Legal justification of Iraq war - a weak case?

[JURIST] Matthew Heppold of the University of Nottingham School of Law says that the UK Attorney General's legal defense of the use of force against Iraq - previously reported in JURIST's Paper Chase - is a "weak case".

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....

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....

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".
Read the full op-ed in the Guardian.


 

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