PRIME MINISTER

IRAQ: RESOLUTION 1441

 

Possible legal bases for the use of force

1. You have asked me for advice on the legality of military action against Iraq without a further resolution of the Security Council. This is, of course, a matter we have discussed before. Since then I have had the benefit of discussions with the Foreign Secretary and Sir Jeremy Greenstock, who have given me valuable background information on the negotiating history of resolution 1441. In addition, I have also had the opportunity to hear the views of the US Administration from their perspective as co-sponsors of the resolution. This note considers the issues in detail in order that you are in a position to understand the legal reasoning. My conclusions are summarised at paragraphs 26 to 31 below.

 

Resolution 1441

Possible legal bases for the use of force

2. As I have previously advised, there are generally three possible bases for the use of force:

(a) self-defence (which may include collective self-defence); (b) exceptionally, to avert overwhelming humanitarian catastrophe; and (c) authorisation by the Security Council acting under Chapter VII of the UN

Charter.

3. Force may be used in self-defence if there is an actual or imminent threat of an armed attack; the use of force must be necessary, ie the only means of averting an attack; and the force used must be a proportionate response. It is now widely accepted that an imminent armed attack will justify the use of force if the other conditions are met. The concept of what is imminent may depend on the circumstances. Different considerations may apply, for example, where the risk is of attack from terrorists sponsored or harboured by a particular State, or where there is a threat of an attack by nuclear weapons. However, in my opinion there must be some degree of imminence. I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in international law.

4. The use of force to avert overwhelming humanitarian catastrophe has been emerging as a further, and exceptional, basis for the use of force. It was relied on by the UK in the Kosovo crisis and is the underlying justification for the No-Fly Zones. The doctrine remains controversial, however. I know of no reason why it would be an appropriate basis for action in present circumstances.

 

The revival argument

5. Force may be used where this (sic.) authorised by the UN Security Council acting under Chapter VII of the UN Charter. The key question is whether resolution 1441 has the effect of providing such authorisation.

 

explicit

Resolution 1441

6. As you are aware, the argument that resolution 1441 itself provides the authorisation to use force depends on the revival of the express authorisation to use force given in 1990 by Security Council resolution 678. This in turn gives rise to two questions:

(a) is the so-called "revival argument" a sound legal basis in principle?

(b) is resolution 1441 sufficient to revive the authorisation in resolution 678?

 

Sufficiency of resolution 1441

I deal with these questions in turn. It is a trite, but nonetheless relevant observation given what some commentators have been saying, that if the answer to these two questions .is "yes", the use of force will have been authorised by the United Nations and not in defiance of it.

 

immediately

The revival argument

7. Following its invasion and annexation of Kuwait, the Security Council authorised the use of force against Iraq in resolution 678 (1990). This resolution authorised coalition forces to use all necessary means to force Iraq to withdraw from Kuwait and to restore international peace and security in the area. The resolution gave a legal basis for Operation Desert Storm, which was brought to an end by the cease-fire set out by the Council in resolution 687 (1991). The conditions for the cease-fire in that resolution (and subsequent resolutions) imposed obligations on Iraq with regard to the elimination of WMD and monitoring of its obligations. Resolution 687 suspended, but did not terminate, the authority to use force in resolution 678. Nor has any subsequent resolution terminated the authorisation to use force in resolution 678. It has been the UK's view that a violation of Iraq's obligations under resolution 687 which is sufficiently serious to undermine the basis of-the-ceasefire can revive the authorisation to use force in resolution 678.

8. In reliance on this argument, force has been used on certain occasions. I am advised by the Foreign Office Legal Advisers that this was the basis for the use of force between 13 and 18 January 1993 following UN Presidential Statements on 8 and 11 January 1993 condemning particular failures by Iraq to observe the terms of the cease-fire resolution. The revival argument was also the basis for the use of force in December 1998 by the US and UK (Operation Desert Fox). This followed a series of Security Council resolutions, notably, resolution 1205 (1998).

9. Law Officers have advised in the past that, provided the conditions are made out, the revival argument does provide a sufficient justification in international law for the use of force against Iraq. That view is supported by an opinion given in August 1992 by the then UN Legal Counsel, Carl-August Fleischauer.

However, the UK has consistently taken the view (as did the Fleischauer opinion) that, as the cease-fire conditions were set by the Security Council in resolution 687, it is for the Council to assess whether any such breach of those obligations has occurred. The US have a rather different view: they maintain that the fact of whether Iraq is in breach is a matter of objective fact which may therefore be assessed by individual Member States. I am not aware of any other state which supports this view. This is an issue of critical importance when considering the effect of resolution 1441.

10. The revival argument is controversial. It is not widely accepted among academic commentators. However, I agree with my predecessors' advice on this issue. Further, I believe that the arguments in support of the revival argument are stronger following adoption of resolution 1441. That is because of the terms of the resolution and the course of the negotiations which led to its adoption. Thus preambular paragraphs 4, 5 and 10 recall the authorisation to use force in resolution 678 and that resolution 687 imposed obligations on Iraq as a necessary condition of the cease-fire. Operative paragraph (OP) 1 provides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including the resolution 687. OP13 recalls that Iraq has been warned repeatedly that "serious consequences" will result from continued violations of its obligations. The previous practice of the Council and statements made by Council members during the negotiation of resolution 1441 demonstrate that the phrase "material breach" signifies a finding by the Council of a sufficiently serious breach of the cease-fire conditions to revive the authorisation in resolution 678 and that "serious consequences" is accepted as indicating the use of force.

 

The first argument

11. I disagree, therefore, with those commentators and lawyers, who assert that nothing less than an explicit

in advance

authorisation to use force in a Security Council resolution will be sufficient.

at any time

 

in advance

Sufficiency of resolution 1441

12. In order for the authorisation to use force in resolution 678 to be revived, there needs to be a determination by the Security Council that there is a violation of the conditions of the cease-fire and that the Security Council considers it sufficiently serious to destroy the basis of the cease-fire. Revival will not, however, take place, notwithstanding a finding of violation, if the Security Council has made it clear either that action short of the use of force should be taken to ensure compliance with the terms of the cease-fire, or that it intends to decide subsequently what action is required to ensure compliance.

 

after

Notwithstanding the determination of material breach in OP1 of resolution 1441, it is clear that the Council did not intend that the authorisation in resolution 678 should revive immediately

not

following the adoption of resolution 1441, since OP2 of the resolution affords Iraq a "final opportunity" to comply with its disarmament obligations under previous resolutions by cooperating with the enhanced inspection regime described in OPs 3 and 5-9. But OP2 also states that the Council has determined that compliance with resolution 1441 is Iraq's last chance before the cease-fire resolution will be enforced. OP2 has the effect therefore of suspending the legal consequences of the OP1 determination of material breach which would otherwise have triggered the revival of the authorisation in resolution 678. The narrow but key question is: on the true interpretation of resolution 1441, what has the Security Council decided will be the consequences of Iraq's failure to comply with the enhanced regime.

13. The provisions relevant to determining whether or not Iraq has taken the final opportunity given by the Security Council are contained in OPs 4, 11 and 12 of the resolution.

- OP4 provides that false statements or omissions in the declaration to be submitted by Iraq under OPS and failure by Iraq at any time to comply with and cooperate fully in the implementation of resolution 1441 will constitute a further material breach of Iraq's obligations and will be reported to the Council for assessment under paragraphs 11 and 12 of the resolution.

- OP11 directs the Executive Chairman of UNMOVIC and the Director-General of the IAEA to report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations, including the obligations regarding inspections under resolution 1441.

- OP12 provides that the Council will convene immediately on receipt of a report in accordance with paragraphs 4 or 11 "in order to consider the situation and the need for compliance with all of the relevant Council resolutions in order to secure international peace and security".

It is clear from the text of the resolution, and is apparent from the negotiating history, that if Iraq fails to comply, there will be a further Security Council discussion. The text is, however, ambiguous and unclear on what happens next.

14. There are two competing arguments:

(i) that provided there is a Council discussion, if it does not reach a conclusion, there remains an authorisation to use force;

 

The second argument

(ii) that nothing short of a further Council decision will be a legitimate basis for the use of force.

 

Discussion

The first argument

15. The first argument is based on the following steps:

(a) OP1, by stating that Iraq "has been and remains in material breach" of its obligations under relevant resolutions, including resolution 687 amounts to a determination by the Council that Iraq's violations of resolution 687 are sufficiently serious to destroy the basis of the cease-fire and therefore, in principle, to revive the authorisation to use force in resolution 678;

(b) the Council decided, however, to give Iraq "a final opportunity" (OP 2) but because of the clear warning that it faced "serious consequences as a result of its continued violations" (OP 13) was warning that a failure to take that "final opportunity" would lead to such consequences;

 

serious

(c) further, by OP 4, the Council decided in advance

any

that false statements or omissions in its declaration and "failure by Iraq

fully

at any time

any

to comply with, and cooperate fully in the implementation of, this resolution" would constitute "a further material breach"; the argument is that the Council's determination

immediately following its adoption

in advance

Summary

that particular conduct would constitute a material breach (thus reviving the authorisation to use force) is as good as its determination

Possible consequences of acting without a second resolution

after

Proportionality

the event;

 

ATTORNEY GENERAL

(d) in either event, the Council must meet (OP 12) "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'; but the resolution singularly does not say that the Council must decide what action to take. The Council knew full well, it is argued, the difference between "consider" and "decide" and so the omission is highly significant. Indeed, the omission is especially important as the French and Russians made proposals to include an express requirement for a further decision, but these were rejected precisely to avoid being tied to the need to obtain a second resolution. On this view, therefore, while the Council has the opportunity to take a further decision, the determinations of material breach in OPs 1 and 4 remain valid even if the Council does not act.

The second argument

16. The second argument focuses, by contrast, on two provisions in particular of the resolution: first, the final words in OP 4 ("and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below") and, second,, the requirement in OP 12 for the Council 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". Taken together, it is argued, these provisions indicate that the Council decided in resolution 1441 that in the event of continued Iraqi non-compliance, the issue should return to the Council for a further decision on what action should be taken at that stage.

Discussion

17. So far as OP4 of the resolution is concerned, one view is that the words at the end of this paragraph indicate the need for an assessment by the Security Council of how serious any Iraqi breaches really are and whether they are sufficiently serious to destroy the basis of the cease-fire. This argument is supported by public statements to the effect that only serious cases of non-compliance will constitute a further material breach. Thus, the Foreign Secretary stated in Parliament on 25 November that "material breach means something significant; some behaviour or pattern of behaviour that is serious. Among such breaches could be action by the Government of Iraq seriously to obstruct or impede the inspectors, to intimidate witnesses, or a pattern of behaviour where any single action appears relatively minor but the action as a whole add up to something deliberate and more significant: something that shows Iraq's intention not to comply". If that is right, then the question is who makes the assessment of what constitutes a sufficiently serious breach. On the UK view of the revival argument (though not the US view) that can only be the Council, because only the Council can decide if a violation is sufficiently serious to revive the authorisation to use force.

18. It is right to say, however, that such an argument has less force if OP 4 operates automatically. Thus, the wording of OP4 indicates that any failure by Iraq to comply with and cooperate fully in the implementation of the resolution will constitute a further material breach (leaving aside the question of whether false statements or omissions in the OPS declaration is an additional requirement). If OP4 means what it says: the words "cooperate fully" were included specifically to ensure that any instances of non-cooperation would amount to a further material breach. This is the US analysis of OP4 and is undoubtedly more consistent with the view that no further decision of the Council is necessary to authorise force, because it can be argued that the Council has determined in advance that any failure will be a material breach.

19. It has been suggested that it is possible to establish that Iraq has failed to take its final opportunity through the procedures in OPs 11 and 12 without regard to OP4. in which case it is unnecessary to consider the effect of the words "for assessment". I do not consider that this argument really assists. First, the resolution must be read as a whole. Second, I accept that it is possible that a Council discussion under OP12 may be triggered by a report from Blix and El-Baradei under OP11 and that this may have the effect of establishing that Iraq has failed to take the final opportunity granted by OP2.

But I do not consider that it can be argued seriously that OP4 does not apply in these circumstances. It is clear from a comparison of the wording of paragraphs 4 and 11 that any Iraqi conduct which would be sufficient to trigger a report from the inspectors under OP11 would also amount to a failure to comply with and cooperate fully in the implementation of the resolution and would thus also be covered by OP4. In addition, the reference to paragraph 11 in OP4 cannot be ignored. It is net entirely clear what this means, but the most convincing explanation seems to be that it is a recognition that an OP11 inspectors' report would also constitute a report of further material breach within the meaning of OP4 and would thus be assessed by the Council under OP12. Moreover, the US see OP4 as an essential part of the mechanism for establishing that Iraq has failed to take its final opportunity.

20. It has also been suggested that the final words of OP4 were chosen carefully to avoid the implication that it was for the Security Council to assess whether Iraqi conduct constituted a further material breach. The French proposed to amend OP4 so that Iraqi conduct would only amount to a further material breach "when assessed" as such by the Council, but this amendment was not accepted. I am not wholly convinced by this argument: if, for the reasons discussed in paragraph 17 above, OP4 requires an assessment of Iraq's conduct by the Council, the alternative language makes little difference. However, I do accept that the negotiating history indicates that the words at the end of OP4 "and shall be reported to the Council for assessment in accordance with paragraphs 11 and 12" were added at a late stage, but in substitution for other language which would clearly have had the effect of making any finding of further material breach subject to a further Council decision.

21. Whether a report comes to the Council under OP4 or OP11, the critical issue is what action the Council is required to take at that point. In other words, what does OP12 require. It is clear that the language of OP12 was a compromise by the US from their starting position that the Council should authorise in advance the use of all necessary means to enforce the cease-fire resolution in the event of continued violations by Iraq. It is equally clear, however, that the language does not expressly provide that a further Council decision is necessary to authorise the use of force. The paragraph indicates that in the event of a report of a further material breach (whether under OP4 or OP11) there will be a meeting of the Council to consider the situation and the need for compliance in order to secure international peace and security. The Council thus has the opportunity to take a further decision expressly authorising the use of force or, conceivably, to decide that other enforcement means should be used. But the Council might fail to act. The resolution does not state what is to happen in those circumstances. The clear US view is that, whatever the reason for the Council's failure to act, the determination of material breach in OPs 1 and 4 would remain valid, thus authorising the use of force without a further decision. My view is that different considerations apply in different circumstances. The OP12 discussion might make clear that the Council's view is that military action is appropriate but that no further decision is required because of the terms of resolution 1441. In such a case, there would be good grounds for relying on the existing resolution as the legal basis for any subsequent military action. The more difficult scenario is if the views of Council members are divided and a further resolution is not adopted either because it fails to attract 9 votes or because it is vetoed.

22. The principal argument in favour of the view that no further decision is required to authorise force in these circumstances is that the language of OP12 (ie "consider") was chosen deliberately to indicate the need for a further discussion, but not a decision. As I have indicated, it is contended that this interpretation is supported by the negotiating history. The French and Russians both made proposals to amend OP12 to include an express requirement for a further decision, but these proposals were not accepted. The US Administration insist that they made clear throughout that they would not accept a text which subjected the use of force to a further Council decision. The French (and others) therefore knew what they were voting for. The US are confident that in accepting OPs 4 and 12, they were conceding a Council discussion and no more. The US, of course, approached the negotiation of resolution 1441 from a different starting point because, as I explained in paragraph 9 above, they have always taken the view that "material breach" is a matter of objective fact and does not require a Security Council determination. (By contrast, the UK position taken on the advice of successive Law Officers, has been that it is for the Security Council to determine the existence of a material breach of the cease-fire.) Therefore, while the US objective was to ensure that the resolution did not constrain the right of action which they believed they already had, our objective was to secure a sufficient authorisation from the Council in the absence of which we would have had no right to act. I have considered whether this difference in the underlying legal view means that the effect of the resolution might be different for the US than for the UK, but I have concluded that it does not affect the position. If OP12 of the resolution, properly interpreted, were to mean that a further Council decision was required before force was authorised, this would constrain the US just as much as the UK. It was therefore an essential negotiating point for the US that the resolution should not concede the need for a second resolution. They are convinced that they succeeded.

23. I was impressed by the strength and sincerity of the views of the US Administration which I heard in Washington on this point. However, the difficulty is that we are reliant on their assertions for the view that the French (and others) knew and accepted that they were voting for a further discussion and no more. We have very little hard evidence of this beyond a couple of telegrams recording admissions by French negotiators that they knew the US would not accept a resolution which required a further Council decision. The possibility remains that the French and others accepted OP 12 because in their view it gave them a sufficient basis on which to argue that a second resolution was required (even if that was not made expressly clear). A further difficulty is that, if the matter ever came before a court, it is very uncertain to what extent the court would accept evidence of the negotiating history to support a particular interpretation of the resolution, given that most of the negotiations were conducted in private and there are no agreed or official records.

24. The counter view of OP 12 is that this paragraph must imply a decision by the Council. Three particular arguments support that approach:

(i) when taken with the word "assessment" in OP 4, the language of OP 12 indicates that the Council will be assessing the seriousness of any Iraqi breach; this is especially powerful if in truth some assessment is necessary;

(ii) there is a special significance in the words "in order to secure international peace and security". They reflect not only the special responsibility of the Security Council under Article 39 of the UN Charter

("The Security Council shall determine the existence of any threat to the peace, breach of the peace, or acts of aggression and shall make recommendations, or decide what measures shall be taken …. to maintain or restore international peace and security"), but also pick up the language of both resolution 678 (which authorised the use of force "to restore international peace and security in the area") and resolution 687

(which referred to the objective of "restoring international peace and security in the area as set out in its recent resolutions"). The clear inference, it will be argued, is that this shows the Council was to exercise a deliberative role on that issue, ie to determine what it is necessary to secure international peace arid security;

(iii) any other construction reduces the role of the Council discussion under OP12 to a procedural formality. Others have jibbed at this categorisation, but I remain of the opinion that this would be the effect in legal terms of the view that no further resolution is required. The Council would be required to meet, and all members of the Council would be under an obligation to participate in the discussion in good faith, but even if an overwhelming majority of the Council were opposed to the use of force, military action could proceed regardless.

25. Where the meaning of a resolution is unclear from the text, the statements made by members of the Council at the lime of its adoption may be taken into account in order to ascertain the Council's intentions. The statements made during the debate on 8 November 2002 are not, however, conclusive. The US and UK stated that further breaches would be reported to the Council "for discussion". Jeremy Greenstock then added that we would then expect the Council to "meet its responsibilities", although (implicitly) we would be prepared to act without Council backing to ensure that the task of disarmament is completed. Only the US explicitly stated that it believed that the resolution did not constrain the use of force by States "to enforce relevant United Nations resolutions and protect world peace and security regardless of whether there was a further Council decision. Conversely, two other Council members, Mexico and Ireland, made clear that in their view a further decision of the Council was required before the use of force would be authorised. Syria also stated that "the resolution should not be interpreted, through certain paragraphs, as authorising any State to use force". Most other Council members were less clear in their comments. The joint statement of France, Russia and China is somewhat opaque, but seems to imply that a further decision is required. Many delegations welcomed the fact that there was "no automaticity" in the resolution with regard to the use of force. But it is not clear what they meant by this. It could indicate that they did not consider that the resolution authorised the use of force in any circumstances by means of the revival argument. On the other hand there is some evidence from the negotiating history that their main concern was that the resolution should not authorise force immediately following its adoption on the basis of "material breach" in OP1 plus "serious consequences" in OP13. The UK and US indicated that "no automaticity" meant that there would be a Council discussion before force was used.

Possible consequences of acting without a second resolution

32. In assessing the risks of acting on the basis of a reasonably arguable case, you will wish to take account of the ways in which the matter might be brought before a court. There are a number of possibilities. First, the General Assembly could request an advisory opinion on the legality of the military action from the International Court of Justice (ICJ). A request for such an opinion could be made at the request of a simple majority of the States within the GA, so the UK and US could not block such action. Second, given that the United Kingdom has accepted the compulsory jurisdiction of the ICJ, it is possible that another State which has also accepted the Court's jurisdiction might seek to bring a case against us. This, however, seems a less likely option since Iraq itself could not bring a case and it is not easy to see on what basis any other State could establish that it had a dispute with the UK. But we cannot absolutely rule out that some State strongly opposed to military action might try to bring such a case. If it did, an application for interim measures to stop the campaign could be brought quite quickly (as it was in the case of Kosovo).

33. The International Criminal Court at present has no jurisdiction over the crime of aggression and could therefore not entertain a case concerning the lawfulness of any military action. The ICC will however have jurisdiction to examine whether any military campaign has been conducted in accordance with international humanitarian law. Given the controversy surrounding the legal basis for action, it is likely that the Court will scrutinise any allegations of war crimes by UK forces very closely. The Government has already been put on notice by CND that they intend to report to the ICC Prosecutor any incidents which their lawyers assess to have contravened the Geneva Conventions. The ICC would only be able to exercise jurisdiction over UK personnel if it considered that the UK prosecuting authorities were unable or unwilling to investigate and, if appropriate, prosecute the suspects themselves.

34. It is also possible that CND may try to bring further action to stop military action in the domestic courts, but I am confident that the courts would decline jurisdiction as they did in the case brought by CND last November. Two further, though probably more remote possibilities, are an attempted prosecution for murder on the grounds that the military action is unlawful and an attempted prosecution for the crime of aggression. Aggression is a crime under customary international law which automatically forms part of domestic law. It might therefore be argued that international aggression is a crime recognised by the common law which can be prosecuted in the UK courts.

35. In short, there are a number of ways in which the opponents of military action might seek to bring a legal case, internationally or domestically, against the UK, members of the Government or UK military personnel. Some of these seem fairly remote possibilities, but given the strength of opposition to military action against Iraq, it would not be surprising if some attempts were made to get a case of some sort off the ground. We cannot be certain that they would not succeed. The GA route may be the most likely, but you are in a better position than me to judge whether there are likely to be enough States in the

GA who would be willing to vote for such a course of action in present circumstances.

Proportionality

36. Finally, I must stress that the lawfulness of military action depends not only on the existence of a legal basis, but also on the question of proportionality. Any force used pursuant to the authorisation in resolution 678 (whether or not there is a second resolution):

- must have as its objective the enforcement the terms of the cease-fire contained in resolution 687 (1990) and subsequent relevant resolutions;

- be limited to what is necessary to achieve that objective; and

- must be a proportionate response to that objective, ie securing compliance with Iraq's disarmament obligations.

That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign.

ATTORNEY GENERAL