-Caveat Lector-
http://truthout.org/docs_03/031903F.shtml
Sorry, Mr Blair, but 1441 Does Not Authorise Force
Keir Starmer
The Guardian
Monday 17 March 2003
The attorney general has a tricky task in defending the legal basis for
war
The legal community is deeply divided on the question of the legality
of using force against Iraq in the absence of a further UN resolution.
There are two camps. The first takes the view that military action can be
justified without a further resolution either on the basis of self-defence
or on the basis that previous UN resolutions, including resolution 1441,
authorise the use of force. The second takes the opposite view that, as
things stand, there is no actual or imminent threat from Iraq that would
justify a "self-defence" response by the UK and that nothing in resolution
1441, or any other UN resolution, authorises the use of force without a
further resolution giving clear authority to do so.
The government has been advised on the issue by Lord Goldsmith, the
attorney general. His advice is to be disclosed today. All the prime
minister has been prepared to say so far is that the UK will not take any
action that does not have a "proper legal basis", as he made clear in his
answers in parliament last week.
Time is now running out. In the very near future British troops are
likely to be committed to battle. They, their families and the public have
a right to know what the "proper legal basis" for their action is.
Engaging in armed conflict in breach of international law is a precarious
business. The idea that the prime minister would end up before the
international criminal court for participating in a US-led attack is
far-fetched. But military commanders on the ground will not thank the
government if any action they take is later judged to have been in breach
of international law.
The limits of the potential arguments available to the government are
clear. According to the UN charter, there are only two possible situations
in which one country can take military action against another. The first
is in individual or collective self-defence - a right under customary
international law which is expressly preserved by Article 51 of the UN
charter. The second is where, under Article 42 of the charter, the
security council decides that force is necessary "to maintain or restore
international peace and security" where its decisions have not been
complied with. In other words, where a UN resolution clearly authorises
military action.
The question whether the Article 51 self-defence route justifies a
pre-emptive attack has been keenly debated. Article 51 itself is silent on
the matter. But even if it does justify a pre-emptive strike, which is
surely the sounder position in a nuclear world, any threat to the UK or
its allies would have to be imminent and any force used in response to
that threat would have to be proportionate before Article 51 can be relied
on. The mere fact that Iraq has a capacity to attack at some unspecified
time in the future is not enough.
The problem for the government is one of credibility. No one believes that
Iraq is about to attack the UK or its allies, and any self-defence claim
by the government would sit very uncomfortably with the US position that
military action is justified to destroy such weapons of mass destruction
as Iraq may have, and to bring about a change of leadership.
The second route, which depends on Article 42 of the UN charter,
appears more promising for the government. There are two strands to this
argument. The first is that resolution 1441 itself authorises the use of
force against Iraq. It warns Iraq that "it will face serious consequences"
if it continues to violate obligations spelled out in that resolution.
But, critically, the words "all necessary means" have not been used.
They are important words because they are the formula used by the UN
to indicate that the use of force is authorised. They were the words used
to justify military action against Iraq in 1991 and, subsequently, when
the security council authorised intervention in Rwanda, Bosnia, Somalia
and Haiti. The argument that all the security council members, including
France and Russia, intended to authorise the use of force when they voted
for resolution 1441 is hardly compelling, and arguments that resolution
1441 implicitly authorises the use of force run into the same difficulty.
The only real alternative for the government is to argue that Iraq's
failure to comply with the ceasefire requirements of UN resolution 687,
passed at the end of military action against Iraq in April 1991, justifies
the renewed use of force. But that, too, is not without its difficulties.
Like resolution 1441, resolution 687 does not itself authorise the use of
force. The only security council resolution expressly authorising the use
of force against Iraq was 678, which was passed at the start of the Gulf
war in November 1990, and the only action it authorised was such force as
was necessary to restore Kuwait's sovereignty.
It is true that the ceasefire resolution 687 requires Iraq to destroy
all weapons of mass destruction, but under Article 42 it is for the
security council and not the US or UK to decide how it is to be enforced.
In 1993 the UN secretary general suggested that resolution 678 justified
US and UK air attacks to enforce the no-fly zone in Iraq. But that is a
very fragile basis for arguing that, 10 years later, it justifies an
all-out attack without the need for a further UN resolution.
The government has a point when it grumbles about permanent members
of the security council, such as France and Russia, threatening to veto
any further UN resolution. But that does not justify the US or the UK
acting outside the UN. It merely highlights the need for reform of the
undemocratic security council structure which they put in place at the end
of the second world war. Article 2 of the UN charter requires all states
to refrain from the threat or use of force that is inconsistent with the
purposes of the UN, which emphasises that peace is to be preserved if at
all possible.
Against that background, it is no surprise that the government has
been coy about its advice so far. But on the eve of war that is not good
enough. If the attorney general's advice is that force can be used against
Iraq without a further UN resolution, he must explain fully how the legal
difficulties set out above are to be overcome. Simply to argue that the
interpretation of resolution 1441 accepted by all the other security
council members except the US and the UK should be abandoned in favour of
military action won't convince anybody. Flawed advice does not make the
unlawful use of force lawful.
(Keir Starmer QC is a barrister at Doughty Street Chambers
specialising in international human rights law. He is a fellow of the
Human Rights Centre at Essex University.)
(In accordance with Title 17 U.S.C. Section 107, this material is
distributed without profit to those who have expressed a prior interest in
receiving the included information for research and educational purposes.)
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