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]
Dear Basitt and List, > "serious consequences" > Can anyone point out which other resolutions, not > necessarily focussed on Iraq, have used this phrase and > whether it sets the precedent for military action? According to international lawyers, this phrase (stuck in a Resolution) wouldn't automatically give the green light to war - let alone set a precedent. According to Bush, and possibly Humpty Dumpty, it might. (The lawyers are going by international law and the UN Charter.) It has been used before: in a February 1998 Resolution (#?), the US wanted to threaten the "severest consequences". This was then _softened_ to "very severe consequences" to make it more acceptable to other Council members. The (verbal) understanding was that this wouldn't mean an "automatic" attack. In December 1998 the US attacked Iraq anyway - the attack was a fait accompli for the Security Council. > One article on today's BBC coverage of the Iraq situation > makes the assertion that resolution 1441: > "...warned of "serious consequences" - a diplomatic term for > military action - if Iraq did not comply with its demands." It's a US term, anyway. But if it automatically gave UN authorization, why is the US seeking yet another Resolution? (The last, last chance...) It appears there are some amendments to SCR 1441 to prevent an automatic authorization - and to save Council members' faces. (This unanimous vote was obtained through bribes and blackmail.) China, France, and Russia issued the statement that '"Resolution 1441...excludes an automaticity in the use of force"'. Mexico specified that the use of force must be the "last resort", and '"with the prior, explicit authorization of the Security Council."' I am attaching a legal interpretation of SC Resolution 1441, in case anyone is interested. It was drafted by Jules Lobel, Professor of Law, University of Pittsburg, November 27, 2002. And it was presented to Congress and the media on December 10, 2002. Best wishes, Elga Sutter -------------Start fwd------------- FPIF Statement Lawyers Statement on UN Resolution 1441 on Iraq December 5, 2002 The Bush administration claims that it does not legally need Security Council authorization to attack Iraq if the United States concludes that Iraq breaches its obligations to comply with UN Security Council Resolutions. As Professors of Law and practising attorneys, we believe that the administration's legal position is incorrect and poses a grave danger for the future of international law, the United Nations, and a peaceful international order. Article 2(4) of the UN Charter prohibits any nation from using force. The Charter contains only two exceptions: when such force is employed in self-defense or when it is authorized by the UN Security Council. Thus far the Security Council has been unwilling to authorize a U.S. attack against Iraq. This refusal, reflecting the widespread international sentiment against war with Iraq, makes any unilateral U.S. attack on Iraq illegal under international law. Self-defense Article 51 of the Charter sets forth the exception for self-defense. A nation can employ self-defense only "if an armed attack occurs," or, as a number of authorities have argued, in response to an imminent attack. None of the reasons given by the Bush administration for attacking Iraq, including destruction of claimed weapons of mass destruction or overthrowing Saddam Hussein, constitute self-defense under the UN Charter. The Bush administration has presented no evidence that Iraq currently presents an imminent threat of attack against the U.S. UN Authorization Throughout the now more than decade-long dispute over Iraq's compliance with its disarmament obligations under UN Security Council Resolution 687 which ended the 1991 Gulf War, a majority of both the Security Council - and a majority of its permanent members - have consistently argued that it is for the Security Council as a whole, and not individual states such as the U.S. or Britain, to decide how to enforce its resolutions. For example, during the last crisis with Iraq over inspections in 1998, a majority of the Security Council disagreed with the U.S. position and argued that no existing Security Council resolution authorized the U.S., Britain, or any other member state to enforce Iraq's disarmament obligations imposed by Resolution 687. France, Russia, China and other nations argued that only a new, explicit Security Council resolution authorizing force against Iraq could provide a legal basis for such U.S./British action. On November 8, 2002 after almost eight weeks of negotiation and tremendous pressure by the United States, the UN Security Council unanimously adopted Resolution 1441, which set a new timetable and a new regime of inspections for Iraq. That Resolution does not authorize the United States to use force against Iraq. Resolution 1441 represents a compromise between the French/Russian view and the American/British perspective. The Council acquiesced to the U.S. by deciding that Iraq "was and remains" in "material breach" of prior resolutions, and recalls that the Council has repeatedly warned Iraq that it will face "serious consequences" as a result of its continued violation of its obligations. Although, the "material breach" and "serious consequences" language will be used by the United States to argue that the Security Council has implicitly authorized the use of force in response to any Iraqi non-compliance, that is not a legally correct interpretation of the Resolution. Let us be clear: The Security Council resolution does not change the decade-long position of the Security Council that only it can decide how to enforce its own resolutions. Although the resolution does not explicitly require another Security Council vote on authorization of military force, it is significant that Paragraph 4 of Resolution 1441 declaring that any failure by Iraq to comply with the resolution will constitute a "material breach" does require that such a breach "will be reported to the Security Council for assessment in accordance with paragraph 11 and 12" of the resolution. Those paragraphs require the Chairman of the Inspection Team to report to the Security Council, which will itself convene "immediately" to consider the situation and decide what to do. It is clear from the resolution that no individual member state is authorized to use any violation by Iraq, whether very minor and technical or more serious, as legal justification to attack Iraq. The resolution requires the Security Council to meet immediately and decide what to do about an Iraqi violation - a requirement inconsistent with member states taking unilateral action. Indeed, France, Russia and China, which provided the critical votes to pass the Resolution, issued a statement upon its enactment that "Resolution 1441...excludes an automaticity in the use of force" and that only the Security Council has the ability to respond to a misstep by Iraq. Mexico's Ambassador was explicit in casting his country's vote for the resolution. He stressed that the use of force is only valid as a last resort, "with the prior, explicit authorization of the Security Council." As law professors and practising lawyers, we are encouraged that the Security Council has placed itself front and center for the resolution of this issue concerning the disarmament of Iraq. The United Nations charter is a treaty binding on the United States and is part of our supreme Law of the land, by virtue of Article VI of the United States Constitution. We urge the Bush administration to comply with the Constitution, to comply with the UN Charter, and not unilaterally attack Iraq. (Drafted by Jules Lobel, Professor of Law, University of Pittsburg, November 27, 2002.) (If you are a law professor or practising attorney, please consider adding your name to this statement. The statement, sponsored by Foreign Policy In Focus, will be presented to Congress and the media on December 10. Send your endorsement by December 8 to Erik Leaver <firstname.lastname@example.org>.) -------------End------------- --------------Original Message-------------- * From: "Basitt Kirmani" <email@example.com> * Subject: [casi] BBC Coverage on new resolution * Date: Tue, 25 Feb 2003 09:45:41 -0000 List,  http://news.bbc.co.uk/1/hi/world/middle_east/2796519.stm One article on today's BBC coverage of the Iraq situation makes the assertion that resolution 1441: "...warned of "serious consequences" - a diplomatic term for military action - if Iraq did not comply with its demands." Can anyone point out which other resolutions, not necessarily focussed on Iraq, have used this phrase and whether it sets the precedent for military action? bas _______________________________________________ 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