In his press conference on March 6, President Bush was asked whether the United States would be seen as defiant of the United Nations if it launched a war against Iraq without explicit authorization from the Security Council. “As we head into the 21st century, when it comes to our security, we really don’t need anybody’s permission,” the President replied.

It’s hard to see this remark as anything other than a repudiation of the framework of international law governing the use of force, as set out in the United Nations Charter. But others in the U.S. administration are more circumspect. They argue that a war on Iraq would be authorized by existing Security Council resolutions, and that another resolution – while welcome – is not strictly necessary. Officials from the British government take the same line.

How convincing are these arguments? In the United States, there has been comparatively little public discussion about the existing U.N. resolutions, and how far they authorize an attack against Iraq under present circumstances. In Britain, by contrast, the legality of the prospective war is a live and urgent political question. On March 9, one of Prime Minister Tony Blair’s cabinet secretaries, Clare Short, warned that she would resign if he took the country into war without a further U.N. resolution. “I will not uphold a breach of international law,” she told a BBC interviewer.

According to the Financial Times, there is some speculation within the government that the country’s top law officer, Attorney-General Lord Goldsmith, might also resign if Britain joins a war without a new U.N. resolution. On March 7, The Guardian published a letter signed by several of Britain’s most prominent international law scholars that said, “On the basis of the information publicly available, there is no justification under international law for the use of military force against Iraq.”

One of these scholars is Vaughan Lowe, Chichele Professor of Public International Law at Oxford University. A few days ago, he spoke to the Crimes of War Project to outline his views on the legality of a war with Iraq in detail.

Resolution 1441 and the Use of Force

Lowe stated firmly, “It needs another Security Council resolution to authorize force.” Lowe argued that Resolution 1441 – which was passed unanimously by the Security Council last November – does not give up the Security Council’s control over the ultimate decision on whether force should be used.

Resolution 1441 makes the following points:

• Iraq “has been and remains in material breach” of its obligations under previous Security Council resolutions.
  
  
• The Security Council decides to afford Iraq “a final opportunity to comply with its disarmament obligations.”
  
  
• The Security Council will convene immediately upon receipt of a report making clear that Iraq is still not complying with its obligations, “in order to consider the situation and the need for full compliance with all the relevant Council resolutions in order to secure international peace and security.”
  
  
• The Security Council recalls that it “has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations.”
  
  
• The Security Council “decides to remain seized of the matter.”

The resolution was carefully drafted to suggest that authorization to use force should rest on a simple determination of fact – e.g. whether Iraq was complying completely with its disarmament obligations. The implication is that, once it is clear that Iraq has not taken its “final chance,” “serious consequences” are likely to follow. In this context, the phrase “serious consequences” is clearly intended to suggest the possibility of the use of force.

But despite this, there is nothing in the resolution that gives anyone apart from the Security Council itself the right to decide when the final chance has been exhausted.

Moreover, Lowe argued, even if the Security Council were to agree that Iraq remained in material breach, there would still need to be a clear statement that the use of force was now authorized. The phrase in the resolution, "serious consequences," falls short of a clear and unambiguous statement that force may be used -- for instance it does not say that "all necessary means" may be taken to disarm Iraq. It hints that the use of force may be decided on – but it does not itself give authority for the use of force. According to Lowe, “There is no way in ordinary language that you can say that the language used in Resolution 1441 represents an authorization to use force.”

In other words, Lowe said, “It needs a Security Council resolution to authorize force, that is to say, it has to be plain from the next resolution that the Security Council itself is giving that authorization to use force. It’s not at all obvious to me that a resolution that makes a simple determination of material breach would do that.”

Lowe also argued that there remained another question – what objective the use of force was directed toward. Even an authorization to use military action to enforce previous U.N. resolutions might not give the United States and Britain the authority to depose Saddam Hussein and install a U.S. military governor in Iraq. Lowe pointed out that Resolution 1441 left the Security Council “seized of the matter” – diplomatic-speak for “asserting that it holds the reins over this activity.” Unless the Security Council explicitly authorized a policy of “regime change,” the Security Council would still remain nominally in charge of setting the limits of what the use of force was directed toward. The use of force might legally be limited to the disarmament of Iraq.

Do Earlier Resolutions Still Apply?

If Resolution 1441 is a weak basis for an attack against Iraq, what about the earlier resolutions passed by the Security Council? British and U.S. officials tend to base their arguments for the legitimacy of an attack on two resolutions from the time of the first Persian Gulf War in 1990-91: Resolution 678 (which authorized the use of force to push Iraqi forces out of Kuwait) and Resolution 687 (which declared a cease-fire, and imposed the inspection regime on Iraq).

Resolution 678 (passed November 29, 1990) authorized member states co-operating with Kuwait “to use all necessary means to uphold and implement resolution 660[demanding Iraq’s withdrawal from Kuwait] and all subsequent relevant resolutions and to restore international peace and security in the area.”

Resolution 687 (passed April 3, 1991) declared a ceasefire, dependent on Iraq accepting the terms of the resolution, and said that the Security Council decided “to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.”

According to Lowe, these resolutions “were creatures of their time.” Resolution 678 “was addressed to a particular situation at a particular time, and it authorized the states acting in coalition with Kuwait to take a certain action.” The problem to which it was addressed “was wrapped up with the ceasefire,” and “to say that any state that happened to be a member of that coalition ten years ago has for perpetuity the right to use force to restore peace in the Middle East, I think is just obviously absurd.”

It’s sometimes said that the ceasefire declared by Resolution 687 was conditional on Iraq fulfilling the conditions required of it. However a close reading of the text of the resolution makes clear that the ceasefire will come into effect if Iraq simply accepts the terms of the resolution; the resolution goes on to state that it is then up to the Security Council to “take such further steps as may be required for the implementation of the current resolution.” This form of words, according to Lowe, signalled that the Security Council regarded the matter of Iraq “as being back under its control as far as the use of force is concerned.” No individual state or group of states acting outside the clear authorization of the Council retained the right to use force, even to punish Iraq for breaches of the resolution or to compel its compliance.

Of course, even without authorization from the Security Council, an attack on Iraq would be lawful if it was a matter of self-defence. Last year, it seemed as though the Bush administration might be preparing to present this justification for going to war, but it has not talked about it recently. The British government has not attempted to argue that an attack on Iraq could count as self-defence as envisaged in the United Nations Charter.

In conclusion, Lowe said that for the U.S. and Britain to attack Iraq without a further resolution would be not merely “ill-considered,” but would represent a move “outside the scope of legal controls that have been freely assumed and have underpinned the international order for the last half-century.”

Update: On March 17 the British Attorney General Lord Goldsmith released a statement about the legal basis for the use of force against Iraq. Confounding press reports that he had doubts about the lawfulness of the prospective war, he stated that authority to use force against Iraq existed from the combined effect of resolutions 678, 687 and 1441. His full statement can be found under "Related Links" below.

Related chapters from Crimes of War: What the Public Should Know:

Aggression
Jus ad Bellum/Jus in Bello

Related Links

Statement by the British Attorney General on the Legal Basis for Use of Force Against Iraq
March 17, 2003

United Nations Security Council Resolutions on Iraq
Campaign Against Sanctions on Iraq

The United Nations Will Survive this Storm
By Sir Adam Roberts
The Observer, March 9, 2003

War Would Be Illegal
By Professor Vaughan Lowe, Professor James Crawford, and others
Letter to the Guardian, March 7, 2003

Short spearheads rebellion with threat to quit over war
Minister attacks 'reckless' Blair
By Patrick Wintour, chief political correspondent
The Guardian, March 10, 2003



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