Professor Colleen Graffy is Director of Global Programs and associate
professor of international law at Pepperdine University in London. She
was Deputy Assistant Secretary of State at the US State Department from
Anyone watching the Chilcot Inquiry into the Iraq invasion would be forgiven for being confused about the legal argument for using force against Iraq. This article will attempt to break down into layman’s terms the background and legal reasoning behind the use of force against Saddam Hussein.
After Saddam invaded Kuwait, the Security Council adopted UN Security Council Resolution (UNSCR) 678 authorising use of “all necessary means” to uphold various Security Council resolutions demanding Iraq’s withdrawal from Kuwait and the restoration of peace and security in the area. At the end of the Gulf War, the Security Council imposed cease-fire obligations on Iraq. These included returning Kuwaiti prisoners, returning artefacts stolen from the Kuwaiti museums and an end to Iraq’s weapons of mass destruction (WMD) programmes.
Adherence to this cease-fire agreement (UNSCR 687) was considered essential to the restoration of peace and security in the area. Unfortunately, Iraq did not comply with the cease-fire agreement. And so the Security Council passed further resolutions under what is called “Chapter VII”. Chapter VII resolutions, as opposed to Chapter VI resolutions, authorise the use of force and indicates how seriously the world community views the actions of the errant state.
Saddam’s recalcitrant behaviour and the world’s natural and appropriate disinclination to use force led to proscribed peaceful alternatives including negotiation, diplomacy and economic sanctions. And still Saddam refused to comply. In 1993 coalition forces used force against Iraq in response to Iraqi violations of mandated weapons inspections. The UN Secretary General stated publicly that the coalition “had received a mandate from the Security Council according to Resolution 678, and the cause of the raid was the violation by Iraq of Resolution 687 concerning the cease-fire. He went on to say that the action taken “conforms to the resolutions of the Security Council and conformed to the Charter of the United Nations.” On January 13, 1993 the United Kingdom and France joined the US in conducting air raids on sites in southern Iraq. No new resolution authorising “all necessary means” was deemed necessary.
In 1998 coalition forces again used force against Iraq in Operation Desert Fox. The legal basis was Iraq’s material breaches of the UNSCR 687 cease-fire conditions – namely Iraq’s ongoing WMD activities and its refusal to cooperate with UN weapons inspectors. In Resolution 1154, the Council warned that any failure by Iraq to provide “immediate, unconditional and unrestricted access” would “have the severest consequences.” Kofi Annan appeared on an American news programme on March 8th 1998, following the Security Council’s passage of Resolution 1154, and was asked whether any future use of military force would require a new Security Council resolution. He replied: “If the US had to strike, I think some sort of consultations with other members would be required.” No new resolution authorising “all necessary means” was deemed necessary.
By 2002 US President George W. Bush viewed the threat of terrorism in a new post-September 11th light. Threats to international peace and security included not just al Qaeda but the continuing Iraqi violations which had frustrated successive administrations as well as the international community. Had Bush taken action then, he would have been following the path that Clinton had taken in 1993 and 1998 in drawing on the violation of the cease-fire agreement as the legal basis for action without any further Security Council resolutions. But Bush was convinced that the rest of the world viewed terrorism with the same heightened sense of urgency and danger as the US. A Security Council resolution was sought for political rather than legal reasons and, initially, it appeared that Bush was right: the Security Council unanimously passed UNSCR 1441.
The unintended consequence, however, was to raise the spectre that a second resolution would be necessary in order to use force. But the Bush and Blair administrations had sought the second resolution also for political rather than legal reasons and had abandoned the idea when it was clear that France intended to veto any such resolution. UNSCR 1441 did not require another resolution to permit force – it would not have passed if it had. What it did was to reconfirm that Iraq had been and remained in material breach of its obligations under the relevant resolutions, including Resolution 687 and recalled that it had repeatedly warned Iraq that it would face serious consequences as a result of its continued violations of its obligations. The Resolution offered Iraq a “final opportunity” to comply with its disarmament obligations but warned that violations of UNSCR 1441 “shall constitute a further material breach.” Iraq failed to seize this final opportunity. In the view of the coalition forces, the action taken in 2003 was done on the same legal basis as the actions taken in 1993 and 1998.
A commonly held view is that the action taken against Iraq was done under the so-called Bush Doctrine of pre-emption. Although there are differing views on the merits of this doctrine the right of pre-emption was not actually invoked as the legal basis for the war. In letters to the President of the Security Council, the Permanent Representatives of Australia, the United Kingdom and the US based their action against Iraq on its failure to comply with disarmament obligations as required under Security Council Resolutions.
It has also been argued that economic sanctions and containment were working and therefore force was not necessary. But cheating on the oil for food programme was rampant. Saddam’s illegal oil revenue continued to climb while the population suffered. The havoc wreaked on Iraq by the sanctions was blamed on those countries trying to enforce them rather than on Saddam where it rightly belonged. Saddam implemented the sanctions in such a way as to maximise his control over his people and to cause suffering which he could then blame on the UN, and the US in particular.
Medicines and supplies intended for the Iraqi people were routinely exported out of the country and sold on the black market. A comparison with the Kurdish controlled territory in the north of Iraq which was subject to the same sanctions yet did not experience the same result indicates the extent to which Saddam used the sanctions for his own purposes. The “no-fly zones,” initially enforced by France, Britain and the US, later by Britain and the US alone, left both countries vulnerable to mounting criticisms. Economic sanctions had not succeeded in forcing Saddam to comply with his international obligations and the “no-fly zones” created an unsustainable burden on the US and the UK.
Many question why Iraq was the greater priority than either the Middle East or North Korea. The answer lies in the distinction between Security Council resolutions passed under Chapter VI and those passed under Chapter VII, which mandates the use of force. The UN Security Council resolutions with regard to Iraq were taken under Chapter VII and authorized the use of force. This is not the case with regard to the Middle East where requirements have been placed on both Israel and the Palestinian Authority in order to resolve the crisis, nor with regard to North Korea where peaceful methods of dispute resolution, which had also been available to Iraq, are still considered possible. In addition, while Iraq has the potential for never ending sources of money to continue a WMD programme, North Korea does not.
Regardless of one’s views on the legality of the war against Iraq, the more pressing concern is what happens when the world community determines that a threat to peace exists and then does nothing? Article 39 of the UN Charter makes it clear that the Security Council is responsible both for determining that a threat to peace exists and determining when peaceful means can’t resolve a conflict. The Security Council is good at the former and reluctant or incapable of the latter. If the world community wants threats to peace resolved through the United Nations then the United Nations must also be able to determine when peaceful methods are not working.
The League of Nations voted 50-4 to take action in response to Mussolini’s invasion of Ethiopia, then Abyssinia. And then did nothing. Like the United Nations, the League of Nations had no army, navy or air force. Yet the common view in the House of Commons was that the only true guarantor of peace was the League of Nations and collective security. Lack of political resolve to take action when faced with Mussolini’s refusal to leave led to the collapse of the League of Nations.
The Security Council was unanimous in finding that Iraq had not complied with its disarmament obligations and in finding that the threat of Iraq’s non-compliance with Council resolutions posed a threat to international peace and security. For twelve years the UN Security Council repeated these findings under Chapter VII resolutions authorising use of force in order to enforce compliance and yet continued to allow Saddam to ignore them.
Former UN Secretary General Kofi Annan recalls that:
"…Our founders were not pacifists. They knew there would be times when force must be met with force. And therefore they wrote into the Charter of the United Nations strong enforcement provisions, to enable the world community to unite against aggression and defeat it.”
While the threat of force and the use of force must always be the last option, it must be an option.