Crushing US/UK's legal case for war ...

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Posted by andreas from ( on Tuesday, March 18, 2003 at 11:18AM :

Crushing US/UK's legal case for war ...



A talented lawyer arguing a weak case

The attorney-general's assertion that the use of force against Iraq is
legal without a second UN resolution does not stand scrutiny, says Matthew

Monday March 17, 2003

The attorney-general set out his views today on the legal basis for the use
of force against Iraq. His conclusion was that the use of force against
Iraq would be legal even without a second security council resolution.
According to Lord Goldsmith, authority to use force exists by virtue of the
combined effect of security council resolutions 678, 687 and 1441.
Resolution 678 (1990) was adopted by the security council in response to
the Iraqi invasion and occupation of Kuwait. It authorised the US-led
coalition to use "all necessary means" to liberate Kuwait and restore peace
and security to the region. Hostilities in the Gulf war were then
terminated by resolution 687 (1991), which imposed a long list of
obligations on Iraq, including several regarding disarmament. Iraq is in
breach of these obligations. Resolution 1441 (2002) found it to be in
"material breach". In consequence, according to Lord Goldsmith's argument,
the authorisation to use force granted to the US and the UK by resolution
678 has been reactivated.

Resolution 1441 gave Iraq a "final opportunity" to comply with its
disarmament obligations and warned of "serious consequences" if it did not.
It did not expressly require a new resolution before force can be used. All
that is needed is an Iraqi failure to comply with 1441 and the reporting to
and discussion of that failure by the security council. Had a further
security council decision been required to sanction the use of force, said
Lord Goldsmith, resolution 1441 would have said so specifically.

There are, however, a number of problems with Lord Goldsmith's analysis. In
the first place, the general view is that security council authorisations
of force are only for limited and specific purposes. In the case of
resolution 678, the authorisation to use force terminated with the adoption
of resolution 687. It cannot be revived in completely different
circumstances some 12 years later. Indeed, on the adoption of resolution
687, the USSR and China specifically stated that it was the task of the
security council to ensure its implementation. This was reflected in the
resolution, in which the security council decided "to remain seized of the
matter and take such further steps as may be required for the
implementation of the present resolution and to ensure peace and security
in the area". It is for the security council to determine how to deal with
Iraq, not UN member states acting unilaterally.

In the second place, Lord Goldsmith's arguments have been used before and
have been rejected. Throughout the 1990s, the US and the UK sought to
justify the bombing of Iraqi military facilities by arguing that they were
responding to breaches of Iraq's obligations under resolution 678. In early
1998, after Iraq's withdrawal of cooperation with the UN weapons
inspectors, the US and the UK threatened to use force "to enforce the
Security Council's will". The threat was lifted when the UN
secretary-general, Kofi Annan, visited Baghdad and secured an agreement
permitting the return of the weapons inspectors.

The security council endorsed the agreement in resolution 1154 (1998).
However, the council rejected British and US proposals that breach by Iraq
of its obligations under the Annan agreement should automatically authorise
the use of force (what is known as "automaticity"). The view that
unilateral forcible responses to Iraqi violations were permitted was
specifically rejected by the delegations of Brazil, China, Egypt, France,
Gambia, Japan, Malaysia, Pakistan, Slovenia and Sweden. When Iraq again
withdrew cooperation in the autumn of 1998, in resolution 1205 the security
council condemned Iraqi actions as "a flagrant violation of resolution 687"
and decided, "in accordance with its primary responsibility for the
maintenance of international peace and security, to remain actively seized
of the matter." Again, it was indicated that there should be no
"automaticity" of response, although in conducting Operation Desert Fox in
December 1998 the US and the UK chose to ignore these views.

In the third place, resolution 1441 does not do what Lord Goldsmith says it
does. It does not authorise the use of force. The term "serious
consequences" is not UN code for enforcement action. Once again, the
majority of members of the security council rejected automaticity. Even US
Ambassador John Negroponte said that the resolution "contained no 'hidden
triggers' and no 'automaticity' with the use of force".

Lord Goldsmith's argument that if 1441 had provided that a further
resolution was required to authorise the use of force it would have said so
is, to say the least, disingenuous.

Even on the attorney-general's own arguments force against Iraq could be
justified only to enforce Iraq's disarmament obligations. It provides no
warrant for regime change, that is, the overthrow of Saddam Hussein.

Lord Goldsmith's statement shows a talented lawyer arguing a weak case. The
prohibition of the use of force is a foundational principle of
international law. There are only two exceptions to the rule: the use of
force in self-defence and as expressly authorised by the security council
acting under Chapter VII of the UN Charter. These exceptions must be read
restrictively. Neither applies to the present situation. Any use of force
against Iraq without a second resolution expressly authorising the use of
force would be illegal.

Matthew Happold is a lecturer in law at the University of Nottingham

-- andreas
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