The invasion of Iraq was lawful

by Carl Gardner on January 27, 2010

This blog didn’t exist when US and British forces, with others, invaded Iraq in 2003. I’ve never written directly about the legality of the war. But with Sir Michael Wood and Elizabeth Wilmshurst having given evidence to the Iraq inquiry yesterday, and Lord Goldsmith due to appear today, I think it’s time for me to address the issue.

Let me begin with a declaration. I worked at the Attorney General’s Office under Lord Goldsmith from 2005-7, well after the invasion itself; I did not advise him on international law except to the extent that it arose as part of my EU law, human rights and domestic advice. Some might say I have a natural inclination to defend him and his views. Maybe. I also want to make clear that I was not involved in any respect in the government’s internal legal discussions about the Iraq war, and have no inside knowledge of it whatever. I share no responsibility for the advice that was given, and have no personal stake in it that I have to defend.

My final preliminary: far too often this issue is discussed by a pure appeal to authority. Philippe Sands QC says the war was unlawful, we’re told by some anti-war campaigners; therefore it must be. Most international lawyers agree, it’s often said. Sir Michael Wood and Elizabeth Wilmshurst advised that the war was unlawful. The Dutch inquiry has concluded so. All these are worthy of respect of course. But the fact they see the war as unlawful does not mean it was unlawful, any more than Lord Goldsmith’s view means it was lawful. An appeal to authority is quite inadequate. We must form our own view on the legal merits and must judge the views of others based purely on their content. That’s what I’m trying to do.

I accept that the invasion was not clearly and unambiguously lawful. Far from it: the UN Security Council had plainly not expressly said that members could use all necessary means to enforce Iraqi disarmament and compliance with UN inspection and verification, which was a condition of the ceasefire at the end of the 1991 war over Kuwait. But equally, the invasion was not clearly and unambiguously unlawful because of the absence of a resolution including those express authorising words. I disagree with that commonly held view.

I think it’s important to see the 2003 invasion in historical context. The UN had authorised force in UNSCR 678 in order to free Kuwait and restore peace and security in the region; UNSCR 687 recalled and affirmed that resolution and imposed disarmament obligations on Iraq as one of the conditions essential to the restoration of peace and security in the region. By August 1991, the UN had determined that Iraq was in material breach of those obligations. It reaffirmed them and demanded compliance again in 1994 and in 1996. There were three further UNSCRs about Iraqi non-compliance in 1997, and three more in 1998, culminating in November 1998 in UNSCR 1205, condemning an Iraqi decision to stop cooperating with UN inspectors.

At this point it’s important to note that in December 1998, the US and Britain bombed Iraq so as to “degrade” its WMD capability. That action was defended in Parliament by the Foreign Secretary Robin Cook, who said

The action has been taken with the full authority of repeated Security Council resolutions, supported by all members of the Security Council

although none of the 1998 UNSCRs spoke of taking all necessary means. The legality of that action was justified on the basis of the “revival theory”, that UNSCR 678 still governed and overshadowed the entire process. Ming Campbell said this at the time:

Some say that there is no proper legal basis because there is no single resolution of the United Nations Security Council that authorises the action taken during the past 24 hours. To them I say that, when considering the legal basis of the action, one must have regard to resolutions 687 and 688 with which the Gulf war was brought to an end, to the fact that they reflect voluntary undertakings freely entered into by the Iraqi Government to help bring the war to an end and that since then no resolution of the Security Council in respect of these matters has been anything other than entirely consistent with those obligations. When considering the legal basis of the action we must look at the body of resolutions as a whole and not seek to fasten on to one particular resolution or describe it or any other as deficient.

We know from Lord Goldsmith’s published advice on the Iraq war that the Attorney General in 1998, Lord Morris, must have advised that the bombing was lawful based on this theory. We also now know that Elizabeth Wilmshurst agreed with that advice at the time (see page 30, line 16) although she now thinks it was a “strained” view. I agree with it, too.

Tony Benn, to be fair, said it was unlawful because not expressly authorised. Fair enough. Perhaps in the interests of complete fairness, it’s worth remembering that Tony Benn also called the war in Kosovo a “war of aggression”. It was not authorised by the UN either, but is now widely considered lawful because of what international lawyers now recognise is an “emerging” international law doctrine that it’s lawful to intervene to avert an overwhelming humanitarian catastrophe.

That’s the background to the 2002-2003 crisis. UN inspectors were allowed back into Iraq following the now famous UNSCR 1441. In its preamble the UNSC recalled

that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to resolution 660 (1990) and to restore international peace and security in the area;

The key operating provisions were OP4, in which the UNSC

Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate 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;

and OPs 12 and 13 in which it

12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, 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;

13. Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations;

This website allows you to consult the post-adoption statements by each of the permanent five UNSC members. The US took the view that the resolution did not preclude military action, though everyone agrees it provided for a “two-stage” process involving further consideration by the UNSC; no one says a further resolution is required. Jack Straw’s analysis of resolution 1441 is, to me, persuasive. The text represents a clear compromise between the three members who opposed action and wanted to tie the US into needing further express authorisation, and the US, who thought action necessary, and wanted immediate authorisation. It clearly rejects “automaticity”: no one could use it in itself as a legal basis for war in late 2002. But it also makes provision only for further consideration by the Security Council; not for any further decision or resolution. It was of course followed by the discovery of Iraqi missiles held in breach of the UN’s resolutions, and by, in the view of Dr. David Kelly, further non-cooperation from Iraq.

Bearing all that in mind, I agree with Lord Goldsmith’s advice of 7 March 2003, first that the safer course would be to seek a second resolution authorising force; the UK did that, of course, and failed; and second, that the “revival” argument, that further material breach by Iraq would revive the authorisation of force in UNSCR 678, is a reasonable one.

I’d go further, in fact: I agree with what Lord Goldsmith seems to have concluded a few days later – that the “revival” theory is the better view, to be preferred to the alternative put forward by Elizabeth Wilmshurst, that resolution 1441 clearly required a further decision by the Security Council. She told the Chilcot Inquiry that the wording of resolution 1441 had this effect (see page 30, line 7 of the transcript) – that was what made the position different from 1998, when as I’ve said she had agreed with the revival theory (though she now thinks it was “strained” even then). I find it difficult, looking at UNSCR 1441, to find the language that she says excludes the revival theory she supported in 1998, and reserves to the Security Council alone the sole competence to act subsequently, in the sense that its inaction should preclude action by others.

It follows that I agree with what Lord Goldsmith said was the legal justification for war. Member States were always authorised to use all necessary means to restore peace and security in Iraq. The authorisation was suspended; but on condition Iraq verifiably disarm. Its repeated material breach and failure to take its final opportunity meant it was lawful for Member States to use force on the basis of UNSCR 678. Any other approach seems to me to build far too much on words such as assessment in OP4 and consider in OP12; and to empty of all practical meaning the threat of serious consequences in OP13.

In any event, the fact that Elizabeth Wilmshurst’s change of approach since 1998 turns on a detailed construction of 1441 shows the question is not an easy or obviously one-sided one. The fact that two views are possible is enough, in my view, to reject wild, overblown and rhetorical claims that Tony Blair is a “war criminal”, for example.

I’ve already said I prefer the revival argument. But finally I must deal with Elizabeth Wilmshurst’s further point, that in circumstances like those of 2003, government should adopt the legally safest course and only use military action where it is legally uncontroversial. That’s a policy argument rather than a legal one, but it has some force. On the face of it, it seems to be the internationalist position, the one that favours multilateralism and the UN. But it isn’t, in truth.

After the Berlin wall fell, the UN was suddenly free of the shackles of the cold war: it found it could unite and act against Iraq in 1990 and 1991. The first president Bush could speak of a “new world order”. But through the 1990s, the UN’s authority was systematically undermined by Iraq – and it began to lose its unity and its will. By 2003, the question was whether its authority meant anything or whether its orders could be safely defied for ever. It was the determination of the US to confront Iraq and enforce UN resolutions, not the French and Russian reluctance to do so, that represented the old idealism of collective security against aggression.

Had the Security Council united to give Iraq a clear ultimatum in a “second” resolution (there were many resolutions about Iraq’s disarmament in truth), as Britain wanted it to, then the UN’s authority might have been upheld without political division – maybe even without war. Of course it didn’t unite, and didn’t agree to do anything, primarily because of the unwillingness of France, Russia and China. In judging the subsequent actions of countries like the US, Britain, Spain, Italy, Australia, Holland, Poland, Denmark, Japan and South Korea among others, I prefer to read the background UN resolutions in a way that favours the enforcement of international disarmament obligations – and permits their multilateral action; it is surely a mistake, and arguably even a betrayal of the UN ideal, to read them in a way that requires minimum respect from aggressors for the UN’s united will, and maximum respect from members for its culpable inaction.

{ 26 comments… read them below or add one }

1 James Medhurst January 27, 2010 at 19:55

Interesting. I do not have a view as to whether the invasion was lawful and I do not quite understand the media debate about the issue. Lawyers are not meant to answer binary questions to which the answer is yes or no, as this would amount to making decisions for their clients. They are meant to analyse the various options and advise on the litigation risks of each one.

In the absence of a world court which could issue an injuction stopping the war, it is unclear exactly what advice Lord Goldsmith was supposed to give. The correct answer is that it might be lawful but it might not which, in the absence of any legal consequences, is more or less meaningless. There are undoubtedly political consequences of getting it wrong but that does not seem to me to be a matter for lawyers. Even if Lord Goldsmith did tweak his advice at the request of Tony Blair, which he denies of course, surely this is precisely what a lawyer is supposed to do, to advocate for his client, having already (privately) advised as to the merits of the position taken.

It cannot be right that no-one should take any action when faced with the possibility that it may be unlawful, or else the world would grind to a halt. I say this even though I was opposed to the war from a political perspective.
.-= James Medhurst´s last blog ..The Church and the Equality Bill =-.

2 ObiterJ January 27, 2010 at 21:13

Carl – what a superb post and a tour de force of the “legal paper trail” which, so it is argued, justified war.

I have considered this matter for a considerable time and I would still say that there were reasonable grounds to believe that this trail should not have been relied on as the justification for war.

Well before the passing of 1441 it ought to have been clear that the stated purpose of 678 (i.e. to enforce 660) was, in reality, achieved. 660 was a very brief resolution confined to demanding that Iraq leave Kuwait and requiring Iraq and Kuwait to negotiate. After 66o there were 8 further resolutions dealing with various aspects of the Kuwait crisis.

Then we come to 678 (29th November 1990) which demanded compliance with 660 and gave Iraq a final opportunity to do so and then went on to authorise the use of all necessary means after 15th January 2001 to “uphold resolution 660 and all subsequent relevant resolutions.”

The phrase “all subsequent resolutions” is problematic. Did it mean all resolutions subsequent to 660 but prior to 678? Alternatively, did it mean ANY subsequent resolution no matter how far into the future? It appears to have been interpreted in the latter sense.

However that may be, I think it is properly arguable that 687 ought to have contained its own “all necessary measures” clause but it did not. There were merely references back to 678. Similarly, 1441 (passed some 11 years after 687) still referred back to 678.

To argue that all this justified entering a war of choice, even if it is correct, is rather too legalistic for most of us. The true force of 678 was long spent and a fresh mandate ought to have been sought. That would have been a view supportable by the basic principles of international law that resorting to war should have clear justification. In a case of any doubt, referral back to basic principles – (here a peremptory norm of international law) – seems sensible.

3 ObiterJ January 28, 2010 at 12:29

Having listened with great interest to your interesting podcast with Charon QC I have a few more observations.

1. The political and legal questions about war cannot be completely divorced. IF the war is legal then the political question remains to be answered. IF the war is illegal then there is no political question to ask. In this instance there were serious doubts about the legality. If they could have been satisfactorily resolved then the political question had to be answered in favour of military enforcement.

2. There is no doubt that the Saddam regime was especially obnoxious with major human rights violations. From time to time politicians (e.g. Jack Straw – see BBC 2nd December 2002) raised this but the intervention to stop such violations was never, in itself, advanced as the case for war (casus belli) – certainly not as the sole case.

http://news.bbc.co.uk/1/hi/uk_politics/2533229.stm

3. The 1980s and 90s were an appalling period in Iraq. From 1980 to 1988 Iraq and Iran were at war – see
http://www.globalsecurity.org/military/world/war/iran-iraq.htm

Iraq conducted Operation Anfal against the Kurdish people between 1986-88. On 16th March 1988 Iraq used chemical weapons on the Kurdish people at Halabja – see
http://www.islamicthinkers.com/massacres/thumbnails.php?album=13

4. The Iraqi invasion of Kuwait in 1990 is the starting point which leads through the dense trail of UNSC Resolutions to the war of 2003. In that 13 year period, many demands were made of Iraq. UNSCR 660 demanded they leave Kuwait. UNSCR 687 imposed disarmament obligations

5. There is a respectable view that the sanctions regime in the 1990s produced serious consequences but only for the poorer Iraqi people and had minimal impact on the regime itself. The UN initiated an “oil for food” deal to allow Iraq to sell some of its oil to buy medicines and essential foodstuffs and lessen the impact of the sanctions on ordinary Iraqis. Whether it achieved that is debatable.

5. The legality of the “no fly” zones set up by the US and UK was questioned. They were not specifically authorised by any particular resolution but there was argument that they were justified on humanitarian grounds to protect people such as the Kurds.

6. The bombing of Iraq in 1998 by US and UK Air Forces was, so we were informed, intended to reduce Iraqi production of WMD. The selection of actual targets raised doubts about this and led to a view that what was really intended was a reduction in Iraqi military capability generally especially that relating to air defence.

http://wapedia.mobi/en/Bombing_of_Iraq_%28December_1998%29

Doubts were raised in 1998 about the legality of the US/UK bombing. The view of the estimable Sir Menzies Campbell QC MP is noted. Nevertheless, given that there were legal doubts in 1998 is it not reasonable to ask why those doubts had not been properly addressed by 2003? The use of 678 as a justification for the action in 1998 was questioned at that time. To continue to rely on it later seems wrong.

7. One is also uneasy about introducing “background negotiations” as a way of interpreting the words of a UN Resolution. These resolutions have to be understandable by every nation and, I would submit, by ordinary thinking people in whose name these politicians supposedly operate. Most nations are not security council members. How can they rely on a resolution if it is to be interpreted on the basis of negotiations which took place (often) behind closed doors? Resolutions ought to be interpreted objectively. [The comparisons made in your podcast with interpreting commercial contracts should not be pressed too far though, to be fair, I think CharonQC recognised this].

Read objectively, 1441 required the SC to reconvene when certain reports were received. The purpose of reconvening was obviously to consider the reports. Having considered them, the SC would then have had to determine any further action. Surely, that is the objective interpretation of the document.

In late January 2003, Hans Blix presented the UNSC with a report on weapons decommissioning.
http://www.globalpolicy.org/component/content/article/168/37582.html

8. The views of Anthony Scrivener QC and Phillipe Sands about Lord Goldsmith’s position in 2003 have been published today.

http://www.independent.co.uk/opinion/commentators/anthony-scrivener-a-lawyers-view-of-goldsmiths-evidence-1881328.html

http://www.guardian.co.uk/commentisfree/2010/jan/27/lord-goldsmith-chilcot-iraq-inquiry

I was particularly impressed by Scrivener’s argument that Goldsmith ought to have taken further opinion from noted British international lawyers. [Perhaps the finest of them (Sir Ian Brownlie QC) was killed recently in Egypt].

4 Carl Gardner January 28, 2010 at 16:28

James, I absolutely agree with you that the government cannot be expected only to act when lawfulness is beyond doubt. Most policy and governmental decision-making involves at least some level of legal risk; lawyers can help by advising on those risks, and by contributing to ministers’ and civil servants’ consideration of whether it is proper to take a specific legal risk in the circumstances. It would be defensible to take more risks, say, in trying to enforce tax avoidance legislation than in detaining a child.

I’m not sure it necessarily follows that you should only use military force when its lawfulness is absolutely certain. If you take the US/UK political case seriously (which I realise many don’t) then many lives may have depended on enforcing disarmament on Iraq. It isn’t obvious that propriety militates on one direction only here.

And it obviously can’t be right that action is constrained just because its legality is contested – that just means any opponent of the war would be able to veto it by contesting its legality, regardless of how good or bad their argument.

I think the position of the Attorney here is a bit different from ordinary legal advice, though. It’s not just about risk here and the strength of competing arguments. The UK has to come to a definite view of the legality of force, and it’s the Attorney’s job to define that view, which ministers then have collective responsibility for. I’m not sure this is unique to government (a charity, for instance, must surely come to a definite view, say, on whether expenditure is within its objects, mustn’t it? – it can’t spend it just thinking “there are arguments both ways”) but it certainly is necessary sometimes in government – for the purposes of the army’s orders, for instance. It’s not that the Attorney is trying to give a definitive view applicable to the world at large; he or she is simply reaching the definitive view of HM Government.

5 Carl Gardner January 28, 2010 at 17:05

Thanks, Obiter. I disagree with you on the “objective meaning” of 1441! My view doesn’t depend on negotiating statements (though I think they do also support my view).

What, in the wording, gives the Council the future exclusive function of determining whether there’s been further material breach? Nothing, in my view. On the contrary: in OP4 the Council has defined in advance the factual events which would be material breach. The only question is whether those events in fact occur (this is a particular point on which the Americans in my view are right). The opposite view, that the Council is given an exclusive function of appraisal such that its failure to make any decision means there has been no material breach regardless of the facts – that view can only be founded on the words for assessment in OP4. That construction seems to me quite a radical one to found on those words alone.

I agree that 1441 required the SC to reconvene when certain reports were received. I agree that the purpose of reconvening was to consider the reports – which certainly did not say there was “full compliance”. All that was done. I don’t go the step further you do, and say

the SC would then have had to determine any further action.

Again, what in the wording supports that? In my view, nothing. OP12 does not mention any determination or decision to take action. With respect, I think you can only be inferring it – but I see no basis for the inference.

What does it actually mean to say the Council would have had to determine…? Does it mean the Council was under an obligation to do so, and acted unlawfully when (as happened) it failed to make any such determination? I doubt you mean that. If it means only the Council can determine what if any action is to be taken – well, just spelling that out shows how far that wording is from the text of OP12. I’m afraid again I think you’re making an unfounded inference.

Finally, you say there was something wrong with relying on 678 in 2003, when its use in 1998 was disputed. My reply is that in 1998 it was 1205 that was relied on – in 1205 the UNSC had decided there was then material breach. I agree it would have been wrong to rely on that in 2003, and Lord Goldsmith advised that, too: that’s why we sought and obtained a fresh resolution that Iraq was in material breach – in 1441.

So, in 1441 we have a reminder of the authorisation of force in 678 and a fresh decision that Iraq is in continuing material breach. We have the clear offer of a final opportunity. We have a clear statement that failure fully to cooperate with UNMOVIC will be another material breach. And we have a reminder that continued breach will have serious consequences. That seems pretty clear to me. Any failure to cooperate fully revives 678 and may lead to serious consequences (which on your reading means nothing beyond “a Council decision”, does it?).

6 Carl Gardner January 28, 2010 at 17:21

On Anthony Scrivener and Philippe Sands. Well, fine.

But Anthony Scrivener’s article is entirely about process. He says Lord Goldsmith should have taken further advice. He does not make a single argument or provide any legal reasoning on the question whether Goldsmith’s actual view was right or wrong.

Philippe Sands does offer one argument: simply that one unnamed French official has said to him that

At no time was it the French position that any concession was made in the adoption of resolution 1441, which would allow one UN member to determine for itself that Iraq was in further material breach, so as to allow it to have recourse to the use force in the absence of a second resolution.

Fair enough; but if Lord Goldsmith can be criticised for one-sidely seeking support from US views of the negotiating history (in fact he stressed to the inquiry the significance to him of the public French, Russian and Chinese statements about 1441), then this approach of Philippe Sands’s is open to the same criticism. One French view does not determine the issue.

Anyway, to say no concession was made which would allow one UN member to determine for itself that Iraq was in further material breach, etc., isn’t quite the same as saying France understood 1441 as precluding force unless the Council made another fresh decision. I agree, France made no such concession.

7 Matthew Happold January 28, 2010 at 18:44

I’ll take you up on one, perhaps tangential, point.

You say that NATO’s intervention in Kosovo ‘is now widely considered lawful because of what international lawyers now recognise is an “emerging” international law doctrine that it’s lawful to intervene to avert an overwhelming humanitarian catastrophe.’ I would argue the reverse.

The final declaration issued by the Heads of State and Government of the countries of the G-77 at its Havana Summit in 2000 stated that: ‘We reject the so-called “right” of humanitarian intervention, which has no legal basis in the United Nations Charter or in the general principles of international law.’ The G-77 had a membership at the time of, I think, 122 States. In my opinion, their views as to the interpretation of Article 2(4) of the UN Charter or customary international law on the use of force carry more weight than any number of international lawyers (although I don’t accept that a professional consensus now exists that NATO’s intervention in Kosovo was lawful).

What, in my view, distinguishes arguments over Iraq and arguments over Kosovo is that the former stays within the Charter paradigm. All sides can agree that force can be sued only as permitted under the UN Charter. They simply disagree over the interpretation of resolution 1441. Advocating a right of forcible humanitarian intervention is different, as it requires going beyond what the Charter permits.

8 Anonymous January 28, 2010 at 19:47

1. Re your para. beginning – “What, in the wording, gives the Council the future exclusive function of determining whether there’s been further material breach? …”

1441 required reports back and the SC to reconvene. Note also that 1441 stated that the SC remained “seized of the matter.” [I think that means “retains control” but I am open to correction. It might just mean “remains involved” or “remains interested”]. Under the UN Charter it is the SC which determines the existence of any threat to the peace and the SC is empowered to makerecommendations or decide what measures shall be taken in accordance with Art. 42 – see UN Charter Art 39. Thus, when the matter returned to the SC and the reports were considered then the SC would determine what further action was required. Art 39 is therefore my basis for the inference which I drew.

2. Re 1998. I agree that 1205 was relied upon. 1205 does not mention 678 but it does mention that the SC was determined to ensure compliance with 687 and 687 does refer back to 678. Hence, in reality, it must have been through that route that any right to bomb Iraq in 1998 arose. I think that was Sir Menzies Campbell’s point.

3. I agree that Scrivener was talking about process but, in my view, he makes an important point. Lord Goldsmith was happy to obtain American legal views and, he stated, they persuaded him. Why not take the views of an eminent British international lawyer particularly when faced with the views of Sir Michael Wood and Elizabeth Wilmshurst?

4. I agree with what you say above about Phillipe Sands. Both he and Goldsmith should have taken all opinion into account. In particular, the need to clarify the French position was, as I see it, essential. I think there was a bit of a “give away” about the real attitude of the British government to the French when Goldsmith stated that it woould not do for a British Attorney-General to be seen discussing this with the French. In reality would it not have been done via diplomatic channels anyway?

5. I have found this discussion extremely interesting and it certainly gets one out of one’s usual “comfort zone”. The very exercise of looking at all the resolutions gets one into what someone has called the “quantum physics” of the wording. I am sure that we would both agree that it could have been clearer and ought to have been clearer. Having taken the trouble to actually delve into this has certainly given me rather more sympathy for Lord Goldsmith than I had before.

6. As I mentioned above, I don’t think any of this (apart from maybe the “no fly zones”) was based on humanitarian intervention. Of course, for political reasons, it is always handy if you can put into the mix the atrocities committed by a regime like Saddam. Whether there is any doctrine of humanitarian intervention is (yet another) fascinating topic but it is perhaps best left for another case.

9 ObiterJ January 28, 2010 at 19:48

Sorry – the Anonymous at time 19.47 was me.

10 ObiterJ January 28, 2010 at 20:08

Carl – I have come across this document on the Interpretation of Security Council resolutions by Michael C. Wood:

http://www.mpil.de/shared/data/pdf/pdfmpunyb/wood_2.pdf

Here is a text of the Hersch Lauterpacht lecture given in 2006 by Sir Michael Wood.

http://www.lcil.cam.ac.uk/Media/lectures/pdf/2006_hersch_lecture_1.pdf

Here is a textbook on the topic:

http://www.oxfordscholarship.com/oso/public/content/law/9780199546220/acprof-9780199546220-chapter-17.html

Here is a view that 1441 was deliberately worded in an ambiguous way. [I don’t know anything about the author – Michael Byers].

http://www.questia.com/googleScholar.qst;jsessionid=LhpDQtQxsRfmKY096Sbd3npjkBYyj1DFv8Rq771s8ZNDBVJSJk9y!-2002178534!-1550841181?docId=5006720379
.-= ObiterJ´s last blog ..Supreme Court quashes Orders against Taliban and Al Qaida =-.

11 Anonymous January 30, 2010 at 13:06

Isn’t there a clear difference between the revival in 1998, when the Security Council had issued a resolution stating there had been a material breach, and what happened in 2003, when they did not?

Instead, we had the situation where one member of the Security Council asserted that there had been a material breach, failed to obtain agreement from the rest of the Security Council for a resolution that declared this, then attacked Iraq anyway.

12 james c January 30, 2010 at 13:07

Previous comment was mine.

13 Brian Barder February 1, 2010 at 02:46

I’m not a lawyer, but it seems to me that too little attention has been paid to the requirement in op. 4 of 1441 that in the event of a report to the Security Council of a further material breach, the Council would make an assessment of the report (“will be reported to the Council for assessment”). Read with the purpose of the Council’s decision in op. 12 to meet immediately on receipt of such a report and to consider the situation “in order to secure international peace and security”, it’s surely clear that it must be for the Council and only the Council to make an assessment of the reported breach: i.e. to assess the cogency of the report received, the gravity (or relative triviality) of the reported material breach, the nature of the “serious consequences” Iraq is to face and, especially if it’s assessed as justifying the use of force, the type and extent of the force to be used that will be proportionate to the gravity of the breach. The UN Charter’s definition of the role and powers of the Security Council make it abundantly clear, surely?, that such momentous judgements (“assessments”) in matters of war, peace, the use of force in international affairs and the circumstances in which it may be authorised — all these must be for the Council to make, not for any single member state or combination of states. It’s very plain that the Council in 1441 doesn’t — indeed can’t — make these assessments in advance of a newly reported material breach which by definition hasn’t yet occurred. In his secret and detailed legal advice of 7 March 2003 to the prime minister the Attorney-General himself came very close to saying that it would be absurd to interpret op paras 4 and 12 as meaning that the council would assess and consider the situation but not make any decision as to what to do about it.

I also find it impossible to get my head round the proposition on which the verdict of legality for the attack on Iraq depends, namely that the US and UK action against Iraq had the approval and authority of the Council by reference to resolutions adopted years beforehand in quite different circumstances, while at the time of the attack on Iraq it was known to everyone that a substantial majority in the Council was not willing to grant authority for the use of force at least until the inspectors had had more time to complete their work. The US and UK were thus claiming to have the Council’s authority for their action which the Council of the day manifestly refused to give. The only possible way to escape from this absurdity is to rely on the absence of a formal resolution of the Council refusing to grant authority for the use of force (or the formal rejection of a draft resolution that would have granted it). But this is to make the law blind to an undisputed reality: the US and UK undeniably floated a draft resolution seeking authority for the use of force without the need for a further decision of the Council, but had to withdraw it when it became clear that despite frantic efforts to assemble the necessary nine votes in favour of the draft, a clear majority in the Council adamantly refused to support it. (The shameless misrepresentation of President Chirac’s television interview in which he defined the French position in considerable detail is irrelevant to this point, which in my opinion clinches the matter.) But, as I say, I’m not a lawyer, only a superannuated diplomat with some long-ago experience of the UN.
.-= Brian Barder´s last blog ..The Blair defence: never take a risk =-.

14 Carl Gardner February 24, 2010 at 02:18

Thanks, Brian.

I think you read far too much into the single word “assessment”; and you’re missing the fact that just before that word, the Council in OP4 had already defined behaviour that would amount to a material breach – behaviour that undoubtedly occurred.

As for the “triviality” of the breach, and what force would be proportionate, well, to be honest I think you’re looking away from the big picture and missing the point. Had the Council determined that Iraq’s (even after its last chance… ) continuing material breach did not justify force, that would simply have encouraged yet more, less trivial breaches. Had it determined that some minor bombing was appropriate – well, that might seem “proportionate” to some, but to me that would be gratuitous force. The point was not to punish Iraq through bombing, but to enforce disarmament.

On the “second resolution”, the point is that the Council did not act. You can’t cite France’s opposition to, and therefore the absence of, a resolution expressly and unambiguously threatening immediate force as equivalent to the existence of an resolution expressly prohibiting the use of force. Obviously the US and UK would have vetoed any such resolution. The most you can argue is that the Council had failed to take any decision at all on force. Otherwise you border on saying the war was illegal because Tony Blair sought a “second resolution”.

On Chirac, I agree his position was distorted (by quoique les circonstances he meant I think that he was against a second resolution regardless of who else supported it, not that he was against once for all time regardless of what happened) but his position wasn’t fundamentally traduced, was it? He was absolutely against giving Iraq an unambiguous ultimatum backed by force. In my view that decision made war absolutely certain, rather than just very likely indeed.

My final point is this: on your reading, Brian, wasn’t Desert Fox unlawful in 1998? How do you square that?

15 Brian Barder February 24, 2010 at 15:26

Carl, I think it’s difficult to reply fully to your arguments without repeating myself; and some of the issues you raise are in effect subjective (such as how much weight to attach to the Council’s declared intention in 1441 not only to meet in the event of a further breach but also to “assess” the situation).

You write:

Maybe that’s right, maybe not. But the point is that such judgements were, or should have been, exclusively for the Security Council to make, not any individual UN member government; and still less for you or me!

No resolution prohibiting the use of force was required: the whole point is that the UN Charter expressly prohibits the use of force except in certain defined circumstances — neither of which applied to the then Iraq situation (no question of self-defence, no Council authority for the use of force at that time).

Yes, his position absolutely was fundamentally traduced — and I don’t think your summary of it is supported by the text of the interview. He was clearly in favour of giving Iraq “an unambiguous ultimatum backed by force”, as demonstrated by France’s vote for 1441 and by his clear statement in the television interview that if the inspectors were clearly frustrated and reported that they couldn’t complete their work, or if they found WMD whose existence the Iraqis had sought to conceal, the Council would have to authorise the use of force and that in those circumstances France would support this. The nub of Chirac’s position as set out in the interview was clearly that (a) it would be premature to use force before the inspectors had been given more time to complete their work, and (b) if and when the time came when all else had failed and force was the last available resort, it would be for the Council and only the Council to decide at which point in time this was the case — and also for the Council to “assess” the nature and extent of the force it was prepared to authorise — and not for any individual UN member government or governments. The latter point hardly needed to be made — it’s there in the Charter! — but Chirac made it anyway.

But in any case, I think Lord Bingham’s deconstruction of and verdict on the argument that the Iraq war was legal (in his new book on ‘The Rule of Law’) are so precise and so unanswerable that further debate has really become superfluous.

Brian
.-= Brian Barder´s last blog ..Bullying is not the central issue: what matters is how Gordon governs =-.

16 Brian Barder February 24, 2010 at 15:41

In my immediately preceding comment the quotations from Carl’s original reply to my earlier comment have mysteriously disappeared. I will try again! —

Carl, I think it’s difficult to reply fully to your arguments without repeating myself; and some of the issues you raise are in effect subjective (such as how much weight to attach to the Council’s declared intention in 1441 not only to meet in the event of a further breach but also to “assess” the situation).

You write:
[Quote:] Had the Council determined that Iraq’s (even after its last chance… ) continuing material breach did not justify force, that would simply have encouraged yet more, less trivial breaches. Had it determined that some minor bombing was appropriate – well, that might seem “proportionate” to some, but to me that would be gratuitous force. The point was not to punish Iraq through bombing, but to enforce disarmament. [End of quotation]

Maybe that’s right, maybe not. But the point is that such judgements were, or should have been, exclusively for the Security Council to make, not any individual UN member government; and still less for you or me!

[Quote:] You can’t cite France’s opposition to, and therefore the absence of, a resolution expressly and unambiguously threatening immediate force as equivalent to the existence of an resolution expressly prohibiting the use of force. Obviously the US and UK would have vetoed any such resolution. [End of quotation]

No resolution prohibiting the use of force was required: the whole point is that the UN Charter expressly prohibits the use of force except in certain defined circumstances — neither of which applied to the then Iraq situation (no question of self-defence, no Council authority for the use of force at that time).

[Quote:][Chirac’s] position wasn’t fundamentally traduced, was it? He was absolutely against giving Iraq an unambiguous ultimatum backed by force. In my view that decision made war absolutely certain, rather than just very likely indeed. [End of quotation]

Yes, his position absolutely was fundamentally traduced — and I don’t think your summary of it is supported by the text of the interview. He was clearly in favour of giving Iraq “an unambiguous ultimatum backed by force”, as demonstrated by France’s vote for 1441 and by his clear statement in the television interview that if the inspectors were clearly frustrated and reported that they couldn’t complete their work, or if they found WMD whose existence the Iraqis had sought to conceal, the Council would have to authorise the use of force and that in those circumstances France would support this. The nub of Chirac’s position as set out in the interview was clearly that (a) it would be premature to use force before the inspectors had been given more time to complete their work, and (b) if and when the time came when all else had failed and force was the last available resort, it would be for the Council and only the Council to decide at which point in time this was the case — and also for the Council to “assess” the nature and extent of the force it was prepared to authorise — and not for any individual UN member government or governments. The latter point hardly needed to be made — it’s there in the Charter! — but Chirac made it anyway.

But in any case, I think Lord Bingham’s deconstruction of and verdict on the argument that the Iraq war was legal (in his new book on ‘The Rule of Law’) are so precise and so unanswerable that further debate has really become superfluous.

Brian
.-= Brian Barder´s last blog ..Bullying is not the central issue: what matters is how Gordon governs =-.

17 Carl Gardner February 24, 2010 at 18:20

Thanks, Brian – apologies for the tech glitch there. I must read and review Lord Bingham’s book.

18 Chris July 2, 2014 at 23:50

The AG’s argument that a security council finding of a ‘material breach’ of UNSCR 687 by Iraq revives the authorisation to use force under 678 relies on an application of treaty laws.

The Vienna Convention on the Law of Treaties states that a

“material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part”.

There are two points as this relates to the ‘revival argument’.

First, Security Council Resolutions are not treaties and should not be treated as such. Treaties are negotiated agreements between two or more parties. It cannot reasonably be argued that UNSCR 687
(for example) in imposing disarmament obligations on Iraq by the Security Council is an agreement between two equal parties.

Second, even if one was able to interpret UNSCRs in this way, a finding of Iraqi material breach by the Security Council does not authorise the use force. If the Vienna convention is to be applied, it is for the Security Council (one of the two contracting parties under this reading) and not the ‘member states cooperating with the government of Kuwait’ to determine whether such a breach justifies a ‘ground for terminating the treaty’. The convention does not state
that a material breach by one party automatically terminates the treaty, only that it gives an evidential basis for doing so.

19 Carl Gardner July 5, 2014 at 13:15

I agree with you completely about UNSCR 1441 not being a treaty, Chris. It’s clearly not one; and the “revival theory” (which I agree with) doesn’t depend on seeing UNSCR 1441 as a treaty between the UN and Iraq. No one’s ever as far as I know argued that the invasion of Iraq was legal because the UN Charter was terminated or suspended. I certainly don’t argue that.

The point doesn’t have anything to do with the Vienna Convention. The point is simply that the ceasefire following the first Gulf war was conditional; Iraq’s repeated breaches of its obligations meant those conditions were not fulfilled, and the authorisation for the use of force revived. That argument was at least as strong in 2003 as it was in 1998 when Robin Cook, Ming Cambell and Elizabeth Wilmshurst all supported it. In fact the argument was stronger because of the terms of UNSCR 1441.

20 Chris July 6, 2014 at 01:14

Thanks for your reply Carl.

I would strongly disagree that the revival argument has nothing to do with the VCLT, since it is directly referred to in Lord Goldsmith’s evidence to the Chilcot Inquiry:

“[m]aterial breach is a legal term. It strictly comes from the — Article 60 of the Vienna Convention on the law of treaties, which is to do with treaties rather than Security Council Resolutions, but everyone seems to find this is a useful phrase to use…

“[t]he point is that the language is there to indicate a breach of such a character that, as I said in the language of the Vienna Convention on the Law of Treaties, means that the other party can treat that as a ground for terminating or suspending the obligation in question. So here terminating or suspending the ceasefire”.

I cannot see how one can conclude otherwise that this explanation clearly demonstrates a direct application of the VCLT to the legal interpretation of a UN Security Council Resolution. If, by your admission, UNSCRs are not treaties, why does the AG refer to the VCLT at all?

21 Brian Barder July 6, 2014 at 10:56

As a layman, I’m constantly impressed by the infinite capacity of first-rate lawyers to persist with arguments that fly in the face of common sense — reminiscent of the classical world’s condemnation of the ‘Sophists’ whose offence was to make the worse appear the better cause.

With apologies for repeating myself once again, I would urge my legal friends to consider the impact on their reputations before solemnly asking the rest of us to agree that:

(a) The attack on Iraq in 2003 had the authority of the UN Security Council (UNSC) when it was clear and universally known that the attackers had failed to persuade even a narrow majority of the members of the Council to support their draft resolution granting that authority;
(b) the attackers were acting under the authority of UNSC resolutions adopted years before in totally different circumstances, i.e. with the primary and overriding objective of ending the Iraqi occupation of Kuwait, which had been achieved long ago by UNSC action;
(c) even if the Council had supported an assessment that Iraq was in material breach of its obligations under UNSC resolutions and that this justified the use of force against it at that time, it was open to any member of the Council, or perhaps any member of the UN, to decide for itself on the gravity of the breach, on the timing and nature of a military response to it, on the proportionality of such a response, and on its objectives, and then to launch a military attack, whether or not the Council had had the opportunity to make its own assessment of all these crucial issues in accordance with the explicit language of res. 1441 and whether or not that member government’s assessment and decision could be reconciled with the assessment of the Council;
(d) res. 1441, stipulating that in the event of a further material breach the Council should make its own assessment of the situation “in order to secure international peace and security”, did not envisage that the Council should proceed from assessment to a decision, instead leaving it to any member government that felt so inclined to act as it wished without any regard to the known views of a large majority of the Council;
(e) that when the UK, as a co-sponsor of 1441, assured the Council that the resolution did not entail any ‘automaticity’, the Council was not entitled to interpret that assurance as meaning that a further explicit decision of the Council would be required before any member state or states resorted to the use of force against Iraq; or
(f) (to amplify point (a) above) if a member state explicitly seeks the authority of the UNSC under the Charter for the use of force against another member state (otherwise than in self-defence) but after prolonged effort fails to secure that authority because there is no support for it on the part of a minimum of nine members of the Council (i.e. no veto would have been involved had the applicant been rash enough to allow its proposal to go to a vote), the applicant state is nevertheless acting in accordance with both the spirit and the letter of Chapters VI and VII of the Charter in going ahead with the use of force anyway.

I submit that every one of these propositions is obvious nonsense, and that any attempt to devise a legal justifiaction for advancing a single one of them risks bringing the law into contempt.

As I say, I’m no lawyer, but especially as concerns international law a non-lawyer might just possibly be better able than even the cleverest of lawyers to inject a necessary element of common sense into the toxic mix of legal analysis. Otherwise —
“If the law supposes that,” said Mr. Bumble,… “the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.”

22 Carl Gardner July 7, 2014 at 15:17

Chris,

Lord Goldsmith was just explaining where people had drawn that term “material breach” from. There’s no more to it than that. That’s quite clear from the first paragraph you quote.

23 Carl Gardner July 7, 2014 at 16:04

Brian,

Thanks for calling me a first-rate lawyer! I’ll happily take the compliment among the other stuff.

On sophistry, what sort of sophistry agrees with the revival theory in 1998, then does a volte-face in 2003 and says it doesn’t work? That’s the position Ming Campbell and Elizabeth Wilmshurst are in. Those who say “Bush and Blair are war criminals” should also say the same of Clinton and Cook. Why don’t they?

As for my reputation, I know some people would like me more if I agreed with them that the Iraq war was unlawful. But if I have any reputation at all, I’d deserve to lose it if I wrote things I don’t believe, just because others believe them.

In answer to your specific points:

(a) But they did persuade the UNSC to support UNSCR 1441, which gave Iraq a last chance and warned of “serious consequences”. You’re depriving that resolution of any practical meaning at all. And it was much more than the UN agreed in 1998, before military action that few people say was unlawful;


(b) actually the resolutions adopted years before were not just aiming at ending the Iraqi occupation of Kuwait; they were also, once that occupation and conflict had ended, aimed at ensuring Iraq was verifiably disarmed. That certainly had not been achieved by the UNSC;


(c) the UNSC did decide Iraq was in material breach, in UNSCR 1441, OP 1. The UNSC doesn’t decide on the timing of an attack, its nature and so on, anyway; this is bound to be decided by the military command of whatever states actually commit their forces;

(d) if UNSCR 1441 was so clearly agreed by everyone to give exclusive power to the UNSC either to take action against Iraq in the event of material breach, or else to preclude anyone else’s taking action simply by doing nothing – a situation different from that which most people thought was the case in 1998 – why didn’t it actually spell that out? It’s strange how the case that the Iraq war was unlawful, which so many people think so crystal clear, relies so often on inference rather than on the explicit wording of UNSCR 1441;


(e) there was no automaticity. No one said that continued material breach after UNSCR 1441 would automatically lead to military action. And it didn’t. The UNSC did later convene further, consider the situation and the need for full compliance and so on, as the resolution required. As is well known, it flunked it. The member of the UNSC were entitled to interpret UNSCR 1441 according to what it actually says;


(f) in this paragraph, you seem partly to be saying the invasion was unlawful because Britain sought a so-called “second resolution” (actually the umpteenth on Iraq). Why should that matter? The legal question is whether the authorisation of force in earlier resolutions was revived by UNSCR 1441 in the event of continuing material breach. I think it’s hard to read UNSCR 1441 without concluding that it was. But whether you agree with me on that or not, I don’t see how Britain’s commendable but failed attempt to unite the world with a draft “second resolution” can affect the legal position.

It was not just one state that attacked Iraq; it was quite a few states in coalition, including states not notorious for their lawlessness, like Denmark. This multinational aspect of the invasion is overlooked. It wasn’t quite “the world versus Bush and Blair alone” as so many people think. As for the spirit and letter of the UN Charter, the UNSC had clearly wanted Iraq verifiably disarmed and, as I say, had flunked the issue in the face or Iraq defiance.

So I disagree with you about “obvious nonsense” and about bringing the law into contempt. In fact I think you can make a decent argument that it’s the “illegal war” theory that brings both the UN and international law into contempt.

You can always say the law’s an ass if you disagree with it, and you can always say a lawyer’s an ass if you disagree with his argument.

24 Chris July 8, 2014 at 11:36

We’ll probably have to agree to disagree on this one, but one more try!

‘the language is there to indicate a breach of such a character that… means that the other party can treat that as a ground for terminating or suspending the obligation in question. So here terminating or suspending the ceasefire”.

The first sentence here is a repetition of the VCLT framework. The ‘so here’ indicates that this framework and legal interpretation was applied to the specific case of the ceasefire under UNSCR 687. In my view it is clear that the revival argument does far more than simply ‘drawing’ on, or defining ‘material breach’ from the VCLT, it directly requires and applies both the concept and the consequences. I do not read anywhere in the UN Charter either that ‘material breach’ is a valid doctrine, or that it can have any legal effect.

On another point, I take it you interpret any future finding of material breach by the Security Council under 1441 OP4 as already meeting the requirements of a sufficient enough breach to authorise the use of force?

25 Joel January 6, 2016 at 12:47

I served in active duty during Operation Desert Fox of 1998 while stationed in Germany and was apolitical at the time. We (the world in general including our German sister support units) attacked the confirmed WMD facilities the then UN inspectors had identified as targets based on their interactions with the Arab Socialist Ba’ath Party regime at that time.

The aftermath of that campaign with the general public didn’t seem to question the motive or legality of the use of force, since there was an universal agreement as you point out here, that prior UNSC conclusions had already determined the 1991 cease fire was voided by the Socialists several times.

But it was the question of the timing of the military action that was impugned. Particularly within the U.S. since the Congress had already authorized preemptive military action nearly a year prior due to previous and continued inspection violations and hostile military action from the enemy. And action had been delayed only until the American President was becoming formally indicted on federal corruption charges. International inspectors had become so frustrated, they self-withdrew all operations months prior before hell fire was unleashed finally near the end of that year. There was never any question that the Arab Socialists had any intention of disarming the known WMD and other illicit programs long established as threats to world peace per all relative and repetitive UNSCR and respective member state legislation.

That was what motivated me to become political. To see the aftermath of the same exact logic and legal rationale used 4 years later after continued and confirmed non-compliance established a “no brainer” (to use layman terms) to repeat what was agreed upon internationally throughout 1991, 1998, and through to 2002. That of course led to the same member states passing new and continued legislation outside of just the UNSCR whose sole purpose was simply to agree with or deny the existance of a world threat. As you helped detail, it mentioned nothing about action or inaction, using the verbatim language as past resolutions that were the basis for all past military authorizations by individual member states.

UNSCR 1441 simply repeated all prior facts and was unanimously showing agreement of that same, exact world threat that existed continuously 11 years prior. To the point that a Democratic Party led U.S. Senate had authorized a third use of military force in Iraq with more supporting votes for the Republican President in 2002 than was given for his father’s authorization in the first 1991 engagement, or there own party’s President in 1998.

I’ve been told that they were somehow “lied to” by those who cannot demonstrate any other knowledge on the issue. And have seemed uninterested in the facts that all U.S. intelligence oversight abilities exist exclusively within the Congress, and not the Executive branch. As well as the fact that all available information had come from the prior administration only 4 years previously, and an unanimous UNSC resolution also certifying the Socialist threat had indeed still continued to exist in 2002.

Per my understanding, the UN cannot control nor regulate any member state military decisions directly. Members remain sovereign. The UN forum is not a governing nor legislative body with no principle jurisdiction. It’s only binding authority is self-imposed by member states to agree to negotiate on issues such as if there are or are not threats to the planet. Since it was confirmed the Arab Socialist threat was still in existance in 2002, the nations whom chose to take appropriate action, did. The only controversial motive this time postulated was is if the United States government had itself attacked on purpose to have the question of the Socialist threat reexamined. Regardless of the ability of that motivation confirmed or not, the question of the Socialist threat from Iraq was, internationally unanimously, confirmed. And for more reasons than just anti-proliferation or humanitarian. The details are illistrated in the individual member state legislative bodies.

I can only speculate why there is hypocrisy now on one side of the political point of view today. But I am glad all sides had agreed at one point on the legality of this issue, before it became politically expedient for one side to change its mind and accuse themselves of “war crimes” to attack the other. I do appreciate the (frustratingly brief) moments of conciliatory bipartisanship, even when the partisans may not realize it. Thank you for helping to show the case for layman like myself who just want to make sure we can understand the truth. The political motives are of course a separate fight.

26 Eric December 7, 2017 at 15:32

Carl,

Thank you. For a curious American like me, this is a useful and usefully sourced summation of the British legal debate over the Iraq intervention, which is closely parallel but not wholly the same as the American legal debate.

To return the favor, here’s my US-focused answer to “Was Operation Iraqi Freedom legal” which addresses the US domestic legal question (yes), the international question (more likely than not), and the occupation and peace operations legal question (yes). Within the answer is linked a more detailed explanation of the casus belli.

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