The legality of the 2003 invasion of Iraq – Toby Fenwick
By Toby Fenwick
In responding to Archbishop Desmond Tutu’s call for Tony Blair to face the International Criminal Court, I made clear my view that the 2003 Iraq invasion was an illegal – and criminal – act of aggression. John Rentoul of the Independent on Sunday angrily disputed this on the BBC World Service’s “World, Have your say”, and other commenters here on LDV have asked for an outline of my reasoning.
Aggression – known at Nuremburg as “crimes against peace” and “aggressive war” at the Tokyo trials – has been a crime under customary international law since at least the 19th century. However, until the adoption of the UN Charter in 1945, the use of force in international relations was not prohibited. The UN Charter fundamentally changed this. Article 2(4) of the Charter is explicit:
2(4) All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Not being a UN member makes no difference. First, because the settled view of the International Court of Justice (in a 1970 case called Barcelona Traction) that aggression is illegal under international law from which no state can derogate (a so-called jus cogens norm). Second, because under Art 2(6) the UN “shall ensure” that non-members act in accordance with the Charter – including Article 2(4)’s prohibition on the use of force.
There are only two exceptions in the Charter: self-defence and the Security Council authorising the use of force.
Self defence is governed by Article 51, and states: “nothing … shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member”. Self-defence is not an unlimited right – States may only exercise it until the UN Security Council has “taken measures necessary to maintain international peace and security”.
Under Chapter VII’s Article 42, the UN Security Council is empowered to “… take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” The use of force requires an explicit authorisation in a Security Council Resolution (UNSCR), conventionally including the phrase “to use all necessary means” – see, for example, UNSCR 678 of 29 Nov 1990 that authorised Gulf War I. As a Chapter VII resolution, any resolution adopted under Article 42 is binding under international law.
A third exception to the general prohibition on the use of force are interventions to stop humanitarian disaster, for example the Rwandan Genocide, the so-called Responsibility to Protect (R2P). There is a clear gravity level inherent in R2P based on proportionality and immediacy – if you’re going to invade a country, or drop bombs on it, the force you use must be proportionate to the violence you are stopping, and that violence must be either happening or immediately apparent. Consequently, mass killings of civilians, whether genocidal or not – would seem to be the minimum required for the use of force under R2P. It is also clear in state practice that a claim for legitimacy under R2P would need to be made at the time of the intervention.
Nonetheless, even though R2P was endorsed at the 2005 World Summit at Rio, R2P remains controversial amongst those states that jealously guard their sovereignty over domestic matters, notably including Russia, China and India. As the intervention in Kosovo demonstrated, there are occasions when a humanitarian disaster is, or is about to, occur when the Security Council is deadlocked; I would argue Syria is another case where R2P can – and should – be invoked to protect Syria’s civilians from their government.
These then, are the only three circumstances under which force can be used legally in the post-UN Charter world.
So what does this mean for the 2003 Iraq invasion?
There was no claim of self-defence or, at the time, of humanitarian intervention. Though the human rights record of Saddam Hussein’s dictatorship was woeful, in and of itself this does not provide a legal basis for invasion and regime change – a point expressly made in Lord Goldsmith’s draft legal advice of February 2003. Goldsmith’s advice concluded:
That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign.
In some sense the distinction was academic, in that to defeat the Iraqi military in order to access the suspicious sites that the UN weapons inspectors wanted to visit, the Hussein regime would fall. But given that Blair and his supporters make the utilitarian claim that the Iraqi people are much better off than under Saddam, it is important to recognize that this is not a valid international legal argument. It fails, both because it was not made at the time, and secondly that in 2003 the level of repression and violence against Iraqi civilians would not have reached the R2P proportionality threshold.
The key UNSCR in judging the legality of the 2003 invasion is UNSCR 1441 passed unanimously on 8 November 2002. Like many UNSCRs, it is a carefully worded compromise, and it rewards close scrutiny. A key tool in interpreting the language adopted are the contemporaneous speeches made by the various Permanent Representatives, known as explanations of vote (EOV).
In UNSCR 1441, the Security Council recognized that Iraq remained in material breach of its obligations to disarm after the 1991 Gulf War (Paragraph 1), but that it was to be offered a “final opportunity” to comply with its disarmament obligations (Paragraph 2), for which the Security Council set up an enhanced inspection regime. The Security Council required Iraq to provide full disclosure within 30 days (Paragraph 3).
Paragraph 4 sets out the implication of Iraq providing false statements or omissions in its declaration:
4. Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below;
So even though a false or incomplete set of data delivered by Iraq would constitute a breach, the course of action would be to report this to the whole Council for assessment. Paragraph 12 explains what would happen if there were an omission or the inspectors were obstructed (Paragraph 11):
12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security;
In clear language, then, any Iraqi misbehaviour would cause the Security Council to “convene immediately” to “consider the situation”. In other words it was for the Security Council to consider and decide, not for the individual states. And as 1441 was adopted under Chapter VII, it was binding international law on all states, including the UK.
Britain’s ambassador Sir Jeremy Greenstock couldn’t have been clearer in his EOV that Britain shared this view. Greenstock said,
There is no “automaticity” in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12. We would expect the Security Council then to meet its responsibilities.
Indeed. At the time of adoption of UNSCR 1441, the UK was clear that it did not authorise the use of force, and that the Security Council would have to meet again and consider action if Iraq did not comply. In doing so, the UK knew that any authorisation of force against Iraq would be subject to Russian, Chinese and French vetoes, and that in addition to avoiding a veto, a resolution authorising force would need at least nine affirmative votes for passage, the same as any other resolution.
The Security Council discussed Iraq extensively in the run up to the invasion. In 2003 alone, it held formal meetings on Iraq on 27 January, 5, 14, 18, 19 February, and 7, 11, 12 and 19 March – with the war beginning on the 19th. There was plenty of opportunity for Britain to secure passage of a UNSCR authorising force, and both legally and politically Blair needed one. It didn’t happen because the support for the use of force did not exist on the Council, with Russia, China and France at various times indicating their willingness to veto the use of force in order to give Dr. Hans Blix and his weapons inspectors more time.
As a result of the failure to gain authorisation for the use of force, the 2003 invasion of Iraq was illegal. This illegality led the FCO’s Deputy Legal Adviser Elizabeth Wilmshurst to resign on 18 March. She was the only UK official to do so, and is now the Head of International Law at Chatham House. The UK owes her a great debt of gratitude for her courage and conscience.
The epitaph perhaps belongs to Germany’s representative at the Security Council on the 19th, where the meeting discussed the latest report from the weapons inspectors as the war started;
… the Security Council has not failed. We must counter that myth. The Security Council has made available the instruments to disarm Iraq peacefully. The Security Council is not responsible for what is happening outside the United Nations.
[W]e have to state clearly, under the current circumstances the policy of military intervention has no credibility. It does not have the support of our people. It would not have taken much to safeguard the unity of the Security Council. There is no basis in the United Nations Charter for regime change by military means.
Toby Fenwick is a research associate of CentreForum, the liberal think tank. This article originally appeared on Liberal Democrat Voice on 10 September 2012.