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The war in Iraq has been the subject of debate for many months, and will likely be considered for many years to come. Many issues arise out of the war, including the basis upon which States may use force against one another; the effectiveness of the various international instruments governing the non-proliferation and disarmament of weapons of mass destruction; the conduct of military operations in the field; the role of the United Nations and others in post-war reconstruction; the accuracy or otherwise of military intelligence used by leaders to justify action against Iraq; and the role and relevance of international law in modern politics. All are important. All have an impact on the maintenance of international peace and security. Of those various key issues, the basis upon which States may use force against one another has attracted significant attention. Various justifications might be used to validate the action against Iraq.[1] But it is only one argument that was used by all members of the coalition forces against Iraq: that there existed an implied authority from United Nations Security Council resolutions to use force against Iraq. This will form the basis of analysis within this article. Did the United Nations Security Council authorise the use of force against Iraq, impliedly or otherwise?
As indicated, the common justification for intervention in Iraq employed by coalition forces has been the existence of an implied authority through Security Council resolutions. In his address to Parliament on 18 March 2003, the day before the start of Operation Enduring Freedom, United Kingdom Prime Minister Tony Blair referred to the following advice given to him from Attorney General Lord Goldsmith:
Authority to use force against Iraq exists from the combined effect of resolutions 678, 687 and 1441. All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security.[2]
Similarly, and on the same day, Australian Prime Minister John Howard said this at a news conference:
The action that might be taken as a result of this decision [to commit Australian troops] has a sound legal basis in the resolutions of the Security Council that have already been passed. If you go back to Resolution 678, 687 and 1441, you find ample legal authority. That [advice] ... is almost identically the published view of the Attorney-General of the United Kingdom Government.[3]
In a press release from the United States Department of State, Secretary of State Colin Powell took a much more robust approach. He too made reference to the existence of an implied authority to act, but went further to say:
If the UN does not act, then it would be necessary for the United States to act with a willing coalition.[4]
Before moving to examine the implied authority argument, it is useful to consider the New Zealand position on intervention in Iraq. In early March 2003, New Zealand's Minister of Foreign Affairs and Trade Phil Goff stated that:
...the New Zealand position remains as it was stated on 19 February. We do not support military action against Iraq without a mandate from the Security Council.. [5]
Likewise, and again on the day prior to Operation Enduring Freedom, New Zealand Prime Minister Helen Clark said:
They [referring to the UK, US and Australia] stretch back through a string of UN resolutions to construct a legal edifice for what is happening. I think they will fail to convince most international lawyers.[6]
In examining the question at hand, it is important to place the issue in its proper context. It is the first-stated principle of the United Nations to maintain peace and security, suppress acts of aggression and achieve the peaceful settlement of disputes.[7] Article 2(1) ofthe United Nations Charter expresses the foundation ofthe United Nations as being based upon the principle of the sovereignty equality of all members. Member States are directed to settle disputes by peaceful means in such a manner that international peace and security is not endangered.[8] The United Nations itself is prohibited from intervening in the domestic affairs of any member without their consent and unless otherwise permitted under the Charter.[9] Most significantly, under article 2(4), members ofthe United Nations are directed that they must refrain from the use or threat of use of force in international relations. The latter provision is regarded as a norm of jus cogens, a peremptory norm of customary international law from which no derogation is permitted.[10] Article 51 of the Charter retains the inherent right of a State to act in defence of itself, and extends the principle to one of 'collective self-defence', whereby members of the United Nations are also permitted to use force in the defence of a State with whom the State is intimately connected and/or where another member seeks the assistance of others to defend itself.[11] The Security Council, composed of five permanent members[12] and ten non-permanent members,[13] is charged under article 24 of the Charter with the role of maintaining international peace and security. All United Nations members are bound to accept and carry out the decisions of the Security Council.[14] The Council has two primary means of achieving that objective under the Charter: the provisions within Chapter VI, pertaining to the pacific settlement of disputes; and the well-known Chapter VII enforcement action provisions. Forthe purpose of this article, it is useful to give a brief account of the nature and operation of Chapter VII. Decisions of the Council are made by the affirmative vote of at least nine members, with the proviso that the permanent members may, without needing to justify their position, exercise a veto under article 27(3).[15] In exercising enforcement action under Chapter VII, the Security Council is required first to determine whether there is a threat to or breach of peace entitling it to take such measures.[16] If so determined, the Council then has the provisions of articles 40 to 42 at its disposal: it may impose non-military (normally trade) sanctions;[17] provisional measures aimed at preventing an escalation of any threat to or breach of peace; or it may authorise the use of military force under article 42.[18] In basic terms then, the international law on the use of force can be summarised as follows. The use of force between states, or threat of such, is prohibited by the United Nations Charter and by way of a peremptory norm of customary international law. It is permitted in only two situations: first, where a State is acting by way of 'collective self-defence', within the narrow terms of article 51; secondly, where authorised by a decision of the Security Council, acting under Chapter VII of the Charter, in response to a threat to or breach of peace.[19]
As set out at the outset of this article, the advice of the Attorney General to the United Kingdom on the ability to use force against Iraq was based upon the existence of an authority through the combined effect of Security Council resolutions 678, 687 and 1441. It is important, then, to place those resolutions in perspective and examine their provisions and effect. The resolutions cut across three major conflicts involving the use of force against Iraq: Operation Desert Storm in January 1991; Operation Desert Fox in December 1998; and the recent Operation Enduring Freedom that commenced in March 2003.
Iraq and neighbouring Kuwait to the south have a history of conflict stretching back many years. In 1963 they entered into a treaty of friendly relations,[20] under which they agreed upon a boundary between the two States. On 2 August 1990, Iraq invaded Kuwait, resulting in the immediate issuing of resolution 660 under which the Security Council demanded the immediate and unconditional withdrawal of Iraq from Kuwaiti territory.[21] The failure by Iraq to do so resulted in the Security Council issuing a further resolution, 678, of 29 November 1990. The resolution expressed the following position of the Security Council:
Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwill, to do so;
Authorises Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;
Iraq's failure to withdraw from Kuwait by 15 January 1991 resulted in the commencement of Operation Desert Storm the following day. Turning to Lord Goldmith's position, what can be taken from resolution 678? His advice to Prime Minister Blair was that this was a resolution adopted under Chapter VII of the UN Charter, which allows the use of force for the express purpose of restoring international peace and security. To that extent, he is correct. The preamble to resolution 678 expressed itself as an action under Chapter VII of the United Nations Charter and reaffirmed the Council's earlier determination under resolution 660 that the invasion of Kuwait constituted a breach of peace; and Chapter VII does indeed permit the Security Council to authorise the use of force for the purpose of restoring peace and security. As seen from the second of the paragraphs quoted above, the resolution specifically authorises member States to use 'all necessary means' to uphold and implement resolution 660.
What of Lord Goldsmith's view that resolution 678 provided authority to use force against Iraq in 2003? With all due respect, it is the conclusion of the author that it does not. Resolution 678 bears no relevance at all to the modern Iraqi crisis. It was adopted by the Security Council to authorise the use of force against Iraq for the purpose of enforcing resolution 660, which had demanded the immediate and unconditional withdrawal of Iraq from Kuwait. The current crisis did not have anything to do with an Iraqi presence in Kuwait and therefore resolutions 660 and 678 cannot be used to justify the use of force.
The only potential argument in favour of an implied authority to use force under resolution 678 would rely on the final ten words of the Security Council authorisation: namely, that it authorised members to use all necessary means to enforce resolution 660 'and to restore international peace and security in the area' [emphasis added]. Might this be an additional authorisation to use force above and beyond the enforcement of resolution 660? The writer suggests not, for two reasons. First, it is clear that this was not the intention of the Security Council when adopting resolution 678. Examining the document in its context, it gave an authority to use force if Iraq failed to withdraw from Kuwait by 15 January 1991 and for the purpose of restoring the democratic republic of Kuwait. It is an untenable stretch of the imagination to say that it was also intended to provide an infinite, or at least long-lasting, authority to use force against Iraq to maintain peace and security in the region. Furthermore, the specific wording of the authorising paragraph supports this first basis of analysis. The defining portion of the paragraph, by which the use of force is authorised, states 'Authorises Member States co-operating with the Government of Kuwait...'. The authority thereby expressly limits itself to the situation of conflict that was then presented.
Despite the repulsion of Iraqi forces from Kuwait under Operation Desert Storm, Iraq remained belligerent. It threatened to use chemical and biological weapons against Kuwait. It did in fact fire ballistic missiles in unprovoked attacks against Kuwait, and US and UK intelligence sources reported that Iraq was attempting to acquire materials for a nuclear weapons programme.
The result was that, less than three months after the commencement of Desert Storm, the Security Council issued a further resolution against Iraq. Resolution 687 was adopted, again under Chapter VII, on 3 April 1991 with two distinct objectives.
The first was to establish a cease-fire between Iraq and Kuwait, which is addressed within Part Aof the resolution, through paragraphs 2 to 4 inclusive. Part A demanded that Iraq respect the inviolability of the international boundary with Kuwait, as had been set out in the 1963 treaty of friendship between the two States. It called upon the establishment of a demilitarised zone[22] and authorised the use of force to enforce the cease-fire. Paragraph 4, by which the latter authority was issued, was specific in its authority being limited to the enforcement of the cease-fire and for no other reason:
Decides to guarantee the inviolability of the abovementioned international boundary and to take, as appropriate, all necessary measures to that end in accordance with the Charter of the United Nations;
It should be noted at this stage that resolution 687 contains no other provision authorising the use of force.
The balance of the resolution does, however, address the issue of weapons of mass destruction by various means. Iraq was required to destroy, remove, or render harmless all chemical and biological weapons and related systems and development facilities and all ballistic missiles with a range greater than 150 km.[23] It was also required to unconditionally undertake not to use, develop, construct or acquire nuclear weapons and related systems, components and development facilities.[24] Iraq was obliged to submit a formal adoption of resolution 687, and invited to unconditionally reaffirm its commitment to the Treaty on the Non-Proliferation of Nuclear Weapons.[25]
Again returning to Lord Goldsmith's advice, it is clear that, while resolution 687 is established under Chapter VII and authorises the use of force against Iraq, the latter authorisation is limited in its terms to the enforcement of the cease-fire agreement between Iraq and Kuwait. Once more, that has no bearing on the 2002/2003 Iraqi crisis. The relevance of the provisions of resolution 687 is limited to the fact that is placed upon Iraq certain obligations pertaining to disarmament and non-proliferation of weapons of mass destruction.
In the context of Desert Fox and Enduring Freedom, it should also be noted that resolution 687 led to the establishment of an Iraq Action Team of the International Atomic Energy Agency (IAEA), which had the task of monitoring and reporting on Iraq's compliance with the latter aspects of the resolution. The Iraq Action Team, comprised of various United Nations appointed weapons inspectors, undertook meetings with the Iraqi regime for the implementation of a comprehensive monitoring and verification programme, but met resistance when faced with the actual inspection process. Difficulties escalated in 1996, ultimately resulting in the withdrawal of the Action Team in 1998.
By resolution 1154 of 2 March the same year, the Security Council stressed upon Iraq that the provision of immediate and unrestricted access to the IAEA weapons inspectors was necessary for the implementation of resolution 687.[26] Resolution 1154 stated, in that context, that 'any violation would have severest consequences for Iraq'.[27] The failure by Iraq to permit the return of inspectors on those terms led to the UK/US-led coalition action under Operation Desert Fox. Desert Fox comprised a series of air strikes for four days and nights from 16 December 1998, with its expressed aims being the degrading of Iraq's capability to build and use weapons of mass destruction and diminishing the military threat posed by Iraq to its neighbours.[28] In line with today's position of Lord Goldsmith, the United Kingdom and United States argued, in the debates of the Security Council on 16 December 1998, that this conduct was impliedly authorised through the combined effect of resolutions 687 and 1154. The majority of the Council disagreed with that view, a matter for later discussion within this article.[29]
At the instigation of the Bush Administration, the United Nations Security Council adopted resolution 1441 on 8 November 2002, following the continued refusal by Iraq to comply with its obligations to provide UN weapons inspectors with unrestricted access to its facilities and, in view of growing concern that Iraq had re-established a weapons of mass destruction programme. The resolution begins by reiterating that Iraq remained in breach of resolution 687.[30] It does not state which part of resolution 687 it refers to, but it can only refer to those parts of the resolution pertaining to weapons of mass destruction. Part A of resolution 687, in which the sole authority to use force is contained, relates to the cease-fire with Kuwait. As discussed, this portion of the 1991 resolution does not hold any relevance to the concerns of the Bush and Blair Administrations. Furthermore, paragraph 1 of resolution 1441 makes reference to Iraq's breaches relating to its failure to cooperate with United Nations inspectors and to complete the actions under paragraphs 8 to 13 of resolution 687 Under paragraph 3, Iraq was required, as a first step towards compliance with its disarmament obligations, to submit a declaration concerning all aspects of its programmes to develop chemical, biological and nuclear weapons, ballistic missiles and other delivery systems. The resolution expressly provides Iraq with 'a final opportunity to comply with its disarmament obligations'[31] and provides in the penultimate paragraph as follows:
Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations;[32]
Subsequent to the adoption of resolution 1441, Iraq lodged with the United Nations Secretary-General the declaration required of it under paragraph 3.[33] The United Nations Monitoring, Verification and Inspection Commission (UNMOVIC),[34] under the leadership of Dr Hans Blix, carried our inspections of various facilities in Iraq, albeit that this was preceded by various stall tactics and initial difficulties in the conduct of inspections. The United States and United Kingdom complained that Iraq was in violation of resolution 1441 through an alleged failure by Iraq to provide a full and accurate declaration as required under paragraph 3.[35] Interestingly, however, members of the Security Council were not united on the question of whether the allegations made against Iraq constituted a material breach of resolution 1441.
On 6 March 2003, UNMOVIC lodged a report with the Security Council,[36] presented with an accompanying oral report from Dr Blix.[37] Throughout the history of UNMOVIC, this was the first of twelve quarterly reports in which the IAEA was able to say that it had conducted actual inspections of Iraqi facilities, rather than just preparations towards inspections. Dr Blix acknowledged some initial difficulties, but described that overall UNMOVIC had faced relatively few difficulties. He didnot suggest that the inspection process had been smooth sailing, but he did acknowledge that UNMOVIC was able at that time to conduct professional no-notice inspections all over Iraq. In the final paragraph of his oral report, he said:
How much time would it take to resolve the key remaining disarmament tasks? While cooperation can and is to be immediate, disarmament and at any rate the verification of it cannot be instant. Even with a proactive Iraqi attitude, induced by continued outside pressure, it would still take some time to verify sites and items, analyse documents, interview relevant persons, and draw conclusions. It would not take years, nor weeks, but months. Neither governments nor inspectors would want disarmament inspection to go on forever. However, it must be remembered that in accordance with the governing resolutions, a sustained inspection and monitoring system is to remain in place after verified disarmament to give confidence and to strike an alarm, if signs were seen of the revival of any proscribed weapons programmes.
Notwithstanding the calls for further inspectors and time for inspections, the US/UK-led coalition commenced military action against Iraq on 19 March 2003.
Having disposed of some of the issues in Lord Goldsmith's advice to Prime Minister Blair, as to the relevance of United Nations Security Council resolutions 678 and 687, one further, vital, question remains. Did Security Council resolutions 1154 and 1441 impliedly authorise the use of force against Iraq? Were the phrases 'severest consequences for Iraq' and 'it [Iraq] will face serious consequences' sufficient to trigger an authority for coalition forces to intervene in Iraq? The author thinks not.
The starting point in this analysis is to have regard to the Security Council debates of 16 December 1998, the day Operation Desert Fox was commenced.[38] Within those debates, Russia articulated that the resolutions existing at that time, 660, 678, 687 and 1154,
(1) did not authorise members of the United Nations to act independently on behalf of the United Nations; and
(2) did not, by themselves, authorise the use of force against Iraq but in fact required the adoption by the Security Council of a further more specific resolution.
The first of these positions finds clear support within the jurisprudence of the International Court. The Court has held that the United Nations is an institution possessing international personality, a feature of which involves a distinction, in terms of legal powers and purposes, between the organisation and its members.[39] It has further decided that this distinction is one whereby individual members of such an institution cannot assert a separate self-contained right over and above the organization's collective institutional activity.[40] The second of the arguments posited by Russia and others requires further attention, in the absence of any judicial guidance in the matter. It goes to the heart of the issue in this paper. Did the wording of resolution 1441, and its similar predecessor 1154, trigger an implied authority to act, notwithstanding the general principle that a member of the United Nations cannot act independently of it?[41] In what way has the Security Council authorised the use of force by its members in the past? Are there particular words required? What follows is an examination of various conflicts in which the Security Council has, under Chapter VII of the Charter, authorised the use of force.
There have been various instances where the Council has provided its members with an express authority to use of force against States. It is useful to consider briefly a number of these instances in their context. What will be seen is an emergence of a clear pattern, whereby the relevant resolutions express an ability to use all necessary means or measures to enforce the resolution, combined with a delegation of that authority to United Nations members.
Following a report of the United Nations Commission on Korea,[42] the Security Council expressed grave concern about the armed attack on the Republic of Korea by forces from North Korea and determined that this action constituted a breach of the peace within the terms of Chapter VII of the United Nations Charter.[43] Under Resolution 82 it called upon the immediate cessation of hostilities and withdrawal of North Korean forces. The failure by North Korea to do so resulted in the adoption of Resolution 83 on 27 June 1950, in which the Security Council noted that urgent military measures were required to restore international peace and security and recommended:
.. that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area.[44]
Towards the end of 1965, the Security Council imposed trade sanctions against Southern Rhodesia, calling on all United Nations members to do their utmost to break off economic relations with the country, including an embargo on oil and petroleum products.[45] The United Nations received reports that substantial supplies of oil were to reach Southern Rhodesia as a result of an oil tanker having arrived at Beira and the approach of a further tanker. This, coupled with concern that Southern would be capable of resuming oil pumping through the Companhia do Pipepeline with the acquiescence of the Portuguese authorities, led to Resolution 221. The Security Council considered that oil supplies would afford great assistance and encouragement to the illegal regime in Southern Rhodesia and called upon the Portuguese Government not to permit oil to be pumped through the pipeline from Beira to Southern Rhodesia. The Resolution also called on the United Kingdom to prevent the arrival at Beira of vessels reasonably believed to be carrying oil destined for Southern Rhodesia 'by the use of force if necessary'.[46]
Following the invasion of Kuwait by Iraq in 1990, a series of preliminary resolutions were issued by the United Nations Security Council, demanding the withdrawal of Iraqi forces and imposing oil trade sanctions upon Iraq.[47] In breach of the economic sanctions under Resolution 661, Iraq continued to export oil using Iraqi flag vessels. In order to ensure Iraqi compliance with the economic sanctions, the Security Council authorised the use of' such measures commensurate to the specific circumstances as may be necessary ... to halt all inward and outward maritime shipping' under Resolution 665(1990). By the end of November 1990, Iraq had still refused to comply with the Security Council's demands for it to withdraw from Kuwait. The Security Council had made the demand for Iraq to withdraw on 2 August 1990, the day of the Iraqi invasion of Kuwait.[48] Acting under Chapter VII of the United Nations Charter, the Security Council set out the following demands and authorisations under Resolution 678:
Demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions, and decides, while maintaining all its decisions, to allow Iraq one final opportunity, as a pause of goodwill, to do so;
Authorises Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;[49]
As already indicated, Iraq failed to comply with this 'one final' opportunity set out within Resolution 678, which thereby authorised the use of all necessary means by United Nations members to ensure the withdrawal of Iraqi forces from Kuwait. The result was Operation Desert Storm, which commenced with a series of air strikes on 16 January 1991 and ultimately led to Iraq formally accepting cease-fire terms between it and Kuwait on 3 March 1991.[50]
Although initially very slow to act in response to the internal conflict within Somalia, the Security Council ultimately decided to authorise the use of force through Resolution 794 of 3 December 1992. Mass genocide was occurring within Somalia, exacerbated by obstacles in the distribution of humanitarian aid, and recognised as constituting a threat to international peace and security.[51] Following an offer by the United States to establish and lead an operation for the creation of a secure environment in Somalia,[52] the Security Council authorised the Secretary-General and UN members to implement that offer and, in doing so, authorised those states 'to use all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia'.[53]
In response to the internal conflict within the former Yugoslavia, which had commenced in 1991, various measures were implemented by the United Nations, including the establishment of the United Nations Protection Force (UNPROFOR) and the imposition of no-fly zones.[54] Despite the establishment of these no-fly zones, the ban on military flights in the airspace of Bosnia and Herzegovina was repeatedly violated. Against that background, the Security Council allowed a further seven-day period for compliance, following which member states were authorised to use 'all necessary measures', proportionate to the specific circumstances, to ensure compliance with the ban.[55] The continued fighting within the former Yugoslavia and attacks on ethnic groups prompted the Security Council to establish safe areas within the Republic.[56] Notwithstanding this, the Council was later faced with military attacks on these safe areas and therefore decided to extend the mandate of UNPROFOR to enable it to deter attacks against the safe areas.[57] It authorised UNPROFOR:
.. acting in self-defence, to take the necessary measures, including the use of force, in reply to bombardments against the safe areas by any of the parties or to armed incursion into them...[58]
At the end of 1995, the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia signed a peace agreement.[59] To ensure the proper implementation of that agreement, the Security Council authorised the establishment of a multinational implementation force (IFOR).[60] IFOR was authorised to use 'all necessary measures' to ensure implementation of the peace agreement.[61]
Following a failed attempt by the United Nations Assistance Mission in Rwanda (UNAMIR) to establish a meaningful cease-fire agreement in Kigali and outlying areas of Rwanda,[62] the Security Council authorised the establishment of a multinational force in Rwanda to maintain a presence in Rwanda until an expanded UNAMIR was deployed.[63] Under Resolution 929 of 22 June 1994, the United Nations Security Council authorised the multinational force to contribute to the security and protection of persons at risk in Rwanda, using 'all necessary means'.[64]
In July 1993, the Governors Island Agreement was signed between the President of the Republic of Haiti and the Commander-in-Chief of the Armed Forces of Haiti, under which the United Nations was requested to provide assistance for modernising the armed forces of Haiti and establishing a new police force.[65] As a result, the United Nations dispatched the UN Mission in Haiti (UNMIH).[66] The Mission, however, encountered obstruction from the Haitian military and were not even able to land on the island. The Security Council in due course determined that the regime in Haiti was an illegal de facto regime and that it had failed to comply with the Governors Island Agreement and was in breach of its obligations under the relevant United Nations Security Council resolutions.[67] In July 1994 it authorised the establishment of a multinational force:
...to use all necessary means to facilitate the departure from Haiti of the military leadership, consistent with the Governors Island Agreement, the prompt return of the legitimately elected President and establish and maintain a secure environment...[68]
In the wake of pro-Indonesian riots following the East Timorese vote in favour of independence, and the widespread massacres of East Timorese people, the United Nations established the United Nations Transitional Authority in East Timor (UNTAET) and authorised UNTAET to take all necessary measures to fulfil its mandate.[69]
By way of summary, the Security Council has made the following express delegations of authority since 1950:
1. North Korea, 1950, in response to a breach of the peace by North Korea's military invasion of the Republic of Korea, an authorisation was made to furnish 'such assistance ... as may be necessary'.
2. Rhodesia, 1966, in the implementation of trade sanctions, the United Kingdom was called upon to act 'by the use of force if necessary'.
3. Iraq, 1990-1991, to implement trade sanctions and in response to the invasion of Kuwait, members were authorise to use 'such measures ... as may be necessary' (resolution 665) and 'all necessary means' (resolution 678).
4. Somalia, 1992, 'all necessary means' were authorised to assist the delivery of humanitarian aid.
5. Republic of Bosnia and Herzegovina, 1993-1995, 'all necessary measures' were authorised to enforce a no-fly zone; 'necessary measures, including the use of force' were permitted in response to the bombing of safe havens; and 'all necessary measures' to enforce the 1995 peace agreement.
6. Rwanda, 1994, 'all necessary means' were authorised to assist humanitarian relief.
7. Haiti, 1994, in the restoration of the democratic government, the multinational force was authorised to use 'all necessary means'.
8. East Timor, 1999, UNTAET was authorised to use 'all necessary measures' to implement its peacekeeping mandate.
A clear pattern can be seen through the resolutions providing United Nations members with the authority to use force. The early resolutions, pertaining to North Korea and Southern Rhodesia, authorised assistance or the use of force if 'necessary'. In the 1990 and 1991 in Iraq, the word "necessary" was repeated and the language 'measures' (665) and 'means' (678) introduced. From that point on, all resolutions in which United Nations members have been expressly authorised to use force have sanctioned 'all necessary...''... means' or'... measures'. Having regard to article 31 (3)(b) of the Vienna Convention on the Law of Treaties, this fact is significant:
SECTION 3: INTERPRETATION OF TREATIES Article 31 General Rules of Interpretation
3. There shall be taken into account, together with the context:
b. Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
The issue that arises is whether the practice of the United Nations Security Council, in using the term 'all necessary means/measures' in authorising the use of force under Chapter VII of the United Nations Charter, is a practice in the application of the Charter that establishes the agreement of the parties regarding the interpretation of resolutions made under Chapter VII. Given the consistency in the manner by which the Security Council has expressed authorisations to use force, there is a strong argument in favour of such a view. There is one further matter to consider, however, concerning instances where the Council has clearly adopted provisions within its resolutions with an implicit authority to use force.
In early 1997, the United Nations authorised the establishment of a multinational peacekeeping force in Albania and:
...further authorizes these Member States to ensure the security and freedom of movement of the personnel of the said multinational protection force[70]
In order to facilitate the delivery of humanitarian aid, the Security Council later gave an identical authority under Resolution 1114.[71]
In response to militia action in the Central African Republic, the Inter-African Mission to Monitor the Implementation of the Bangui Agreements (MISAB) was created. Under Resolutions 1125 and 1136, the Security Council authorised participating States 'to ensure the security and freedom of movement of their personnel'.[72]
Nowhere in these resolutions is there any expression permitting the use of force or the use of necessary or reasonable means or measures to achieve certain ends. However, the common feature of the resolutions is that there is a clear authority to member States to ensure the security and freedom of movement of their personnel, in the execution of a mandate provided to them by the Security Council. The resolutions authorise members to do something within the territory of another State, from which it can be implied that force may be necessary to protect their own nationals in the execution of that task. The authority to use force in these contexts is ancillary to the United Nations sanctioned mandates.
It is proposed, against the background of past Security Council authorisations and article 31 (3)(b) of the Vienna Convention, that a member of the United Nations may be authorised under Chapter VII of the Charter to use force within another State in two situations only. The first is when authorised through the expression 'all necessary means/measures'; the second is when a member is provided with a mandate to conduct operations within another State, and it is implicit from the terms of the mandate that the member is able to use force for the protection of its personnel. Neither of those situations applies to resolution 1441. The resolution does not provide any member of the United Nations, or any coalition of members, with a mandate to conduct operations within Iraq from which it might be implied that the use of force was necessary. Nor does the wording of paragraph 13 permit the use of 'all necessary means/measures'; rather it states that the United Nations Security Council:
Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations; [emphasis added]
Of significant relevance to this is the fact that the first draft of resolution 1441, prepared by the Bush Administration in consultation with the United Kingdom, contained an authority to use 'all necessary measures' in the absence of compliance. It was as a result of discussions within the Security Council concerning the draft resolution that the expression was removed and replaced with a warning of 'serious consequences'.[73] One final potential argument should be addressed: that an authority to use force arose not just from the expression 'serious consequences', but from the combined effect of that expression with the provision in paragraph 2 of resolution 1441 (that Iraq was being provided with 'one final opportunity' to comply with its disarmament obligations under resolution 687). Why else would the Security Council express that Iraq had one final opportunity to comply, if it did not envisage that the use of force would follow within the 'serious consequences' referred to?
Initially, that position might hold some appeal. However, again it can be dispelled by looking at the prior practice of the Security Council. In resolution 678, to which Lord Goldsmith referred, Iraq was also given 'one final opportunity' to comply with demands of the Security Council.[74] That expression was immediately followed, however, by a time limitation for the exercise of that opportunity and with the express provision that a failure to exercise that opportunity within the time stated would result in the use of all necessary means:
Authorises Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;
The time limitation and authorisation to use all necessary means distinguish resolution 678 from 1441.
The principal basis upon which intervention in Iraq has been based is an authority arising out of the combined effect of resolutions 678, 687 and 1441. However, such a position is fundamentally flawed. It has been shown that, upon closer analysis, resolution 678 had no bearing on the conflict at hand since it related exclusively to the military intervention by Iraq against Kuwait. Similarly, while resolution 687 is relevant to the extent that it imposed various obligations upon Iraq regarding weapons of mass destruction, it does not contain any authorisation to use force in enforcement of those obligations. The sole authority to use force within that resolution related to the cease-fire agreement between Iraq and Kuwait, following Iraq's repulsion from Kuwait in 1991. Resolution 1441 required Iraq to implement its obligations under resolution 687 regarding weapons of mass destructions. It did not, however, authorise the use of all necessary means or measures to enforce its provisions, nor did it issue a mandate to United Nations members from which such authority might be implied. Regardless of one's views on the merits or otherwise of the removal of the Hussein Regime in Iraq, the use of force against Iraq was unjustifiable at international law. The United Nations Security Council did not authorise intervention and, as such, the unilateral use of force by the United States and others constituted an illegal act of aggression. Whereas coalition forces have purported to act in the interest of maintaining international peace and security, it is they who have breached the peace.
[*] Alex Conte, LLB (Cant), LLM (Hons)(VUW), Barrister and Lecturer in Law, Convenor of the University of Canterbury International Law Group.
[1] For example: (1) that intervention was permissible as an act of anticipatory self-defence, in the face of intelligence suggesting that Iraq was in a position to launch weapons of mass destruction at 45 minutes notice (to be tempered against the subsequent finding by the United Kingdom Parliamentary Foreign Affairs Committee on 7 July 2003 that a dossier on Iraq's weapons, relied upon by Prime Minister Blair in his address to Parliament on 18 March 2003, was incorrect and against the legal arguments that neither the United Nations Charter, nor customary international law, permits anticipatory self-defence: see n 19 below); and (2) that action was permissible by way of humanitarian intervention. See n 19 below.
[2] New Release 16 March 2003, 'Legal basis for use of force against Iraq', British High Commission in Canada News, <http://www.britainincanada.org/News/Release/2003/mar03/nr1617.htm> .
[3] Howard confirms Australian military commitment to Iraq war (2003) ABC News Online <http://www.abc.net.au/public/s809462.htm> .
[4] Powell: Issue is Iraqi Compliance, Not More Inspectors (9 February 2003) US Department of State web site <http://usinfo.state.gov/regional/nea/iraq/text2003/0209pwl.htm> .
[5] Phil Goff (Address to the Diplomatic Club, Wellington, March 2003) Phil Goff Speech: Iraq crisis: NZ's position (2003) Scoop website news <http://www.scoop.co.nz/mason/stories/PA0303/S00213.htm> .
[6] Australia commits troops to war (2003) Sydney Morning Herald Online <http://www.smh.com.au/articles/2003/03/18/1047749732511.html> .
[7] See the Charter ofthe United Nations, art 1(1). In this regard, the United Nations, and the Security Council in particular, has been criticised in its failure to prevent the intervention in Iraq, given this primary purpose.
[8] The Charter of the United Nations, art 2(3).
[9] The Charter of the United Nations, art 2 (7).
[10] See, for example, the judgment of Sir Ivor Jennings in Nicaragua v United States [1986] ICJ Reports 4, 518-24; Henkin, Pugh, Schachter and Smit, International Law Cases and Materials, (1980) 910.
[11] Nicaragua v United States, [1986] ICJ Reports 4, 534-36.
[12] China, France, Russia, the United Kingdom and the United States.
[13] Elected to sit on the Council for two years.
[14] The Charter of the United Nations, art 25.
[15] Quaere: should there be a power of veto in the hands of the permanent members? It can be argued that the power of veto is a safety feature aimed at preventing irrational decisions, albeit by a majority of at least nine out of 15 members. It was a criticism of the United States in the present crisis that the veto acted as an encumbrance upon the ability of the Security Council to make decisions, although the subsequent lack of evidence of weapons of mass destruction might in fact support the 'safety' aspect of the power of veto.
[16] The Charter of the United Nations, art 39.
[17] As it has done in various situations, including South Africa and Iraq.
[18] Note article 43 of the Charter, which is also, at least technically, a provision affecting the Security Council's ability to discharge its role. Article 43 makes provision for the establishment of a standing army of the United Nations, by special agreement with member States for the provision by members to the United Nations of personnel and equipment. The reality is that no such agreement has ever been established, resulting in the Security Council needing to delegate the authority to use force not to its own standing army, but to multinational forces established by its members.
[19] It must be acknowledged that there are arguments for, and against, further grounds upon which a State may use force against another. Two such (controversial) positions may be taken with respect to 'humanitarian intervention' (the idea that States may intervene by use of force against another State where the latter state is committing human rights violations and based upon the notion that the principles of the United Nations Charter include the maintenance and promotion of human rights) and 'anticipatory self-defence' (permitting an act in the defence of the State where an armed attack against the State is reasonably anticipated, rather than waiting for such an attack to occur before being able to respond - as is effectively the case under article 51 of the Charter). These two grounds involve considerable views for and against and, also bearing in mind that they were not expressly employed by the coalition forces as justifying the use of force against Iraq, are beyond the scope of discussion within this paper.
[20] Iraq and Kuwait signed at Bagdad on 4 October 1963 a document entitled Agreed Minutes between the State of Kuwait and the Republic of Iraq regarding the restoration of friendly relations, recognition and related matters.
[21] Resolution 660: Iraq- Kuwait, SC Res 660, UN SCOR, 45th sess, 2932nd mtg, [para 2] UN Doc S/Res/660 (1990).
[22] The demilitarised zone was specified in a letter dated 28 March 1991 from the Permanent Representative of the United Kingdom to the United Nations Secretary-General to be 10 km into Iraqi territory and 5 km into Kuwaiti territory from the international boundary under the 1963 agreement.
[23] Resolution 687: Iraq- Kuwait, SC Res 687, UN SCOR, 46th session, 2981st mtg, [para 8], UN Doc S/Res/687 (1991).
[24] Resolution 687: Iraq- Kuwait, SC Res 687, UN SCOR, 46th session, 2981st mtg, [para 12], UN Doc S/Res/687 (1991).
[25] Resolution 687: Iraq- Kuwait, SC Res 687, UN SCOR, 46th session, 2981st mtg, [paras 9, 11], UN Doc S/Res/687 (1991).
[26] Resolution 687: Iraq- Kuwait, SC Res 687, UN SCOR, 46th session, 2981st mtg, [para 3], UN Doc S/Res/687 (1991).
[27] Resolution 687: Iraq- Kuwait, SC Res 687, UN SCOR, 46th session, 2981st mtg, [para 3], UN Doc S/Res/687 (1991).
[28] See the United States Department of Defense web site DefenceLINK, <http://www.defenselink.mil/specials/desert_fox> .
[29] See Part V "All Necessary Means to Maintain Peace and Security", A The Fall-Out from Operation Desert Fox.
[30] Resolution 1441: The situation between Iraq and Kuwait, SC Res 1441, UN SCOR, 57th session, 4664th mtg [para 1], UN Doc S/Res/1441 (2002).
[31] Resolution 1441: The situation between Iraq and Kuwait, SC Res 1441, UN SCOR, 57th session, 4664th mtg [para 2], UN Doc S/Res/1441 (2002).
[32] Resolution 1441: The situation between Iraq and Kuwait, SC Res 1441, UN SCOR, 57th session, 4664th mtg [para 13], UN Doc S/Res/1441 (2002).
[33] Lodged on 7 December 2002.
[34] UNMOVIC was established under resolution 1284: On the situation between Iraq and Kuwait, SC Res 1284, UN SCOR, 55th sess, 4084th mtg, UN Doc S/Res/1284 (1999) to undertake the responsibilities of the former United Nations Special Commission (UNSCOM), which was charged with monitoring the elimination of weapons of mass destruction in Iraq.
[35] The address of US Secretary of State Colin Powell to the United Nations General Assembly on 5 February 2003 referred, for example, to: intercepted conversations within Iraqi military suggesting that evidence of weapons programmes was being destroyed; the finding by United Nations weapons inspectors of missile warheads capable of delivering chemical weapons; suspicion of mobile biological agent development facilities; and the existence of aluminium tubes capable of use for uranium enrichment.
[36] UNMOVIC Report, Unresolved Disarmament Issues. Iraq's Proscribed Weapons Programmes, 6 March 2003 (173 pages in length).
[37] The oral report was presented on 7 March 2003, a transcript of which is available online <http://www.caabu.org/press/documents/blix-report-7march.html> The Council for the Advancement of Arab-British Understanding, Online Resource Library.
[38] The transcript of these debates are available online <http://www.un.org/News/Press/docs/ 1998/19981216.sc6611.html> United Nations Press Releases, 16 December 1998.
[39] Reparations Case [1949] ICJ Rep 174.
[40] South West Africa Cases, 2nd Phase [1966] ICJ Rep 6.
[41] This was the issue dominating the meeting of the Security Council in adopting resolution 1154. The view of the United States and United Kingdom was that the resolution provided 'automaticity': an automatic right by United Nations members to use force in the case of a violation of the requirements of the resolution: see Blokker N, "Is the Authorization Authorized? Powers and Practice of the UN Security Council to Authorize the Use of Force by 'Coalitions of the Able and Willing'", European Journal of International Law [2000] Vol 11 No 3, 541. No agreement on that point was reached prior to the adoption of the resolution, but the US and UK did not receive support for their view.
[42] Report of the United Nations High Commission on Korea to the Security Council, in Official Records of the Security Council, Fifth Year, No 15, 473rd meeting.
[43] Resolution 82: Complaint of aggression upon the Republic of Korea, SC Res 82, UN SCOR, 5th session, 473rd mtg, UN Doc S/Res/82 (25 June 1950).
[44] Resolution of 27 June 1950: Complaint of aggression upon the Republic of Korea, SC Res 83, UN SCOR, 5th sess, 474th mtg [final para], UN Doc S/Res/83 (27 June 1950).
[45] Resolution 216: Question concerning the situation in Southern Rhodesia, SC Res 216, UN SCOR, 21st sess, 1258th mtg, UN Doc S/Res/216 (12 November 1965) and Resolution 217: Question concerning the situation in Southern Rhodesia, SC Res 217, UN SCOR, 21st sess, 1265th mtg, UN Doc S/Res/216 (20 November 1965).
[46] Resolution 221: Question concerning the situation in Southern Rhodesia, SC Res 221, UN SCOR, 21st sess, 1277th mtg, [final para], UN Doc S/Res/221 (1966) .
[47] Resolution 660: Iraq- Kuwait SC Res 660 45th sess, 2932nd mtg, [para 2] UN Doc S/Res/ 660 (1990), Resolution 661: Iraq-Kuwait, SC Res 661, UN SCOR, 45th sess, 2933rd mtg, UN Doc S/Res/661 (6 August 1990), Resolution 662: Iraq-Kuwait, SC Res 662, UN SCOR, 45th sess, 2934th mtg, UN Doc S/Res/662 (9 August 1990) and Resolution 664: Iraq- Kuwait, SC Res 664, UN SCOR, 45th sess 2937th mtg, UN Doc S/Res/664 (18 August 1990).
[48] Resolution 660: Iraq- Kuwait, SC Res 660 45th sess, 2932nd mtg, [para 2] UN Doc S/Res/ 660 (1990).
[49] Resolution 678: Iraq- Kuwait, SC Res 678, UN SCOR, 45th sess, 2963rd mtg [paras 1, 2], UN Doc S/Res/678 (1990).
[50] Such acceptance being in response to Resolution 686: Iraq-Kuwait, SC Res 686, UN SCOR, 46th sess, 2978th mtg [paras 3,7], UN Doc S/Res/686 (1991).
[51] Resolution 794: Somalia SC Res 794, UN SCOR, 48th sess, 3145th mtg, [perambulatory paras] UN Doc S/Res/794 (1992). ('Resolution 794')
[52] As recognised in the report of the United Nations Secretary-General in his report to the United Nations Security Council of 29 November 1992 (S/24868) and within Resolution 794, para 8.
[53] Resolution 794, para 10.
[54] Resolution 781: Bosnia and Herzegovina, SC Res 781, UN SCOR, 47th sess, 3122nd mtg, UN Doc S/Res/781 (9 October 1992) and Resolution 786: Bosnia and Herzegovina, SC Res 786, UN SCOR, 47th sess, 3133rd mtg, UN Doc S/Res/786 (10 November 1992).
[55] Resolution 816: Bosnia and Herzegovina, SC Res 816, UN SCOR, 48th sess, 3191st mtg, [para 4], UN Doc S/Res/816 (31 March 1993).
[56] Resolution 819: Bosnia and Herzegovina, SC Res 819, UN SCOR, 48th sess, 3199th mtg, UN Doc S/Res/819 (16 April 1993) and Resolution 824: Bosnia and Herzegovina, SC Res 824, UN SCOR, 48th sess, 3208th mtg, UN Doc S/Res/824 (6 May 1993).
[57] Resolution 836: Bosnia and Herzegovina, SC Res 836, UN SCOR, 48th sess, 3228th mtg, [para 5] UN Doc S/Res/836 (4 June 1993). ('Resolution 836').
[58] Resolution 836, para 9.
[59] The General Framework Agreement for Peace in Bosnia and Herzegovina, signed at the Paris Peace Conference on 14 December 1995 (S/1995/999).
[60] Resolution 1031: On establishment of a temporary multinational operation for humanitarian purposes in Rwanda until the deployment of the expanded UN Assistance Mission for Rwanda, SC Res 1031, UN SCOR, 50th sess, 3607th mtg, [para 14], UN Doc S/ Res/1031 (1995) ('Resolution 1031').
[61] Resolution 1031, paras 15-17.
[62] As recommended by the United Nations Secretary-General in his report to the Security Council of 20 April 1994 (S/1994/470) and authorised under Resolution 912: On adjustment of the mandate of the UN Assistance Mission for Rwanda due to the current situation in Rwanda and settlement of the Rwandan conflict, SC Res 912, UN SCOR, 49th sess, 3368th mtg, [para 8 (c)], S/Res/912 (1994).
[63] As recommended by the Permanent Representative of France to the United Nations, Mr Jean-Bernard Merinee (S/1994/734), and accepted by the Security Council in Resolution 929: On implementation of the Peace Agreement for Bosnia and Herzegovina and transfer of authority from the UN Protection Force to the multinational Implementation Force (IFOR), SC Res 929, UN SCOR, 49th sess, 3392nd mtg, [para 2], UN Doc S/Res/929 (1994). ('Resolution 929').
[64] Resolution 929, para 3.
[65] Governors Island Agreement, 3 July 1993, S/26063, para 5.
[66] Resolution 867: Haiti SC Res 867, UN SCOR, 48th sess, 3282nd mtg, UN Doc S/Res/867 (1993).
[67] Resolution 940: On authorization to form a multinational force under unified command and control to restore the legitimately elected President and authorities of the Government of Haiti and extension of the mandate of the UN Mission in Haiti, SC Res 940, UN SCOR, 49th sess, 3413rd mtg, [para 3], UN Doc S/Res/940 (1994). ('Resolution 940').
[68] Resolution 940, para 4.
[69] Resolution 1272: On the situation in East Timor, SC Res 1272, UN SCOR, 54th sess, 4075th mtg, [para 4], UN Doc S/Res/1272 (1999).
[70] Resolution 1101: The situation in Albania, SC Res 1101, UN SCOR, 52nd sess, 3758th mtg, [para 4], UN Doc S/Res/1101 (28 March 1997).
[71] Resolution 1114: The situation in Albania, SC Res 1114, UN SCOR, 52nd sess, 3791th mtg, [para 4], UN Doc S/Res/1114 (19 June 1997).
[72] Resolution 1125: The situation in Central African Republic, SC Res 1125, UN SCOR, 52nd sess, 3808th mtg, [para 3], UN Doc S/Res/1125 (6 August 1997) and Resolution 1136: The situation in Central Africa Republic, SC Res 1136, UN SCOR, 53nd sess, 3829th mtg, [para 4], UN Doc S/Res/1136 (6 November 1997).
[73] Compare the Draft Resolution on Iraq, as presented by the United States, with the ultimate form of United Nations Security Council Resolution 1441 (2002).
[74] See the above discussion of Lord Goldsmith's advice and Resolution 679, in Part IV(A) of this article, under the heading Operation Desert Storm.
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