Sunday, September 19, 2004

International Law and the Gulf War

A week before the attack on Iraq, Foreign Minister Downer gave an interview on ABC Lateline in which he said “our judgment is that under Chapter 7 of the United Nations Charter, on the basis of Security Council resolutions, in particular, but not exclusively 678, 687 and 1441, there is authority to enforce those Security Council resolutions by militarily disarming Saddam Hussein”.

When asked if military action without specific UN authorisation would violate the UN Charter, he admitted that “without any authorisation that would obviously be a problem... I'm just saying that, sure, if you acted outside of the Charter and outside of the Council, that would be true, but our response to that is that if Saddam Hussein was disarmed through military action, that would actually be within the charter under chapter 7 of the charter and building on Security Council resolutions in the past, resolution 678 and 687 in particular

Despite Howard's claim that he “tabled” his legal advice at the time, the government has NOT released its expert legal opinion, which according to the PM, said the invasion was "entirely legal". So we cannot comment on its content, or discuss its merits, because we do not know what it says. If it really does support his claim, why is he so reluctant to release it?

But it probably resembles the legal advice provided by the British Attorney General, Lord Goldsmith, who has said that UNSC Resolution 678, which authorized "all necessary means" to evict Iraqi forces from Kuwait in 1991, and to "restore international peace and security" in the region, still applied or could be revived.

However, that resolution did not authorize the use of force to invade and occupy Iraq, or to change the regime, or even disarm Iraq. The authority to use force, provided by SCR 678, expired with the liberation of Kuwait. This was clearly the understanding held by most authorities at the time, including then president George H W Bush, who wrote in his 1998 book A World Transformed, "Going in and thus unilaterally exceeding the United Nations mandate would have destroyed the precedent of international response to aggression we hoped to establish."

The requirement that Iraq disarm was imposed after the ceasefire, along with many other demands and sanctions which were attached to the ceasefire agreement. These obligations were formalised in the subsequent UNSC Resolution 687, which became known as "the mother of all resolutions". SCR 687 did NOT authorize "all necessary means".

All subsequent resolutions relating to Iraq have referred to the obligations contained in SCR 687, but none of these resolutions explicitly authorize the use of force against Iraq. Furthermore, all these resolutions, up to and including SCR 1441, affirmed the Security Council would "remain seized of the matter" in order to "maintain peace and security".

In other words, the Security Council was pursuing a formal, legitimate process to ensure that Iraq complied with its obligations and was not a threat to international peace and security. UN weapons inspectors were actively inspecting facilities and interviewing Iraqi officials. There is simply no basis to the charge that UN processes had failed or that the Security Council was incapable of enforcing its resolutions.

The fact is, George W Bush unilaterally and unceremoniously terminated the UN process on March 19, 2003, when he announced his decision to attack Iraq. By aiding and abetting this unlawful aggression, the Howard government willfully defied the authority of the Security Council and conspired to commit war crimes.

The following is a summary of the legal advice from British Attorney General, Lord Goldsmith
Source: Downing Street, April 28, 2005

26. To sum up, the language of resolution 1441 leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the Council as to the legal effect of the resolution. Arguments can be made on both sides. A key question is whether there is in truth a need for an assessment of whether Iraq's conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP4 such that the basis of the cease-fire is destroyed. If an assessment is needed of that situation, it would be for the Council to make it. A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has predetermined the issue. Public statements, on the other hand, say otherwise.

27. In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. The key point is that it should establish that the Council has concluded that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.

28. Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.

29. However, the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider very carefully whether the evidence of non-cooperation and non- compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.

30. In reaching my conclusion, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a "reasonable case" does not mean that if the matter ever came before a court I would be confident that the court would agree with the view. I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained.

However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree of public and Parliamentary scrutiny of the legal issue was nothing as great as it is today.

31. The analysis set out above applies whether a second resolution fails to be adopted because of a lack of votes or because it is vetoed. As I have said before, I do not believe that there is any basis in law for arguing that there is an implied condition of reasonableness which can be read into the power of veto conferred on the permanent members of the Security Council by the UN Charter.

So there are no grounds for arguing that an "unreasonable veto" would entitle us to proceed on the basis of a presumed Security Council authorisation. In any event, if the majority of world opinion remains opposed to military action, it is likely to be difficult on the facts to categorise a French veto as "unreasonable". The legal analysis may, however, be affected by the course of events over the next week or so, eg the discussions on the draft second resolution.

If we fail to achieve the adoption of a second resolution we would need to consider urgently at that stage the strength of our legal case in the light of circumstances at the time.


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