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[casi] FW: A talented lawyer arguing a weak case



http://politics.guardian.co.uk/iraq/comment/0,12956,916185,00.html

Analysis
A talented lawyer arguing a weak case

The attorney-general's assertion that the use of force
against Iraq is legal without a second UN resolution
does not stand scrutiny, says Matthew Happold

Monday March 17, 2003

The attorney-general set out his views today on the
legal basis for the use of force against Iraq. His
conclusion was that the use of force against Iraq
would be legal even without a second Security Council
resolution.

According to Lord Goldsmith, authority to use force
exists by virtue of the combined effect of Security
Council resolutions 678, 687 and 1441. Resolution 678
(1990) was adopted by the Security Council in response
to the Iraqi invasion and occupation of Kuwait. It
authorised the US-led coalition to use "all necessary
means" to liberate Kuwait and restore peace and
security to the region. Hostilities in the Gulf war
were then terminated by resolution 687 (1991), which
imposed a long list of obligations on Iraq, including
several regarding disarmament. Iraq is in breach of
these obligations. Resolution 1441 (2002) found it to
be in "material breach". In consequence, according to
Lord Goldsmith's argument, the authorisation to use
force granted to the US and the UK by resolution 678
has been reactivated.

Resolution 1441 gave Iraq a "final opportunity" to
comply with its disarmament obligations and warned of
"serious consequences" if it did not. It did not
expressly require a new resolution before force can be
used. All that is needed is an Iraqi failure to comply
with 1441 and the reporting to and discussion of that
failure by the Security Council. Had a further
Security Council decision been required to sanction
the use of force, said Lord Goldsmith, resolution 1441
would have said so specifically.

There are, however, a number of problems with Lord
Goldsmith's analysis. In the first place, the general
view is that Security Council authorisations of force
are only for limited and specific purposes. In the
case of resolution 678, the authorisation to use force
terminated with the adoption of resolution 687. It
cannot be revived in completely different
circumstances some 12 years later. Indeed, on the
adoption of resolution 687, the USSR and China
specifically stated that it was the task of the
Security Council to ensure its implementation. This
was reflected in the resolution, in which the Security
Council decided "to remain seized of the matter and
take such further steps as may be required for the
implementation of the present resolution and to ensure
peace and security in the area". It is for the
Security Council to determine how to deal with Iraq,
not UN member states acting unilaterally.

In the second place, Lord Goldsmith's arguments have
been used before and have been rejected. Throughout
the 1990s, the US and the UK sought to justify the
bombing of Iraqi military facilities by arguing that
they were responding to breaches of Iraq's obligations
under resolution 678. In early 1998, after Iraq's
withdrawal of cooperation with the UN weapons
inspectors, the US and the UK threatened to use force
"to enforce the Security Council's will". The threat
was lifted when the UN secretary-general, Kofi Annan,
visited Baghdad and secured an agreement permitting
the return of the weapons inspectors.

The Security Council endorsed the agreement in
resolution 1154 (1998). However, the Council rejected
British and US proposals that breach by Iraq of its
obligations under the Annan agreement should
automatically authorise the use of force (what is
known as "automaticity"). The view that unilateral
forcible responses to Iraqi violations were permitted
was specifically rejected by the delegations of
Brazil, China, Egypt, France, Gambia, Japan, Malaysia,
Pakistan, Slovenia and Sweden. When Iraq again
withdrew cooperation in the autumn of 1998, in
resolution 1205 the Security Council condemned Iraqi
actions as "a flagrant violation of resolution 687"
and decided, "in accordance with its primary
responsibility for the maintenance of international
peace and security, to remain actively seized of the
matter." Again, it was indicated that there should be
no "automaticity" of response, although in conducting
Operation Desert Fox in December 1998 the US and the
UK chose to ignore these views.

In the third place, resolution 1441 does not do what
Lord Goldsmith says it does. It does not authorise the
use of force. The term "serious consequences" is not
UN code for enforcement action. Once again, the
majority of members of the Security Council rejected
automaticity. Even US Ambassador John Negroponte said
that the resolution "contained no 'hidden triggers'
and no 'automaticity' with the use of force".

Lord Goldsmith's argument that if 1441 had provided
that a further resolution was required to authorise
the use of force it would have said so is, to say the
least, disingenuous.

Even on the attorney-general's own arguments force
against Iraq could be justified only to enforce Iraq's
disarmament obligations. It provides no warrant for
regime change, that is, the overthrow of Saddam
Hussein.

Lord Goldsmith's statement shows a talented lawyer
arguing a weak case. The prohibition of the use of
force is a foundational principle of international
law. There are only two exceptions to the rule: the
use of force in self-defence and as expressly
authorised by the Security Council acting under
Chapter VII of the UN Charter. These exceptions must
be read restrictively. Neither applies to the present
situation. Any use of force against Iraq without a
second resolution expressly authorising the use of
force would be illegal.

 Matthew Happold is a lecturer in law at the
University of Nottingham


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