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re: [casi] BBC Coverage on new resolution




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
<erik@fpif.org>.)
-------------End-------------

--------------Original Message--------------
* From: "Basitt Kirmani" <b_kirmani@yahoo.co.uk>
* Subject: [casi] BBC Coverage on new resolution
* Date: Tue, 25 Feb 2003 09:45:41 -0000

List,

[12] 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





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