THE LEGALITY OF A WAR AGAINST IRAQ 

As I write this, we are participating in an illegal pre-emptive war against Iraq. There are only two exceptions to the prohibition of force in the United Nations Charter, the right to self-defence, and authorisation from the Security Council (SC) under Article 42 (in Chapter VII of the UN Charter).

The right to self defence cannot be invoked to attack Iraq. Since the invasion of Kuwait, over 12 years ago, no armed attack by Iraq has taken place against any Member of the UN, nor is any such an attack imminent.

That leaves Security Council authorisation. The phrase the SC use to sanction military action is ‘all necessary means’. The draft resolution - circulated by the USA prior to 1441 – did contain this phrase. Crucially, 1441 itself does not – if it had, it would not have received unanimous support. 1441 requires Iraq to permit inspection and destroy any Weapons of Mass Destruction programmes. The Government argue they can use force because 1441 warns Iraq of ‘serious consequences’ if it does not comply. But, 1441 says that if Hans Blix and Mohamed El-Baradei discover that Iraq has failed to make a full and complete declaration of WMD programmes, and conclude that Iraq is not co-operating, they must report these findings to the Security Council, which will then decide what action to take. Quite, simply the phrase ‘serious consequences’ does not amount to an authorisation to Member States to use force unilaterally and is not equivalent to ‘all necessary means’.

Although much reported legal opinion supports this view, the Attorney General, Lord Goldsmith, has advised the Government that war on Iraq is legal. He relies on the resolution that authorised force in the last Gulf War in 1990, no. 678. This authority was ended in 1991 by the ceasefire agreement contained in Resolution 687. Lord Goldsmith says, Iraq is in breach of 687 and this revives the force authorised in 678. It is right that the ceasefire agreement was conditional on Iraq notifying the SC of its acceptance of a disarmament programme but once Iraq had done this, the formal ceasefire was effective, and authority to use force terminated. 687 makes it clear that following this, the Security Council, and not Member States, would be responsible for deciding on any further steps to ensure the implementation of the disarmament programme contained in 687 and to secure peace and security in the area. Without a further SC resolution, there is no provision for the ‘revival’ of the permission to use force in 678, on which Lord Goldsmith relies. That he is not an infallible legal advisor has been shown by the loss of the Government’s appeal on support for destitute people seeking asylum.

The UK and the US made a humanitarian intervention in Kosovo without a Security Council resolution. The doctrine of humanitarian intervention, as an additional and separate exception to the prohibition on the use of force, is a new doctrine explored at the time of the Kosovo crisis. It is not yet clearly established in international law. There is, in any event, no foundation for the suggestion that it could apply here. The reason for invoking it in Kosovo was that Milosevic was actively pursuing a policy of ethnic cleansing, and there was a need for urgent humanitarian intervention.

The UN has mechanisms other than war for dealing with human rights abuses – these need far greater support from the international community if they are to succeed. Amnesty International is not calling for war. In line with UN requirements, they are calling for the deployment of human rights monitors throughout Iraq without delay. The UN could also have insisted on taking over food distribution under the Oil for Food Programme, thus reducing Saddam Hussein’s power.

The best the Government can come up with to pretend there is Security Council authorisation now, is a resolution passed when there was a coalition to liberate Kuwait, which is no longer in existence. It is clear, however, from the statements of Kofi Annan that he believes the absence of authorisation from the UN makes war on Iraq illegal.