In responding to Archbishop Desmond Tutu’s call for Tony Blair to face the International Criminal Court, I made clear my view that the 2003 Iraq invasion was an illegal – and criminal – act of aggression. John Rentoul of the Independent on Sunday angrily disputed this on the BBC World Service’s “World, Have your say”, and other commenters here on LDV have asked for an outline of my reasoning.
Aggression – known at Nuremburg as “crimes against peace” and “aggressive war” at the Tokyo trials – has been a crime under customary international law since at least the 19th century. However, until the adoption of the UN Charter in 1945, the use of force in international relations was not prohibited. The UN Charter fundamentally changed this. Article 2(4) of the Charter is explicit:
2(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Not being a UN member makes no difference. First, because the settled view of the International Court of Justice (in a 1970 case called Barcelona Traction) that aggression is illegal under international law from which no state can derogate (a so-called jus cogens norm). Second, because under Art 2(6) the UN “shall ensure” that non-members act in accordance with the Charter – including Article 2(4)’s prohibition on the use of force.
There are only two exceptions in the Charter: self-defence and the Security Council authorising the use of force.
Self defence is governed by Article 51, and states: “nothing … shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member”. Self-defence is not an unlimited right – States may only exercise it until the UN Security Council has “taken measures necessary to maintain international peace and security”.
Under Chapter VII’s Article 42, the UN Security Council is empowered to “… take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” The use of force requires an explicit authorisation in a Security Council Resolution (UNSCR), conventionally including the phrase “to use all necessary means” – see, for example, UNSCR 678 of 29 Nov 1990 that authorised Gulf War I. As a Chapter VII resolution, any resolution adopted under Article 42 is binding under international law.
A third exception to the general prohibition on the use of force are interventions to stop humanitarian disaster, for example the Rwandan Genocide, the so-called Responsibility to Protect (R2P). There is a clear gravity level inherent in R2P based on proportionality and immediacy – if you’re going to invade a country, or drop bombs on it, the force you use must be proportionate to the violence you are stopping, and that violence must be either happening or immediately apparent. Consequently, mass killings of civilians, whether genocidal or not – would seem to be the minimum required for the use of force under R2P. It is also clear in state practice that a claim for legitimacy under R2P would need to be made at the time of the intervention.
Nonetheless, even though R2P was endorsed at the 2005 World Summit at Rio, R2P remains controversial amongst those states that jealously guard their sovereignty over domestic matters, notably including Russia, China and India. As the intervention in Kosovo demonstrated, there are occasions when a humanitarian disaster is, or is about to, occur when the Security Council is deadlocked; I would argue Syria is another case where R2P can – and should – be invoked to protect Syria’s civilians from their government.
These then, are the only three circumstances under which force can be used legally in the post-UN Charter world.
So what does this mean for the 2003 Iraq invasion?
There was no claim of self-defence or, at the time, of humanitarian intervention. Though the human rights record of Saddam Hussein’s dictatorship was woeful, in and of itself this does not provide a legal basis for invasion and regime change – a point expressly made in Lord Goldsmith’s draft legal advice of February 2003. Goldsmith’s advice concluded:
That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign.
In some sense the distinction was academic, in that to defeat the Iraqi military in order to access the suspicious sites that the UN weapons inspectors wanted to visit, the Hussein regime would fall. But given that Blair and his supporters make the utilitarian claim that the Iraqi people are much better off than under Saddam, it is important to recognize that this is not a valid international legal argument. It fails, both because it was not made at the time, and secondly that in 2003 the level of repression and violence against Iraqi civilians would not have reached the R2P proportionality threshold.
The key UNSCR in judging the legality of the 2003 invasion is UNSCR 1441 passed unanimously on 8 November 2002. Like many UNSCRs, it is a carefully worded compromise, and it rewards close scrutiny. A key tool in interpreting the language adopted are the contemporaneous speeches made by the various Permanent Representatives, known as explanations of vote (EOV).
In UNSCR 1441, the Security Council recognized that Iraq remained in material breach of its obligations to disarm after the 1991 Gulf War (Paragraph 1), but that it was to be offered a “final opportunity” to comply with its disarmament obligations (Paragraph 2), for which the Security Council set up an enhanced inspection regime. The Security Council required Iraq to provide full disclosure within 30 days (Paragraph 3).
Paragraph 4 sets out the implication of Iraq providing false statements or omissions in its declaration:
4. Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below;
So even though a false or incomplete set of data delivered by Iraq would constitute a breach, the course of action would be to report this to the whole Council for assessment. Paragraph 12 explains what would happen if there were an omission or the inspectors were obstructed (Paragraph 11):
12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security;
In clear language, then, any Iraqi misbehaviour would cause the Security Council to “convene immediately” to “consider the situation”. In other words it was for the Security Council to consider and decide, not for the individual states. And as 1441 was adopted under Chapter VII, it was binding international law on all states, including the UK.
Britain’s ambassador Sir Jeremy Greenstock couldn’t have been clearer in his EOV that Britain shared this view. Greenstock said,
There is no “automaticity” in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12. We would expect the Security Council then to meet its responsibilities.
Indeed. At the time of adoption of UNSCR 1441, the UK was clear that it did not authorise the use of force, and that the Security Council would have to meet again and consider action if Iraq did not comply. In doing so, the UK knew that any authorisation of force against Iraq would be subject to Russian, Chinese and French vetoes, and that in addition to avoiding a veto, a resolution authorising force would need at least nine affirmative votes for passage, the same as any other resolution.
The Security Council discussed Iraq extensively in the run up to the invasion. In 2003 alone, it held formal meetings on Iraq on 27 January, 5, 14, 18, 19 February, and 7, 11, 12 and 19 March – with the war beginning on the 19th. There was plenty of opportunity for Britain to secure passage of a UNSCR authorising force, and both legally and politically Blair needed one. It didn’t happen because the support for the use of force did not exist on the Council, with Russia, China and France at various times indicating their willingness to veto the use of force in order to give Dr. Hans Blix and his weapons inspectors more time.
As a result of the failure to gain authorisation for the use of force, the 2003 invasion of Iraq was illegal. This illegality led the FCO’s Deputy Legal Adviser Elizabeth Wilmshurst to resign on 18 March. She was the only UK official to do so, and is now the Head of International Law at Chatham House. The UK owes her a great debt of gratitude for her courage and conscience.
The epitaph perhaps belongs to Germany’s representative at the Security Council on the 19th, where the meeting discussed the latest report from the weapons inspectors as the war started;
… the Security Council has not failed. We must counter that myth. The Security Council has made available the instruments to disarm Iraq peacefully. The Security Council is not responsible for what is happening outside the United Nations.
[W]e have to state clearly, under the current circumstances the policy of military intervention has no credibility. It does not have the support of our people. It would not have taken much to safeguard the unity of the Security Council. There is no basis in the United Nations Charter for regime change by military means.
* Toby Fenwick is a Research Associate of the British American Security Information Council (BASIC), has written extensively on the UK Trident programme, and served on the party’s last Trident Working Group. This article is written in a personal capacity.
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45 Comments
Thank you Toby.
You’ve failed entirely I think to refer to the “revival theory”, which was the basis of Lord Goldsmith’s advice that the invasion was authorised by the UN, and therefore lawful.
The revival theory was agreed with by both Ming Campbell and Liz Wilmshurst when the UK relied on it in 1998 in relation to Iraq. They both changed their minds by 2003. I think we had an unsatisfactory explanation of why she changed from Liz Wilmshurst at the Iraq inquiry. I don’t think Ming Campbell has ever explained his change.
If you want to argue that the invasion was an unlawful crime of agression, you must take on the “revival theory”, and explain why you think Ming Campbell was wrong to rely on it in 1998, and Lord Goldsmith was wrong to rely on it in 2003.
I’ve written about this on my blog.
@ Carl – “Member States were always authorised to use all necessary means to restore peace and security in Iraq. The authorisation was suspended; but on condition Iraq verifiably disarm. Its repeated material breach and failure to take its final opportunity meant it was lawful for Member States to use force on the basis of UNSCR 678”
As a point of interest, of no legal weight from someone with no legal background, this “revival” theory is interesting as it seems somewhat similar to the terms in which i argued that the war was legal:
“where non-compliance against UNSC resolution 686 (to inform the UN on all chemical and biological weapons), and resolution 687 (to destroy all chemical and biological weapons and ballistic missiles), which were instigated in response to the invasion of Kuwait and the scud attacks on Israel (a breach of the right to self determination, and the right to non-intervention, under the Westphalian system), led to an invasion to enforce compliance (of the ceasefire agreement).”
Either way, it is a fascinating debate to read and the only firm conclusion i can draw as a lay-man is from Carl:
“I accept that the invasion was not clearly and unambiguously lawful.”
Thank you both.
@Carl; @ Jedi In haste.
The short answer as to why the revival argument – controversial at the time of DESERT FOX in 1998, but on balance, probably legal – fails, lies in paragraph 12 of UNSCR 1441. The question is less about revival argument per se, but about two questions:
– who got to decide whether the Iraqis were in material breach, and
– did material breach lead to automatic the authorisation for the use of force.
First, OP12 and Greenstock made it very clear that this was with the Council, not with the Council’s Member States. So the US and the UK could not decide for themselves that Iraq was in non-compliance. As the only authority to judge non-compliance was the Security Council, only a further meeting could authorise the use of force.
Second, Greenstock made it clear that 1441 also had no automaticity. If you look at the other EOVs, it is clear that had there been automaticity then resolution would not have passed – the Security Council was keen to show resolve to get Iraq to disarm, but it was not issuing a blank cheque to the US and the UK to use force. This is why Greenstock had to be clear that there was no automaticity under 1441.
When Blair tried and failed to get an explicit authorisation in a second resolution, he should’ve left Bush to it. If the Bush administration wanted to act illegally, that was a matter for them – we should’ve acted legally, and did not.
Toby – excellent article. Carl: is the revival argument in any way impacted by the quality of intelligence on WMD? Does 678 still hold force if the international community’s basis for believing Saddam had WMD was particularly weak? If intelligence agencies deliberately lowered their standards to produce ‘proof’ of WMD, then the invasion on the basis of 678 is at best an over-reaction and likely in fact illegal.
I think this is an interesting question because, for me, it means that the war was illegal and Blair must take responsibility. But he was misled by eager-to-please intelligence agencies; does that in any way mitigate his actions? I certainly think it should mitigate the sanction.
The problem is that intelligence agency from outside the US and UK also thought that Iraq may have hung onto some of its chemical weapons, I’m no fan of Blair, but multiple inquiries have failed to pin the issues of legality down. I think they will still be arguing about it in history books 200 hundred years from now,
Toby, you say
You quote paragraph or OP12 in your post.
This is a strange argument in w ay, though, isn’t it?
If military action against Iraq was (as you argue) legal in 1998, without any unambiguous, specific and contemporary authorisation from the UN, because of the revival theory; but was (as you argue) illegal in 2003 because the legal position was changed by something in the text of UNSCR 1441, it must follow that, had President Bush never gone to the UN at all in 2002-3, and there had never been any UNSCR 1441 , you’d now be saying the war had been legal, and that it’s only because the UN decided in 2002 that Iraq was in material breach and gave it a final warning, with a threat of “serious consequences”, that the war was illegal.
That makes no sense to me.
What’s more, I think you’re misunderstanding “automaticity”. I agree 1441 did not provide for “automaticity”. What this means is that 1441 in and of itself did not authorise military action the day after it was adopted. That would have been automaticity. The argument here is not between me arguing for “automaticity” and you against. The argument is between those arguing that 1441, while not authorising “automatic” action, permitted action at a future time it if Iraq remained in material breach (me) and those who say it permitted action if Iraq remained in material breach and the UN Security Council said there should be action (you).
UNSCR 1441 was clearly a compromise between the countries that wanted each of those positions, and I accept that a reasonable argument can be made for the position you take. But an at least reasonable argument for my reading is possible, too. UNSCR 1441 makes express provision only for further consideration by the Security Council; not for any further decision or resolution. It’s by no means as clear as you’re suggesting that it prohibited action except with further UN authorisation.
What makes me come down on my side is the point I made earlier. Your view depends on something having changed the legal position between 1998 and 2003. Either that has to be time – but I’d have thought the five years of material breach followed by a threat of serious consequences from the UN would strengthen the revival theory rather than weakening it – or it has to be the text of UNSCR 1441. As I’ve said above, thinking 1441 make the difference oddly implies that the war would have been lawful, except for that resolution.
Charles,
You’re arguing as though the UN had required Iraq “not to have any WMD”, or allowed Iraq to dispose of its WMD secretly, and that the UN had put the burden on itself, or the US or UK, to prove Iraq still had them. It wasn’t like that. UNSCR 687 required Iraq to verifiably disarm, under UN supervision. It still had not done this, and was still not fully cooperating with the UN inspectors, by 2003. Look at what David Kelly said just days before the war.
So legally, it’s not really a question of how strong the intelligence was that Iraq still had prohibited weapons. It’s a question of whether Iraq was in breach of its obligations. I think it was obvious, from what people like Hans Blix and David Kelly were saying at the time, that it was.
Looking at these arguments then I would say some of the actions in Lybia were also illegal as they went beyond protecting civilians. The real problem is that we allow those who have systematically abused and at times murdered their populations in China and Russia to decide when to intervene…
I also feel that whilst there turned out to be no WMD this was not the accepted wisdom at the time. Whatever the nature of the sexed up dossier etc I still feel Blair would be able to show that he was operating under the reasonable belief of a threat, or at least he could do so to a large enough extent that reasonable doubt would exist.
None of this excuses Blair but I do think that there would be enough doubt in obtaining a conviction that the CPS would not sanction it in this country, and I believe your previous thread stated that it would be fr Britain to prosecute not the ICC?
I accept that it was for Iraq to demonstrate it didn’t have WMD, which it failed to do. But does that mean an open ended legal option for full invasion at any time? After all, several years passed during which any thought of invasion would have been seen as huge over-reaction. There still had to be a “why now?” moment and evidence that all other means had been exhausted. Hans Blix knew the Iraqis weren’t co-operating but he certainly didn’t think the time for military action had arrived. The false urgency was provided by bogus intelligence.
Toby, did the UK Parliament pass a law saying that it accepted that force was illegal unless it met the conditions of the UN Charter?
this is history from a former government and former prime minister. I think you should focus on more recent events. Was Libiya and the attacks on Gadaffi legal?
or even closer to home was David Laws abiding by the law 2 years ago with expenses fraud?
You quote paragraph or OP12 in your post.
“This is a strange argument in w ay, though, isn’t it?
If military action against Iraq was (as you argue) legal in 1998, without any unambiguous, specific and contemporary authorisation from the UN, because of the revival theory; but was (as you argue) illegal in 2003 because the legal position was changed by something in the text of UNSCR 1441, it must follow that, had President Bush never gone to the UN at all in 2002-3, and there had never been any UNSCR 1441 ”
@ Charles: Not at all. First, my view is that DESERT FOX was on the outer edges of legality, and had the US and UK asked for a resolution to back it, then they may well have been disappointed. This is presumably why they didn’t seek it given the false start of DESERT FOX in Nov 98 and the full raids in Dec 98. (Saddam Hussein began to cooperate with the inspectors in Nov 98 after the first bombers were airborne, leading to speculation that Iraqi “spotters” were operating near Saudi air bases with mobile phones, leading to the Nov raids being aborted and postponed to Dec 98).
Second – and crucially – 1441 extinguished the revival argument by unambiguously removing the right of individual states to judge and punish Iraqi non-compliance that DESERT FOX had relied upon. 1441 paragraph 12 makes it was clear that whatever authorization remained from UNSCR 678 – itself a hotly contested issue at the UN – the ONLY body able to determine Iraqi noncompliance was the Security Council. Consequently, the revival argument outside of the Council was dead.
On automaticity, I’d suggest you’re misunderstanding the notion. Under 1441, if the weapons inspectors were blocked (paragraph 11 of 1441) or the Iraqi dossier was incomplete (paragraph 4 of 1441), this would per paragraph 4 be a material breach. Automaticity as Greenstock meant it was a concept that if there was such a breach, 1441 would automatically authorise the use of force by the US and the UK. This is what Greenstock was at pains to deny in Nov 02 (correctly), meaning that the even if there were a further material breach force would not be authorised and the issue would return to the Council (paragraph 12). This is exactly what happened, and what would cause Blair such a problem later.
@ Charles @ Carl; Carl is quite right to say that Iraq was required to verifiably disarm itself as a result of the 1991 ceasefire under UNSCR 687 (3 Apr 1991). This explicitly included biological and chemical weapons (UNSCR 687 para 8(a)), all ballistic missiles with a range of greater than 150km (UNSCR 687 para 8(b)), and nuclear weapons, nuclear weapons materials or any subsystems or components or research (UNSCR 687 para 12).
However, where Carl is wrong is to assert that post 1441 (and others would argue before) that the individual UN member states (effectively the US and the UK) had the right to determine non-compliance with 687, and if Iraq was non-compliant, use force.
If anyone had solid intelligence that Iraq was violating the conditions of 687, they should’ve brought it to the notice of the UN weapons inspectors (first UNSCOM, then UNMOVIC); there is evidence that the UK and the US – and potentially others including Israel – did, and that this intelligence informed inspections. But in the post 1441 world, no amount of intelligence on the existence of weapons prohibited by 687 would provide a direct recourse to force, as the Council had to decide, not the States.
@Steve: Libya is problematic as the western allies did take the wording as far as possible and use airpower to in effect support the rebels to overthrow the Gaddaffi regime. I would argue that a better basis for intervention in Libya would’ve been humanitarian intervention, rather than stretching Council authorisation. The net result is that the Russians and the Chinese refuse to pass anything at the UN that appears to authorise force in Syria because of fears of a re-run.
On Blair and the reasonable expectation of a threat. Well, if there was, then the obvious thing to do was to keep the invasion force in the field and use this as a stick to give the inspectors the time that Hans Blix was asking for as late as mid-March 2003. Instead, Blair choose to join Bush in an illegal war of aggression – hence the German Ambassador’s quote at the end of this post.
@Simon: I’m not aware of any such legislation.
@Richard: it came up as a response to Desmond Tutu’s comments; in any event, the fact that it isn’t current doesn’t mean we shouldn’t be looking at it, and where necessary, turning the wheels of justice.
On Libya, as above, I thought that the better legal argument was one of humanitarian intervention to protect civilians – which can happen (e.g. Kosovo) legally outside the Security Council. In the case of Libya (or indeed Syria), removing the regime’s ability to kill civilians would likely have the effect of removing (by allowing the overthrow of) the regime, but it would not be targeted at that. As Goldsmith rightly says in his otherwise flawed draft advice, regime change is not legal per se, underscored by amongst other things, non-interference in the internal affairs of other states under Article 2(7) of the UN Charter.
Carl Gardner – what you say makes no sense. If the Iraqi regime was technically in breach, but in reality had no WMD, it was inexcusable for outside powers to take such radical action against it. Sanctions may have been appropriate, but surelt the argument then requires them to be made proportionate. I always viewed the arguments of (esp) the USA, but also of UK at that time to be weak, and apparently justificatory of war, and you rather make that case.
@Toby
Keeping the force in the field was not a realistic option as the Iraqi regime well knew. The weather and logistical concerns meant that there was a small time window. That is not a defence of the action but a recognition of the military position. Also whilst this would have been a preferable option, does that mean that we’re Blair to reasonably consider a threat existed he could only take that option?
I think most people think Iraq was a mistake but I still feel Blair has the wriggle room to make a defence to the reasonable doubt standard. I would rather see a successful civil case then end up in a position where a cleared Blair would be able to state that the legality of the war had been proved by his acquittal. Don’t forget those huge pay checks he has been getting will provide a top drawer defence team
As to Libya, it seems the law, like history is being written but he victors. Allied air strikes were at times attacking convoys with no CCC or direct assault capabilities. There were clear atrocities against civilians on both sides, yet attacks on only one. Perhaps some civilian lives are more important than others?
@Steve Way: Whether the force could’ve been maintained in the desert through the summer of 2003 is hardly a compelling argument to illegally use force.
In any event, the evidence seems to suggest that the US could have maintained its force, but the UK would’ve had great difficulties in doing so as Blair insisted on fielding a larger force than could be easily maintained, risking a humiliating scaling back in the UK contribution if the war was delayed to the autumn of 2003. So the fact that Blair had given himself a one shot option was his calculation, which like his calculation on getting a second resolution was a big risk, and one which boxed in his decisionmaking.
This was unfortunate for him, but it should’ve meant that when Blair’s gamble on getting explicit authority to use force in March 03 failed, he should’ve either convinced Bush to wait through the summer to give the inspectors the time Hans Blix requested (never likely given the Bush Administration’s lack of interest in the international legal requirements) or he should have had the moral courage to turn to the US and say “no, not whilst it is illegal”.
This he failed to do, and in effect claiming that “the weather made me do it” is a pretty poor response.
@Toby I may be misisng the point but if Parliament has never pased an Act saying that we have to comply with the UN defitnion on when force can be used then how can it be illegal ?
@ Simon McGrath: In signing up to the UN Charter, the UK agreed to be bound by the requirements – including the Art 2(4) ban on the use of force. It doesn’t require primary legislation.
@Toby
“Whether the force could’ve been maintained in the desert through the summer of 2003 is hardly a compelling argument to illegally use force.”
Which was why I stated it wasn’t… “That is not a defence of the action but a recognition of the military position.”
However it can be used as part of a general picture. The Iraq regime had a clear history of playing brinkmanship with the inspectors and would have been more aware then anyone of the difficulties surrounding a summer conflict. You say the US troops would have been able to be maintained over the summer, I would question whether that is true as an effective military force. You also state that Blair “insisted on fielding a larger force than could be easily maintained” I’d like to see the evidence for that. In my time in the military these decisions were made by service personnel and if the politicians got involved it was to reduce the number of assets due to cost rather than to inflate them.
So Blair, with just the information available at the time could have ‘reasonably’ (his reasonably not yours or mine!) have assumed that the regime were playing the clock down, had no intention of allowing real access to inspectors, and had a substantial store of chemical weaponry. We can now state categorically that the latter is wrong but not the former. And as the main bulk of opinion felt that chemical weapons existed then even the fact this turned out to be false does not make his belief any less valid. So as part of his thinking could Blair not reasonably state that there was no reason to believe that Saddam was being truthful, no reason to believe he did not have WMD and clear evidence to show he had the capacity to use them.
So whilst it would be clearly wrong to allow the “weather made me do it” excuse stand alone, it would be equally wrong not to take it into account as a factor in both the US / UK planning and the Iraqi regime approach to meeting its requirements.
Tim13.
Iraq wasn’t “technically” in breach of its obligations. It was in breach. Its clear from what they said at the time that neither Hans Blix nor David Kelly thought Iraq had complied with 1441.
I agree that, if we’d known, or seriously thought, that Iraq had destroyed all its WMD and missiles by early 2003, it would have been wrong to invade. But we didn’t know that. The problem is that experts like David Kelly thought they still had them, and Iraq was still not cooperating with the inspectors, who were trying to pin down what had happened to them and find evidence that they’d been destroyed.
Tim 13,
I forgot to address your point about sanctions.
It’s fine to say now “sanctions may have been appropriate”. But in 2002, many countries, and many people in this country, wanted the UN to abandon the sanctions that had been imposed on Iraq, and which were not securing compliance. I wouldn’t be surprised if many of those were exactly the same people who went on to oppose the invasion. To be honest, I think this contributed to the feeling in the Whitehouse that Iraq had to be confronted in 2002-3. Before the US took this stance, there was a real risk the UN was moving towards just letting Iraq off its disarmament obligations completely – in spite of their ongoing breach, and in spite of the widespread belief that it still had WMD.
In fact of course we know Iraq actually did still have prohibited weapons when George Bush addressed the UN in September 2002. We know, because when the threat of invasion forced Iraq to allow inspector back in later that year, they found and destroyed prohibited Al Samoud missiles.
@ Steve Way: Forgive me, I just wanted to be clear that the weather wasn’t a legal excuse.
On the evidence that Blair fielded a larger force than the military recommended, see http://www.iraqinquiry.org.uk/media/52561/watkins-manning-iraq-military-planning-2002-09-06.pdf , and the contemporaneous diaries of Campbell, et al. Going for a maximum effort (in fact, beyond maximum effort) and the move from the northern force to the south when the Turks refused to allow US/UK forces to invade Iraq from the north, meant that there was virtually no slack in the system – forcing Blair to attack in March or substantially scale down the UK force package.
Which brings us back to the nub of the anti-invasion case made at the time, and often since, ie we weren’t sure, so Blix should have been given more time to look. As I remember it, he asked for that, and by that time Saddam had allowed sufficient access to make such a determination. I believe it is generally thought that Saddam was anxious not to take any action, or make any public declaration which would have apparently weakened him in front of the Iraqi people, and bearing in mind that western democracies would be well aware of the potential consequences to life, living standards health and well being of Iraqis, they should have held back. It is widely thought that Dubya took the action he did, largely “to finish the job his father started”. That reason / poor excuse would not have been shared by the British Govt (unless I am much mistaken).
My view, FWIW, is that the invasion of Iraq would never have taken place, nor the first Gulf War, had the US taken a more rational Iran policy after the Khomeini takeover, and recognised the new regime, and made it quite clear to Saddam that no US weaponry would be supplied, and unequivocally condemned Iraq for its unlawful invasion and war with Iran. Had this been done, the Iranian regime might have gradually become less intransigent. Other western nations would probably have followed the US lead. But then, what ifs are scattered everywhere! Interesting developments in present day Iraq, where according to reports, al Maliki is becoming ever more dictatorial, and taking on Sunnis, and any other ethnic and religious forces outside Shia.
@Carl:”Its clear from what they said at the time that neither Hans Blix nor David Kelly thought Iraq had complied with 1441.” No doubt, but you haven’t demonstrated that military action was necessary at that moment. Blix certainly didn’t think so and he of course knew more about the progress of inspections than David Kelly. We should not allow Kelly’s tragic death to mean that we are obliged to agree with everything he said at the time.
Toby,
On automaticity, fair enough: it’s possible to disagree on exactly what this means. Whether it means what I suggested earlier, or whether it means force would not be automatically authorised in the event of further breach – it doesn’t really matter. What does matter is that we agree 1441 set up a two-stage process, and required any further breach to return to the UN to consider the situation.
You say
Okay, but you can’t be a bit pregnant. You agree it was lawful, and that the revival theory was correct in 1998. It follows from the other thing you said:
that you must indeed think the invasion of Iraq was unlawful because, and only because, the US and UK went to the UN and obtained UNSCR 1441. Had they simply gone it alone from the beginning, your logic is that the invasion would have been lawful. You have to accept that this is the logic of your position, don’t you?
Of course it wasn’t a question of “judging” whether Iraq had complied – are you suggesting it had done so? The question was what to do about the breach.
Nor did 1441 anything like “unambiguously” extinguish the revival theory . You’ve cited OP 12 above – it merely says any further breach will come back to the UNSC to consider the situation. There is no mention of the need for any further decision, resolution or authorisation. UNSCR 1441 does not say, or in any way make clear, that at that point, unlike in 1998 inaction from the UN precludes action by states.
As you yourself say,
Quite. The two-stage process Jeremy Greenstock talked about was followed.
The revival theory worked in 2003 as you and Ming Campbell agree it did in 1998. The word “consider” in OP12 of 1441 cannot bear the interpretation you put on it – that it changed everything – and it certainly did not do so “unambiguously”. The war was legal.
@ Carl Gardner: Here we get to the crux of the matter. The so-called “revival” theory authorising force from UNSCR 687 – more properly, it’s an argument for continuing authority to use force if Iraq is in non-compliance with the resolution’s disarmament obligations – could authorise the limited strikes of DESERT FOX in December 1998 because in 1998 the assessment of Iraqi non-compliance (arguably) remained with UN member states.
1441 decisively changed this, making it clear that the Council was the only body empowered to determine Iraqi non-compliance. Without this determination of non-compliance, whatever authority existed under 687 to use force could not be actioned, in effect extinguishing any residual authority for the use of force without the Council’s explicit authorisation.
Consequently, we should look at the EOV’s to help interpret OP12, and in particular, the notion of the two-stage process. Let’s look at what the other Permanent Members said they thought that they were voting for – critical, as any of them could have vetoed 1441.
The French were clear, and it is worth quoting Ambassador Levitte at some length:
“The resolution strengthens the role and authority of the Security Council. That was the main and constant objective of France throughout the negotiations which have just concluded. That objective was reflected in our request that a two-stage approach be established and complied with, ensuring that the Security Council would maintain control of the process at each stage.
That objective has been attained: in the event that the Executive Chairman of the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) or the Director General of the International Atomic Energy Agency (IAEA) reports to the Security Council that Iraq has not complied with its obligations, the Council would meet immediately to evaluate the seriousness of the violations and draw the appropriate conclusions. France welcomes the fact that all ambiguity on this point and all elements of automaticity have disappeared from the resolution.”
China endorsed this understanding:
“China supports the two-stage approach. The Chinese delegation actively participated at all stages of the consultations on the draft resolution, and put forward its views and suggestions in a constructive manner. We are pleased to note that, after many rounds of consultations, the sponsors of the draft resolution accommodated our concerns, and the Council members have finally reached consensus.
As the sponsors pointed out in their statements earlier, the purpose of the resolution is to achieve the disarmament of Iraq through effective inspections. The text no longer includes automaticity for authorizing the use of force. According to the resolution that has just been adopted, only upon receipt of a report by UNMOVIC and the IAEA on Iraq’s non-compliance and failure to cooperate fully in the implementation of the resolution, will the Security Council consider the situation and take a position.”
Russia’s Lavrov went furthest of all:
“At all stages of this work, we were guided by the need to direct the process of a settlement onto a diplomatic and political path and not to allow a military scenario. As a result of intensive negotiations, the resolution just adopted contains no provisions for the automatic use of force. It is important that the resolution’s sponsors today officially confirmed in the Security Council that that is their understanding and that they provided an assurance that the resolution’s objective is the implementation of existing Security Council decisions concerning Iraq through inspections by the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) and by the International Atomic Energy Agency (IAEA). That is an objective shared by all members of the Council.”
He went on;
“The resolution’s wording is not ideal — a fact that the sponsors themselves acknowledge — but that reflects the very complicated nature of the compromise that was reached. The Russian Federation made a choice based on principle to support the resolution, guided by its special responsibility, as a permanent member of the Security Council, for the maintenance of international peace and security. What is most important is that the resolution deflects the direct threat of war and that it opens the road towards further work in the interests of a political diplomatic settlement.
It is particularly important that — as many of my colleagues have said today — in the event of any kind of disagreement over disarmament matters, it is the heads of UNMOVIC and of the IAEA who will report that to the Security Council, and that it is the Council that will consider the situation that has developed. That is the sequence set forth clearly in paragraphs 4, 11 and 12 of the resolution.”
In other words, the three countries who could have vetoed – and, if they thought that there was either automaticity or an authorisation for the use of force, would have vetoed 1441 – all explicitly rejected the notion – as did Greenstock for the UK, that 1441 could authorise force.
Thus, in the absence of an Iraqi attack, further explicit Security Council authorisation, or the humanitarian exception – not claimed by Bush or Blair – there was no authority to use force. QED, the war was illegal.
Toby,
Some questions for you.
Do you accept that it follows logically from everything you’ve written here that the US not only could but would have invaded Iraq lawfully had they simply acted unilaterally in late 2002, without even seeking UNSCR 1441?
Do you accept that Iraq was still in breach of its obligations after 1441? Or are you suggesting it had complied?
If 1441 is unambiguous, as you’ve said, why do you need to refer to what foreign ministers said about it later in order to (you words) “help interpret” it?
And if 1441 meant what you say it does, and extinguished the revival theory, it must have been a spectacular blunder to have agreed to it, mustn’t it? By the UK, but especially by the US . How do you explain that? Did all the American and British politicians, diplomats and lawyers mess up, and make their leaders criminals?
Q1: Do you accept that it follows logically from everything you’ve written here that the US not only could but would have invaded Iraq lawfully had they simply acted unilaterally in late 2002, without even seeking UNSCR 1441?
A1: No, I don’t accept that. One area that we’ve not explored is one of proportionality. We’ve not needed to, as 1441 made the 2003 invasion illegal.
Q2: Do you accept that Iraq was still in breach of its obligations after 1441? Or are you suggesting it had complied?
A2: My view was that Iraq probably remained in material non-compliance. However, as we’ve been discussing, it’s not my view, your view or even Bush or Blair’s view was that matters, it was the view of the Security Council under OP12.
Q3: If 1441 is unambiguous, as you’ve said, why do you need to refer to what foreign ministers said about it later in order to (you words) “help interpret” it?
A3: EOV’s are an aid to interpretation, as you know. 1441 is unambiguous in requiring the Security Council to determine whether Iraq was in non-compliance, and therefore arrogating to the Security Council the decision on whether to use force.
Q4: And if 1441 meant what you say it does, and extinguished the revival theory, it must have been a spectacular blunder to have agreed to it, mustn’t it? By the UK, but especially by the US . How do you explain that? Did all the American and British politicians, diplomats and lawyers mess up, and make their leaders criminals?
A4: I don’t think that Bush and his immediate circle were terribly concerned with the international legal position, and Negroponte’s EOV underlines this. I don’t think that the UK diplomats messed up – they understood the legal position, recognised that proportionality would require clear authorisation from the Council for a full-blown invasion.
1441 was clearly as much as the market would bear without drawing a veto in November 2003. In getting into a two-stage process, the UK took the risk that if force wasn’t authorised, and the US decided to attack anyway, they would either be left sitting in the desert or engaging in aggression. When they failed to achieve this, Elizabeth Wilmshurst as FCO Deputy Legal Adviser to her eternal credit resigned – which is why she was CentreForum’s liberal hero of the week this week : http://centreforumblog.wordpress.com/2012/09/07/centreforums-liberal-hero-of-the-week-13-elizabeth-wilmshurst-and-nick-harvey/
My own view is that Blair thought he would talk the Council round and get a second resolution, and if that failed, that history would vindicate him through WMD and/or removing the noxious regime of Saddam Hussein. Whatever his internal monologue, he acted illegally.
@Toby
I think you are misreading the MOD document. It is talks about the three options (with a smaller ground element in the third option dismissed as a more political than militarily useful contribution). The minimum and maximum were not related tot eh ability to achieve the goals but the ability to contribute during the fire strike (Op Fresco).
@Steve – fair point, it’s not the best source but the only one I’ve got access to at the moment. I’ll post the references when I get a chance, but my books are all in boxes at the moment.
Kind regards,
Toby
Toby – you’re absolutely right that Blair thought he’d talk the UNSC round. That’s why British diplomats were sent on missions to obscure corners of Africa – remember Baroness Amos lobbying Cameroon, Angola and Guinea – to little effect apparently. And I still feel the proportionality question has not been addressed. Even if it were legal, the convention that military action is a last resort appears to have been ignored on this occasion.
Toby,
On proportionality, fair enough. What’s clear though is that you do think it would have been lawful for President Bush in September 2002 simply to bomb Iraq, and not bother going to the UN at all. The question then arises of when repeated bombing would in your view have become “disproportionate”.
I think this may reveal a serious difference about what proportionality means. I think you may see proportionality as essentially meaning that where you have a choice between using less force (bombing) and more force (bombing and invasion), you should go for the first – by all means correct me if I’ve got that wrong. I see proportionality as meaning that, if your aim in using force is legitimate, you’re entitled to do what’s necessary to achieve the legitimate objective, but no more. On this approach, invasion was proportionate if only invasion would disarm Iraq. We knew of course from 1998 that bombing alone had not brought about sustained compliance.
In relation to your answer A2, fair enough. We disagree on this. My approach is more focused on the objective question of whether Iraq was in breach, rather than on any claim that the US or UK’s unilateral judgement was determinative. It’s interesting that you think Iraq was in breach too, though, following 1441.
And as a matter of interest, since you focus on the view of the Security Council: do you say the Security Council took any view ? I think your argument must assume it didn’t.
In relation to your answer A3,
Yes, I agree they’re an aid to interpretation. That doesn’t explain why you need to refer to them if, as you claim, 1441 unambiguously supports your view.
I think your answer (A4) to my question about diplomatic failure,
and indeed your entire understanding of 1441, is at odds with the way Jeremy Greenstock explained his understanding to the Iraq Inquiry (see page 11 of his statement):
@Carl: Problem with your argument is that it still doesn’t address timing. You state that it was for Iraq to demonstrate that it had disarmed. But the existence of UNMOVIC inspectors on the ground shows that the UN had a process in place to verify the (lack of) disarmament activity. To invade before UNMOVIC had completed its mission can only lead to the conclusion that UNMOVIC’s views were not judged as salient. This suggests that the existence or otherwise of WMD was merely a pretext. The real reason for invasion was one of aggression, based on a post-9/11 world-view that sought to separate between those “with us” and those “against us” and to make examples of the latter category.
Carl – You are giving the US / UK approach huge benefit of the doubt here. This does not bode well for the future.
Charles, Tim,
On timing, I admit that, of all the arguments put forward by those who opposed the invasion, this one has the strongest instinctive appeal. Why not just wait a few more months to let the inspectors complete their mission? I have thought a lot, and do still think a lot, about the rights and wrongs of Iraq; and I’ve sometimes thought that “more time” might have been desirable. Maybe the inspectors could have come to a clear view that no WMD existed, or found and destroyed what they thought was all the remaining WMD. Or maybe Iraq would have continued to frustrate them, and all the world would have agreed that the defiance finally had to be ended.
But actually, in spite of its apparent attractiveness, I think “more time” is a pretty weak argument. I don’t think more time would have helped, or changed anything.
Once the Americans decided Iraq had to be confronted, and the decade-plus of defiance of the UN ended – which I think was both reasonable and right – it’s obvious that the timetable from then would be dictated by factors that were partly political, and partly practical. It’s also obvious that Iraq – unless it decided finally to comply with what the UN had told it years before, and had told it repeatedly – would want to play for time and play for time again in order to avoid disarming. Compliance could have been quick, if they’d decided to do it.
People talk as though the UN was succeeding in disarming Iraq, and that the Americans just barged in and wrecked all that. They forget that the UN inspectors were only there because President Bush had decided to bring things to a head, and had amassed troops on the Iraqi border. The only thing that had brought Iraq even to any sort of partial compliance was a real, present threat of invasion. The only way to maintain and improve compliance was to maintain the political momentum, and to intensify that threat.
By March 2003 I think more time would simply have shown Iraq that playing for time and frustrating the inspectors had worked and could work indefinitely. I don’t think it would have changed attitudes in the UN or among the public, either. I think there’s a very high probability indeed that by June 2003, say, France would still have vetoed any further ultimatum, and that opponents of the invasion here in the UK would again have said “more time”.
Iraq had months from President Bush’s UN speech in which to comply. It had months after 1441 to comply. I think by March 2003 it was reasonable for the Americans to decide that the Iraqis were never going to comply, and that the UN Security Council wasn’t going to make them.
What bodes ill for the future is the unwillingness of so many in 2003 and now to see a clear mandate of the UN, like the disarmament of a warlike dictator, actually respected and enforced.
But it should not be down to individual nations to decide when how and where to enforce UN resolutions. The UN is supposed to be about nations deciding together what to do. This kind of intervention by “coalitions of the willing” will only bring the UN and others into disrepute (arguably the Iraq adventure did that very effectively). The realpolitik of the situation was that Bush used the felling of the World Trade Centre as an excuse for invading Iraq, which as far as is known (whether you know differently, Carl?) had no input with al Qaida, and in fact the Saddam regime hated their guts.
It doesn’t matter whether the invasion of Iraq was legal or not, it was wrong. But events superceded the debate and democracy was powerless.
Legality at the global level has no legitimate authority because it is not accountable to representatives, and is therefore unenforcable.
So if we want to apply global laws based on common, universal rights, then we need a fully-constituted global legal infrastructure – not just a few statements of principle and opinon by learned or holy people, or declared preambles in dusty exhibition pieces.
Without the institutions to apply them UN resolutions are a painful joke for diplomats – given their prolific number they’re more like a running sore on humanity.
It was certainly legal. As Blair himself said, there were many valid reasons for the second Iraq war. WMD was one of them, but there were plenty of others.
Where does one start with the illegality? Saddam Hussein achieved power largely through illegal acts of murder and corruption. His invasion of Kuwait was illegal. His scorched-earth policy in defeat, torching the Kuwaiti oil wells, was an illegal war crime and environmental crime too. By contrast, when the first Bush liberated Kuwait, he stopped short of overrunning Baghdad, demonstrating a principles response to aggression. Saddam Hussein’s subsequent recovery, rearmament, and threats did nothing to stabilize the region, and gave the strong, intentional impression that he was willing to have another go at illegal aggression. His refusal to cooperate credibly with UN inspectors was perhaps part of his game, but it was a bluff that went wrong – people believed he had WMD and his behavior said nothing different.
Governments and oppositions in Africa range from the good to the appallingly corrupt, from the strong to the ineffective, from the skilled to the incompetent. The continent needs rules by which nations may justifiably intervene in the relationships between other nations’ governments and their populations, and the rakes need to allow good actions and prohibit aggressive, domination-intended ones. Unfortunately the confusion that has resulted by the absence of WMD means that some may argue for wrong interventions, and these arguments are important they sway popular opinion. Archbishop Tutu is looking for a way to solve this and move forward.
But Blair was freely supported by most of his party and most of the opposition. He went out of his way to get qualified opinion on the legality of his planned actions. None of his advisers or supporters faced the kind of pressure they would have faced if they had been Iraqis disagreeing with Saddam. And all were sufficiently independent , protected,or tough to be able to resist mild pressure There may be some value in putting Blair on trial, not least clarity. But no fair court in the world would find him guilty.
@Carl – I respect your reasoned approach. Obviously we find ourselves drawn to a different conclusion but this has been one of the most intellectually credible debates on a subject that all of us have clearly thought about in some detail. I think your point about time has some important aspects: for example, the threat of invasion was indeed the spur to allowing UNMOVIC back in. But one aspect which I don’t follow is this: “[Iraq] would want to play for time and play for time again in order to avoid disarming”. As we all know with the benefit of hindsight, Iraq had disarmed but had decided to bluff that it had not. Now, I accept that this fact was not widely understood at the time. But it is still the truth borne out by subsequent extensive investigations of the Iraq Survey Group and others. Indeed, it is mostly the case the UNSCOM succeeded in disarming Iraq the first time round.
Your argument appears to be that Iraq would have continued to fail to disarm, necessitating military action at some point. You don’t include the possibility that UNMOVIC would have concluded that Iraq didn’t have WMD after all. I suspect that, given the overheated atmosphere in early 2003, the problem was that UNMOVIC not finding WMD was interpreted in London and Washington as evidence of their incompetence and ideological unsoundness, rather than evidence of absence. This is where the dishonest and unprofessional intelligence services come in, constantly undermining UNMOVIC and telling Bush and Blair what they wanted to hear. So I feel that we’ll never get to the bottom of this but I do want to thank Carl and Toby for such an illuminating debate.
Thanks, Charles.
Sorry to quibble, but I did actually consider the possibility you mention. I said:
You may be right about US and UK feelings about UNMOVIC not finding WMD . But as Jeremy Greenstock was anxious to stress to the inquiry, the Iraqi concealment operation was very sophisticated. I suspect the US and UK mainly just felt it was largely successful. My own feelings are , first (and Tony Blair’s book if I remember right suggests this was his feeling too) that Blix was very aware of the political pressure on him as the man whose reports could trigger a major conflict, and so was reluctant by February-March 2003 to say more plainly that he did that Iraq was not cooperating with him; and secondly that, as an inspector, understandably and rightly committed to the value of the inspection process, he very much wanted to continue his mission.
By the way, another common misconception in all this is that UNMOVIC found nothing. They did of course find and destroy prohibited missiles in 2003 – they were the ones Blix famously said weren’t “toothpicks”. This actual finding of prohibited weapons was another factor consistent with the impression that Iraq still had chemical or biological weapons stocks too.
This has been a really interesting discussion, yes. Thanks, Toby, for providing a chance for us to talk about this.
Thanks to all for a polite reasoned debate. Sorry for not answering lady night, I was at a surprise birthday party. I’ll respond in detail tomorrow. I hope to also meet you all in Brighton next week- I’ll be around and about, but the CentreForum stand will know where I am.
Kind regards,
Toby