The following is an archived copy of a message sent to a Discussion List run by the Campaign Against Sanctions on Iraq.
Views expressed in this archived message are those of the author, not of the Campaign Against Sanctions on Iraq.
[Main archive index/search] [List information] [Campaign Against Sanctions on Iraq Homepage]
Hi All In the legal discussion over the possibility of a full-scale invasion of Iraq, the most common justification offered by British ministers and those close to them has been that Iraq is in "material breach" of the 1991 ceasefire resolution (Security Council Resolution 687) due to its failure to comply with the weapons inspectorate. This breach, the argument goes, revives the original UN authorisation for the coalition states to use force against Iraq, in Security Council Resolution 678 (1990). Therefore, the use of military force against Iraq has already been authorised by the Security Council, and a new SCR is unnecessary. I'm going to go over this argument below, using one recent example of it as a target, to try to explain its problems. These are preliminary notes, to which I'd greatly appreciate comment. Two prefatory remarks first. The preponderant US position seems to be different from that of the UK: the US appears to base its legal case for an attack on Iraq on an alleged right of "pre-emptive self-defence", the doctrine for which was spelt out most clearly by George Bush earlier this year. This runs into the traditional disputes about the meaning of United Nations Charter art.51. That is a separate argument from the one that the UK seems to be offering. Also, one could argue that it is actually the US and UK who are in breach of the terms of the ceasefire - for the use of force against Iraq in the alleged "no-fly zones" as well as more widespread attacks in Jan & Jun 1993, Sept 1996, Dec 1998 etc (seemingly breaching paras.4 and 33 of the ceasefire resolution; and - more ambiguously - for the US in corrupting Unscom. Some might argue that this alleged breach legitimises Iraqi countermeasures such as non-compliance with the weapons inspectorate. As such, Iraq is not in breach of SCR687 at all; it is the US/UK who are in breach. Alternatively, one could argue that the obligations of SCR687/C were accepted by Iraq only under the threat of illegitimate force, not related to the defence of Kuwait; and so they are invalid. However, these are tricky legal arguments, and I'm not going to try to make them here. Instead, I'm going to take the entire background legal position offered by the UK government as valid, and show that - despite this - there are still substantial problems in making a legal case for the invasion of Iraq. The argument of the "material breach" potentially legitimising the use of force by the US/UK against Iraq was made recently in a letter to the Financial Times from Mr Anthony Aust, Legal Adviser to the UK Mission to the UN 1988-1991. The full text can be seen at: http://news.ft.com/servlet/ContentServer?pagename=FT.com/StoryFT/FullStory&c=StoryFT&cid=1028185850459&p=1012571727279 The bulk of Aust's argument is this: "In the past when Iraq's military installations were bombed by coalition forces because the UN inspectors were obstructed, the Security Council first considered the facts and determined that Iraq was in "material breach" of the resolution/ceasefire and that the breach would lead to "serious consequences", Council code for military action. A formal statement to that effect was then issued by the president of the Security Council." The language of the "material breach" is relevant for the argument that seeks to justify a war. This is because a material breach is the grounds for the suspension of a treaty, according to the Vienna Convention on the Law of Treaties, article 60. "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." (VC art.60/1). Therefore, as the argument goes, a finding of a material breach provides for a suspension of the ceasefire, and reverting to the status of SCR 678. This is why the UK government has referred to Iraq's "material breach" to justify its military actions against Iraq from Jan 1993. There are three problems with this part of the argument that I can identify. These are, in some sort of logical order: the absence of a Security Council finding of a material breach relevant to present circumstances; that the finding of the material breach is not equivalent to a decision to suspend the ceasefire; and that a decision to declare the suspension of a ceasefire does not allow one of the parties to recommence the use of armed force. Before I explain these in more detail, I should add that any discussion of this issue is complicated by the continuing uncertainty over who exactly the ceasefire is between. Many would think that the ceasefire is between the Iraq and the UN. This view derives from the argument that the use of force was a UN Chapter VII operation (with its members acting as the UN's agents in this regard), and therefore any ceasefire must be between the UN and Iraq. An alternate perspective is that the ceasefire is between Iraq and the coalition states who took part in Operation Desert Storm, who were - according to this argument - acting in collective self-defence of Kuwait (which itself had been authorised by the UN). This second interpretation is given more plausibility by the language of SCR687 para.33: "a formal ceasefire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait". If this were so - and it is not an interpretation that the UK or US has argued in public - then the ceasefire would be a multilateral agreement, with the US, UK etc as individual parties to it, not the Security Council. 1. The finding of a material breach. If the ceasefire resolution is conceived of as holding between Iraq and the Security Council, then the Security Council would have to identify the material breach for there to be any effect: only the parties to the agreement can invoke it. Correct me if I'm wrong, but the Council has only once made a formal finding of a "material breach": in SCR 707 (15 August 1991). It has on other occasions stated that Iraq is in "clear violation" (in SCR 1060 of 1996), "clear and flagrant violation" (in SCR 1115 of 1997), "flagrant violation" (in SCR 1134 of 1997 and SCR 1205 of 1998), "totally unacceptable contravention" (in SCR 1194 of 1998) and has failed to comply (in SCR772 of 1992) with the terms of SCR 687. These all stop short of a finding of a material breach, which is defined as a "violation of a provision essential to the accomplishment of the object or purpose of the treaty." (VC art.60/3/b). That is, not all "flagrant breaches" will be "material breaches", but only the most serious kind. Aust references presidential statements, but these are without legal effect. So we are left with the only SC finding of a material breach as SCR 707. SCR 707 identified the material breach as Iraq's "violation .. of its undertakings to cooperate with the Special Commission and the IAEA" (the nature of the violation is laid out more fully in the preamble). The extent to which this breach is held over to the present is seriously open to question: any breach now must be of Iraq's failure to comply with Unmovic. Many of the activities that Iraq was condemned for not complying with in SCR 707, it subsequently came into compliance with: the main dispute that preceded SCR 707 was over Iraq's refusal to allow overflights by the IAEA and Unscom, a position that changed shortly afterwards. It's difficult to see how a finding of a material breach over eleven years ago is relevant to the situation today, given that so much has changed in the intervening period. As it stands, then, the Security Council has not identified Iraq as in material breach of the ceasefire resolution for its current failure to comply with the weapons inspectorate: therefore, there are no grounds for considering the ceasefire agreement as terminated or suspended. I should add that this is not a problem if the US or UK are considered to be independent parties to the ceasefire agreement: if this were so, they could independently declare Iraq's material breach of the ceasefire and would be justified in doing so (if the argument that Iraq's actions are a countermeasure to US/UK breaches is discounted). 2. The suspension of the ceasefire. Even if the Security Council were to have found that Iraq has committed a material breach of SCR687/C for not complying fully with the inspectorate, this would not be equivalent to suspending the ceasefire agreement. A material breach only "entitles" the parties to suspend a treaty according to the Vienna Convention: it does not require it. The Security Council would not have exercised its right to suspend the ceasefire if its declaration of a material breach was still held to be valid: it would have only identified one precondition. Even if the ceasefire is held to be a multilateral agreement between the individual coalition states and Iraq - and therefore a declaration of a material breach is not required by the Security Council - the US and UK could not decide by themselves to suspend the ceasefire agreement between themselves as Iraq. The law of treaties prohibits the unilateral suspension of a multilateral treaty in cases of a material breach. For a ceasefire agreement to be suspended, the parties (other than the defaulting state) must by "unanimous agreement" suspend the treaty (art.60/2/a of the VC). The only exceptions are if one state is "specially affected" (art.60/2/b of the VC) or if the breach "radically changes the position of every party" with respect to the treaty. Neither of these conditions are plausible at present (though might be, say, if Iraq specifically threatened to use non-conventional weapons against a specific state). So if SCR687 is a ceasefire agreement between the coalition states and Iraq, then the coalition must agree unanimously to a suspension; if it is between the UN and Iraq, then the UN (acting through the Security Council) must suspend the treaty, which it hasn't done. 3. The consequences of ceasefire suspension. So far, I've been discussing the ceasefire as if it were a standard agreement, to which no special rules apply; and that therefore the rules for its suspension are essentially the same as those for suspending an economic or cooperation agreement. However, it is not clear by any means if this is so. Before 1945, there was a specific notion of the "armistice", the continuation of which was partly conditional upon the fulfilment of the parties' obligations. This category was formalised in the 1907 Hague Regulations: an armistice is a suspension of hostilities (art.36), not a termination; and either party may resume hostilities "at any time" if the armistice agreement does not specify otherwise. A serious violation of the terms of the armistice agreement gives the other party the right to re-commence hostilities immediately whatever the terms of the armistice (art.40). Therefore, if there had been this sort of "armistice" in force between the US/UK and Iraq, they could cite Iraq's violation as legitimising the re-commencement of the use of force. However, the standard view in international law has been that this category of the armistice has been superseded by the UN Charter (if not before). Since 1945, there has been a comprehensive prohibition on the use of force, the guiding motive for the Charter. The prohibition of art.2(4) of the Charter would be reduced in effect quite substantially if the violation of the terms of a ceasefire or peace treaty at any future moment legitimised the re-starting of the conflict. Most of the historic peace treaties - such as those between European states after WWI - were complex documents with a range of obligations for all parties, many of which are now ignored. The range of cases in which the use of force would be legitimate is extensive if a peace treaty became voidable in the circumstances of the breach of a treaty provision. The intention of art.2(4) clearly runs against this. This has also been shown in Security Council discussion over "armistice" agreements made since 1945. An example would be Israel's agreements with its neighbouring states in 1949 at Rhodes: no-one claimed that a violation of the terms of the armistice led to a "material breach" and a nullification of those agreements. The issue was repeatedly discussed at the Security Council and neither parties to the dispute nor Security Council members said that because, say, Israel launched an attack on Egypt, the armistice agreement was now invalid, and Egypt would be entitled to resume the war on Israel. A similar case would be between Israel and Lebanon / Syria today: both sides' attacks on each other have been condemned as violations of the UN Charter, which would not be the case if armistices could still be suspended in line with the 1907 provisions. Therefore, the standard view in international law - both from academics and from states - has been that a ceasefire returns the parties to a state of peace, and any prior right to use force is terminated. This is also indicated in SCR687 para.33: the ceasefire becomes effective "upon official notification by Iraq .. of its acceptance of the provisions" of the resolution, and is not made conditional upon actual Iraqi compliance. Therefore, with the termination of the right to use force from SCR678, the renewed use of force can only be legitimate in the conditions specified in the UN Charter: self-defence or new Security Council authorisation. These three problems with using Iraq non-compliance with weapons inspections as a justification for declaring a suspension of the ceasefire - the absences of a declaration of a material breach, of an authorisation to suspend the ceasefire, and of a right to suspend a ceasefire - seem to me to be decisive. However, even for those who reject all three of these points, still have a problem in providing legal justifications of the purported war plans. This seems to be admitted even in final relevant part Aust's letter to the FT: "Whether the continuing breach of the resolution would in law justify the use of force to overthrow the present Iraqi regime is the real question." That is, even if the ceasefire were considered as suspended, the military objective of the renewed use of force can be questioned. This is a question, firstly, of proportionality - that the toppling of the Iraqi government is not a proportional response to non-compliance with weapons inspections. Secondly, though, it also relates to the original authorisation to use force in SCR678. If SCR687 can somehow be nullified, the residual right to use force is only that provided in the right of Kuwait's self-defence and provided SCR678 para.2: "Authorizes Member States co-operating with the Government of Kuwait .. to use all necessary means to uphold and implement Security Council resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area". SCR686 (the "one-sided ceasefire" resolution) further limited or clarified (in para.4) the authorisation to use force, in accordance with 8 demands, all relating to Kuwait (and so the ambiguous last clause of SCR678 para.2 is of no further consequence). As a result, SCR678 - if it could be "re-activated" - would still require the consent of the Government of Kuwait (whose agreement is still lacking); and the force could only be used to bring about an already completed task, the withdrawal of Iraq from Kuwait. Even if "all subsequent relevant resolutions" in SCR678 could be interpreted to mean resolutions passed afterwards - a highly implausible interpretation - it would only authorise the use of force to ensure compliance with weapons inspections, not for unseating the Iraqi government. Comments greatly appreciated. Glen Rangwala Lecturer in Politics (from October 2002) | Trinity College, Cambridge CB2 1TQ, UK | tel (+44/0)7930 627944 or (+44/0)1803 840290 | fax (+44/0)7092 330826 | email@example.com _______________________________________________ Sent via the discussion list of the Campaign Against Sanctions on Iraq. To unsubscribe, visit http://lists.casi.org.uk/mailman/listinfo/casi-discuss To contact the list manager, email firstname.lastname@example.org All postings are archived on CASI's website: http://www.casi.org.uk