Select Committee on Foreign Affairs Minutes of Evidence


Annex 2

(Journal article "Current Developments" in ICLQ vol 52, October 2003, pp 1059-1063)

CURRENT DEVELOPMENTS

PUBLIC INTERNATIONAL LAW

I.  LEGAL ASSESSMENT OF THE USE OF FORCE AGAINST IRAQ[17]

  As the legal basis for the military action against Iraq references are made to Security Council resolutions 678 (1990), 687 (1991), 1441 (2002).

  In our view the above-mentioned resolutions considered in their entirety and in combination with other resolutions on Iraq, official statements of States on their interpretation and provisions of the UN Charter which were the basis for their adoption, show that the Security Council did not authorise Member States in this case to use force against Iraq.

  In accordance with paragraph 2 of resolution 678 the Council authorised

    Member States, co-operating with the Government of Kuwait, . . . to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.

  It was the permission for States to decide at their discretion to use force against Iraq in relation to its invasion of Kuwait.

  This mandate was, however, restricted by Security Council resolution 686. It, inter alia, affirmed the commitment of all Member States to the independence, sovereignty, territorial integrity of Iraq and noted the intention expressed by the Member States co-operating with Kuwait to bring their military presence to an end as soon as possible consistent with achieving the objectives of resolution 678. Besides, according to paragraph 4 of resolution 686, paragraph 2 of resolution 678 containing the mandate to use force against Iraq applies only during the period required for Iraq to comply with paragraphs 2 and 3 of resolution 686 (these paragraphs, in particular, imposed on Iraq the requirements to cease actions aimed at the annexation of Kuwait and to eliminate the consequences of the invasion). Besides, in paragraph 8 of resolution 686 the Security Council decided to remain actively seized of the matter in order to secure the rapid establishment of a definitive end to the hostilities.

  In this context an even more important role belongs to Security Council resolution 687. The preamble to this resolution notes once more the intention of the Member States co-operating with Kuwait to bring their military presence in Iraq to an end as soon as possible consistent with paragraph 8 of resolution 686. In paragraph 6 of resolution 687 the Security Council noted, that as soon as the Secretary-General notified the Council of the completion of the deployment of the United Nations observer unit, the conditions would be established for the Member States cooperating with Kuwait to bring their military presence in Iraq to an end consistent with resolution 686.

  Having further established in resolution 687 new obligations of Iraq, in particular the disarmament obligations, the Security Council stated in paragraph 33 of this resolution that upon acceptance of these obligations by Iraq "a formal cease-fire is effective between Iraq and Kuwait and the Member States co-operating with Kuwait in accordance with resolution 678".

  Immediately after the provision on the formal cease-fire in resolution 687 follows the provision of the utmost importance for the interpretation of the decisions of the Security Council on Iraq. In paragraph 34 of resolution 687 the Security Council decided "to remain seized of the matter and to take such farther steps as may be required for the implementation of the present resolution and to secure peace and security in the region".

  The provisions of resolutions 686 and 687 clearly show an evident intention of the Security Council not only to introduce the cease-fire on the conditions laid down in resolution 687, but to restrict in time the mandate on the use of force contained in paragraph 2 of resolution 678 and also to bring to an end the military presence of the Member States co-operating with Kuwait in Iraq. But the heart of the matter is: these provisions reflect the intention of the Security Council to demonstrate clearly, that henceforth it is only for the Security Council itself to consider the issue of the situation in Iraq and that only the Council and not the Member States at their discretion will take decisions, which could be necessary to ensure the compliance with the cease-fire conditions set out by resolution 687 and accordingly to secure peace and security in this respect, including, apparently, the use offered.

  By means of resolution 687 the Security Council returned the prerogative to decide upon the maintenance of international peace and security in respect of Iraq, including the use of force against it, which was previously delegated by resolution 678 to the Member States cooperating with Kuwait. According to resolution 678 it is only for the Security Council and not the Member States at their discretion to determine, whether the breach of the cease-fire terms took place or if so, then what measures should be taken in this respect.

  Consequently. resolution 687 gives no occasion to consider that even after its adoption the right to determine Iraq's non-compliance with its obligations under this resolution (which are the cease-fire conditions) and accordingly the right to decide upon the use of force still belongs to the Member States co-operating with Kuwait.

  The numerous official statements of the Russian Side are, for instance, an evidence of such understanding of the situation. Russia stressed the need of Iraq's compliance with the existing resolutions of the Security Council and nevertheless repeatedly condemned the use of force against Iraq, which was not authorised by the Security Council, and insisted on the necessity of taking further steps in respect of Iraq within the framework of the Security Council. Russia repeatedly spoke against the attempts to interpret the resolutions on Iraq adopted by the Security Council as constituting in their entirety "a sufficient basis for the use of force against Iraq". It was pointed out, that only the Security Council has the power to decide upon further steps concerning the situation in Iraq in accordance with its main responsibility for the maintenance of international peace and security.[18]

  The legal situation was not changed by resolution 1441. It recalls, inter alia, the provisions of paragraph 2 of resolution 678; identifies, that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687; recalls, that the Security Council repeatedly warned Iraq of serious consequences, which would ensue from further breach of its obligations.

  Nevertheless, it affords Iraq a final opportunity to comply with its disarmament obligations and accordingly sets up an enhanced inspection regime with the aim of bringing the disarmament process established by resolution 687 and subsequent resolutions of the Council to a full and verified completion. Besides, the Security Council decided in resolution 1441 that false statements or omissions in the declarations submitted by Iraq and failure by Iraq to comply with, and co-operate fully in the implementation of, this resolution should constitute a further material breach of Iraq's obligations.

  These strict wordings show that the Security Council gave Iraq the last warning. lraq is in material breach of its obligations and in the event of a further breach it will face serious consequences.

  However, the Security Council does not authorize 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. According to resolution 1441 this control is exercised by the UN inspectors (UNMOVIC) and the IAEA. They submit their reports to the Security Council for, as reported in paragraph 4 of the resolution, assessment in accordance with paragraphs 11 and 12. In its turn the actions of UNMOVIC, the IAEA, and the Security Council in case of Iraq's non-compliance with its disarmament obligations or any interference with inspection activities are defined in paragraphs 11 and 12. In paragraph 12 the Security Council decides to convene immediately upon receipt of a report in accordance with paragraph 4 or 11 in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security. And eventually after warning Iraq of possible serious consequences (paragraph 13) the Council decides to remain seized of the matter (paragraph 14).

  Thus the whole mechanism of controls and assessment of Iraq's compliance with its obligations under the Security Council resolutions 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. However the completion of the inspection activities and, in consequence, consideration of the inspectors' final report was impeded by the beginning of the hostilities.

  There are no provisions authorising the Member States to decide at their discretion upon the use of force against Iraq in resolution 1441. The reference to resolution 678 is contained only in the preamble to resolution 1441. In the part of resolution 1441 containing the Security Council decisions resolution 678 is not mentioned.

  But then both the part containing conclusions and the preamble to resolution 1441 have numerous references to resolution 687, whereby, as already mentioned. the Council returned the prerogative to decide upon the use of force against Iraq.

  On this basis the reference to resolution 678 in the preamble to resolution 1441 cannot be considered as the revival of the authorisation of the Member States to decide at their discretion upon the use of force in respect of Iraq. This reference was only a warning for Iraq that the decision on such a revival of authorization could be taken by the Security Council, in the event it decided that Iraq has violated its obligations under resolution 1441 and it had to face such serious consequences, as the Council would pronounce.

  In relation to the adoption of resolution 1441 three permanent members of the Security Council—China, France and the Russian Federation—made a joint statement, whereby they confirmed that this Security Council resolution excluded any automaticity in the use of force. As far as we know, other Security Council members did not declare at that time any essentially different understanding on this point. The statement of three permanent members of the Security Council also mentioned that in case of Iraq's non-compliance with its disarmament obligations, paragraphs 4, 11, and 12 of resolution 1441 would apply. Accordingly in this case the issue of further steps was to be solved by the Security Council on the basis of UNMOVIC's and IAEA's report. Proceeding from this understanding of resolution 1441 China, France, and Russia supported this resolution, which was adopted unanimously. This understanding of resolution 1441 by the majority of the Security Council members was well known, and in particular to those states, which are now interpreting this resolution differently in order to justify their actions.

  On 10 March this year the UN Secretary-General noted that if the USA or others exceeded the limits of the Council and took military actions, this would not conform to the UN Charter.

  The fact that after resolution 687 only the Security Council had the power to decide upon the use offered against Iraq stems not only from resolutions 1441 and 687 per se, but also from their interpretation in the light of the relevant provisions of the UN Charter.

  The maintenance of international peace and security and taking effective collective measures to that end is the main goal of the Organisation in accordance with Article 1 of the UN Charter. For the achieving of this aim all the Member States shall refrain from the threat or use of force. In cases other than self-defence, the UN Charter allows for the use of force only on the basis of the appropriate Security Council decision, adopted under Chapter VII of the UN Charter. It is namely in the light of these provisions of the Charter, which are the reflection of the ideology on the UN as the system of the collective maintenance of international peace and security that provisions of Security Council resolutions should be interpreted.

  Summarising the aforesaid: neither the interpretation of the combination of resolutions 678, 687, 1441 per se, nor their interpretation in the context of provisions of the UN Charter gives occasion to declare that the states now using force against Iraq had the right to decide upon such actions. In this case for the use of force against Iraq a new decision of the UN Security Council was needed. In the absence of such a decision the use of force against Iraq is unlawful.

The Legal Department of the Ministry of Foreign Affairs of the Russian Federation

March 2003





17   The Board of Editors would like to thank Roman A Kolodkin, the Director of the Legal Department of the Ministry of Foreign Affairs of the Russian Federation, for his assistance in making this document available. It is presented as a working paper written by the Legal Department in the first days of the invasion and until now has not been made public. Back

18   See, eg, the statement of the President of the Russian Federation, 17 Jan 1998; the statements of the Government of the Russian Federation in relation to the situation in Iraq, 3 Sept 1996; press releases of the MFA of Russia in relation to the situation in Iraq, 26 Jan 1998, 6 Nov 1998, 17 Nov 1998, 29 May I 999; the statement of the official representative of the MFA of Russia on the continuation of work of the Security Council on the co-ordination of new approaches to the interaction between the UN and Iraq, 12 Feb 1999; the statement of the MFA of Russia in respect of the adoption of Security Council resolution 1284, 17 Dec 1999. Back


 
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