of Professor Greenwood (paras 20-26). I subscribe fully to the views he there expresses. In particular, I agree that the right of self-defence encompasses a right to use force in anticipation of an actual armed attack, where there is an imminent threat. In addition, since the UN Security Council has determined that the inherent right to self defence may be exercised in relation to terrorist acts (see resolution 1368 (2001) of 12 September 2001) the right to anticipatory self-defence extends to non-statal terrorist acts also.

10. I also agree with Professor Greenwood that the right of anticipatory self-defence must be narrowly defined. As Professor Thomas Franck has put it:

"The problem with recourse to anticipatory self-defence is its ambiguity. In the right circumstances, it can be a prescient measure that, at low cost, extinguishes the fuse of a powder keg. In the wrong circumstances, it can cause the very calamity it anticipates." (Recourse to Force: State Action Against Threats and Armed Attacks, Cambridge University Press, 2002, p 107).

11. In what circumstances might a threat be said to be imminent, such as to justify the exercise of anticipatory self-defence? Does it encompass threats which have not yet materialised but which might materialise some time in the future? The US National Security Strategy (September 2002) appears to suggest that it does. It states that:

"The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction—and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy's attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively.

The United States will not use force in all cases to pre-empt emerging threats, nor should nations use pre-emption as a pretext for aggression. Yet in an age where the enemies of civilisation openly and actively seek the world's most destructive technologies, the United States cannot remain idle while dangers gather." (p 15, emphasis added).

In his Memorandum to this Committee Professor Greenwood wrote of the US National Security Strategy that "so far as talk of a doctrine of `pre-emption' is intended to refer to a broader right to respond to threats which might materialise some time in the future, I believe that such a doctrine has no basis in law" (para 24). I agree with Professor Greenwood's statement.

12. In his speech of 5 March 2004 the Prime Minister said:

"Containment will not work in the face of the global threat that confronts us. The terrorists have no intention of being contained. The states that proliferate or acquire WMD illegally are doing so precisely to avoid containment. Emphatically I am not saying that every situation leads to military action. But we surely have a duty and a right to prevent the threat materialising; and we surely have a responsibility to act when a nation's people are subjected to a regime such as Saddam's." (emphasis added).

Some press reports of this speech have suggested that the Prime Minister was endorsing the United States' doctrine of pre-emption.[5] It is not clear to me that that was his intention.

13. The Attorney General, Lord Goldsmith, made an important statement in the House of Lords on 21 April 2004. In response to a question from Lord Thomas of Gresford as to whether the Government accepted the legitimacy of pre-emptive armed attack as a constituent of the inherent right of individual or collective self-defence under Article 51 of the United Nations Charter, the Attorney General said:

"It is argued by some that the language of Article 51 provides for a right of self-defence only in response to an actual armed attack. However, it has been the consistent position of successive United Kingdom Governments over many years that the right of self-defence under international law includes the right to use force where an armed attack is imminent.

It is clear that the language of Article 51 was not intended to create a new right of self-defence. Article 51 recognises the inherent right of self-defence that states enjoy under international law. [ . . . ] It is not a new invention. The charter did not therefore affect the scope of the right of self-defence existing at that time in customary international law, which included the right to use force in anticipation of an imminent armed attack.

The Government's position is supported by the records of the international conference at which the UN charter was drawn up and by state practice since 1945. It is therefore the Government's view that international law permits the use of force in self-defence against an imminent attack but does not authorise the use of force to mount a pre-emptive strike against a threat that is more remote. However, those rules must be applied in the context of the particular facts of each case. That is important.

The concept of what constitutes an "imminent" armed attack will develop to meet new circumstances and new threats. For example, the resolutions passed by the Security Council in the wake of 11 September 2001 recognised both that large-scale terrorist action could constitute an armed attack that will give rise to the right of self-defence and that force might, in certain circumstances, be used in self-defence against those who plan and perpetrate such acts and against those harbouring them, if that is necessary to avert further such terrorist acts. It was on that basis that United Kingdom forces participated in military action against Al'Qaeda and the Taliban in Afghanistan. It must be right that states are able to act in self-defence in circumstances where there is evidence of further imminent attacks by terrorist groups, even if there is no specific evidence of where such an attack will take place or of the precise nature of the attack.

Two further conditions apply where force is to be used in self-defence in anticipation of an imminent armed attack. First, military action should be used only as a last resort. It must be necessary to use force to deal with the particular threat that is faced. Secondly, the force used must be proportionate to the threat faced and must be limited to what is necessary to deal with the threat.

In addition, Article 51 of the charter requires that if a state resorts to military action in self-defence, the measures it has taken must be immediately reported to the Security Council. The right to use force in self-defence continues until the Security Council has taken measures necessary to maintain international peace and security. That is the answer to the Question as posed."[6]

14. I agree with the view expressed by the Attorney General. It is clear, reasonable and balanced, and accurately summarises the current state of international law. It confirms also that the use of force against Iraq would not have been justified on grounds of anticipatory self-defence, and that the Government was correct not to go down that route.

15. In any particular case the key issue will be whether an attack is "imminent". In the Caroline incident in 1837 the US Secretary of State famously set out the circumstances of a "necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation". The concept of imminence is a flexible one, as it must be in an age in which technology allows great devastation to be wrought in a very short period of time. "Imminence" has to be determined by reference to capability and intent. There may be circumstances in which capability could include the acquisition (by a state or a terrorist organisation or even an individual on behalf of a terrorist organisation) of material or component parts to be used in the manufacture of WMD, and not possession of the finished product. Each case will turn on its own facts, so that the process by which the evidence which points to an "imminent" attack is collected and assessed by the government will be of great importance.

16. The greater the level of confidence and trust in the government's assessment process the more likely it is that any decision to use force will be considered to be legitimate. The process of assessment will be based on intelligence material which cannot be made public. However, the public is entitled to be reassured that the process of assessment is sound and is motivated by the application of the proper criteria. This is where the recent Iraqi conflict has caused potentially great harm, since the presentation of the evidence has tended to undermine the public's confidence in the assessment of the threat. In present circumstances it is likely that situations will occur where the exercise of anticipatory self-defence may be required. It is therefore of the utmost importance that steps be taken, as a matter of urgency, to restore public trust in governmental decision-making.

IV. COLLECTIVE SECURITY AND SC AUTHORISATION

17. In his speech on 5 March 2004 the Prime Minister said that enforcing justice and security

"means reforming the United Nations so its Security Council represents 21st century reality; and giving the UN the capability to act effectively as well as debate."

Few would disagree with the sentiment. I am not sure, however, that the Security Council's actions (and inactions) in the period between 11 September 2001 and 17 March 2003 provide the strongest support for the view that the system of collective security has failed. The Security Council acted promptly in relation to Afghanistan (in relation to self-defence). And in relation to Iraq the claim that the Security Council failed to act effectively in the period between resolution 1441 and the outbreak of the war is one which was held by only a small minority of the Council's membership. The subsequent failure to find any WMD in Iraq tends to support the approach of the majority of the membership of the Security Council, who refused to be persuaded by the UK and the US to authorise the use of force.

18. The background to the circumstances in which the United Kingdom and the United States resorted to military action in March 2003 are set out in Professor Greenwood's memorandum (paragraphs 4 to 13). Subsequently Security Council resolution 1441 was adopted. As noted above, the United Kingdom's decision to use force against Iraq was not justified on the grounds of self-defence or humanitarian intervention. It was justified on the grounds that the United Nations Security Council had authorised the use of force.

19. It is important to recall this point because in his speech of 5 March 2004 the Prime Minister raised questions about the adequacy of international law on two other grounds: first, that international law may not be able to prevent a regime from systematically brutalising and oppressing its people; second, that international law may not allow a state to take steps against a threat of WMD from materialising. The Prime Minister's speech conflates issues which are distinct and which were not raised by the Iraqi situation, at least as it was argued by the Government in the period prior to March 2003. Violations of fundamental human rights, threats from WMD, and terrorism are distinct, although they may be related. In assessing the adequacy of international law that must be kept in mind.

20. The legality of the war in Iraq is by now a well-worn subject. Nevertheless, this Committee has not yet addressed it and I have been asked to do so. I first set out my views in a letter which was published in The Guardian newspaper on 7 March 2003, before the war. Joining 14 senior academic colleagues I expressed the view that:

"On the basis of the information publicly available, there is no justification under international law for the use of military force against Iraq. [ . . . ] There are currently no grounds for a claim to use such force in self-defence. The doctrine of pre-emptive self-defence against an attack that might arise at some hypothetical future time has no basis in international law. Neither security council resolution 1441 nor any prior resolution authorises the proposed use of force in the present circumstances. Before military action can lawfully be undertaken against Iraq, the Security Council must have indicated its clearly expressed assent. It has not yet done so."

A copy of the letter is set out at Attachment 1 to this Memorandum.

21. There was no change in the facts between the publication of the letter and 17 March 2003, when military operations began. No new information has since emerged which causes me to change my view. In particular, the Security Council did not adopt a resolution in which it clearly expressed its assent to the use of force. Accordingly my clear view was and remains that the use of force by the United Kingdom and the United States was unlawful and that both states are internationally responsible for all the consequences of their unlawful actions.

22. The Government has expressed a different view. This was summarised by the Attorney General in a written answer to a parliamentary question, on 17 March 2003.[7] The Attorney set out the basis for his view that authority to use force against Iraq existed from the "combined effects" of UN Security Council resolutions 678, 687 and 1441, and on the same date the Foreign Secretary submitted a memorandum to the Foreign Affairs Committee which provided some further details on this argument. In particular the claim was made that the authority to use force under Resolution 678 had revived so as to justify the use of force, and that 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. According to the Attorney General all that Resolution 1441 required was reporting to and discussion by the Security Council of Iraq's failures, but not an express further decision to authorise force.

23. The Government's argument could be said to present a plausible and clever response to the question: what is the best possible argument to justify the use of force in Iraq in March 2003? But it is not persuasive in justifying the use of force as a matter of law and virtually no states or academic international lawyers have been so persuaded. The point is important because it appears from press reports that the advice on the legality of the use of force was of central importance. The Government has declined to make available the full advice which it has received from the Attorney General and from elsewhere, in particular from the Foreign and Commonwealth Office. It must be assumed that advice in some form was received when the use of force against Iraq was first contemplated (after the spring of 2002), after resolution 1441 was adopted (November 2002), and once it became apparent that no Security Council resolution expressly authorising the use of force was going to be adopted (March 2003). It would be relevant to know whether the advice received was consistent over time and, if it changed, the reasons for any change. It would also be relevant to know whether the advice set out all the arguments in a complete and balanced manner, in particular after it became clear that the Security Council resolution which the Government had sought (in March 2003) was not attainable.

24. Security Council resolutions are not to be interpreted as though they were commercial agreements. There are established rules and practices for interpreting resolutions and other international agreements.[8] The resolution must be interpreted in good faith, in context, and in the light of its object and purpose. If that approach leads to any ambiguity or obscurity then it is appropriate to look at the preparatory work involved in its negotiation and the circumstances of the resolution's adoption. There is no material in the public domain to indicate that these considerations were taken into account in interpreting resolutions 678, 687 and 1441.

25. The reliance on resolution 678 is selective. That resolution was plainly intended to remove Iraq from Kuwait. It did not provide for the overthrow of Saddam Hussein's government, in express terms or otherwise. The real test is what the resolution says, not what politicians say it says. Nevertheless, in this case it may be of interest to note what has been written about the resolution. Writing in his memoir, in 1995, Colin Powell is explicit:

Sir Peter de la Billiere has expressed a similar view:

The same point is made by John Major, who was Foreign Secretary and Prime Minister when resolutions 678 and 687 were adopted. Writing in 2001 Mr Major noted that

26. I find it difficult see how UN Security Council resolution 678 could have provided a basis for overthrowing Saddam Hussein in 2003 if it did not do so in 1991. How can a right to use force which did not exist in 1991 be said to "revive" in 2003?

27. Similarly, the language of resolution 687 (as well as that of 686, which is not addressed in the Attorney's written answer) was premised on an authorisation of force which was limited to removing Iraq from Kuwait. Resolution 687 stated expressly that it was for the Security Council "to take such further steps as may be required for the implementation of this resolution and to secure peace and security in the region". There is nothing in 687 which allows one or more members of the Security Council to decide for themselves what further steps are needed. It is the very essence of the system of collective security which gave rise to resolutions 678 and 687 that decision-making is collective, not individual.

28. Even if resolutions 678 and 687 could be construed as authorising a right to use force to overthrow Saddam Hussein, on what basis could such a right be said to "revive"? Professor Vaughan Lowe of Oxford has written that "there is no known doctrine of the revival of authorisations in Security Council resolution"[12] and this is also my own view. It has however been argued that resolution 687 provided a conditional ceasefire, and that if the conditions are broken (by Iraq), the other side to the ceasefire is entitled to treat the ceasefire at an end. This argument presupposes that "the other side"—the Security Council—decides that the ceasefire is at an end. It is not open to one member of the 1991 coalition (the US) unilaterally or with its allies to use force again: it must be the Security Council which takes this decision. The question is therefore whether resolution 1441 provided a basis for the revival of the right to use force? Operative paragraph 4 of resolution 1441 provides that

"false statements or omissions in declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and co-operate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below;"

Paragraph 11 provided for UNMOVIC and the IAEA "to report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations". By paragraph 12 the Council decided "to convene immediately upon receipt of a report . . . in order to consider the situation and the need for full compliance with all of the relevant Security Council resolutions in order to secure international peace and security".

29. Any argument that by resolution 1441 the Council was reviving the authority to use force contained in resolution 678 is defeated by the wording of paragraph 4 of resolution 1441. It is completely implausible to argue that the requirement in that paragraph for "assessment" by the Council could be met merely by a report to and discussion of Iraq's failures by the Security Council: the clear intention is that the Council would take a decision assessing the situation—and in particular assessing whether Iraq had committed a breach of its obligations sufficient to justify the use of force. The resolution itself cannot therefore be regarded as a revival of the authorisation to use force; it requires that the Council meet again and decide upon the situation in the event of an adverse report. This is the conclusion to be reached from the explicit wording of the resolution itself, and that conclusion is not displaced by any statements made on the record at the time of adoption of the resolution. It appears however to be the case that in adopting resolution 1441, the understanding of the great majority of the members of the Security Council was that it would be for the Security Council to decide what to do in the event that Iraq failed to comply with the requirements of that at resolution.

30. The fact that other Council members shared this view of the resolution might be thought to be apparent from the fact that they refused to vote for a second resolution. In addition there are statements made by States subsequent to its adoption which are relevant. For example, the view of the Russian Federation is set out in a March 2003 Memorandum prepared by the Legal Department of the Ministry of Foreign Affairs of the Russian Federation, entitled "Legal Assessment of the Use of Force Against Iraq". A copy is attached as Attachment 2 to this Memorandum.[13]The Assessment states:

"[T]he Security Council does not authorise the Member States in resolution 1441 to assess at their discretion the Iraq's compliance with its obligations under this resolution as well as the preceding ones, including resolution 687. The text of resolution 1441 proves the opposite. Its operative part is almost completely devoted to the mechanism of control over Iraq's actions. [ . . . ]

Thus the whole mechanism of controls and assessment of Iraq's compliance with its obligations under the Security Council resolution is concentrated in accordance with resolution 1441 at the disposal of the Security Council. Accordingly only the Council itself had the power to determine the violation by Iraq of resolution 1441. [ . . . ] There are no provisions authorising the Member States to decide at their discretion upon the use of force against Iraq in resolution 1441."

31. Equally instructive is the view adopted by the Swiss Federal Council on 20 March 2003. Switzerland had only recently become a member of the United Nations, in 2002. The circumstances in which Switzerland would use force were circumscribed by the referendum held in that country on the question of membership. The question of whether the Security Council had authorised the use of force against Iraq was therefore the subject of careful legal analysis by that government. On the basis of the legal advice it received the Swiss Government concluded that:

"The Federal Council regrets that the United States and the countries which are participating in the actions should have violated a Charter the elaboration of which they made a significant contribution to, and which sets out the values and principles which they defend. [ . . . ] The coalition directed by the United States of America has decided to have recourse to the use of force without the approval of the United Nations Security Council. [ . . . ] Switzerland will take no part in the military operations, either directly or indirectly. In concrete terms this means that air and land transit for military purposes associated with the military conflict or beyond normal means will be prohibited to countries which are participating in military operations in Iraq." (unofficial translation from the French)

A copy of the statement of 20 March 2003 is at Attachment 3 to this memorandum. [14]

32. I would assume that any full legal opinion which may have been prepared by the Attorney General would have dealt very fully with the arguments raised by other countries and allies, and with the prospects of the legal argument before a judicial body such as the International Court of Justice in The Hague. The Attorney General has provided further clarification of his views, speaking in the House of Lords on 21 April 2004. He stated that "it was understood by the members of the Security Council that a determination that Iraq was in material breach of its obligations would revive the authorisation of the use of force in Resolution 678".[15] And as regards paragraphs 4, 11 and 12 of resolution 1441, he stated that "[I]t was not intended that it was necessary for the Security Council to take a further decision following a further material breach by Iraq".[16] It is not clear to me on what basis this conclusion as to the understanding and intentions of the members of the Security Council has been reached. While references in the press were made about statements made by one member of the Security Council or the other over the negotiating period, the interpretation of the resolution cannot depend on what is privately said in the corridors or on the phone—particularly when the wording of the resolution is itself clear. No reference is given by the Attorney General to any discussion in the Council in support of his view, nor any other expressions which would permit an independent person to form the view that resolution 1441 was based on these understandings. In fact, the available material suggests that the understandings and intentions of the majority of the members of the United Nations were different from those identified by the Attorney General. This is reflected, by way of example, in the careful statements made by the Russian Federation and Switzerland.

33. In his statement of 21 April 2004 the Attorney General also sought to derive support for the "revival" argument from the practice of the Security Council. He referred to actions taken by the coalition in 1993 and 1998 following determinations by the Security Council that Iraq was in violation of its obligations under various resolutions. Three points may be made in response. First, the actions taken in 1993 and 1998 were of a far more limited character and scope than those taken in March 2003. Second, the respective actions have to be taken in the context of the particular facts which then existed, including the statements made by the Presidency and members of the Security Council, reflecting the assent of that body. Third, and most importantly, the 1993 and 1998 actions were not accompanied by any equivalent to Resolution 1441, which envisaged a particular "mechanism of controls and assessment" to be applied by the Council in relation to any Iraqi non-compliance.

34. These issues are not merely of historical interest. The question of whether or not the Security Council authorised the use of force in Iraq goes to the effectiveness and future functioning of the UN system of collective security. The claims made by the UK as to what the Security Council decided affects the credibility within the international community of UK statements on international law in the future and may have a bearing on future actions of the Council. That body may be less likely to act if its resolutions are interpreted and applied in a manner that the majority of its members consider to be implausible or inappropriate.

V. CONCLUSIONS AND RECOMMENDATIONS

35. For the reasons set out above I conclude as follows:

1. The existing framework of international law on the use of force is capable of adapting to the change in circumstances caused by the threat of terrorism by non-state entities and the proliferation of weapons of mass destruction. It needs to be kept under review, as part of a broader assessment of the adequacy of specific rules of international law including those relating to the proliferation of weapons of mass destruction, combating terrorism, the alleviation of poverty and the delivery of social justice;

2. The use of force in Iraq was not justified on grounds of humanitarian intervention and it is not appropriate to conclude that the experience in relation to Iraq (in the period between 11 September 2001 and March 2003) indicates an inadequacy in the rules of international law in this regard;

3. International law permits the use of force in anticipatory self-defence against an imminent armed attack (including from a non-statal terrorist organisation) but does not authorise the use of force to mount a pre-emptive strike against a threat that is more remote;

4. The use of force in Iraq was not justified on grounds of anticipatory self-defence and it is not appropriate to conclude that the experience in relation to Iraq indicates an inadequacy in the rules of international law in this regard;

5. The UN Security Council did not authorise the use of force against Iraq in March 2003 and its refusal to do so cannot as such be taken to indicate a failure in the system of collective security;

6. It would be appropriate for the Committee to make recommendations which would assist in restoring public trust and confidence in governmental decision-making on the assessment of material which could lead to the exercise of the right of anticipatory self-defence in the future; and

7. Relatedly, it would be appropriate for the Committee to inquire into the circumstances in which the Government received advice on the legality of the use of force in Iraq, over the period between November 2002 and March 2003.

Philippe Sands QC

Professor of Laws, University College London

Barrister, Matrix Chambers

1 June 2004

3 http://www.number-10.gov.uk/output/Page5461.asp. Back

4 http://www.dfait-maeci.gc.ca/iciss-ciise/report2-en.asp Back

5 See eg Financial Times, 6 March 2004, p 2, "PM defends pre-emptive attacks on rogue states". Back

6 Hansard, 21 April 2004, column 370. Back

7 Hansard, House of Lords, 17 Mar 2003, Column WA3.This statement could be taken as a response to the recommendation of this Committee in its Second Report that "the Government clarify, in its response to this Report, whether it believes that a further United Nations Security Council is legally necessary before military action is taken against Iraq" (point (x)). Back

8 These are set out in Articles 31 and 32 of the 1969 Vienna Convention on the Law of Treaties, which reflect customary international law. Back

9 Colin Powell, A Soldier's Way (1995) (Arrow Books), p 490. Back

10 General Sir Peter de la Billiere, Storm Command (Harper Collins), 1995), p. 304, cited in Lord Alexander of the Weedon, "Iraq: Pax Americana and the Law", Justice Lecture, 2003. Back