ILLEGALITY OF THE IRAQ WAR 2003

Adviser quits Foreign Office over legality of war

A senior legal adviser to the foreign secretary, Jack Straw, has quit the Foreign Office because of a difference over the legal advice sanctioning the war against Iraq

Ewen MacAskill, diplomatic editor
Saturday March 22, 2003
The Guardian

A senior legal adviser to the foreign secretary, Jack Straw, has quit the Foreign Office because of a difference over the legal advice sanctioning the war against Iraq, it emerged last night.

Elizabeth Wilmhurst, 54, deputy legal adviser, is understood to be unhappy with the government's official line that it has sufficient basis for war under UN resolutions. Ms Wilmhurst has been a legal adviser at the Foreign Office for 30 years, and deputy legal officer since 1997.

Her resignation will be an embarrassment to Tony Blair as well as to Mr Straw and raises new doubts about the legal basis for the war. It will encourage anti-war MPs to renew pressure on the attorney general, Lord Goldsmith, to publish in full his legal advice to the government.

The Foreign Office was reluctant to discuss Ms Wilmhurst's departure. A spokesman said: "A legal adviser has decided to leave over the last few days." Asked the reason, he said: "That is a matter for them."

After a week of reported unease within the government about the legality of going to war without a second UN resolution, Lord Goldsmith on Monday published a condensed version of his advice to Mr Blair. But anti-war MPs and many lawyers suspect the full version may be more evenly balanced.

Concern about the legal advice was expressed this week by two former Foreign Office legal advisers. In a letter to the Times, Sir Franklin Berman, legal adviser from 1991-99, and Sir Arthur Watts, legal adviser from 1987-91, expressed regret that the search for a second resolution had been abandoned. They said the onus was on the government to account "for their actions to the international community in whose name they claim to act".

The Guardian was unable to contact Ms Wilmhurst.
ref:http://politics.guardian.co.uk/iraq/story/0,12956,919647,00.html

IN THE MATTER OF THE POTENTIAL USE
OF ARMED FORCE BY THE UK AGAINST IRAQ
AND THE DRAFT US/UK RESOLUTION
PUBLISHED ON 23 FEBRUARY 2003

_________________

OPINION
_________________

1. Further to our previous advice (OP1441) on whether the United Kingdom
(UK) can rely on United Nations Security Council Resolution 1441
(Resolution 1441) to use force against Iraq , we are asked to advise the Campaign for
Nuclear Disarmament on whether the draft resolution released by the United
States and the United Kingdom on 23 February 2003 (the "Draft Resolution")
would, if adopted by the United Nations Security Council, authorise the US
and the UK to take military action against Iraq.

Summary of advice
2. For the reasons set out below, our opinion is that:
(1) The Draft Resolution would not authorise the US and the UK to use
force against Iraq if it were adopted.
(2) In the present circumstances as known to us, if there is no further
Resolution clearly authorising force, the US and the UK would be acting in
violation of international law if they were to attack Iraq.

The text of the Draft Resolution

3. The Draft Resolution comprises a long preamble and two short operative
paragraphs. The preamble 'recalls' all the Security Council's previous
relevant resolutions, and continues:
"Recalling that in its Resolution 687 (1991) the Council declared that a
ceasefire would be based on acceptance by Iraq of the provisions of that
resolution, including the obligations on Iraq contained therein,
"Recalling that its Resolution 1441 (2002), while acknowledging that Iraq
has been and remains in material breach of its obligations, afforded Iraq
a
final opportunity to comply with its disarmament obligations under
relevant
resolutions,
"Recalling that in its Resolution 1441 (2002) the Council decided that
false
statements or omissions in the declaration submitted by Iraq pursuant to
that resolution and failure by Iraq at any time to comply with, and to
cooperate fully in the implementation of that resolution would constitute
a
further material breach,
"Noting, in that context, that in its Resolution 1441 (2002), the Council
recalled that it has repeatedly warned Iraq that it will face serious
consequences as a result of its continued violations of its obligations,
"Noting that Iraq has submitted a declaration pursuant to its Resolution
1441 (2002) containing false statements and omissions and has failed to
comply with, and cooperate fully in the implementation of that resolution,
"Reaffirming the commitment of all member states to the sovereignty and
territorial integrity of Iraq, Kuwait and the neighbouring states,
Mindful of its primary responsibility under the charter of the United
Nations for the maintenance of international peace and security,
"Recognising the threat of Iraq's non-compliance with Council resolutions
and proliferation of weapons of mass destruction and long-range missiles
poses to international peace and security,
"Determined to secure full compliance with its decisions and to restore
international peace and security in the area, ."

4. The operative part of the Draft Resolution states that the Security
Council:
"Acting under Chapter VII of the charter of the United Nations,
(1) Decides that Iraq has failed to take the final opportunity afforded to
it in Resolution 1441 (2002),
(2) Decides to remain seized of the matter."

5. In an article in the Guardian dated 25 February 2003 Julian Borger
reported that the Draft Resolution was far milder than the US originally
had
in mind. The article reported that prior to the report of Hans Blix on 14
February 2003 the US had considered going further, 'demanding the security
council approve the use of "all necessary means" to enforce its will.' A
British official was reported as saying, "The Americans' original language
was quite tough on requiring the words 'material breach' and so on. We
said
you simply have to refer back to resolution 1441 otherwise you're simply
not
going to get the nine votes." (Emphasis added)

6. Newspaper reports suggest that it is anticipated that the Draft
Resolution will be put to the vote at the Security Council in the week
beginning 10 March 2003, and that war will begin shortly afterwards.

Issues

7. In our earlier opinion OP1441 we concluded that Resolution 1441 did not
authorise the US and the UK to use force against Iraq in the event that it
breached the terms of Resolution 1441. We concluded that a further
Security
Council Resolution clearly authorising force would be needed.

8. The Draft Resolution appears to be the US and the UK's proposal for
meeting this requirement. It seems clear that, if it is adopted by the
Security Council, the US and the UK will seek to rely on the Draft
Resolution either on its own or in conjunction with Resolution 1441 as
authorising them to attack Iraq.

9. The crucial question therefore is whether the Draft Resolution would in
fact authorise the use of force against Iraq.

Legal Background

10. The United Nations Charter provides the framework for the use of force
in international law.

11. Article 1 states:
"The Purposes of the United Nations are:

(1) To maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of threats to
the peace, and for the suppression of acts of aggression or other breaches
of the peace, and to bring about by peaceful means, and in conformity with
the principles of justice and international law, adjustment or settlement
of
international
disputes or situations which might lead to a breach of the peace."

12. Article 2(4) states:
"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."

13. Chapter VII of the Charter (Articles 39-51) confers on the Security
Council the duty of determining the existence of any threat to the peace,
breach of the peace, or act of aggression, and of deciding what action
should be taken to maintain or restore international peace and security.

14. Article 39 states
"The Security Council shall determine the existence of any threat to the
peace, breach of the 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 or restore international peace and
security."

15. Article 41 states
"The Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, and it may
call upon the Members of the United Nations to apply such measures. These
may include complete or partial interruption of economic relations and of
rail, sea, air, postal, telegraphic, radio, and other means of
communication, and the severance of diplomatic relations."

16. Article 42 states

"Should the Security Council consider that measures provided for in
Article
41 would be inadequate or have proved to be inadequate, it may take such
action by air, sea, or land forces as may be necessary to maintain or
restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces
of Members of the United Nations."

Advice
What is the effect of a breach by Iraq of Resolution 1441?

17. Much of the Draft Resolution refers back to Resolution 1441. It is
important therefore to examine the meaning of that Resolution.

18. In OP1441 we considered whether Resolution 1441 authorised the use of
force in the event that Iraq failed to comply with its terms. We concluded
that it did not for three principal reasons.

19. First, Resolution 1441 does not expressly authorise Member States to
use
force. The resolutions adopted by the Security Council over the years,
including Resolution 678, show that that the language used to authorise
force is bold and consistent. Member states are 'authorised' to 'use all
necessary means' or 'take all necessary measures' in pursuit of a
specified
goal. These words are manifestly absent from Resolution 1441.

20. Secondly, as a matter of principle international law precludes Member
States from relying on any implied authorisation to use force. The
prohibition on the use of force contained in Article 2(4) of the UN
Charter
is one of the most fundamental principles in the Charter. Member States
may
only derogate from that prohibition in self-defence or following an
authorisation from the Security Council to use force made under Chapter
VII
of the Charter.

21. The fundamental nature of the prohibition against the use of force
means
that if a resolution is ambiguous on the question of whether force is
authorised, then it should be assumed that force is not authorised.
Furthermore the power given to the Security Council alone under Chapter
VII
to decide to use force to restore peace is intended to ensure that any
decisions on the use of force are reached collectively. Article 1 of the
Charter which sets out the Purposes of the UN makes it clear that
collective
measures are all that is envisaged by the Charter. Use of force without
clear collective authorisation would therefore be in conflict with the
fundamental principles of the Charter and in violation of international
law.

22. Thirdly, even if implied authorisation to use force were permissible
under international law, Resolution 1441 does not contain such an implied
authorisation. The wording and scheme of Resolution 1441 and the
discussions
leading up to its adoption make it abundantly clear that any decision on
the
actions to be taken in the event of breach of Resolution 1441 by Iraq will
be taken by the Security Council. Paragraphs 4 and 11 provide that, in the
event of false statements or omissions in Iraq's weapons declaration or
non-compliance with its disarmament obligations, either UNMOVIC or the
IAEA
will make a report to the Security Council. Paragraph 12 of Resolution
1441
provides as follows:

12.[The Security Council] 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".

23. This contemplates that the Security Council, not Member States acting
unilaterally, will decide on any further action to be taken against Iraq
in
the event of any non-compliance by Iraq with its obligations under
Resolution 1441. In other words Resolution 1441 does not set out what will
happen if it is breached, but leaves it to the Security Council to decide.

24. We also made it clear in OP1441 that in our view the use of the word
'serious consequences' in paragraph 13 of Resolution 1441 does not amount
to
an authorisation to Member States to use force. Paragraph 13 of Resolution
1441 states that the Security Council "Recalls, in that context, that the
Council has repeatedly warned Iraq that it will face serious consequences
as
a result of its continued violations of its obligations." The words 'in
that
context', clearly indicate that any serious consequences which Iraq will
face are to be decided upon in the context of the discussion by the
Security
Council envisaged by paragraph 12 of Resolution 1441. In any event, this
paragraph does not itself warn of serious consequences but is a reference
to
warnings made on previous occasions which this part of the Resolution
"recalls". The new Draft Resolution simply "notes" in the preamble that
that is what Resolution 1441 said and does not itself authorise "serious
consequences".

25. In summary the effect of Resolution 1441 in international law is as
follows. If Hans Blix (for UNMOVIC) or Mohamed El-Baradei (for IAEA)
conclude that Iraq is not complying with the terms of Resolution 1441 they
will make a report to the Security Council. The Security Council will then
consider the situation and the need to secure full compliance with its
resolutions and will decide, in accordance with Chapter VII of the UN
Charter, what action to take. Iraq is reminded that the consequences of
breach will be serious, but it remains a matter for the Security Council
to
determine what the precise consequences will be and when they will take
effect.

26. The question arises, therefore, of what the Security Council will have
determined if it adopts the Draft Resolution.

Does the Draft Resolution authorise force?

27. It is clear that the Draft Resolution does not expressly authorise
force
any more that Resolution 1441 does. There is no paragraph which authorises
Member States to use "all necessary means" or "take all necessary
measures".
Indeed the newspaper report referred to above indicates that this wording
was contemplated by the US but not pursued on the grounds that it would
not
receive the full support of the Security Council.

28. In our view, if wording exists which clearly authorises force, and
this
wording has not been pursued in favour of alternative wording which does
not, then this is the clearest indication that, if adopted, this Draft
Resolution would do something less than authorise force. To conclude
otherwise not only flies in the face of common sense but severely
undermines
the fundamental principles of the Charter for the reasons set out above
(see
also OP1441). Those principles require that decisions on the use of force
be
taken by the Security Council, not Member States, and that the
authorisation
of force be enunciated in the clearest of terms so that it is beyond doubt
that the Security Council has in fact authorised the use of force. They
also enable the Security Council to retain control and supervision over
such
use of force as it does authorise, for example with clear timescales set
out
in its resolutions. In contrast, unilateral use of force by one or more
Member States carries the serious risk that there will be a "free for
all",
threatening rather than maintaining international peace and security.

29. Even assuming this argument is wrong, however, in our view the Draft
Resolution cannot be construed as authorising force either alone or in
combination with Resolution 1441.

30. The bulk of the Draft Resolution is the Preamble. Preambles do not
have
operative effect, and cannot therefore be relied upon as authorising
action
of any kind. Where the words of the operative part of the Resolution are
ambiguous, however, the Preamble may be used as a tool of interpretation.

31. The Preamble to the Draft Resolution sets out the history of Iraq's
international obligations and failure to comply with those obligations and
at Preamble paragraph 9 'recognises' the threat to international peace and
security posed by Iraq's non-compliance with Security Council resolutions.

32. Operative paragraph 1 in the Draft Resolution then states that the
Security Council acting under Chapter VII of the UN Charter "Decides that
Iraq has failed to take the final opportunity afforded to it by Resolution
1441." This is a decision as to a question of past fact, not an
authorisation as to future action by other Member States.

33. All that paragraph 1 does is refer back to the "final opportunity"
afforded in Resolution 1441. As set out above, however, Resolution 1441
does
not authorise force in the event that Iraq fails to take the final
opportunity afforded to it, but expressly envisages that a further
decision
will be taken by the Security Council as to what steps should be taken
under Chapter VII.

34. In our view the most that paragraph 1 of the Draft Resolution can be
said to determine, when read in conjunction with the Preamble, is that
Iraq poses a threat to the peace. Paragraph 1 of the Draft Resolution might
therefore be said to be a determination under Article 39 of the Charter,
which determination is a prerequisite to any decision to use measures
short of force under Article 41 or force under Article 42 of the Charter. What
paragraph 1 clearly does not do, however, is go on to decide what measures
shall be taken in accordance with Articles 41 and 42 in order to restore
international peace and security.

35. This interpretation is reinforced by the consideration that it would
have been very easy for the Draft Resolution to include an operative
paragraph setting out what it was that it authorised in the form of future
action by Member States. That paragraph would state what measures the
Security Council should take in the light of its decision under paragraph
1.
The Security Council might decide to take measures under either Article 41
(for example, further sanctions or an enhanced weapons inspection regime)
or under Article 42 (blockades or military action).

36. In our view the fact that the words 'final opportunity' are used
cannot mean that force automatically follows. The Security Council might, for
example, decide to take measures under Article 41 before it takes measures
under Article 42. Under Article 42, it might decide to mount a blockade
before it takes military action. A determination that there has been a
breach of the peace under Article 39 does not automatically entail
military
action. That is why Article 39 expressly provides that the Security
Council
should make recommendations or decide what measures to take.

37. It is not open to the US and the UK to simply assume that the Security
Council has authorised measures under Article 42. Those measures are for
the
Security Council to decide upon. Even if the Security Council were to
decide
to authorise measures under Article 42 it might, for example, wish to
limit
the measures to action by land in order to minimise civilian casualties,
bearing in mind its obligation to take into account human rights and
humanitarian considerations under Article 1 of the Charter.

38. Nor in our view does the reference to 'serious consequences' in
Resolution 1441 mean that, once Iraq has been declared by the Security
Council to have failed to take the final opportunity afforded to it, those
'serious consequences', whatever they are, will automatically ensue. As
set
out above, the context in which the 'serious consequences' were referred
to
in paragraph 13 of Resolution 1441 makes it clear that the Security
Council
was to decide upon what those serious consequences would be and when they
would ensue. Indeed, as explained above, any other interpretation of that
paragraph would be in conflict with Articles 39, 41 and 42 of the UN
Charter.

Conclusion

39. In our view, the Draft Resolution, if adopted, would not provide the
US
and the UK with an authorisation to use force against Iraq, either alone
or
in conjunction with Resolution 1441. Nor does Resolution 1441 authorise
force in the event that it is breached by Iraq.

40. Any attack by US and the UK on Iraq in reliance on the Draft
Resolution
either alone or in conjunction with Resolution 1441 would be in breach of
international law.

RABINDER SINGH QC
CHARLOTTE KILROY
Matrix Chambers
Griffin Building
Gray's Inn

3 March 2003