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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 Happold
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
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