Written evidence submitted by Professor
Philippe Sands QC
INTERNATIONAL LAW AND THE USE OF FORCE
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.
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.
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).
"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 ReportThe Responsibility to Protectwas
published in December 2001.
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 thatunlike the use of force in Kosovothe
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.
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
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 inactionand 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
12. In his speech of 5 March 2004 the Prime
"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
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
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
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.
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.
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.
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
"The UN resolution made clear that the mission
was only to free Kuwait. [ . . . ] The UN had given us our marching
orders, and the President intended to stay with them".
Sir Peter de la Billiere has expressed a similar
"We did not have a mandate to invade Iraq
or take the country over".
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
"Our mandate from the United Nations was
to expel the Iraqis from Kuwait, not bring down the Iraqi regime
[ . . . ] We had gone to war to uphold international law. To go
further than our mandate would have been, arguably, to break international
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"
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
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 Councildecides
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 situationand
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.The
"[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. 
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".
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".
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 phoneparticularly 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
35. For the reasons set out above I conclude
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
See eg Financial Times, 6 March 2004, p 2, "PM defends
pre-emptive attacks on rogue states". Back
Hansard, 21 April 2004, column 370. Back
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
These are set out in Articles 31 and 32 of the 1969 Vienna Convention
on the Law of Treaties, which reflect customary international
Colin Powell, A Soldier's Way (1995) (Arrow Books), p
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
John Major, speaking at Texas A&M University 10th anniversary
celebrations of the liberation of Kuwait, 23 February 2001, cited
in Lord Alexander of the Weedon, "Iraq: Pax Americana
and the Law", Justice Lecture, 2003. Back
Lowe, "The Iraq Crisis: What Now?", volume 52,
International & Comparative Law Quarterly 2003, p 859 at 865. Back
Republished in 52 International and Comparative Law Quarterly
p 1059 (2003). Back
Not printed. Back
Hansard, 21 April 2004, column 372. Back
Hansard, 21 April 2004, column 373. Back