No, This War is Illegal

The Age, Melbourne, Austalia
By Hilary Charlesworth, Andrew Byrnes
March 19 2003

The Prime Minister maintains that existing United Nations Security Council resolutions authorise the use of force against Iraq by the "coalition of the willing". He (and the legal advice he relies on) argues resolution 678 (November 29, 1990) provides continuing authorisation for such use of force without the need for a further, specific resolution. Such an interpretation of this and other resolutions concerning Iraq is untenable, since it contradicts their meaning and is inconsistent with the scheme of the UN charter and the context in which those resolutions were adopted.

Resolution 678 gave Iraq until January 15, 1991, to withdraw from Kuwait and, if that deadline was not met, authorised the use by UN members of all necessary means for the specific purpose of upholding earlier resolutions.

The specificity of the authorisation is made clear in paragraph two of resolution 678: member states must co-operate with the Government of Kuwait in any action to force Iraq to withdraw from Kuwait.

Resolution 678 thus provided an enforcement mechanism for resolution 660 of August 2, 1990, adopted the day Iraq invaded Kuwait, and the subsequent reiterations of that resolution between August and November 1990. Resolution 660 made the determination required by the UN charter as a precondition for the collective use of force, that the invasion constituted a breach of international peace and security.

It could be argued that, were Iraq to re-invade Kuwait, the authorisation for UN members to use force in resolution 678 could be revived, although a more cautious view would be that resolution 678 is tied to a particular historical event, so a new resolution would be needed. In the absence of an invasion of Kuwait by Iraq, however, resolution 678 cannot be read as a standing authorisation for the use of force by a UN member against Iraq.

Resolution 678 thus clearly identified the invasion of Kuwait as the breach of international peace and security that triggered Security Council powers under the UN charter. It does not constitute a general power for the use of force.

Moreover, the terms of resolution 678 indicate the authorisation for the use of force is granted and monitored by the Security Council. It is inconsistent with the clear terms of resolution 678 and indeed the whole structure of the UN charter to argue one or more states could decide for themselves when and if the authorisation could be revived.

Some have argued a breach of the ceasefire agreement in resolution 687 entitles member states to use force. The position that individual member states can respond to claimed violations of the ceasefire agreement between Iraq and the UN without the consent of the Security Council is inconsistent with the role of the council and is an unsustainable view of international law.

Two further resolutions relied on to support the "continuing authorisation" theory are 687 and 1441. Resolution 687 of April 3, 1991, set out the terms of the ceasefire. Section C deals with Iraq's obligations to destroy all weapons of mass destruction. But no provision of resolution 687 links Iraq's duty to destroy all weapons of mass destruction to the authorisation to use force set out in resolution 678. Indeed, the final paragraph of resolution 687 gives the Security Council the power to decide "such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area", implying further Security Council consideration will be needed.

Resolution 1441, of November 8, 2002, can be read as a further and more detailed response to Iraq's failure to satisfy the relevant authorities that it has fully complied with the obligation to destroy all weapons of mass destruction set out in resolution 687. It leaves open the issue of what will happen if Iraq does not comply with its terms, implying that the Security Council will need to consider the matter when further evidence appears.

Although, in standard Security Council style, all previous resolutions on Iraq are referred to in the preamble of resolution 1441, there is no paragraph that suggests UN member states may take "all necessary means" to implement the resolution.

Indeed, France, China and Russia made a public interpretative statement on resolution 1441 on the day it was adopted, noting they could vote for the resolution precisely because it contained no "automaticity" in the use of force. This understanding was confirmed in the United States's and Britain's formal explanation of their votes.

John Howard rightly points out there have been 17 Security Council resolutions dealing with Iraq since 1990. The number of resolutions in itself, however, does not change the plain wording of the text adopted by the Security Council and the statements by various members of the council that these resolutions have not authorised the further use of force.

The Prime Minister has assured the public that Australia will act consistently with international law in relation to Iraq. But the arguments he has identified to support his claim that a war on Iraq would be legal do not stand up to analysis.

Hilary Charlesworth and Andrew Byrnes are professors at the Centre for International and Public Law at the ANU.

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