Is the War in Iraq Justified Under International Law?

Autor: Peter Danchin

Originally Published at Peace and Conflict Monitor on: 04/14/2003

Category: Comment

The issue of the use of force in Iraq has raised many questions of military strategy, regional geopolitics and moral and political philosophy. It has also raised important questions of international law. While, in unison, political science realists and Washington neo-conservatives have declared the question as irrelevant-what, after all, is the relevance of law to the use of force by Great Powers?– across the world government advisers, scholars, diplomats and commentators have asked whether the US-led war to disarm Iraq and change the regime of Saddam Hussein is justified under international law.

According to US, British and Australian legal advisers the US-led “coalition of the willing” has clear authority to use force in Iraq. This authority derives from the combined effect of Security Council Resolutions 678 (1990), 687 (1991) and 1441 (2002). Equally adamantly, however, several states and the world’s most respected international lawyers-James Crawford (Cambridge), Vaughan Lowe (Oxford), Christine Chinkin (LSE), Hilary Charlesworth (ANU), Michael Dorf (Columbia)-have argued that in the absence of express Security Council authorization, the legal case for war has not been established. Who is right?

International Law and the United Nations Charter

A good starting point in addressing this issue are the basic principles of the law of the United Nations, namely the peaceful settlement of disputes and the general prohibition on use of force as laid down by the UN Charter.

Article 1(1) of the Charter provides that one of the purposes of the UN is “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.” Article 2(3) provides that Member States shall “settle their disputes by peaceful means in such manner that international peace and security, and justice, are not endangered.” It is Article 2(4), however, that contains the general prohibition on the use of force: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” This prohibition on the threat or use of force is regarded as a rule of customary international law (moreover, a peremptory norm). Any derogation from these fundamental principles must be regarded as exceptional and must therefore be interpreted restrictively.

Any exceptions to the prohibition on the threat or use of force are thus strictly limited to:

• (i) measures duly taken or authorized by the Security Council pursuant to Chapter VII of the Charter;

 

• (ii) enforcement measures taken by regional organizations provided they have been authorized by the Security Council (Article 53 of the Charter); and

 

(iii) the right of individual or collective self-defense (Article 51 of the Charter).

Are any of these exceptions applicable here?

Chapter VII Enforcement Measures

The legal reasoning of the US-led coalition is follows:

1. Following the events of 1990, the Security Council in Resolution 660 (1990) determined that there existed a breach of international peace and security as regards the Iraqi invasion of Kuwait, and officially condemned the Iraqi invasion of Kuwait.
2. In Resolution 661 (1990) the Security Council, after reaffirming the inherent right of individual or collective self-defense in response to the armed attack by Iraq against Kuwait and acting under Chapter VII of the Charter, determined that Iraq had failed to comply with paragraph 2 of resolution 660 (1990) and had usurped the authority of the legitimate Government of Kuwait.
3. The Security Council then adopted Resolution 678 (1990) whereby it noted that despite all efforts by the United Nations, Iraq refused to comply with its obligation to implement resolution 660 (1990) and the above-mentioned subsequent relevant resolutions, in flagrant contempt of the Security Council, and subsequently acting under Chapter VII of the Charter officially and explicitly authorized Member States co-operating with the Government of Kuwait “to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area”.
4. After the end of the hostilities the Security Council declared in resolution 687 (1991) that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of certain provisions (including disarmament obligations regarding weapons of mass destruction), a formal cease-fire would be effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990).
5. It is argued, however, that the cease-fire offered by Resolution 687 (1991) was conditional upon Iraq’s acceptance and compliance with the requirements set by Resolution 687 (1991). Therefore any violation of these conditions amounting to a “material breach” of Resolution 687 (1991) suspends the effect of the cease-fire, thereby reactivating the authorization to use force contained in Resolution 678 (1990).
6. Adopting resolution 1441 (2002) the Security Council recalled that the cease-fire was based on acceptance by Iraq of the provisions of resolution 687 (1991), and officially affirmed that Iraq had been and remained in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991). The Security Council further decided that any false statements or omissions in the declarations submitted by Iraq pursuant to resolution 1441 and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution would constitute a further material breach of Iraq’s obligations and would be reported to the Council for assessment in accordance with paragraphs 11 and 12.
7. Despite explicitly characterizing Iraq’s violations as a material breach of Resolution 687 (1991), the Security Council offered Iraq a last opportunity to comply and avoid “serious consequences”. Should Iraq commit a further material breach, however, then the cease-fire would be repealed and Member States would reactivate the authorization to use force contained in Resolution 678 (1990).

The first thing to note here is that this line of reasoning only holds if one accepts a complicated and hypothetical sequence of assumptions. The main assumption is that there may exist implicit authorization to use force. Pursuant to this theory an authorization to use force could be almost indefinitely extended to respond to new events flowing from the same situation, or be reactivated when a cease-fire resolution has been violated. This argument has, in fact, been used by the US for many years to justify the military enforcement of the no-fly zones in Iraqi Kurdistan.

This interpretation of Security Council resolutions is open to question. International legal scholars such as Jules Lobel and Michael Ratner, for example, have argued that Security Council resolutions authorizing the use of force must be explicit, clearly articulating their objectives, putting the Council in control, and must be terminated with the establishment of a durable cease-fire, unless explicitly extended by the Security Council.

From a legal perspective, and as mentioned above, the guiding principles of the UN Charter are the peaceful settlement of disputes and the prohibition on the use of force. To be legally valid under international law, any recourse to force which does not fall within the scope of collective or individual self-defense must have been duly authorized by the Security Council. In past practice, the Security Council has demonstrated extreme care in the use of such authorization, which has been consistently regarded as an enforcement measure of last resort. It appears from the Resolutions taken against Iraq during the first Gulf War that the use of force was authorized only after due analysis, official condemnation and exhaustion of all non-military remedies. Each time an explicit and solemn reference was made to Chapter VII of the UN Charter, and each time the Security Council carefully characterized the situation leading to an authorization to use force, as well as requiring reporting by Member States enforcing such authorization. In the context of these precedents, defending a theory according to which the Security Council would also grant implicit authorization to use force appears questionable.

Nevertheless the coalition argument actually goes one step beyond this interpretation by claiming the implicit reactivation of a previous authorization to use force. This interpretation is even more improbable. If, as we have seen, the Security Council has proved to be so cautious-and rightly so-in drafting its resolutions authorizing the use of force, how can one explain that it would also have in mind implicit authorizations, and even implicit reactivation of previous authorizations? In addition should the Security Council wish implicitly to reactivate a previous authorization to use force, it is quite unlikely that it would leave the qualification of the event triggering such reactivation to the discretion of each Member State. The least one can say is that such an interpretation of the Security Council’s intentions appears artificial, not to say hazardous.

Another issue arising from the concept of implicit authorization and reactivation is the respect due to the veto right of Permanent Members. Given that each authorization to use force must be adopted by the Security Council, any such authorization can be vetoed by any of the Permanent Members. Arguably, the veto right would be violated if subsequent uses of force are decided outside the Security Council itself by one or several Member States contending that a cease-fire resolution has been breached. It is moreover unlikely that other Member States comprising the Security Council would agree to vote on future authorizations to use force in the first instance out of fear that once their consent is given in a particular situation it could almost indefinitely be reactivated by Member States acting unilaterally. This is sometimes referred to as the “reverse veto” problem.

For all these reasons, this interpretation of authorizations to use force goes against the purposes and logic of the UN Charter.

At a political level, if Member States were permitted to decide by themselves that the behavior of another State might be characterized as a violation of some previous cease-fire resolution adopted by the Security Council, hence implicitly reactivating the initial authorization to use force, the entire political system established by the UN would collapse. Indeed Member States could then substitute their own individual interpretations to that of the Security Council, which may result in an array of unilateral resorts to force, possibly divergent ones: in other words, unrestrained, international chaos. Thus, the theory of implicit reactivation of authorization to use force is not only legally aberrant in the UN Charter system, but also undesirable for the stability of the international community.

Furthermore, there are other more obvious reasons to discard the coalition analysis in the particular case of Resolution 1441 (2002).

A common sense reading would regard as farfetched an interpretation of Resolution 1441 (2002) according to which an implicit reactivation could be deduced from an authorization to use force dating from more than 12 years ago; especially given that Resolution 1441 (2002) never directly refers to such reactivation. As Lobel and Ratner have stated:

No one would seriously claim that Member States of the UN command would have the authority to bomb North Korea pursuant to the 1950 authorization to use force if in 1999 North Korea flagrantly violated the 1953 armistice.

Indeed, a close analytical reading of Resolution 1441 (2002) provides further confirmation of this line of reasoning. Resolution 1441 (2002) makes clear that the Security Council intends to remain in full control of monitoring compliance with and enforcing its resolutions:

Determined to ensure full and immediate compliance

by Iraq without conditions or restrictions with its obligations under resolution 687 (1991) and other relevant resolutions and recalling that the resolutions of the Council constitute the governing standard of Iraqi compliance,

Determined to secure full compliance with its decisions,

4. Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below;

12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security;

Decides to remain seized of the matter.

Accordingly, Resolution 1441 (2002) has a straightforward meaning consistent with the previous resolutions:

• the Security Council expresses in unequivocal terms that possible breaches of Resolution 1441 (2002) must be reported to it for assessment;
• for this purpose, it expressly declares that it will convene immediately in order to consider the situation and take appropriate measures;
• finally, the Security Council also declares that it remains seized of the matter;
• in this respect Resolution 1441 (2002) constitutes the continuation of the Security Council’s approach expressed in Resolution 687 (1991) in its last paragraph:34. 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.

On the basis of this careful textual exegesis of the relevant Security Council resolutions, it is difficult to agree with the coalition argument for unilateral intervention by the US or any other Member State.

There is, however, another line of reasoning that appears to found the coalition position. This argument consists in saying that the terms “material breach” used by the Security Council in Resolution 1441 (2002) refer to the concept of “material breach” contained in Article 60 of the 1969 Vienna Convention on the Law of Treaties (the “VCLT”). Article 60 of the VCLT states as follows:

60(1): A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

60(2): A material breach of a multilateral treaty by one of the parties entitles:

• (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
  • (i) in the relation between themselves and the defaulting State, or

 

• • (ii) as between all parties.

(b) a party specially affected by the breach may invoke it as a ground for suspending the operations of the agreement in whole or in part between itself and the defaulting State.

For the following reasons, it is puzzling that the coalition is invoking the application of Article 60 of the VCLT (more precisely Article 60(2)(b) of the VCLT) for the determination of the consequences of an alleged breach of a Security Council resolution.

First because the US, while a signatory, has never ratified the VCLT. One could argue that to the extent that the VCLT codifies rules of customary international law generally accepted by Nations, it is also binding upon the US; given its failure to ratify, however, the explicit reference made by the US to Article 60 of the VCLT is somewhat disingenuous.

Second because the VCLT only applies to treaties and a resolution of the Security Council hardly qualifies as a treaty (it is more akin to a binding executive order under domestic law). If Security Council resolutions were, however, to be characterized as treaties “in that they are binding instruments under international law” would they be regarded as treaties entered into between States, or rather as treaties entered into between States and an international organization?

Depending on the answer to this question one can point to a third reason to challenge the coalition position. The VCLT itself only applies to treaties entered into between States and not to those entered into between States and international organizations or between international organizations. Therefore the VCLT would only be relevant provided that Security Council resolutions were considered as treaties entered into between States. Here again the argument cannot be fully appreciated if one does not infer the following element of implicit reasoning: resolutions of the Security Council are made binding upon States pursuant to Article 25 of the UN Charter, which is a multilateral treaty entered into between States, therefore they must be regarded themselves as a form of multilateral treaty. The logical validity of this argument is weak: no one would argue that because Presidential decrees derive their binding power upon citizens from the Constitution, that therefore they are themselves a Constitution.

Fourth, even if one were to agree on each of the previous assumptions in order to make Article 60 of the VCLT applicable to the determination of the consequences of an alleged breach of a Security Council resolution, serious doubts arise as to the validity of the consequences envisaged by the coalition argument. The first thing to mention is that, pursuant to Article 60 of the VCLT, the US would have to demonstrate that it is a “specially affected party”. Assuming this can be done, however, Article 60(5) of the VCLT prohibits the suspension of “provisions for the protection of the human person contained in treaties of humanitarian character”. Could Resolution 1441 (2002) and hence Resolution 687 (1991) be regarded as such treaties, in that they provide for a cease-fire? A more convincing argument can be made out of the fact that a violation of a peremptory rule of international law (eg, the alleged breaches of Resolution 687 (1991) and 1441 (2002), either considered as peremptory rules as such according to Article 103 of the UN Charter, or because they concern the prohibition on the use force, which is a ius cogens rule) by a State does not allow the injured States to suspend their compliance with that rule. Pushing the US argument to its logical end-point could lead to a situation where the injured States unilaterally decide to cease complying with Resolution 687 (1991). This conclusion seems untenable in a system where the UN Charter makes the resolutions of the Security Council binding upon Member States (Article 25 of the UN Charter) and where Article 103 expressly provides that:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Pursuant to Article 103, Member States would therefore not be allowed to invoke Article 60 of the VCLT for suspending their obligations under a Security Council resolution. The superiority of the UN Charter over the VCLT is even more obvious once one notes that Article 60 of the VCLT only provides the injured State with a right to suspend its obligation, not for an obligation to comply as contained in Article 103 of the UN Charter.

Finally, and more conclusively, it is generally admitted that multilateral treaties which expressly provide for responses to their violation by way of collective decisions or other procedures exclude the application of the general, by default, rule of Article 60 of the VCLT. This is the case with the UN Charter which expressly provides for collective enforcement measures (and self-defense) in Chapter VII.

In conclusion, there does not appear to be a valid legal reason to be found in Resolution 1441 (2002) allowing for unilateral intervention by the US and its coalition partners. Only the Security Council is entitled to authorize the use of force; when doing so, it must express its authorization in explicit terms and it must specify an unequivocal time, space and means framework. Likewise only the Security Council is entitled to characterize a Member State’s behavior as constituting a material breach of its resolutions and to take appropriate measures.

In 1998 Gray described the successive attempts by the US and UK to distort the language of Security Council resolutions in order to justify their resort to the use of force in Operation Desert Fox as follows:

It is no longer simply a case of interpreting euphemisms such as ‘all necessary means’ to allow the use of force when it is clear from the preceding debate that force is envisaged; the USA, the UK and others have gone far beyond this to distort the words of resolutions and to ignore the preceding debates in order to claim to be acting on behalf of the international community.

Individual and Collective Self Defense

What about the argument that the US and other countries face the prospect of an “armed attack” by Iraq thus justifying the sovereign right to use force in self-defense?

As mentioned previously Article 51 of the UN Charter, which enshrines the right of self-defense is an exception to the general prohibition on the threat or use of force. Article 2(4) reflects one of the most important norms of customary international law, moreover one of ius cogens. Therefore, while there is some room for extending the scope of Article 51, self-defense has to be construed narrowly, in order to avoid the exception becoming the rule. In other words, Article 51 cannot “swallow” Article 2(4).

Because much has been said about the meaning of this article, often in contradiction to its text, it is useful to recall its exact wording:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The reference made to the “inherent” right of self-defense has often served as a pretext to assert that the Charter did not intend to reduce the scope of the customary right of self-defense to the limits imposed by Article 51. The mention of the “inherent right of self-defense” is indeed a reference to the customary law of self-defense. However, the principle of supremacy of the Charter contained in Article 103, coupled with the lex posterior derogat rule, make the Charter’s limitations prevailing on any conventional or customary rules previously in force. Self-defense must therefore be construed in accordance with the Charter’s text and principles and, where silent, by reference to the relevant rules of customary law previously applicable. Case law and opinions of legal scholars may also be relevant as subsidiary source of law.

According to the wording of the UN Charter, four conditions are required for a measure to qualify as an act of legitimate self-defense under Article 51:

1. an armed attack must occur;
2. it must be directed against a Member State of the United Nations;
3. the Security Council must not yet have taken any measure necessary to maintain international peace and security; and
4. the measure taken in the exercise of self-defense must be immediately reported to the Security Council.

Armed attack?

The first difficulty here is that, despite the (failed) efforts to link the regime of Saddam Hussein to Al-Qaeda (and hence indirectly to the September 11 terrorist attacks on the US), no armed attack by Iraq against the US has in fact occurred. An alternative route would be to argue that although the US itself has not been attacked, it is participating in an operation of collective self-defense. The US would need to demonstrate, however, that another State has been attacked and has requested US assistance-something that clearly has not occurred.

What about the doctrines of “anticipatory” and so-called “preventive” self-defense?

The case for interceptive/anticipatory self-defense concerns the situation where, although an armed attack has not actually occurred, it is in fact “immiment”. The relevant criteria under international law were famously set out in the Caroline case: in order for self-defense to be justified, the US must demonstrate that the necessity is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”.

On the facts that are publicly available, it is clear that nothing amounting even to an “anticipated armed attack” exists. In fact, there is not even a direct threat which has been declared. Even if we assumed, for the sake of argument, that Iraq is proceeding to reassemble missiles sites capable of launching chemical or biological weapons, a justifiable case for anticipatory self-defense may not exist. Indeed, such a situation would be less imminent compared to that of the Cuban Missile crisis in 1962 where the US decided not to invoke self-defense. In this case there clearly exists some “moment for deliberation”, namely for a referral to the Security Council as Resolution 1441 (2002) expressly requires.

A remaining question is the so-called doctrine of preventive attack /preemptive strikes. This notion, sometimes abusively called ‘anticipatory self-defense’ was developed during the Cold War, under the threat of nuclear weapons; it was argued, quite convincingly, that a State needs to be able to preempt a nuclear attack. Waiting for an armed attack to occur as a ‘sitting duck’ (according to the words of Myres McDougal) could have meant total destruction.

However, apart from two very specific precedents (the Dutch declaration of war to Japan in 1941 and the Israeli invasion of Sinai in response of Nasser’s blockade of the Gulf of Aqaba in 1967) there are few convincing examples to be found in State practice.

In 1981 Israel bombed the Osirak nuclear reactor under construction in Iraq and invoked anticipatory self-defense. It also claimed that its action was not contrary to Article 2(4) of the Charter because it was not directed against the territorial integrity or political independence of Iraq. The argument was that the strike was directed towards the elimination of the threat, and confined to it. However, the Security Council (including the US) unanimously condemned Israel’s strike as a violation of the prohibition on the use of force. One can easily see how a reactor under construction cannot present ‘an instant, overwhelming threat’ according to the terms of the Caroline test.

In 1986, in a situation quite comparable with the present case, the International Court of Justice condemned US intervention allegedly based on collective self-defense, by noting that “in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited”. Does this principle apply here given the fact that Iraq is alleged to be assembling chemical and biological weapons arguably in violation of treaties outlawing these weapons of mass destruction (at least as regards biological weapons, Iraq not being a party to the Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and on Their Destruction)? While raising an urgent issue for Security Council action (and the possibility of collective enforcement measures under Chapter VII of the Charter), it would not appear that these facts change the existing rules on self-defense, notwithstanding any relevant reporting obligations and sanctions for alleged breaches of the Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their Destruction, to which Iraq is a party.

None of these precedents appears to outweigh the immense danger that acceptance of a theory of preventive attacks would generate. Abandoning to States the calculation of any dangers and the decisions to preempt them would in fact anihilate the entire equilibrium of powers established by the United Nations. In addition pre-Charter history reveals infamous and devastating precedents of abusive resort to preventive attacks/preemptive strikes. Notably, so-called ‘anticipatory self-defense’was the justification invoked by Germany for invading Belgium in WWI and WWII:

The German imperial Government cannot ignore the fear that Belgium, despite its best intentions, will not be in a position to resist on its own a French invasion of such dimension. In this case, it makes no doubt that Germany is seriously threatened. It is urgent for Germany to prevent such attack of the enemy. The German Government would deeply regret that Belgium would regard as an act hostile against it the fact that these temporary measures force it to violate the Belgian territory. (extract of the Ultimatum delivered by the German ambassador to the Belgian Government on August 9, 1914);

and, in its memorandum delivered to the Belgian Government before invading the country on May 10, 1940, Germany once again invoked the ‘imminent Anglo-French attack’, before which:

Germany cannot remain as a sitting duck and let the war be waged through Belgium and the Netherlands into the German territory.

For these reasons it would be politically prudent not to adopt the theory of preventive attacks or preemptive strikes.

Regime Change?

One ground that has repeatedly been put forward by the US is that of “regime change” per se. There is, however, no legal justification under international law for regime change. The legality of the objective of removing the government of Saddam Hussein must therefore be immediately dismissed. In the 1949 Corfu Channel case, the International Court of Justice expressed this position as follows:

The Court can only regard the alleged right of intervention as the manifestation of a policy of force, such as cannot, whatever be the present defects in international organization, find a place in international law. Intervention is perhaps still less admissible in the particular form it would take here [the UK asserted that it had used armed force in the cause of international justice]; for, from the nature of things, it would be reserved to the most powerful States, and might easily lead to perverting the administration of international justice itself.

Nor can the UN intervention in Haiti in 1994 be invoked as a precedent for a pro-democratic intervention since the situation in Haiti was radically different:

• the operation was authorized under Chapter VII of the UN Charter because the situation in Haiti was regarded by the Security Council to constitute a threat to international peace and security (Resolution 940 (1994));
• the UN intervention had formally been accepted by the military government in place; and
• it did not intend to overthrow the regime, rather to reinstall the country’s democratically elected president, following a UN-monitored electoral process.

Conclusión

I have not addressed here several other possible justifications for the use of force in Iraq including intervention to “promote democracy” and the doctrine of so-called “humanitarian intervention.” I have argued, however, that the main grounds asserted by the coalition to justify the war in Iraq-authorization under existing Security Council resolutions, anticipatory or preventive self-defense, and regime change-lack sufficiently compelling justifications under international law. Accordingly, while arguments may be made on the basis of morality, military strategy or geopolitics, as a matter of law the current use of force in Iraq is illegal.

Footnote:

Bio: Peter Danchin is the Director of the Human Rights Program at
Columbia University’s School of International and Public Affairs