This page analyses the substantive issue of the legality of the war, which the Inquiry has indicated that it will address.
It is structured as follows:
When can force legally be used?
The argument of the UK government: Revival
See also the evidence, as given to the Inquiry or published elsewhere:
When can force legally be used?
Article 2(4) of the UN Charter prohibits the threat or use of force by member states. The Charter lists two exceptions:
states’ inherent right of self defence (1);
action authorised by the Security Council that is necessary to maintain or restore international peace and security. (2)
It has also been argued, notably by the UK government relating to military action in Kosovo in 1999, that force may also legitimately be used to avert a humanitarian catastrophe.
The argument of the UK government: Revival
The UK government only sought to rely on one of these three to justify the use of military force against Iraq in 2003, a Security Council authorisation. Therefore only an analysis of this ground will be relevant for the purposes of the Chilcot inquiry.
The government’s argument can be found in the Attorney General’s written answer to Parliament of 17 March 2003 as supplemented by a memorandum of the Foreign and Commonwealth Office (“the FCO memo”) with the same date. It concluded that contemporary authority to use force existed from Security Council Resolutions (“SCR”) 678, 687 and 1441.
SCR 678 of 1990 authorised the use of force against Iraq to enforce a previous SCR;
SCR 687 of 1991 provided for a formal ceasefire on the condition that a list of criteria were met by Iraq;
SCR 1441 of 2002 acknowledged that Iraq remained in material breach of the ceasefire terms, but gave the government of Iraq a final opportunity to comply or face “serious consequences”
The Attorney’s answer to Parliament declared that a mandate to use force was created in SCR 678, SCR 687 suspended the effect of SCR 678 but that where there was a material breach of the latter, the former would be revived. Given that Iraq had not complied with the final opportunity granted by SCR 1441 it remained in material breach and thus the mandate to use force had revived.
The FCO memo followed this line of argument and added that authority to use force against Iraq from SCR 678 had been revived in the past both in 1993 and 1998 (3). It referred to the fact that the then UN Secretary General had stated that the actions of 1993 derived lawful authority from a revival of SCR 678. The memo concluded Iraqi non compliance “including from” the accounts of non compliance of the body created to investigate and report on Iraqi adherence to its obligations. The memo also noted that no member of the Security Council had questioned the conclusions of this reporting body.
The counterargument is comprehensive and draws authority from many sources but can be summarised as follows:
SCR 678 creates no mandate for the use of force that could be relied upon by the US or UK in 2003 and even if it did,
the revival argument has no basis in international law.
The revival argument collapses if either of these points is true. Both contain a number of arguments, most of which serve to negative the argument on their own.
SCR 678 creates no mandate for the use of force that could be relied upon by the US or UK in 2003.
SCR 678 gave a mandate to a coalition, which cannot be severed into a right to use force for each member acting alone and certainly not regardless of the opinions of the other coalition members. (4)
SCR 687 supersedes the use of force mandate in SCR 678 in a number of ways that are relevant.
It provides for a ‘formal ceasefire’. This is not temporary status whose breach will yield further consequences but explicitly time limits the effect of SCR 678 (5).
It explicitly states that it is for the Security Council “to take such further steps as may be required for the implementation of the present resolution”. (6)
SCR 1441 also supersedes the SCR 678 mandate
It was agreed at the meeting of the Security Council that the resolution did not imply authorisation for the use of force, this included all five permanent members. The Ambassador of the US stated “as we have said on numerous occasions to Council members, this resolution contains no “hidden triggers” or “automaticity” with respect to the use of force”. (7) The British Ambassador said “there is no “automaticity” in this resolution” (8). The Russian representative said “the resolution just adopted contains no provisions for the automatic use of force”. (9) China stated “the text no longer includes automaticity for authorizing the use of force” (10) and France affirmed that “all ambiguity on …all elements of automaticity have disappeared from the resolution” (11).
In conflict with a resort to force, SCR 1441 explicitly provides an alternative mechanism. Its body is almost completely assigned to the means by which Iraq’s actions will be controlled, through weapons inspections.
It cannot be argued that a reference to SCR 678 in the preamble implies revival of this resolution as it is not referred to in the section on Security Council decisions as opposed to SCR 687 which is prevalent throughout. (12)
It states that the Security Council “decides to remain seized of the matter”. (13)
SCR 678 is also restricted by the terms of the prior SCR 686, which listed the ceasefire requirements agreed to in SCR 687. The mandate to use force in SCR 678 is time limited to the period required to ensure certain obligations, which do not include disarmament (14).
The revival argument relies on ‘material breach’ and its consequences as provided for by the Vienna Convention on the Law of Treaties. A material breach of a treaty will allow the injured party to terminate or suspend it (15). It is pointed out in response that SCRs neither are treaties nor are they analogous to them. (16)
The revival argument has no basis in international law
The revival argument arrogates to individual states the power that properly lies with the Security Council. (17)
It contradicts article 1 of the UN Charter and the agreement to “take collective measures for the prevention and removal of threats to the peace” (18).
It is contrary to the object and purpose of the UN Charter that a massive military attack on a State can be justified with the inferences of silences in a resolution (19).
It is specious. Although its logic may follow a very narrow and formalistic approach to the relevant texts, the result is to invert article 41 of the UN Charter. The argument states that there is Security Council consensus but from a former Security Council. For the present one to negative their predecessor’s will there would have to be a consensus not to use force. By this reasoning, rather than contemporary Security Council consensus to use force what in fact is required is contemporary consensus not to use force.
Those advancing the argument admit that, in addition the Security Council determining material breach, something further was needed to revive SCR 678. The US and UK stated that although SCR 1441 acknowledges material breach, this did not immediately authorise force and that a further consideration of the Council was necessary (20). This admission contradicts any suggestion that consensus in a former Security Council can authorise force independently of the will of the present one.
The government of the UK in March 2003 cited two prior occasions on which they had used a revived mandate under SCR 678, in 1993 and 1998. It has been noted that the argument did not go unchallenged in 1993 (21). The statement of approval from the then Secretary General is undermined by the fact that he never repeated the view, including when the UK made the revival argument in 1998 facing much stiffer criticism (22).
Operation Desert Fox of 1998 was heavily criticised in the Security Council. Japan was alone in supporting the operation. (23) China called the action a “groundless” and “unprovoked military attack” (24) , Russia stated that “the resolutions of the Security Council provide no grounds whatsoever for such actions” (25).
Security Council opinion in early 2003
The argument that force could be used in the absence of contemporary Security Council consensus is made more objectionable by the predominant contrary opinion in the Council in March 2003. The International Court of Justice have held that in interpreting SCRs, regard should be had to the terms of the resolution, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances the might assist in determining the legal consequences (26).
An analysis of this period has concluded that the American and British arguments met with the opposition of nearly all countries participating in the debates of February and mid March 2003 (27).
At an open meeting of the Security Council on 18 – 19 February 2003, all members of the UN General Assembly who wished to make a statement were permitted to do so. Of almost 60 who spoke, eight supported the US / UK position and the vast majority (approximately 40) opposed the use of force (28).
The strength of opinion
When considering these competing arguments, the prevalence and strength of opinion that considers the 2003 invasion to be unlawful is instructive. It is difficult to definitively poll opinion amongst all international law experts but all signs point to an overwhelming feeling that the war was illegal. The senior teachers of international law in Britain’s leading universities make up a group whose views are globally authoritative and likely to be reflective of the different schools of thoughts across the discipline. Amongst this group, the vast majority disagree with the revival argument.
March 2003 Guardian letter
On 7 March 2003, a letter from leading academics was published in the Guardian stating,
“We are teachers of international law. On the basis of the information publicly available there is no justification under international law for the use of military force against Iraq…The doctrine of pre-emptive self – defence against an attack that may arise at some hypothetical future time has no basis in international law…. Neither security council resolution 1441 nor any prior resolution authorises the proposed use of force in the present circumstances.”
The authors included professors of international law from the Universities of Oxford, Cambridge, London and Paris, notably Professor Pierre – Marie Dupuy, Professor James Crawford and Professor Philippe Sands QC.
Foreign office dissent
Elizabeth Wilmshurst the then Deputy Legal Advisor to the Foreign Office resigned from her position in March 2003 on the basis that invasion would be unlawful. Furthermore, her letter of resignation suggests that she was not alone in her position.
“I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678. I do not need to set out my reasoning; you are aware of it.
“My views accord with the advice that has been given consistently in this office before and after the adoption of UN security council resolution 1441.” (emphasis added)
It is significant that this was a private letter, addressed to the Legal Advisor Michael Wood and only made available to the public some years later.
Attorney general equivocation
Finally and of major significance, the Attorney General, the most senior government lawyer at the time was equivocal in any support for the revival argument in his advice of 7 March 2003.
1 UN Charter, article 51
2 UN Charter, article 41
3 FCO memo, paras 6 & 8
4 Lowe, ‘The Iraq crisis: what now?’, (2003) 52 ICLQ 859 (hereafter “Lowe”), 866
5 See the comments of the representative of Brazil, UN SCOR, 53rd sess, 3858th mtg. UN Doc S/PV. 3858 (1998), 7; Legal Department of the Ministry of Foreign Affairs of the Russian Federation, ‘Legal assessment of the use of force against Iraq’, (2003) 52 ICLQ 1059 (hereafter “MFA RF”),1060
6 SCR 687, para. 34
7 UN SCOR, 57th sess, 4644th mtg, UN DOC S/PV.4644 (2002), 3
8 UN SCOR, 57th sess, 4644th mtg, UN DOC S/PV.4644 (2002), 5
9 UN SCOR, 57th sess, 4644th mtg, UN DOC S/PV.4644 (2002), 8
10 UN SCOR, 57th sess, 4644th mtg, UN DOC S/PV.4644 (2002), 13
11 UN SCOR, 57th sess, 4644th mtg, UN DOC S/PV.4644 (2002), 5
12 MFA RF, 1062
13 SCR 1441, para 14
14 SCR 686, para 4
15 Vienna Convention on the Law of Treaties 1155 U.N.T.S.331, article 60(3)
16 O’Connell, M.E (April 2003) ‘Addendum to Armed Force in Iraq: Issues of Legality’, ASIL Insights, www.asil.org/insights/insigh99a1.htm
17 Gray, ‘From Unity to Polarization: International Law and the Use of Force against Iraq’, (2002) 13 EJIL 1 (hereafter “Gray”), 12; Akermark, ‘Storms, Foxes ad Nebulous Legal Arguments’, (2005) 54 ICLQ 221 (hereafter “Akermark”), 229; Thouvenin, ‘Le jour le plus triste pours les Nations Unies, les frappes anglo-américaines de Décembre sur l’Iraq’, 44 AFDI (1998) 208; Lobel & Ratner, ‘Bypassing the Security Council, Ambiguous Authorization to Use Force, Cease-Fires, and the Iraqi Inspection
18 MFA RF, 1062
19 See Lowe, 866
20 FCO memo, para 11
21 Akermark, 230
22 Gray, 12
23 S/PV. 3955 (16 Dec 1998)
24 UN SCOR, 53rd sess, 3955th mtg, UN Doc S/PV. 3955 (1998), 5
25 UN SCOR, 53rd sess, 3955th mtg, UN Doc S/PV. 3955 (1998), 4
26 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) Advisory Opinion  ICJ Rep 53, 161.
27 Akermark, 225 & 226
28 UN SCOR, 58th sess, 4709th mtg. UN Doc S/PV.4709 (2003)
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