Iraq Inquiry Digest Key Analysis
As the Inquiry progresses, we will list here the most important things that we have learnt so far.
The most significant revelation so far heard is that the US administration was set on a policy of invading Iraq and removing Saddam Hussein’s regime in March 2003 irrespective of the progress and findings of UNMOVIC’s inspection role.
Resolution 1441 was originally passed at the UN on the basis that it did not contain an automatic ‘trigger’ authorising military action against Iraq. The UK subsequently claims that this trigger did exist (throughout the drafting process) on the basis that the resolution did not specifically state which authority could or could not determine and thereafter enforce action against reported non-compliance of the resolution’s requirements.
The UK appears to have proposed using the issue of weapons of mass destruction as a pretext to obtain UN backing for war because regime change in its own right was seen to be illegal under international law.
Planning for the aftermath of the invasion was severely hampered because the US DoD assumed the dominant role in this matter and assumed that the overthrow of the earlier Government of Iraq would be widely welcomed. It also failed to recognise the detrimental potential of the power-vacuum that ensued. The enforced disbandment of the Iraqi Army and the removal of all members of the Ba’ath Party from positions of public administration had serious consequences for the general population of Iraq.
Was Resolution 678 revivable?
The advance (public domain) publication of a number of legal submissions to the Iraq Inquiry now raises a new and interesting sub-question previously seldom asked within the wider debate about the legality of the 2003 invasion of Iraq – was UNSC Resolution 678 capable of being revived in any case?
Much has been spoken, written and published recently about the two competing so-called ‘revival’ arguments, essentially representing the US and UK (early) positions respectively on the associations between R.1441, R.687 and R.678, with regard to the formally advocated legality of the Iraq action.
Within the mainstream public debate about Iraq very little space either in the media or more widely on the internet has, up until now, been given over to examining whether the 1990 wording as contained in R.678 – “to use all necessary means” against Iraq, essentially the exact authority for using military force to eject Iraqi forces from Kuwait in 1991, ever had any similar serious legal standing much later on in time, especially when considering the situation between Iraq and the UN in 2002 and the early part of 2003.
Professor Colin Warbrick focuses on this point exactly:
The arrangements regarding the use of force in the cause of collective security have never operated as envisaged in the Charter. Instead, the practice has developed of the Council authorising States to use armed force (usually by use of the phrase, “to take all necessary means”). This development is of relatively recent origin and Security Council resolution 678, which is the only resolution to use this language with respect to Iraq is one of the earliest examples. The Council had condemned Iraq’s invasion of Kuwait and demanded its withdrawal in resolution 660. Resolution 678:
Authorizes Member States co-operating with the Government of Kuwait… 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 resolution further requests “the States concerned” to keep the Council informed on the progress of action undertaken pursuant to the authorisation. The delegation of authority by resolution 678 is wide but it is not unlimited or unconditional. First, the States authorized to use force are those “Member States co-operating with the Government of Kuwait”. This description cannot be understood to mean either “States at large” or “States which once were co-operating with the Government of Kuwait”, for the identification of the authorized States goes to the purposes for which force were authorised. Although the restoration of peace and security in the area is a wider notion than the liberation of Kuwait, since it was to be achieved by States co-operating with Kuwait, Kuwait’s interests and capacities need to be directly implicated. If the reach of “restoring peace and security in the area” and the use of force to restore it were simply subject to the appreciation of States at large, the Council would have surrendered its authority rather than conferring or delegating it.
Further, of course, the Council had asserted its own responsibility for the post-war management of the situation in Iraq through resolution 687. The UK had sidestepped any perceived limitations on its right to use force, substantive or procedural, in 1993 and 1998. Its contentions for the legality of its operations were little more than assertions and were strongly contested by other States and by writers.
In his submission to the Inquiry, Ralph Zacklin, former UN assistant secretary general for legal affairs, states:
It is not in dispute that 687 did not either expressly or impliedly terminate the 678 authorization to use force. That authorization was a continuing one and it was well understood that a sufficiently serious violation by Iraq of its obligations under the cease-fire resolution could lead to the withdrawal of the basis for the cease-fire and a renewal of the use of force. The essential question in 1991 as it was in 2002/3 was how and in what form such a revival of the use of force authorization could be achieved. There were two components to any revival of the use of force: there had to be a determination that there had been a breach of its obligations by Iraq of a sufficiently serious nature as to void the basis of the cease-fire agreed in 687; and there had to be a clear and unequivocal determination that such a breach warranted the use of force.
Since the original authorization had emanated from the Security Council acting under the powers vested in it under the Charter, both logic and the law dictated that the precondition for any renewed use of force through the revival doctrine required an institution finding of the Security Council acting as the collective organ of the United Nations with primary responsibility for the maintenance of international peace and security. I use the phrase “institutional finding” rather than decision or resolution because in my view the procedures and the practice of the Security Council made it possible for the Council to agree on the revival of 678 without requiring the adoption of a new resolution. The instrument through which this could be achieved is and was the Presidential Statement. It is generally accepted that the Presidential Statements of 8 and 11 January 1993 which were agreed following two serious violations by Iraq of its obligations in implementing 687 were the basis for the revival of the use of force through large- scale air and missile strikes carried out on 13, 17 and 18 January of that year.
What was clear from 1991 onwards was that a revival of the use of force authorization could not be automatic nor could it be left to the unilateral interpretations of individual member states which would be tantamount to a usurpation of the powers of the Security Council.
Lord Goldsmith, in his longer March 7 advice to the Prime Minister, also referred to the events of January 1993:
The revival argument
7. Following its invasion and annexation of Kuwait, the Security Council authorised the use of force against Iraq in resolution 678 (1990).
This resolution authorised coalition forces to use all necessary means to force Iraq to withdraw from Kuwait and to restore international eace and security in the area. The resolution gave a legal basis for Operation Desert Storm, which was brought to an end by the ceasefire set out by the Council in resolution 687 (1991). The conditions for the ceasefire in that resolution (and subsequent resolutions) imposed obligations on Iraq with regard to the elimination of WMD and monitoring of its obligations.
Resolution 687 suspended, but did not terminate, the authority to use force in resolution 678. Nor has any subsequent resolution terminated the authorisation to use force in resolution 678. It has been the UK’s view that a violation of Iraq’s obligations under resolution 687 which is sufficiently serious to undermine the basis of the ceasefire can revive the authorisation to use force in resolution 678.
In reliance on this argument, force has been used on certain occasions. I am advised by the Foreign Office Legal Advisers that this was the basis for the use of force between 13 and 18 January 1993 following UN Presidential Statements on 8 and 11 January 1993 condemning particular failures by Iraq to observe the terms of the ceasefire resolution. The revival argument was also the basis for the use of force in December 1998 by the US and UK (Operation Desert Fox). This followed a series of Security Council resolutions, notably resolution 1205 (1998).
The two Presidential Statements of 8 (S/25081) and 11 (S/25091) January 1993 are not readily accessible from the UN’s main website due to the fact that the search function only goes back to 1994, but they are available elsewhere. I have now added these two documents to the Digest’s own library here and here. Although frequently referred to as concerning Iraq’s refusal to allow UN flights over Iraq as both documents do, S/25091 also makes considerable reference to (and also formally condemns) Iraqi incursions into the Kuwaiti side of the demilitarized zone.
In this instance these incursions can plainly be seen as a threat to the peace and security of the region, especially as far as Kuwait was concerned, in light of the UN-declared inviolability of the Iraq/Kuwait border area as was then controlled by the United Nations Iraq-Kuwait Observation Mission (UNIKOM).
These actions by Iraq became the precedent for the revival of force argument as later employed in 2003.
Daily Blog Archives
We live blogged the appearance of a number of key witnesses to the Inquiry. These sessions originally appeared as individual front-page posts on the site and have now being converted into more permanent pages for archival purposes. Further new pages will be added to this section of this page as they are completed.
24 November 2009 Live Blog
(Simon Webb, Sir Peter Ricketts, William Patey and Sir Michael Wood)
25 November 2009 Live Blog
(Sir William Ehrman and Tim Dowse)
26 November 2009 Live Blog
(Sir Christopher Meyer)
27 November 2009 Live Blog
(Sir Jeremy Greenstock)
30 November 2009 Live Blog
1 December 2009 Live Blog
(Edward Chaplin and Peter Ricketts)
3 December 2009 Live Blog
(Kevin Tebbit and Lord Michael Boyce)
8 December 2009 Live Blog
(Sir John Scarlett)
10 December 2009 Live Blog
(Sir John Sawers)
12 January 2010 Live Blog
18 January 2010 Live Blog
19 January 2010 Live Blog
21 January 2010 Live Blog
26 January 2010 Live Blog
(Sir Michael Wood)
27 January 2010 Live Blog
(Lord Peter Goldsmith)
29 January 2010 Live Blog
2 February 2010 Live Blog
8 February 2010 Live Blog
5 March 2010 Live Blog
Have we (or the Inquiry) missed anything?