The legality of the use of force against Iraq in 2003

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Citation: Barakat, M. (2007). The legality of the use of force against Iraq in 2003. (Unpublished Doctoral thesis, City University London)

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CITY UNIVERSITY

London

The Legality of the Use of Force against Iraq in 2003

Being a Thesis submitted in fulfilment of

The requirements for

The Degree of Doctor of Philosophy

The City Law School

By

Mohammed Barakat

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Best Copy

Available'

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Abstract

The object of this thesis is to assess the legality of the use of force against Iraq in 2003. To do so, the study examines the validity of the justifications put forward by the US and the UK for their action in light of the existing regulations on the use of force. These justifications are as follows: i) the Security Council authorization for the use of force;

ii) the right of self-defence in pre-emptive action against threats from Iraq; iii) the right of pro-democratic intervention in Iraq in order to relieve the Iraqi people of vast and

continuing human rights violations by the despotic regime of Saddam Hussein.

The thesis begins with an introduction which indicates the scope of the study, the approach adopted and the outline of the thesis. The opening chapter reviews the regulation of the use of force under the UN Charter. The second chapter examines the Iran-Iraq war 1980-1988. The third chapter analyses the Kuwait crisis and its sequels.

Chapter Four interprets Resolution 678 according to the rules of interpretation in order to determine whether the mandate of that resolution was extinguished after Iraq had been expelled from Kuwait, or still governed the situation in 2003. Chapter Five

investigates the rules governing armistice agreements in order to explore whether the coalition forces had the right to terminate the cease-fire and resume hostilities, without new authorization of force, on grounds of Iraq's violations of the conditions established

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Dedication

This doctoral thesis is dedicated to my mother (Dr. S. Mehani), who

made it possible, through her constant encouragement and invaluable

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Acknowledgments

Writing a doctoral thesis may well be a solitary task, but it is rarely completed alone. I

have many people to thank.

My sincere thanks and gratitude are due to my supervisor, Dr. Omer EI-Agab, whose

whole-hearted assistance and support contributed enormously to the completion of

this thesis.

I am also very much indebted to Professor Christopher Ryan; Professor Mike Purdue;

Professor Peter Kunzlik; Professor Ian Loveland; Mrs. Joan Small for their unreserved

help and support.

I would like also to express my gratitude for the sacrifices made by my wife and

children, without whose love and patience, this thesis would never have been

completed.

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Abbreviations

AFRC Armed Forces Revolutionary Committee

AJIL _{American Journal of International Law}

BYIL _{British Year Book of International Law}

Cornell LJ Cornell Law Journal

CSCE _{Conference on Security and Cooperation in Europe}

ECOMOG _{Economic Community of West African States Monitoring Group}

ECOWAS _{Economic Community of West African States}

EJIL _{European Journal of International Law}

Harvard ILJ _{Harvard International Law Journal}

IAEA _{International Atomic Energy Agency}

ICJ _{International Court of Justice}

ICLQ _{International and Comparative Law Quarterly}

IFDA Dossier _{International Foundation for Development Alternatives}

ILC _{International Law Commission}

ILM _{International Law Materiel}

INC _{Iraqi National Congress}

NATO _{North Atlantic Treaty Organization}

OAS _{Organization of American States}

OAU _{Organization of African Unity}

ONUC _{United Nations Operation in the Congo}

PCIJ _Permanent_{Court of International Justice}

PDF _Panamanian_{Defence Force}

SCOR _{Security Council Official Records}

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UNCIO Documents of the United Nations Conference on International

Organization

UNDPI United Nations Department of Public Information

UNMOVIC United Nations Monitoring, Verification and Inspection

Commission

UNSCOM United Nations Special Commission

UNYB United Nations Yearbook

Yale JIL Yale Journal of International Law

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Table of Cases

International Court of Justice

_Page

9 Advisory Opinion on Legal Consequences of the Construction of a Mall in the Occupied Palestinian

Territory, 2004

... 241

Advisory Opinion on the Constitution of the Maritime Safety Committee of the Inter-Governmental

Maritime Consultative Organization (IMCO), 1960

... 140 n

Asylum case (Colombia v. Peru), 1950 _..._{248 n}

Certain Expenses of the United Nations, 1962 _... 31

Competence of the General Assembly for the Admission of a State to the United Nations, 1950.... 135

Corfu Channel case (United Kingdom v. Albania), 1949 _...152,152,264

Effect of Awards of Compensation Made by the United Nations Administrative Tribunal,

1954

... 139 n

Fisheries case (United Kingdom v. Norway), 1951 _... _{248 n}

Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, 1980... 209

Legal Consequences _{for States of the Continued Presence of South Africa in Namibia (South West}

Africa), 1971

... 193

Legality of the Threat or Use of Nuclear Weapons, 1996

... 113

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of

America), 1986

... 16

North Sea Continental Shelf case, 1969

... 216

Nuclear Tests case (Australia v. France), 1974

... 135 n

Reparation _{for Injuries Suffered in the Service of the United Nations, 1949}

... 139 n

South West Africa case, Second Phase, Preliminary Objectictions, Judgement of 21 December, 1962

... 196

" Temple of Preah Vihear case (Cambodia v. Thailand), 1962

... 214 n

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Permanent Court of International Justice

" Interpretation of the Convention of 1919 concerning Employment of Women during the Night, 1932, Series A/B, No. 50

... 141 n " The Legal Status of Eastern Greenland case, 1933, A/B, No. 53 ... 214

" Serbian Loans case, 1929, Series A, No. 20/21 ... 219 n Diversion of Water from the Meuse case, 1937, Series A/B, No. 70 ... 192

" Advisory Opinion of the Competence of the ILO in regard to International Regulation of the

Conditions of the Labour of Persons Employed in Agriculture, 1922, Series B, No. 2... 136 n

International Arbitration

Santa Isabel case, 1932 ... 216 n

Tinoco case ( Great Britain v. Cost Rica) ... _.304

Pickard v. Sears, 1837,6 Ad and E ... 213 ri

. The case of Canada and Dominion Sugar Company, Limited v. Canadian National (West Indies)

Steamships, _{Limited, 1947, A. C. p 56 ...} ₂₁₃

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Introduction

A. Purpose

The use of force against Iraq in March 2003 by the US and the UK was extremely controversial

and its legality was challenged by some States including close NATO allies such as France and Germany. In the legal literature, commentators are severely divided between dissentients and

advocates whose opposing positions have become well-entrenched in the last four years.

Dissentients consider the 2003 invasion a flagrant violation of the UN Charter; some went as far

as describing the action as a Crime Against Peace in the Nuremberg sense and a sign of the

collapse of the UN system. On the other hand, advocates viewed Operation Iraqi Freedom as a

defining moment for international law and a vindication of the authority of the United Nations.

This thesis is concerned with the legality of the use of force against Iraq in 2003. The key

question to be considered is whether the use of force against Iraq in March 2003 was consistent

with the framework of the use of force under the UN Charter and the contemporary customary

rules or whether it was in infringement of international norms. Although this topic has been

discussed _{frequently since the invasion, however, no comprehensive study of all the legal aspects}

of this conflict or detailed account of the justifications put forward by the US and the UK for

their action has been undertaken.

B. Scope

One of the perplexing issues regarding the 2003 action is its outcomes vis-ä-vis the purposes

stated by the US and the UK for the invasion. The invading powers claimed that the objectives of

the war, among others, were to find and destroy Iraq's weapons of mass destruction and to

relieve Iraqis from the continuous violations of human rights by Saddam Hussein's vicious

regime. However, at the time of concluding this study, no weapons of mass destruction have yet

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been discovered and violence on a massive scale, which can fairly be described as a civil wear,

has broken out between different sects of the Iraqi population, mainly the Sunnis and Shiites,

since Saddam's regime was toppled. Although these ex post developments have intensified the

case against the war, however, they do not directly bear on the justification for the use of force ex ante. What is important for jus ad bellum purposes is the facts that existed at the time the hostilities were commenced, not what transpired afterwards. Accordingly, this study '%vill be

confined to the facts that existed in March 2003 and will not take into account the consequences

that unfolded after the invasion.

C. Approach

The main concern of the present study is to assess the validity of the justifications put forward by

the US and the UK for the invasion in light of the contemporary regulations on the use of force.

These justifications are as follows: i) the Security Council authorization for the use of force; ii)

the right of self-defence in pre-emptive action against threats from Iraq; iii) the right of pro-

democratic intervention in Iraq in order to relieve the Iraqi people of vast and continuing human

rights violations by the despotic regime of Saddam Hussein.

In testing the legal validity of these justifications it has been essential to address in detail some

doctrines of the use of force, such as the concept of anticipatory self-defence and the nerv

doctrine of "preventive self-defence" or what is known as the "Bush Doctrine", the use of force

against non-State actors and States that support and harbour terrorists, and the humanitarian

doctrine of pro-democratic intervention. Deep analysis will be carried out, throughout the thesis,

of the pertinent State practice, doctrinal views, statements by States' Representatives in the

Security Council, and jurisprudence. Nevertheless, it has been deemed essential to dedicate the

first chapter of the thesis to an overview of the Charter regulations on the use of force and their

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travaux preparatoires, in an attempt to determine the drafters' true intentions regarding some

controversial issues which have appeared in practice.

It should be noted that, whilst the main area of research is the rules governingjus ad bellum, the

topic under discussion prerequisites investigating other areas of international law such as the

rules of treaty interpretation, the law of international organizations, the doctrine of estoppel and the rules of ius in bello. These subjects will be examined throughout the thesis in connection

with the relevant context.

It has also been essential to highlight the background and attitude of Saddam Hussein's regime

and its record of violence and violation of international norms which led to the deterioration of its reputation among the international community and was the raison d'etre behind the decision to

topple this regime in 2003. From this perspective, it has been deemed appropriate to dedicate the

second Chapter to a brief examination of the Iran-Iraq War 1980-1988, in order to demonstrate the effects and developments set in motion by this war, long before the Kuwait crisis and its

consequences which led to the 2003 invasion and the overthrow of the Iraqi government.

D. Outline of the thesis

The thesis is composed of eight chapters. The first chapter reviews the regulation of the use of

force under the UN Charter including the following points: the historical development of the

rules of the use of force in international relations; the prohibition of the use of force in

international relations established by Article 2(4); the powers and authorities conferred upon the

Security Council under Chapter VII; the right of self-defence under Article 51 and the major

issues raised in practice regarding the interpretation of this right.

The second chapter examines the Iran-Iraq war 1980-1988. It analyses the origins of this long- lasting conflict and the legal justifications put forward by Iraq for its commencing for the hostilities. The chapter also underlines the poor showing of the Security Council and the

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ambiguous reaction of the world major powers towards the war which could be considered

significant influences on Saddam Hussein's subsequent behaviour.

The third chapter provides a comprehensive analytical view of the Kuwait crisis and its sequels.

It examines Iraq's invasion of Kuwait and the events following this crisis, up to Operation Desert Storm, including the measures taken by the Security Council in response to the Iraqi

aggression; the "authorization technique" of the use of force invented by the Council in this

crisis, which set a precedent for subsequent situations in which the Council deemed appropriate the use of military force; and the proportionality of the force used by the coalition forces in this

conflict.

Chapter Four focuses on the principal legal justification put forward by the US and the UK for

the 2003 action, namely, the authorization of the use of force established by Security Council

Resolution 678. The key question to be considered is the whether the mandate of that resolution

was extinguished after Iraq had been driven out of Kuwait, or still governed the situation irl

2003. The chapter begins by studying the theories and principles of interpretation, including the

Vienna Convention on the law of treaties, and their applicability for interpreting the Security

Council resolutions. Resolution 678 is then interpreted according to these rules.

Chapter Five is concerned with the argument advanced by the US and the UK regarding Iraq's

material breach of the terms of Resolution 687, which laid down the conditions of cease-fire

between Iraq and the coalition forces in 1991. The Chapter examines the customary rules

governing armistice agreements _{and whether these rules have been affected by the law of the UN}

Charter. It also observes the Vienna Convention's rules on the termination or suspension of

treaties by one party on grounds of violation by the other party and the applicability of these

rules in case of violation of a cease-fire agreement.

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The sixth chapter scrutinizes the legality of the disarmament sanctions imposed upon Iraq in

Resolution 687 and their compatibility with the principles of the UN Charter. The purpose of doing so in relation to the general purpose this study is to explore whether Iraq had the right to

reject or defy the implementation of these measures, should their imposition be proved to be an

ultra vires or unconstitutional act by the Security Council. To this end, the chapter examines two fields of international law: i) the law of international organizations concerning ultra vires acts; ii)

the doctrine of estoppel and its applicability in regard to Iraq's notification of acceptance of Resolution 687 and the sanction imposed therein.

Chapter Seven is concerned with the second justification given for the invasion by the US and

the UK, which is their right of self-defence in pre-emptive action against threats from Iraq. This

claim was of considerable relevance to another major incident that affected the law of the use of

force and influenced the situation in Iraq, that is, the events of 9/11 and its aftermath, including

the war on Afghanistan in 2001. Therefore, the chapter starts by examining the rules governing

the use of force against terrorism before and after the events of 9/11 and State practice in

response to terrorist attacks. It highlights the significant changes and alteration of the traditional

right of self-defence brought about by 9/11 and its aftermath and discusses how far the use of

force against Iraq in 2003 could be justified as a defensive war against terrorism in the light of

these developments. The chapter also examines the new doctrine of preventive self-defence

adopted by the US administration after the 9/11 attacks and its legality under the Charter system,

including State practice as to anticipatory self-defence and to what extent the invasion of Iraq

would be accepted on the grounds of this doctrine.

The last chapter looks at the third legal ground for action, which is the humanitarian claim of

pro-democratic intervention against the despotic regime of Saddam Hussein. The chapter

examines the legal theories that have been said to support a doctrine of unilateral pro-democratic

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intervention and their compatibility with the Charter framework of the use of force. It also

studies cases that are frequently cited as models for pro-democratic intervention, either unilateral

actions taken by individual States or multilateral actions taken under the authority of Security Council to restore democracy, in order to explore whether these practices signify an emerging

rule allowing pro-democratic intervention against tyrannical regimes. The chapter finally

examines the merits of the Iraqi case and whether it can be characterized and justified as a 'pro- democratic' war.

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Chapter 1 Regulation of the Use of Force under the United Nations Charter

Introduction

The impetus behind the creation of a collective security organization, with its ambitious

assumption that the use of military power by States could be constrained and even outlawed,

developed from the debacle of World War II. The Charter system was a marked departure from

that of the League of Nations, and the language of the Charter provides a new terminology and

the first expression of the basic rules in their modern form. The UN Charter is explicit in its aim

of bringing in a new global era in which State's recourse to force as an instrument of State's

policy is abolished, in favour of a system of collective security. This is to be achieved by the use

of international military police forces, as well as by measures such as diplomatic and economic

sanctions. Such measures are to be used solely by the UN, acting as a united body. However, the

Charter does not completely outlaw the unilateral use of force in international relations. If the

word "prohibition" had been used, it would mean that force could never lawfully be used under

the provisions of the Charter, and this is not the case. What the Charter does is to regulate rather

than prohibit the use of force.

This chapter will examine the Charter regulations of the use of force and the major issues

regularly associated _{with their interpretations. The first section briefly reviews the rules of the}

use of force in the period prior to the creation of the UN. The second section focuses on the

prohibition of the use of force in international relations established by Article 2(4). The third

section looks at the collective security system created by the Charter, including the powers and

authorities conferred upon the Security Council by Chapter VII, the model of enforcement action

envisaged by the drafters of the Charter and restrictions on the Security Council's authority. The

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fourth section reviews the travaux preparatoires of Article 51 in order to investigate the intentions of the drafters regarding the scope of the right of self-defence. The final section

highlights some vital issues raised among States and writers regarding the interpretation _of

Article 51, including the duration of defensive measures, the definition of "armed attack" and

whether anticipatory self-defence is permitted under Article 51. The conclusions reached in this

chapter will be depended upon in the remainder of the thesis.

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Section A: The use of force prior to the UN Charter

Prior to the 20th century, no prohibition of the use of force by States existed; States had the right

to wage was to protect their interests, and at their own sovereign discretion. ' In the absence of

legal regulation of the use of force or of any powerful international authority for the enforcement

of the law and the protection of rights of individual States, the only constraint was the ethical

doctrine of bellum justum, espoused by the Christian theology to distinguish between just and

unjust wars. However, this doctrine was based only on subjective criteria and, in the absence of

impartial authorities to decide in an objective way the justice of the causes of the belligerents, it

was left to the conscience of the acting State. 3 Gradually, however, this doctrine was discredited

and abandoned in favour of more stable and permanent system. This was the context in which

the positivist thought on the law of nations evolved and a basic distinction was observed between

the "necessary law of nature" and the "voluntary law of nations. "4 The adoption of this approach

eliminated the question of the justice of a war, which was held to be beyond any nation to decide,

focusing instead on the legality of the war. 5 In this way, the concept of bellum legale was

replaced by the concept of bellum justum. 6

With the rejection of the distinction between just and unjust wars, "war became the supreme

right of sovereign States and the very hall-mark of their sovereignty. _{"7 To that extent}

See generally Elbe, J "The Evolution of the Concept of Just War in International Law", 33 AJIL, 1939; Briggs, H. W, The Law of Nations, second edition, Appleton-Century-Crofts, Inc, New York, 1952, p 976

2 Alexandrov, S. Self-Defence _{against the Use of Force in International Law, vol. 23, Kluwer Law}

International, The Hague, Netherlands, 1996, p3

3 Bowett, W. Self-Defence in International Law, Manchester University Press, 1958, _{p 7-8; see also Kunz, J.}

"Bellum justum et bellum legale", 45 AJIL, 1951, p 531; Waldock, H. The Regulation of the Use of Force by Individual States in International Law, 81 Hague Recueil, 1952, p 456-7

4 Alexandrov, note 2 supra, p9 s Ibid.

6

Kunz, note 3 supra, p 532

7 Lauterpacht, H. "The Grotian Tradition in International Law", 23 BYIL, 1946, _{p 39; see also Briggs, note 1}

supra, p 976

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international law could not be regarded as law as the term is generally understood! In other

words, war was recognized as a "circumstance beyond the power of the law to control. s9 From a legal perspective, war was considered to serve as: (i) a method of self-help for resolving conflicts

and enforcing rights originating with the law actually in force, 1° as part of a broader concept of defence of legal right and of a remedy against refusal to compensate for violation of legal right; ' I

(ii) a sanction against those who breached international law; 12 and (iii) a means to challenge the

international legal status quo. 13 Thus, war was considered as a judicial procedure, involving

execution and punishment, which could be resorted to in order to obtain redress for wrongs in the

absence of a system of international justice and sanctions. 14 A State was entitled to defend itself

and to take retaliatory action on behalf of itself and its subjects to redress wrongs: indeed, it was

expected to do so, and to be self-sufficient in this respect.

The scope of self-defence in that period was unclear and extended into the sphere of self-help. ls

Although both self-defence and self-help depended on a prior injury, received, "' self-defence,

however, constitutes just one form of use of force among other forms of forcible measures of

self-help. It operates to protect essential rights from irreparable harm in circumstances in which

alternative means of protection are not available; it was to preserve or restore the legal status

quo. Self-help, however, includes various forms of coercion which do not constitute war in the

formal sense, such as retorsion and reprisals. '? Thus, self-help has a remedial or repressive

8 Lauterpacht, ibid

9 Eagleton, "Attempt to Define Aggression", International Council, 1930, p 583. Quoted in Bowett, note 3 supra, p 119

10 _{Kunz, J. "The Law of Nations, Static and Dynamic", 27 AJIL, 1933, p 634} " Bowett, note 3 supra, p 11

'2 Alexandrov, note 2 supra, p 11

13 _{Kunz, J. "The Law of Nations, Static and Dynamic", note 10 supra, p 634} '4 Alexandrov, note 2 supra, p 11

's Simma, B. The Charter of the United Nations; A Commentary, Volume 1, second edition, Oxford University Press, 2002, p 789

16 _{Bowett, note 3 supra, p 11}

'7 Oppenheim, L. International Law: A Treatise, vol. 2, second edition, Longmans, London, 1912, p 34

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character in order to enforce legal rights. '8 Under the Charter legal system, this latter function

has been taken away from individual States and allocated to the central authority of the

international community. 19 Accordingly, apart from self-defence, any other form of self-help

became absolutely prohibited.

Towards the end of the 19th century and in the early years of the 20th century, a new tendency

towards peaceful settlement of disputes emerged in international relations and the "right of war"

was eroded 2° Attempts were made to limit the States' freedom to wage war by making war in

general only a subsidiary means of settling international conflicts. These did not, in fact, abolish

war an instrument of national policy; war remained as a legal institution in principle21 As the

report of the Peace Conference Commission on Responsibilities of 1919 admitted, "even a war

of aggression _{may not be considered as an act directly contrary to positive law, or one which can}

be successfully brought before a tribunal such as the Commission is authorized to consider under

its terms of reference. "22

By 1920, it was realized that the complete elimination of war required the availability of an

alternative, peaceful way of resolving disputes between nations, a mechanism for enforcing this

settlement in the name of the community and, if necessary a power to take sanctions against the

disobedient member of the international community. The method of approach was the creation of

an international organization which would provide peaceful machinery for the settlement of

international disputes, as a substitute for the method of self-help by the use of force 23

Accordingly, like its successor, the United Nations, the League of Nations was founded for the

maintenance _{of peace and security. The aim in establishing the League of Nations, in 1920, was}

18 _{Bowett, note 3 supra, p11} " Ibid

20 Simma, note 15 supra, p 789

21

Kunz, "The Law of Nations, Static and Dynamic", note 10 supra, p 635

22 "Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties", Report

Presented _{to the Preliminary Peace Conference, 19 March 1919, reprinted in 14 AJIL, 1920, p 118}

23 _{Alexandrov, note 2 supra, p 29}

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to create a new international world order, a new international law, in which war, as a method of

self-help, was replaced by organized and peaceful methods of settling international disputes. 4

In this view, the Covenant made war, in general, a last resort. Members of the League were, in

the event of a dispute, first to exhaust the peaceful procedures provided. 5 If, however, these failed to achieve resolution of the dispute, States concerned remain free to resort to war. 26 Thus,

although the Covenant clearly restricted the right of States to resort to war, war was still a legal institution in principle and as a means of self-help when the peaceful settlement mechanisms

failed 27 As to the right of self-defence, there was no specific reservation of that right contained

in the Covenant. This was considered to be unnecessary, since self-defence is an inherent right.

The decisive turning-point in the trend towards a general prohibition on war was the Kellogg_

Briand Pact in 1928.28 The Pact, for the first time in history, absolutely prohibited the right of

war as a notional policy29 and declared that international disputes should only be resolved by

pacific means 30 The only exception to this general prohibition of war, although not explicitly

24 _{Kunz, "The Law of Nations, Static and Dynamic", note 10 supra, p 635}

25 Article 12 of the Covenant stated that "The Members of the League agree that, if there should arise between them any dispute likely to lead to a rupture they will submit the matter either to arbitration or judicial settlement or to enquiry by the Council, and they agree in no case to resort to war until three months

after the award by the arbitrators or the judicial decision, or the report by the Council. " Article 13 (1) declared that "The Members of the League agree that whenever any dispute shall arise between them which they recognise to be suitable for submission to arbitration or judicial settlement and which cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to arbitration or judicial settlement. " Article 15 (1) also stated that "If there should arise between Members of the League any dispute

likely to lead to a rupture, which is not submitted to arbitration or judicial settlement in accordance with Article 13, the Members of the League agree that they will submit the matter to the Council. "

26 Article 15 (7) explicitly stated that "If the Council fails to reach a report which is unanimously agreed to by the members thereof, other than the Representatives of one or more of the parties to the dispute, the Members

of the League reserve to themselves the right to take such action as they shall consider necessary for the maintenance of right and justice. "

27 Kunz, "The Law of Nations, Static and Dynamic", note 10 supra, p 635

28 See generally Wright, Q. "The Meaning of the Pact of Paris", 27 AJIL, 1933

29 Article I of the Pact stated that "The high contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies and renounce it as an instrument of national policy in their relations with one another. " The Kellogg -Briand Pact

available at <bttp: //www. yale. edu/lawweb/avalon/kbpact/kbpact. htm>

3° Article 2 of the Pact reads: "The High Contracting Parties agree that the settlement or solution of _all

disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among thertl

shall never be sought except by pacific means. " See in ibid. '

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expressed in the Pact, was the right of self-defence 31 Although a significant milestone, the

Kellogg-Briand Pact had its shortcomings, among them, the failure to provide for sanctions

against violators, beyond a statement in the preamble that they "should be denied the benefits

furnished by the treaty. "32 A more serious error was that the prohibition was worded solely in

terms of war, rather than the use of force in general. 33 This left scope for States to disguise their

military actions by not declaring them as war, thereby claiming that they were not in breach of

the Pact 34

Section B: The prohibition of unilateral use of force in Article 2(4)

Prior to the Dumbarton Oaks Conference, China, the Soviet Union, the United Kingdom and the

United States drew up proposals asserting the prohibition of the use of force as a general

principle of the UN, except for enforcement action carried out by the UN itself. 35 At the

conference, the prohibition of the use of force as a fundamental principle of the UN was agreed.

The provisional text was similar in wording to Article 2(4) in its current form. The text of Article

31 During the travaux preparatoires of the Pact, the French Government maintained that the treaties must be construed so as not to bar the right of legitimate defence. Secretary Kellogg (the American Foreign

Secretary) agreed to this interpretation of the French Government. In his speech of 23 June 1928 to some of the original signatories, he stated that "There is nothing in the American draft of an anti-war treaty which

restricts or impairs in any way the right of self-defence. That right is inherent in every sovereign State and is implicit in every treaty. Every nation is free at all times and regardless of treaty provisions to defend its territory from attack or invasion and it alone is competent to decide whether circumstances require recourse to war in self-defence.... Inasmuch as no treaty provision can add to the natural right of self-defence, it is not in the interest of peace that a treaty should stipulate a juristic conception of self-defence since it is far too

easy for the unscrupulous to mould events to accord with an agreed definition. " Dispatch of the American Foreign Secretary of April 23,1928, quoted in Miller, D. The Pact of Paris: A Study of the Kellogg-Briand

Treaty, New York, 1928, p 213-214. Similarly, in the Note of the French Minister of Foreign Affairs to the American Ambassador of 14 July 1928, he stated "nothing in the new treaty restrains or compromises in any manner whatsoever the right of self-defence. Each nation in this respect will always remain free to defend its territory against attack or invasion; it alone is competent to decide whether circumstances require recourse to war in self-defence. " Quoted in Lauterpacht, H. The Function of Law in the International Community,

Oxford Clarendon Press, Oxford, 1933, p 178 at footnotes

32 The Preamble of the Kellogg _{-Briand Pact, note 29 supra}

33 Simma, note 15 supra, p 116

34 For example, China and Japan engaged in extensive military operations against each other in 1931 and 1937, after Japan's invasion of Manchuria, while continuingly denying that a state of war existed between them. Ibid

35 Goodrich L, M. and Hambro, E. Charter _{of the United Nations; Commentary and Documents, second}

edition, Stevens & Sons, London, 1949, p 6-7

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2(4) was simply rendered as: "All members of the Organization shall refrain in their international

relations from the threat or use of force in any manner inconsistent with the purposes of the

Organization. "36

These words were deliberately chosen. In discussion of Paragraph 4, during the preparation

period of the San Francisco Conference, it was suggested by one of the US delegates to

strengthen the prohibition in the Paragraph to be read as follows: "All members of the

organization shall refrain in their international relations from the threat or use of force in any

manner inconsistent with the purposes and principles of the Organization and the provisions of

its Charter. _{"37 However, objections were raised by representatives}to inclusion of the phrase "and

principles" and "the provisions of the Charter" because they wanted to be sure that, in the event

of a Russian veto of UN action, action by the organization, the US could take whatever action

was necessary, consistent with the purpose of the Organization. Therefore, they considered the

less restrictive obligation implied by the original language was preferable. 38 Thus, the US

intention was to preserve the right to act unilaterally in case collective security action was

hindered.

B. 1 At San Francisco Conference

One year later, in San Francisco, in Committee I/1 (entrusted with discussion of the provisions

related to the prohibition of the threat or use of force) many States called for this provision to be

strengthened with an additional obligation to respect the territorial integrity and political

independence _{of States. 9 Australia, for example, proposed adding, after the prohibition of use of}

force, the words "against the territorial integrity and political independence _{of any member or}

36 Documents of the United Nations Conference on International Organi_ation (UNCIO), San Francisco 1945, Dumbarton Oaks Proposals, Doc. 1, G1, p 3. [ Hereinafter UNCIO Doc. ]

37 Foreign Relations of the United States, Diplomatic Papers, 1945, vol. 1, United States Govetmellt Printing Office, Washington, 1967, p 426 [Hereinafter Foreign Relations]

38 Ibid.

39 UNCIO Doc. vol. 3, Proposals submitted by Mexico p 65, Iran p 554, Bolivia p 578

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State, or in any other manner... "40 This amendment was adopted unanimously by participants. It

was argued that these principles constitute a part of any system of collective security; and the

importance of the second principle, in particular, was asserted by drawing attention to "the

methods of cunning aggression employed by the totalitarian powers in the creation of artificial

States and of puppet regimes. "41 Unintentionally, however, the amendment created an opening

for some, later, to argue that the prohibition against force did not cover minor or temporary

invasions that did not actually threaten the territorial integrity of the victim State or its

independence 42 Such an interpretation, however, is clearly inconsistent with the manifest intent

of those who proposed and supported this amendment.

In an attempt further to strengthen Article 2 (4)'s prohibition against the use of force by States,

Mexico led a call for insertion of the following principle: "No State has the right to intervene,

directly or indirectly, and whatever be the reason, in the domestic or foreign affairs of another. "43

Iran, also, suggested drawing up a paragraph to be read as follows: "All the member States of the

Organization should refrain from intervening in their international relations, either directly or

indirectly, in the internal affairs of the other States and from the threat or use of force in any

manner inconsistent with the purposes of the organization. "44 This amendment was motivated by

previous instances in which powerful States had coercively used their economic strength to put

pressure on weaker States, which had been a cause of disturbance in international relations 45

This amendment was rejected, although the same idea is raised in Article 2 (7) which concerns

interference in internal affairs of States by the United Nations itself. 46 Thus, the final form of

Article 2(4) reads as follows: "All members shall refrain in their international relations from the

40 Ibid. Proposal submitted by Australia, p 543 41 Ibid. Mexico p 65

42 See chapter 8, section B. 1 for arguments made to this effect. 43 UNCIO Doc. vol. 3, Mexico, p 66

44 Ibid, Iran, p 554

`s Ibid. Mexico, p 67

46 See section C. 1.1 below

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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. "

This wording certainly represents a significant advance over the similar article in the Covenantal

and the Kellogg- Briand Pact, 48 in that it applies to the use of force in general, not only war_ Moreover, the threat of force, as well as its actual use, is forbidden. 49 It is significant also that

Article 2 (4) is to be found in Chapter 1, entitled "Purposes and Principles". This reflects its

status as one of the fundamental provisions, in the light of which all other provisions of the Charter are to be understood and including "the directions which the activities of the

Organization are to take and the common ends of its members. "S0 Indeed, the article appears to

set up a model of State behaviour, with an emphasis on peace as the fundamental aim of the UN_ Since 1945, any debate on the issue of use of force inevitably centres on Article 2(4) of the

Charter, which authors have described as "the cornerstone of peace in Charter" or the "heart of

the UN Charter. " The International Court of Justice (ICJ) in the Nicaragua Case described Article 2(4) as "a peremptory norm of International Law, which States cannot derogate. "$'

B. 2 Article 2 (4) and internal conflicts

The wording of Article 2 (4) indicates that the prohibition on the use of force applies to the

international relations of States, not to their internal situations S2 The questions arise now, did

Article 2(4) really intend to eliminate the right of humanitarian intervention? Or to immunize

against foreign intervention a State whose government massively violates the basic human rights

47 Article 10 of the Covenant of the League of Nations reads: "The Members of the League undertake _tc respect and preserve as against external aggression the territorial integrity and existing political independence

of all Members of the League. In case of any such aggression or in case of any threat or danger of such aggression the Council shall advise upon the means by which this obligation shall be fulfilled. "

49 See note 29 supra

49 _{Goodrich and Hambro, note 35 supra, p 104}

50 Ibid. p 22

s' Nicaragua case, ICJ Reports, 1986, p 14, para. 190 52 Simma, note 15 supra, p 608

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against its own population? 53 Detailed answers to these questions are beyond the scope of the

present study; however, it clearly appears from the drafting history that the drafters' intention

was to prohibit States from interfering in the internal affairs of one another. Internal struggles,

even on the scale of civil war, have always been viewed as an internal matter. Indeed, in many

States they have been a typical method of regime change. 54 It was not the drafters' intention to

enable individual States or the Organization to interfere in such situations. 55

Although this principle is not clear in the text of Article 2 (4) and the proposals by Mexico and

Iran 56 to include an explicit clause to this effect were rejected, the principle of non-interference

in domestic affairs was clearly stated in Article 2(7) in regard to the UN itself; a fortiori, then,

this principle applies for individual States. Furthermore, any lingering ambiguity surrounding the

UN Charter's prohibition against interference in the domestic affairs of States was clarified by

the UN General Assembly in its 1965 Declaration on the Inadmissibility of Intervention in the

Domestic Affairs of States. The declaration, passed without any dissenting votes and only one

abstention (Great Britain), asserts that "l. No State has the right to intervene, directly or

indirectly, for any reason whatever, in the internal or external affairs of any other State.

Consequently, _{armed intervention and all other forms of interference or attempted threats against}

the personality of the State or against its political, economic, and cultural element, are

condemned; 2... Also, no State shall organize, assist, foment, finance, incite, or tolerate

53 Franck, T. Recourse to Force, State Action Against Threats _{and Armed Attacks, Cambridge University} Press, Cambridge, 2002, p2

34 Connell, M. "Regulating the Use _{of Force in the 21's Century: The Continuing Importance of State} Autonomy", 36 Columbia Journal _{of Transnational Law, 1997, p 481}

ss Henkin, L. International Law: Politics, Values _{and Functions, 1990, p 165-7; see also Chapter 8 for}

examination of the alleged `right' of pro-democratic intervention

56 _{Notes 43 and 44 supra}

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subversive, terrorist, or armed activities directed towards the violent overthrow of the regime of

another State, or interfere in civil strife in another State""

These principles were given legal force in the 1970 Declaration of Friendly Relations. The

Declaration, which has the status of a unanimous agreement, having been passed without _a

vote, 58 can be regarded as an authoritative interpretation of the UN Charter's Principle of non_ intervention.

Section C: The Charter's collective security system

As mentioned earlier, the Charter does not absolutely prohibit or outlaw the use of force, but it

provides rules for the use of force under the new world system. Therefore, although the

prohibition of the use of force in Article 2 (4) is a basic principle, however, it is qualified by two

exceptions: i) action taken for the maintenance _{or restoration of international peace and security}

authorized by the Security Council under Chapter VII; and ii) the inherent right of individual and

collective self defence, preserved by Article 51. However, these two exceptions are not

equivalent; self-defence _{under Article 51 is only meant to be subsidiary in nature and in no way a}

substitute for the collective action of the organization-59 Therefore, the rules binding the United

Nations differ from those applied to individual States. The Security Council was given broader

authority to use force in response to threats of aggression as well as to breaches of international

peace.

57 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection

or Their Independence and Sovereignty, adopted by UN General Assembly Resolution 2131(XX) _{of 21} December 1965

58 Declaration on Principles of International Law Concerning Friendly Relations and Co-operation Amon? States in Accordance with the Charter of the United Nations, adopted by UN General Assembly Resolution 2625 (XXV) of 24 October 1970, see also Chapter 7, section B. 2.2

51 See section E. 1 infra

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Cl The Security Council' powers and authorities under Article 39

The UN's primary goal, as set out in Article 1 (1) is the maintenance of international peace and

security. These matters are addressed specifically in Chapter VII, beginning with Article 39,

which constitutes the basic provision of the whole Charter system for the enforcement of peace.

It provides that "The Security Council shall determine the existence of any threat to the peace,

breach of peace, or act of aggression and shall make recommendations, or decide what measures

shall be taken in accordance with articles 41 and 42, to maintain international peace and

security. " Thus, Article 39 contains the legal basis for the application of measures according to

Articles 41 and 42. This means that economic sanctions under Article 41 or military sanctions

under Article 42 always require the determination of a threat to the peace, a breach of the peace,

or an act of aggression in the sense of Article 39.60 It therefore appears mistaken to draw a

distinction between Articles 39 and Article 42 with respect to the prerequisites for application. 61

In other words, Article 39, as it stands, cannot alone be considered as the basis for such

enforcement _{action because}_{the Article itself refers to Article 42 as the basis for use of force.}

It is clear from the travaux preparatoires for this article that the drafters intended to assign

exclusively to the Security Council the responsibility for maintaining international peace and

security. The Dumbarton Oaks Proposals entrusted the Security Council with competence to take

measures to maintain world peace and international security. At San Francisco, it was proposed

that the General Assembly should join with the Security Council in the performance of functions

specified in this Article. 62 Smaller and middle-sized States favoured the idea of giving the

General Assembly, as the main organ of the UN, a more important role in maintaining world

peace. They hoped they would thereby gain more influence in the decision about enforcement

60 Simma, note 15 supra, p 612-13 61 Ibid, p 631

62 Goodrich and Hambro, note 35 supra, p 156

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measures. 63 The Sponsoring Powers, however, viewed these proposals as weakening the

organization and rejected them in favour of the text of the Dumbarton Oaks Proposals. 64

Another concern raised at San Francisco was the absence of any precisely defined principles or

standards to control the Security Council's interventions. A number of States called for stronger

regulation in this respect. The need was highlighted for the Security Council in the performance

of its function to be guided by the basic purposes and principles of the organization as set jr, Articles 1 and 2.65 This general guidance for the Security Council in performing its functions was

not inserted in the text of Article 39; instead, it is to be found in Article 24(2) of Chapter V

regarding "Functions and Powers. "66 Thus, the Charter Principles and the purposes related to

them could be considered as boundaries for the Council's authority in imposing sanctions.

Some delegates, however, considered this inadequate and called for a definition of aggression to

be incorporated in the text of the Charter and made binding on the Security Counci167 The Us

and the UK, however, were among those who asserted the impossibility of an exhaustive

63 New Zealand proposed that "the General Assembly shall have the right to consider any matter within the sphere of international relations. " UNCIO Doc. vol. 3, p 487. Bolivia similarly demanded the common action of the GA and the SC: "The General Assembly should have the right to consider the general principles of

cooperation in the maintainace of international peace, security and justice. " Ibid, Bolivia, p 583. Egypt proposed that all decisions of the Security Ccouncil should be presented to the General Assembly, which

would be authorized to suspend or rescind them by a three-quarters majority. Ibid, p 459-60. Of significance Iran proposed that the General Assembly should be able to intervene should the Security Council fail to reach a decision within a certain time-limit. Iran's proposal reads: "The General Assembly can always draw the

attention of the Council to a dispute or to all situations capable of endangering peace, and fix an adequate delay within which the Council should pronouns its decision on the question submitted to it. It, at the expiration of this period, the Council is unable to reach a decision, the Assembly can intervene and take the necessary measures. " UNCIO Doc. vol. 3, Amendments proposed by Iran, p 555. Although this proposal also was rejected at the time, in November 1950, the Assembly adopted the Uniting for Peace resolution, which

gave it power to discuss and make recommendations on matters of peace and security if the Council found itself deadlocked. Members were also to hold armed forces ready in the event that the Council failed to act. The Uniting for Peace resolution was first used in 1954 when the U. K. and France vetoed Security Council resolutions during the Suez crisis. Following a General Assembly demand to do so, those two countries withdrew their troops.

64 Simma, note 15 supra, p 607; see also Goodrich and Hambro, note 35 supra, p 156 65 Goodrich and Hambro, ibid, p 157

66 Article 24(2) states that "in discharging these duties the Security Council shall act in accordance with the

Purposes _{and Principles of the United Nations.}"

67 See proposal submitted by Bolivia. UNCIO Doc. vol. 3, p 579. This proposal received the support _of numerous States. Simma, note 15 supra, p 608

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definition and argued that too rigid a rule could result in premature imposition of sanctions. 8

Ultimately, at the San Francisco Conference it was decided to not to attempt a detailed definition

of aggression for the guidance of the Security Council. 69

Turning back to the text of Article 39, under this article, the Security Council, in the first place,

has to determine "the existence of any threat of the peace, breach of peace, or act of aggression. "

The Security Council has an unfettered discretionary power to decide in each case whether a

particular act constitutes any of these specified acts. 70 Once the determination that one of these

acts has been found has been made, the Council can either "make recommendations, or decide

what measures _{shall be taken in accordance}_{with Articles 41 and 42" Thus, a clear distinction is}

made between recommendations _{on the one hand and decisions on measures}_{under Articles 41}

and 42 on the other. It is generally assumed in the legal literature that "recommendations" under

Article 39 are understood to refer to Chapter VI provisions calling for the pacific settlement of

international disputes, to be pursued either alone or in tandem with economic and/or military

decisions _{taken in accordance}_{with Articles 41 and 42.71}_{According to this view, it is not possible}

to justify enforcement measures, which would interfere with the international legal rights of the

affected State, on the basis of a recommendation. 72 In other words, non-binding

recommendations according to Article 39 cannot encompass enforcement measures under

Articles 41 and 42. However, occasionally it has been suggested that enforcement measures

according to Articles 41 and 42 may also be based on recommendations. 73 The first view seems

68 Simma, ibid

69 See Report of Rapporteur of Committee 11113 _{to Commission III on Chapter VIII, section E. 2 infra}

70

Goodrich and Hambro, note 35 supra, p 156; see also Foreign Relations, 1945, p 700

71 Goodrich and Hambro, ibid, p 158 72 Simma, note 15 supra, p 614-5

" Recommendation _{under Article 39 was held by some writers to be the basis for the Council's response to}

North Korea's attack on South Korea in 1950. This view was based on the language of SC Resolution 83 of 27 June 1950 where the Council "recommend[ed] 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

The legality of the use of force against Iraq in 2003

CITY UNIVERSITY

London

The Legality of the Use of Force against Iraq in 2003

Best Copy

Available'

Abstract

Contents

Dedication

Acknowledgments

Abbreviations

Table of Cases

Page

Permanent Court of International Justice

International Arbitration

Introduction

A. Purpose

B. Scope

C. Approach

D. Outline of the thesis

Chapter 1

Regulation of the Use of Force under the United Nations Charter

Introduction

Section A: The use of force prior to the UN Charter

Section B: The prohibition of unilateral use of force in Article 2(4)

_Page