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[casi] Lawyers letter re legality fo Iraq attack

A legal bod, Nick Grief sent thsi to me regarding the attorney general's
assessment of teh legality of the iraq attacks

The legality of an attack on Iraq
(to be published in the Solicitors' Journal, 21 March 2003)

Rabinder Singh QC
Charlotte Kilroy

18 March 2003

By the time you read this article the UK government will most probably have
embarked with the US on an attack against Iraq which has not been authorised
by a fresh resolution of the United Nations Security Council. If they do so,
in our view they will be acting in contravention of international law.

On 17 March 2003 the Attorney-General issued a written statement to the
House of Lords in which he set out what he called 'the legal basis' for war.
On the same day the UK and the US announced at the United Nations that they
would not put their so-called 'second resolution' to the vote, and that they
'reserved their right' to take their own steps to secure the disarmament of

In our view the argument set out in the Attorney-General's statement is
wrong. The UK and the US have no right to take military action to secure the
disarmament of Iraq, and in our view a war against Iraq in present
circumstances without clear authorisation from the Security Council would be
contrary to international law.

The prohibition on the use of force by one state against another, set out in
Article 2(4) of the UN Charter, is one of the most fundamental principles of
international law. It is not only a treaty obligation but part of customary
international law. It is recognised as having the status of 'ius cogens', in
other words a peremptory norm of international law from which states may not

The UN Charter recognises two exceptions to this fundamental prohibition on
the use of force.  The first is the right of self-defence in the face of an
armed attack, preserved by Article 51.  As Iraq has not attacked the UK and
there is no evidence that an attack is imminent, the UK and the US may not
rely on this exception.  The other exception is authorisation by the
Security Council under Article 42.

The Attorney-General's view appears to be that Resolution 1441, combined
with Resolution 687, 'revives' the authorisation to Member States acting in
co-operation with the government of Kuwait which the Security Council gave
at the beginning of the Gulf War in Resolution 678. This argument implicitly
accepts that Resolution 1441 alone does not authorise force.

Resolution 1441 cannot be said to authorise force for three clear reasons.
Firstly, nowhere in Resolution 1441 is there any language indicating that
the Security Council has authorised Member States to use force. The clear
and consistent formula used by the UN Security Council when authorising
force is that 'Member States' are 'authorised' 'to use all necessary means'
or 'take all necessary measures' in pursuit of a specified goal. None of
this language appears in Resolution 1441. Secondly, Resolution 1441 provides
at paragraphs 4 and 11 that if the inspectors of UNMOVIC or IAEA find that
Iraq has made false statements or omissions in its declaration under
Resolution 1441, and that it is not co-operating with the inspectors in
revealing and destroying weapons or materials, then they will make a report
to the Security Council.  Paragraph 12 of Resolution 1441 provides that on
receipt of such a report the Security Council will convene to consider the
situation and the need for compliance. In other words the Security Council
has specifically stated that it will monitor compliance itself. Thirdly, on
the passage of Resolution 1441, all the Permanent Members including the
ambassadors of the US and the UK made clear statements to the Security
Council that the resolution contained no 'automaticity' and 'no hidden
triggers'. It was only on this understanding that the Resolution was adopted
at all. The first draft of Resolution 1441 had been rejected by France,
Russia and China precisely because it stated that "breach [of Resolution
1441] authorises Member States to use all necessary means to restore
international peace and security in the area."

In an apparent attempt to circumvent these arguments the Attorney-General
asserts in his statement that Resolution 687, which imposed a formal
ceasefire after the end of the Gulf War, suspended and did not terminate the
authorisation to use of force. He states that a material breach of
Resolution 687 'revives' the authorisation for the use of force contained in
Resolution 678.

This argument is flawed for several reasons. There is no language anywhere
in Resolution 687 which indicates that the authorisation to use force in
Resolution 678 was merely suspended by the ceasefire, pending compliance
with the disarmament obligations contained in paragraphs 8-13 of that
Resolution. On the contrary, paragraph 33 of Resolution 687 provided that
once Iraq had notified the Security Council of its acceptance of the
provisions in 687 the formal cease-fire would be effective.  Iraq did notify
its acceptance to the Security Council and the formal cease-fire became
effective. Paragraph 34 then provided that the Security Council 'decides to
remain seized of the matter and to take such further steps as may be
required for the implementation of the present resolution and to secure
peace and security in the region.' In other words, once the formal
cease-fire was in place the Security Council took over the task of
implementing the disarmament provisions of Resolution 687.

The wording of Resolution 686, the provisional cease-fire resolution adopted
before the adoption of Resolution 687, makes it clear that if the Security
Council had wanted to keep the authorisation to use force alive, it would
have used clear language to do so. Paragraph 4 of Resolution 686 stated that
'during the period required for Iraq to comply with' the terms of that
resolution, the authorisation to use force contained in Resolution 678 would
remain valid. This indicates that the Security Council considered it
necessary explicitly to state that the authorisation to use force would
remain alive during a provisional cease-fire. The fact that the Security
Council did not make the same explicit statement in Resolution 687 is the
clearest indication that it did not intend merely to suspend the
authorisation for the use of force.

Resolution 678 was adopted for a specific purpose, the liberation of Kuwait.
This is reflected in the fact that the authorisation was to 'Member States
co-operating with the government of Kuwait.' The phrase 'restore
international peace and security in the area' has to be read in the context
of the invasion of Kuwait by Iraq. It cannot credibly be argued that a
Member State can revive that authorisation twelve years after the cease-fire
was put in place and the coalition disbanded.

The Attorney-General concludes his statement with the observation that
Resolution 1441 would have provided that a further decision of the Security
Council to sanction force was required if that had been intended.  He states
that all that resolution 1441 requires is reporting to and discussion by the
Security Council of Iraq's failures, but not an express further decision to
authorise force. In our view, this is wrong. The UN Charter requires that
force only be used in self-defence or with authorisation from the Security
Council. It is not necessary for this to be repeated in Resolution 1441 for
it to apply to the US and the UK. The prohibition on the use of force is so
basic a principle that the onus is on those seeking to show that they have
authorisation to use force to demonstrate that it has in fact been

Even if we are wrong and Resolution 678 could be revived now, it would need
a clear decision by the Security Council itself: unilateral decisions by
members of the UN will not suffice.  As we have illustrated above,
Resolution 1441 cannot provide that clear decision, as the Security Council
members who adopted it clearly agreed that it contained no 'automaticity'.

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