The case for war Adam Roberts on why military action against Iraq can be legally justified Tuesday September 17, 2002 The Guardian
Would the use of force against Iraq be justifiable in international law even if the current negotiations in the UN security council result in no new authorisation? On this key question there are profound differences of opinion, in part reflecting different views of what international law is. The debate has been needlessly muddled due to the baroque range of rationales for an assault on Iraq produced by various members of the US administration over the past few months. In an extraordinarily amateurish cacophony, US officials have stressed the need for regime change, for preventive war to stop a possible future threat, and for a pre-emptive strike against an imminent threat. They have also spoke of an attack on Iraq as the next phase of the war on terrorism. Although these rationales reflect real concerns, and some have respectable legal precedents, each presents acute problems if viewed as the prime basis for action. In some cases the evidence available may be widely viewed as insufficient to fit the argument. Some of these rationales will not persuade key constituencies, especially in the region. Worst of all, some of them (especially regime change and preventive war) risk opening up possibilities of other states taking unilateral action against any country they fear or dislike: witness current Russian threats of unilateral action in Georgia. It is no wonder that many lawyers and others have been sceptical about the US rationales. The fundamental legal argument against a projected US-led use of force, which adds to the current scepticism, is that under the UN charter force against a sovereign state is legitimate only when it is unambiguously self-defence against an armed attack, or when the security council specifically authorises it. In this view of the law, since the US and UK continue to say they may take action even if they fail to get security council approval, the proposed military action would appear unlawful. This is a serious view, which has attracted considerable support, but it is not the last word on the subject. Another view of international law puts more weight on ongoing practice. In this view, the very success of the UN system in propounding international standards can, in exceptional circumstances, create situations in which force may be lawful - or at least not unambiguously illegal. For example, if a state systematically kills or drives out its own citizens or supports wholesale terrorist activities, then the use of force against it may be accepted internationally even if there is no specific security council resolution. The coalition action that enabled Kurdish refugees to return home to northern Iraq in April 1991 is an example of such a "unilateral" use of force that gained international acceptance. Such action can be necessary because the security council has developed the habit of willing certain ends, but being reluctant to accept the military means to enforce them. For example, over Kosovo in 1998-99, the security council called on Yugoslavia to stop persecuting the Kosovan Albanians, but could not agree on military action because of the threat of a Russian or Chinese veto. When Nato embarked on military action, a move in the security council to declare it illegal failed, and the security council subsequently recognised the results of Nato's use of force by collaborating closely in the running of the province. In the case of Iraq, the core rationale for military action is Iraq's consistent violation of UN security council resolutions, particularly as regards disarmament and inspection. Over the summer, the Bush administration's ambivalence, or worse, about international institutions has prevented some of its members from putting security council resolutions at the heart of the argument about Iraq. This caused exceptional international hostility and scepticism towards US policy. George Bush's remarkable address at the UN general assembly on September 12 rectified that elementary mistake. The basic facts about the security council resolutions on Iraq are simple. All were adopted under chapter VII of the charter, which deals with enforcement; and all (unlike the main resolutions on the Israeli-occupied territories, which call for a negotiated settlement) require specific, immediate and unilateral Iraqi action. In resolution 678 of November 29 1990, the security council authorised member states to use force not just to implement the resolutions demanding Iraqi withdrawal from Kuwait, but also "to restore international peace and security in the area". At the time this was not seen as authorisation for a march on Baghdad, but it was a prudent recognition of the need for a range of measures to ensure stability. This resolution, including its reference to restoring peace and security, was strongly reaffirmed in resolution 686 of March 2 1991, at the end of the campaign to expel Iraq from Kuwait. Then resolution 687 of April 3 1991, "the mother of all resolutions", which spelt out the detailed terms of the ceasefire, required Iraq to renounce, unconditionally, any biological, chemical or nuclear programmes, and accept international inspection and weapons destruction by the UN special commission. Iraq has persistently violated these ceasefire provisions. The facts about this are laid out in Iraq's Weapons of Mass Destruction: A Net Assessment, published by the International Institute for Strategic Studies on September 9. One could add that by systematically concealing information from the UN weapons commission, Iraq compelled it to rely on western intelligence agencies, including the CIA, whose modus operandi contributed significantly to the commission's problems. In 1998, Iraq ceased all cooperation. Security council resolution 1205 of November 5 1998, passed unanimously, condemned Iraq as "in flagrant violation" of its ceasefire commitments. If one party violates ceasefire terms there must be doubt about whether the other parties, including the US and UK, remain bound by the ceasefire. In short, the strongest case for the legality of military action rests not on any general propositions about preventive defence or any other such ground, but upon Iraq's violation of UN resolutions. These resolutions already reflected wider concerns about the dangers posed by the Iraqi regime: it was precisely because of the need for preventive action that these particular ceasefire terms were imposed on Iraq in the first place. To rely on the violation of security council resolutions as the core legal rationale reduces a worrying risk that all the other purported rationales for military action present: they raise the bar for what would be convincing evidence justifying military action, for example requiring evidence of imminent threat of attack. With the violation of resolutions the evidence already exists, and there is less need to hype up the Iraqi threat in a manner that invites disbelief. Apart from the fundamentalist view that the only lawful unilateral use of force is self-defence, what are the main legal counter-arguments? Perhaps the strongest is that the key 1991 ceasefire resolution, 687, concludes by saying that the security council "decides 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". This implies an obligation to try to take action through the security council. The US, thanks in part to UK pressure, is belatedly taking this path. Might the UN security council go so far as to authorise the use of force? It could do implicitly, by setting Iraq a deadline for compliance, and by spelling out that the ceasefire was and remains contingent on Iraqi compliance with all the terms of resolution 687. Or the security council could explicitly authorise force. The UK and US indications that they may act militarily whatever happens at the security council have already had a galvanising effect, compelling other members to consider whether they want the UN body responsible for international security to be left out of the picture. Also, security council members should be aware that one way to avert war may be to make a clear collective threat, thereby inducing concessions from Baghdad; indecision on the security council is more likely to lead to war. There is a real possibility that neither Russia nor China will exercise its veto power and that a tough resolution could be passed. The key arguments about the threatened military operation are prudential. Has deterrence of Iraq failed so clearly that action must now be taken? Is it wise to start this war when there is so much unfinished business in Afghanistan? Should action be taken against Iraq before there is a further effort to address the Israel-Palestine problem? Is there any viable plan for the future of Iraq? These all need to be explored, but preferably on the understanding that, in legal terms, there is a stronger basis for military action against Iraq than there was over Kosovo in 1999. Baghdad's systematic violation of ceasefire terms is the mother of all the other legal justifications being offered for the use of force against Iraq. · Sir Adam Roberts is Montague Burton professor of international relations at Oxford University and co-editor of Documents on the Laws of War. * An inquiry into the legality of the use of force against Iraq, organised by Public Interest Lawyers on behalf of Peacerights, will be held at 10am on October 11at Gray's Inn hall, London WC1. For more information, contact [EMAIL PROTECTED]
