THE LEGAL CASE FOR WAR WITH IRAQ

As the US and UK appear set to pursue war in Iraq without a second UN

resolution, Matthew Happold explains whether this course of action would be legal
 Matthew Happold
 guardian.co.uk, Thursday 13 March 2003 13.03 GMT

Is war illegal without a second UN resolution?

The prohibition of the use of force is a foundational rule of international law. Only two exceptions are
permitted: the use of force in self-defence, or with the express authorisation of the UN security council
exercising its powers under chapter VII of the UN charter.

Iraq has not attacked the US, the UK or their allies, nor is there any evidence that it is about to do so. Force
may only be used in self-defence in response to an actual or (according to some commentators) an imminent
armed attack. Therefore any arguments based on self-defence fail. What the US national security strategy has
advocated are pre-emptive attacks on countries which may threaten the US. The use of armed force in such
circumstances is contrary to international law.

What about UN resolution 1441?

Security council resolution 1441 does not authorise the use of force. Any attack on Iraq would consequently be
illegal.

Resolution 1441 finds Iraq to be in "material breach" of its disarmament obligations under earlier security
council resolutions. It gives Iraq a "final opportunity" to comply with its obligations and, to that end,
establishes an onerous and rigidly-timetabled programme of Iraqi disclosures and UN inspections.

Failures by Iraq to comply are to be reported to the security council, which must then "convene immediately ...
to consider the situation and the need for full compliance". The resolution also recalls that the council has
repeatedly warned Iraq of "serious consequences" as a result of its continued violations of its obligations.

But the resolution does not authorise the use of force. The term "serious consequences" is not UN code for
enforcement action (the term used is "all necessary measures"). And, in their explanations of their votes
adopting resolution 1441, council members were careful to say that the resolution did not provide such an
authorisation.

Why, then, does the government say there is a legal case for war?
It is difficult to know on exactly what grounds the government is basing its arguments that that is a legal basis
for war, in the absence of a second security council resolution. Ministers have been less than explicit as to what
that basis might be, and the government has refused to release the advice given them by the law officers and
Foreign Office lawyers.

Nevertheless, there are arguments, if not very convincing ones, that the proposed US and UK action would be
lawful. In particular, it is argued that security council resolution 678 (1990) provides express security council
authorisation for force. That resolution, adopted by the security council in response to the Iraqi invasion and
occupation of Kuwait, authorised the American-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 lengthy list of
obligations on Iraq, including several regarding disarmament. Iraq is in breach of those obligations. Indeed,
resolution 1441 found it to be in "material breach" of them. Accordingly, so the argument goes, the
authorisation to use force granted the US and the UK by resolution 678 has been re-activated.
 However, there are problems with this analysis. First, it is generally considered 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. Secondly, such an analysis was
specifically rejected by security council members in their explanations for their votes on resolution 1441. The
general view was that resolution 1441 did not provide for "automaticity", that is, it did not trigger any
authorisation to use force.

Finally, it might be thought that even if resolution 678 did permit the USA and the UK to use force to enforce
Iraq's disarmament obligations, it does not provide authority for regime change.

Did the UN give permission for military action in Kosovo?

The security council did not authorise Nato intervention in Kosovo, although the situation was regularised by
security council resolution 1244, which imposed a UN protectorate on Kosovo. Accordingly, many
commentators consider Nato's actions to have been illegal, although opinion is divided as to both the legal and
the moral situation.

The British government argued that it was permitted to use force pursuant to a doctrine of humanitarian
intervention. The legal foundations of such a doctrine are, at best, shaky. Certainly, the doctrine has been
rejected by Russia, China and the 133 states of the G-77. In any case, the criteria advanced by the UK
permitting humanitarian intervention do not apply to Iraq.

Are there any other precedents for action such as that which is being contemplated over Iraq?
Another precedent sometimes cited is the intervention by Ecowas (the Economic Community of West African
States) in Liberia from 1990. This intervention was not authorised by the security council, but it was
retrospectively approved. Whether the subsequent approval of the security council can serve to retrospectively
legalise an action unlawful at the time of its commission is debatable. In any case, Ecowas was seen as a
regional arrangement as defined by chapter VIII of the UN charter and, as such, as having a particular
responsibility for peace and security within its region. It is difficult to see the US and UK having such a role in
the Middle East.

Could the UK be prosecuted under international law?

In practice, no. The UK has acceded to the compulsory jurisdiction of the international court of justice. Iraq,
however, has not. Even if Iraq were to do so now, it would be barred from bringing a case against the UK until
six months had elapsed. If conflict does ensue, one might expect a new regime to have been installed in
Baghdad before the six months is up.

Could Tony Blair follow Slobodan Milosevic into the dock?

Unlikely. The waging of aggressive war is a crime under international law, giving rise to individual criminal
responsibility. A number of the defendants at Nuremberg and Tokyo were convicted of crimes against the
peace for having planned and waged wars of aggression. However, no individuals have been convicted of
aggression since.

The UK, unlike the US, is a party to the Rome statute of the international criminal court. The statute has been
in force since July 1 2002, and the court is now in the process of being established. Crimes within the
jurisdiction of the court include aggression, but only when a definition of the crime has been agreed, which has
not yet occurred, and only in respect of acts committed after the adoption of the definition.

It is possible that UK nationals could be brought before the court and charged with war crimes or crimes
against humanity. However, the court's jurisdiction is subsidiary to national jurisdictions, so this would only
happen if the UK courts had proved unable or unwilling to prosecute British nationals suspected of such
crimes, which seems unlikely.

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

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