[casi] Does a "material breach" of SCR687 justify an invasion?

[Glen Rangwala <gr10009@DELETETHIShermes.cam.ac.uk>]

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 | gr10009@cam.ac.uk


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