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Operation Iraqi Freedom (OIF) was a military intervention into the State of Iraq carried out in early 2003. OIF was, in a wide variety of ways, controversial. It attracted international media attention of varying persuasions, stirred professional, academic and 'dinner table' debate across the world, and ultimately led to, inter alia, loss of human lives and homes. Iraq was drastically changed politically and socially, which may not have been wholly undesirable.[1] It is, however, the legality of the mode by which that change was affected which is the subject of this article; specifically, it will consider to what extent article 2(4) of the United Nations Charter (UNC) does, and should, apply to the military intervention in Iraq under OIF. That issue will be addressed by considering the following:
• Operation Iraqi Freedom[2]
• Use of force in context - how has the use of force been viewed in the international arena before the creation of the United Nations (UN)?[3]
• The UNC- what is the general attitude of the UN to use of force and what does article 2(4) require? [4]
• Article 2(4) and OIF - how does, and should, article 2(4) apply?[5]
The actions of the Iraqi Government, more particularly under the stewardship of Saddam Hussein, have captured negative international attention for a prolonged period resulting in UN scrutiny and military interventions in 1991, 1998 and 2003. [6] Iraqi threats of use of chemical and biological weapons were not unusual, ballistic missile use in addition to reports that Iraq had attempted to acquire materials for a nuclear weapons programme were central to the early objections held against Iraq. Later, objections related to alleged non-compliance with UN Security Council (UNSC) resolutions requiring, inter alia, disarmament.
In late 2002 Iraq became the subject of criticism from President Bush who appeared concerned that the UN was not taking[7] sufficient interest in ensuring that Iraq comply with previous UNSC resolutions, particularly those relating to Weapons of Mass Destruction (WMD).[8] This criticism was met by an assertion from Iraq that they no longer possessed WMD.[9] UNSC resolution 1441 later threatened 'serious consequences' should Iraq fail to comply with UNSC obligations and 'immediate, unconditional and active cooperation' with United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) was required.[10] Accordingly, weapons inspections were resumed in Iraq, in a relatively cooperative manner, by UNMOVIC.[11] This did not, however, satisfy the Bush Administration which made allegations of Iraqi links to terrorist organisations, presented alleged evidence that Iraq still possessed WMD, and appealed to the UNSC to take forceful action to enforce Resolution 1441[12] - the UNSC declined this invitation and on 19 March 2003 an attack, independent of the UN, was ordered by President Bush against Iraq involving predominantly US and United Kingdom (UK) forces, signalling the beginning of a war oddly entitled Operation Iraqi Freedom.[13]
OIF created a perplexing legal situation. It appears to be taken as obvious by scholars, International Organisations, states and other interested parties that the UN broadly exists to promote international peace and security by, inter alia, prohibiting the use of force except in defined circumstances -where the UNSC authorizes the use of force and in circumstances amounting to self defence.[14] Prima facie, the military intervention into Iraq possesses neither justification for the force employed, which immediately begs a number of questions in relation to OIF - are we missing something? Would a coalition of states really act in what seems to be blatant disregard of the UNC? Are we back in the 'dark ages' where states postured themselves, in flagellant and martyr like poses, as authoritative in moral and other matters paying little heed to sovereignty and matters relating to the lawful autonomy of other states? Clearly, the answers to these questions lie in carefully checking old ground relating to the use of force, going back to first principles and ensuring that the law is what we think it is so that it can be applied in an appropriately considered manner.
The employment of violence, or force, to resolve disputes is not unusual in both the domestic and international sphere.[15] There are serious objections to such practices, or threat thereof, which the law is expected to regulate.[16] The framework of international order is based on principles such as territorial sovereignty and independence and equality of states, to which implementation of force is generally abhorrent.[17]
With the Christianisation of the Roman Empire, and concurrent desertion of religious ideals of passive or non-judgemental relations, stirred the idea of the 'just war'. Engagement in the just war, and use of violent means to obtain an ordered society, was justified so long as it complied with 'divine will'. Unsurprisingly, the epitome of divine will suffered from schizophrenic interpretation depending, at times, on the interests served by the particular just war.[18]
As centuries passed a variety of tests were promulgated. St Augustine,[19] who favoured limited recourse to violence, suggested that war could be embarked on to punish wrongs and to restore peace.[20] Centuries later, St Thomas Aquinas argued that the subjective guilt of the perpetrator had to be punished, as opposed to the objectively wrongful act.[21] Contemporaneously with the rise of secular European states, the just war doctrine underwent change. It became linked with state sovereignty as wars between Christian states proliferated - each vehemently convinced of the justice of their cause, while seemingly unable to see the paradox in which they were engaging. This paradox did, however, tend to adjust the methodology of the just war. Pacific settlement of disputes began to be seriously attempted before resorting to force. Prominence was moved from use of force to stifle wrongdoers to concern '(if hardly apparent at times)'[22] to maintain order in a peaceful manner. In the sixteenth century Vitoria, a well-known Spanish writer noted that 'not every kind and degree of wrong can suffice for commencing war.' Later, Suarez suggested that states were obliged to notify the opposing state of the existence of a just cause and request reparation before resorting to force. Similarly, the just war was thought to provide immunity of innocent persons from direct attack and it was expected that use of force would be applied in a proportionate manner.[23]
While the legal test was at times confused by references to both subjective and objective justice, it was generally accepted that rights may exist on both sides of the war equation. It became established that recourse to war depended on legal processes as opposed to fanatical or ideological whims. Grotius[24] reworked the idea of the just war in terms of self-defence, protection of property and punishment for wrongs suffered by citizens of a particular state.[25]
The rise of positivism[26] and authoritative establishment of the European balance of power system, where states were thought to be sovereign and equal, led to the virtual disappearance of the just war from the international legal arena. If states were sovereign then how could another state presume to adjudicate whether the other's cause was just or otherwise? Such a suggestion was conceptually irreconcilable. The law expected states to attempt to resolve disputes in apeaceful manner and respect the sovereignty of other nations. If, however, war did break out then legal consequences ensued. Ethical standards of justice and political considerations were immaterial in ascertaining whether force employed was lawful of not. It was adherence to the laws of war and neutrality that operated once the war began, which was of paramount importance. There remained, however, the problem of acts of force not amounting to war. Brownlie notes that while regulation of actual wars became a matter of application of laws as opposed to ethics, religion and/or politics - all of which were often clearly interconnected - there existed conduct that fell short of war and the laws that regulated war. Force not amounting to war became a means of asserting or enforcing rights and punishing wrongdoers. Throughout the nineteenth century weaker states such as Latin American and Asia suffered from this sort of force. International law did provide for forceful conduct not amounting to war but Shaw suggests these provisions are 'probably best understood in the context of the balance of power mechanism in international relations that to a large extent did help to minimise the resort to force in the nineteenth century or at least restrict its application.[27] The European balance of power system came to an end as the First World War concluded. In 1919 the Covenant of the League of Nations (the Covenant) was signed and a new world order attempted to emerge. The League of Nations was predicated on the idea that a general international institution to oversee the conduct of states would prevent such far-reaching aggression, as was seen in World War One, from emerging again. Peaceful settlement of disputes was at the heart of the Covenant.[28] While the League had bold and morally and ethically pleasing aims, it did not receive universal acceptance and essentially remained a European-centred International Organisation. In the practical sense, the League was not particularly successful and was formally dissolved in April 1946 one year after the UNC was signed in San Francisco. The UNC created a replacement International Organisation to remedy the defects of the League - the United Nations (the UN).
During the 1940s it became glaringly obvious that some sort of international agreement on how force was to be regulated was vital in the attempt to maintain international peace and security. The extensive violence and horror of World War Two, and the lack of success of the League, provided the historical context for the drafting of the UNC - a treaty of comprehensive scope. The original drafts of the UNC were completed by the US, UK, USSR and their allies during World War Two. These drafts, which eventually lead to the UNC, reflected these nations' conceptions of post-war international order.[29]
It is pertinent to make a basic, but important, observation at this point: international agreements, or treaties, may be understood somewhat similarly to basic rules of contract in most domestic legal systems,[30] where there exists an actionable expectation that a party would not enter into a contract unless she or he intended to carry through with the obligations that contract imposed. At international law, the treaty is similar - it is expected that obligations, fetters and the like imposed by a treaty will be binding on parties to them. Further, it is required, inter alia, that treaty obligations be performed in good faith.[31] In this context it is observed that the UNC has received near complete acceptance and the UN itself is considered central to the international community and international law.[32] With this in mind we may query what the nations of the world have agreed to, in relation to use of force, by committing themselves to the UNC. There are various comments made throughout the UNC relating to use of force and the general view of the UN to use of force, which theoretically reflects the attitude of signatory states. For example, the preamble to the UNC states, inter alia, the peoples of the UN were determined to:
Save succeeding generations from the scourge ofwar, which twice in our lifetime has brought untold sorrow to mankind, and
To reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and
To establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained..
AND FOR THESE ENDS
To practice tolerance and live together in peace with one another as good neighbours, and To ensure, by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest... [emphasis added]
Article 1 of the UNC states that the purposes of the UN 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;
2. To develop friendly relations among nations based on respect for the principles of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace..." [emphasis added][33]
Article 2 of the UNC requires the UN and its Members, in pursuit of the purposes of the UN, to act in accordance with the basic principles listed in article 2, which include:
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members... shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
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.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within thee domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement under Chapter VII.
[emphasis added]
Plainly, these few excerpts indicate a disapproving and sceptical attitude, on the part of the UN and UNC signatory states, towards the use of force,[34] a notion described as 'beyond dispute'.[35] Therefore it can be said with confidence that the UN exists to, inter alia, encourage and regulate an atmosphere of international peace and security by condemning use of force directly through article 2(4), and indirectly via the general scheme of the UNC.[36]
The Dumbarton Oaks Proposals[37] initially provided: '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'. The San Francisco negotiations included much discussion of a proposed article prohibiting use of force that centred on territorial sovereignty and political independence of member states.[38] In the first Committee of Commission I delegates stressed the importance of these issues with some vigour. Further, the Norwegian Delegate opined that 'it should be made clear in the Report to the Commission that this paragraph 4 did not contemplate any use of force, outside of action by the Organization, going beyond individual or collective self-defence'. Brownlie suggests that 'the conclusion warranted by the travaux préparatoires is that the phrase under discussion [proposed article 2(4)] was not intended to be restrictive but, on the contrary, to give more specific guarantees to small states' with particular regard to preserving sovereign autonomy.[39]
Article 2(4) of the UNC provides the UNSC with a 'monopoly' over the use of force.[40] It is a restatement and reinforcement of a customary norm of international law, which prohibits the use of force,[41] binding all states to its mandate.[42] Further, the International Court of Justice (ICJ) has described this force prohibition as a peremptory norm of international law,[43] from which states are not lawfully entitled to derogate.[44] Article 2(4) is comprehensive in scope in two particularly obvious ways. First, the use of the word 'force'[45] as opposed to 'war' covers violent situations which do not conform to the technical requirements of the state of war.[46] Secondly, article 2(4) covers 'threat or use of force', which, it is suggested, has a restrictive affect on the limited exceptions to article 2(4). Similarly, the prohibition is broad in scope due to the inclusion of the concept of 'threat'[47] of use of force.[48]
The prohibition covers force 'against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN.'[49] The preponderance of thought suggests that these words should be interpreted widely and as reinforcing the basic prohibition against use of force.[50]
Other international instruments have commented on issues surrounding use of force. The 1965 Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States stressed:
No state has the right to intervene, directly or indirectly, for any reason whatsoever, 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 elements, are condemned.
Article 2(4) was stated to be a 'principle of International Law' in 1970 by the Declaration on Principles of International Law, which made useful, though non-binding, analytical observations that included: wars of aggression represent a crime against peace for which sanctions may be imposed[51] ; states must not threaten or use force to violate existing international frontiers or to solve international disputes; states are subject to a duty not to use force in situations of reprisal, and; states must not use to deprive persons of self-determination and independence.[52]
Representing the undisputable will of the international community it is concluded that the UNC comprehensive prohibition on use of force rests on a solid and certain historical foundation and, but for specific exceptions existing under the UNC that must be construed strictly,[53] article 2(4) is essentially an absolute concept.[54] The grim nature of breach of article 2(4), particularly seen in the light of the abhorrence of UNC signatory states to such actions, should result in the severest consequences the law will allow, such as expulsion from the UN under article 6 of the UNC. Further, an unlawful act of aggression is defined and condemned by the Nuremberg Military Tribunal as 'the supreme international crime.'[55]
Article 24 of the UNC confers on the UNSC the primary responsibility for the maintenance of international peace and security. In discharging these duties the UNSC is expected to act in accordance with the purposes and principles of the UN.[56]
Chapter VII of the UNC empowers the UNSC to authorise use of force, via article 42, where it has determined a threat to the peace, breach of peace or act of aggression[57] and provisional measures[58] are considered inadequate. It should be remembered, however, that Chapter VII does not exist in isolation. In accordance with the purposes and principles of the UN, Chapter VI provides for the pacific settlement of disputes over which the UNSC has some recommendatory jurisdiction.[59] It is fundamental that the UNC gives priority to pacific settlement of disputes and non-use of force.[60]
The last article in Chapter VII is article 51, which preserves the inherent right of individual or collective self defence, if an armed attack occurs, until the UNSC has taken measures necessary to maintain international peace and security.[61] Further, the right to use force in circumstances amounting to self-defence under the UNC is constrained by concepts relating to necessity and proportionality.[62]
Academic debate continues to consider whether article 51 allows for anticipatory self-defence where an armed attack has not yet occurred, though the weight of thought appears to consider that anticipatory self-defence is lawful under international law.[63] Assuming the right to anticipatory self-defence exists, the modern formulation[64] states that self defence is justified where:[65]
a. an armed attack is launched, or is immediately threatened, against a State's territory or forces (and probably its nationals);
b. there is an urgent necessity for defensive action against that attack;
c. there is no practicable alternative to action in self-defence, and in particular another State or other authority which has the legal powers to stop or prevent the infringement does not, or cannot, use them to that effect;
d. the action taken by way of self-defence is limited to what is necessary to stop or prevent the infringement. [emphasis added]
OIF clearly involved use of force within the meaning of article 2(4). There is no ambiguity that might deem the actions of the coalition states non-forceful - war was embarked upon and military force was used. This resulted in destruction of life and property, in addition to serious incursion on the political and territorial independence of Iraq, which article 2(4) clearly prohibits. It has been shown that in the absence of applicable exceptions, such conduct is unlawful and should be strongly condemned. It is necessary, therefore, to consider whether the exceptions to article 2(4) might apply to OIF, otherwise, breach of the UNC will be irrefutably established.
It is appropriate to reaffirm that it is the UNSC that has assumed responsibility for activities engaged in by Iraq that are thought to be undesirable, and it must be the UNSC that decides whether force is required for enforcement of UN requirements.[66] The UNSC authorises use of force under Chapter VII by issuing a resolution to that effect. Consequently, it is necessary to look at terminology employed by the UNSC in the past that authorised use of force and next, the resolutions relevant to Iraq and OIF. In this manner it is possible to ascertain whether the force employed in OIF was authorised by the UNSC.
Given the gravity and consequences of force authorisations, unambiguous wording is required. To illustrate, an early resolution authorising force, which clearly 'employed language universally understood to do so',[67] was UNSC resolution 83 which recommended that UN member states provide 'such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area'.[68] More recently, in Kuwait,[69] Somalia, Haiti, Rwanda and Bosnia, phrases such as 'all necessary means' or 'all measures necessary' have been used. Further, these instances of UNSC authorisation of use of force involved UNSC responses to actual invasion, large scale violence, or humanitarian emergency, as opposed to a response to potential threats. Before specifically turning to recent resolution 1441, it is pertinent to note that the US and the UK assert that early UNSC resolutions relating to Iraq adequately justify military intervention in Iraq.[70] This view is difficult to accept because this would mean that resolution 678 (1990),[71] which authorised use of force against Iraq in 1991, could be invoked by states at any time in response to a material breach by Iraq of obligations designated by UNSC resolutions, in particular resolution 687 (1991).[72]
The idea that resolution 678 sanctioned an authorisation capable of being revived by UN member states is feeble, at best, particularly in light of the sombre nature and history of force authorisations, the language employed and the fact that authorisation of force in law remains firmly within the jurisdiction of the UNSC and not individual states.[73] Further, in resolution 687, the UNSC decided 'to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region'. Such language does not preserve authority to use force - it states that the UNSC will consider taking further steps should the occasion call for action. The corollary being, any further action taken should be in accordance with approved procedures within the UNC, which must first involve an attempt to resolve disputes peacefully. Additionally, authority to use force could not have been anticipated by the UNSC to have been capable of revival by virtue of the forward looking language of recent resolution 1441 (2002)[74] - the concepts simply do not reconcile as resolution 1441 appears to presume that the necessity to authorise force afresh is independent of older resolutions. This means that the language of resolution 1441 disproves the theory that resolution 678 contained a revivable force authorisation, because resolution 1441 contained provision for future action - it did not endorse nor acknowledge a past revivable right. To demonstrate, excerpts of particular interest in resolution 1441 are abbreviated as follows:
The Security Council,
Recalling the threat Iraq's non-compliance with Council resolutions and proliferation of WMD and long-range missiles poses to international peace and security Recalling that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) and all relevant resolutions subsequent to resolution 660 (1990) and to restore international peace and security in the area
1. Decides that Iraq has been and remains in material breach of it obligations under relevant resolutions, including resolution 687 (1991)[75] ...
2. Decides.. to afford Iraq... a final opportunity to comply with its disarmament obligations under relevant resolutions..
3. Decides that false declarations 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..
4. Decides that Iraq shall provide UNMOVIC and the IAEA [International Atomic Energy Agency] immediate, unimpeded, unconditional, and unrestricted access to any and all [areas]... they wish to inspect...
12. Decides to convene immediately upon receipt of a report... 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.
13.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
[emphasis added]
Two important points materialise in relation to the excerpts above. First, the language of resolution 1441 does not authorise use of force in any sense. The words are undoubtedly weak compared to past authorisations of force, referring only to 'serious consequences' as opposed to more common UNSC phraseology such as 'all necessary measures' - such loose language is widely recognised as too flimsy to constitute authorisation of use of force.[76] Additionally, the background to the adoption of resolution 1441 confirms that it was not intended to authorise use of force.[77] Secondly, the UNSC intimates that it remains actively interested in seeing Iraq comply with relevant resolutions, but that action will require further UNSC consideration. These concepts are reinforced by a proviso issued by France, Russia and China stating that resolution 1441 did not authorise 'automaticity in the use of force'[78] and that any approval of force remained with the UNSC as a whole; this also supports the theory that resolution 678 did not authorise a revivable authorisation to use force, rather resolution 1441 decided that Iraq was in material breach of its obligations under resolution 687, granted Iraq a final opportunity to comply and developed the enhanced inspection regime. Consequently, force used throughout OIF is not justified by reference to past UNSC resolutions authorising force against Iraq, more particularly resolution 678; neither can force be justified by reliance on resolution 1441.
Application of the law of self defence[79] to OIF is exceedingly simple; prior to OIF Iraq had not attacked any state, nor was there any indication that an attack by Iraq was imminent, which the law requires. Arguments of 'political will' coupled with 'ability to act' (on the part of Iraq) are quite simply worthless in terms of the international legal requirements for self defence - such an interpretation of the right to self defence would likely prove preposterous in that all nations possessing undesirable weapons might be subject to military intervention on the grounds that 'they have the ability to act' with or without political will, thus 'justifying' self defence - such a notion is plainly incongruous. As a result, self defence does not justify the force used throughout OIF. This is reinforced by recognising that even if Iraq possessed WMD this could not justify a war against Iraq on the basis of ability to act. Numerous states possess WMD, of atomic, biological and chemical nature, which have not been judged a violation of the UNC resulting in military sanctions[80] - ability to act, or in this case alleged ability to act, does not equate to an 'imminent' attack.
Similarly, preventative war is unequivocally illegal. In 1946 the International Military Tribunal at Nuremberg stated that 'to initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole'.[81] For the sake of completeness, it is remembered that the UNSC authorised an armed response to Iraq's invasion of Kuwait in 1990, and then, after hostilities ended, imposed requirements on Iraq in relation to weapons programs. Therefore, the UNSC has taken measures necessary to maintain international peace and security and the right to self defence does not apply to earlier resolutions authorising force against Iraq.[82] It is not suggested that UNSC action should preclude self-defence in response to a future attack by Iraq. However, action by the UNSC does 'weigh heavily'[83] against a broadening of the confines of self-defence to justify force used throughout OIF. Consequently, it is suggested that international law does not support a dramatic expansion of self defence, which has been advocated by the Bush Administration.[84]
At times it is suggested that there exists a right to use force against a state without UNSC authorisation where moral imperatives demand intervention to prevent massive and grave violations of human rights. Even if international law recognised a right of humanitarian intervention, there would be no such basis for the military intervention into Iraq as evidence was noticeably lacking that Iraq was engaged in such oppression.[85]
It has been shown that article 2(4) does apply to OIF in effectively declaring coalition states actions to be unlawful. Consequently, the question remains: how should article 2(4) apply? For example, in light of breach of article 2(4), should sanctions be imposed? Should declarations as to the illegality of OIF be made? Should an Iraqi claim for reparations be advanced? Should the OIF coalition states be expelled from the UN? This author's immediate and vehement answer to these questions is yes -where a basis in international law exists to condemn breach of article 2(4) it should be employed, particularly in light of the international legal community's clear and considered abhorrence for the use of force, the history of force that led to the creation of article 2(4), the recognised need for preservation of sovereignty, problems relating to setting of a precedent[86] and the basic need for international order through adherence to recognised standards of conduct.[87]
Reluctantly, however, it is admitted that the sometimes dim reality of international life likely dictates that while these actions should in law be embarked upon, there are, inter alia, fiscal and political realities that will in all probability override invocation of legal ability to act. Thus, the 'should' of the matter most likely comes down to issues relating to, inter alia, detriment to the international community if legal consequences were to be embarked upon, which is far from legally and intuitively satisfying. To illustrate, the US is a major contributor to the UN - were the US to say be expelled from the UN, it is logical that US funding would disappear also, leading to a probable net detriment to those who currently benefit from UN operations and the like.[88]
It is beyond the scope of this paper to suggest what the consequences of OIF might be for the UN and international law, though it is observed that dominant states, in particular the US, have a history of disregarding the rules of international law and the UNC. No matter how strongly international lawyers might argue to uphold and enforce the rules of international law, it seems that the political will of a select few shall continue to disregard their, and others, pleas for reason, fairness and order. This is not only unacceptable, but reminiscent of an age gone by where ideological and fanatical fancies were imposed on states to their social, cultural and political detriment, which history clearly shows a rational tendency away from to maintain international order.
These disheartening observations do not, however, provide a reason to simply ignore the laws upon which international order is maintained. The UN is in a position where its' hold on international regulation of use of force is at least waning. This is particularly disconcerting in light of frayed international relations that currently exist world wide.[89] To maintain its centralised office as protector against 'the scourge of war' the UN must face and address the limitations it is criticized for, including an unwillingness and inability to act,[90] and assert itself in the face of petulant subjects as guarantor of international peace and security, notwithstanding acknowledged imperfections.
It is respectfully submitted that the first step towards this, perhaps overly idealistic, goal is to acknowledge[91] the illegality of coalition states' actions through OIF and to then work towards a more transparent system that exposes illegal actions more readily. Ambiguity and the corresponding ability to mount unmeritorious arguments should be avoided, which would require states to decide more openly whether they are or are not 'with' the UN. Some may argue such a step is 'risky' in that it may in fact encourage states to even more blatantly defy the UN on the basis of upholding the moral high ground where the UN 'will not act'. This is answered by observing that latent acceptance of 'rogue' states unilateral actions is even less desirable than a system more open to public, professional and media opinion to encourage steps forward and out of the seemingly irrelevant territory the UN has found itself in. For example, a Uniting for Peace resolution by the UN General Assembly may serve to at least start a rejuvenation of the UN and state adherence to the UNC. The UN was not created with the expectation that it would be superseded unilaterally by the political will of the strong - it was created to protect and represent both weak and strong. Future UNSC resolutions should use clearer phraseology such as 'use of force is authorised where necessary' .[92] A restatement and pledge to return to UNC founding principles coupled with UN refusal to approve an unlawful
war, such as OIF, may prove the UN's relevance and result in renewed world interest in the UN's success as guarantor of international peace and security.[93]
Article 2(4) is not a whimsical ideal; it is an established and historically rational rule of international law. The position of coalition states in relation to OIF was manifestly illegal in this regard, and constituted an act of aggression within the legal definition of a crime against peace.[94] Ghandi suggested that if everyone in the world followed the principle 'an eye for an eye' then the world would very quickly go blind - perhaps this sort of pragmatism should be applied in relation to OIF and the question must be asked: would legal sanctions be beneficial for the global community and the UN for political and fiscal reasons, to which the answer is likely 'no'. The limbo in which OIF appears to leave the UN is bewildering and future action is uncertain. It is suggested that the UN does have a role of paramount importance in the future of use of force regulation, though action needs to be taken to ensure and renew its role as guarantor of international peace and security.
[*] Elizabeth is currently a tutor at Canterbury Law School while completing her LLM; she will take up a position with Blake Dawson Waldron, Sydney, as a graduate lawyer in early 2005.
[1] This article does not purport to condone the acts of Saddam Hussein and his followers nor to comment on the political arrangements under which Iraq has been governed.
[2] See below section II. Operation Iraqi Freedom.
[3] See below section III. Use of Force in Context.
[4] See below section IV. The United Nations Charter and Use of Force.
[5] See below section V. Article 2(4) and Operation Iraqi Freedom.
[6] The 1991 military intervention was known as Operation Desert Storm. The 1998 military intervention was known as Operation Desert Fox. Neither will be discussed specifically in this article as it is the intention to focus on the 2003 military intervention - OIF. Where relevant, however, aspects of the earlier interventions will be considered.
[7] At least this was the apparent perception of the Bush Administration.
[8] See President Bush's address to the UN General Assembly, 12 September 2002. President Bush addresses the UN General Assembly stating that if the UN does not act, the US will (to compel compliance with UN resolutions relating to disarmament etc). Further, 'the conduct of the Iraqi regime is a threat to the authority of the UN, and a threat to peace. Iraq has answered a decade of UN demands with a decade of defiance. We cannot stand by and do nothing while dangers gather'. Center for Security Policy, 'Operation Iraqi Freedom - a timeline of events' (22 April 2003) published on the internet at www.csp.com/OIFtimeline.html last accessed August 2003. See also Campaign against Sanction on Iraq (CASI), 'UNSC resolutions relating to Iraq' published on the internet at www.casi.org.uk/info/scriraq.html last accessed August 2003.
[9] 19 September 2002, statement of Saddam Hussein. Saddam Hussein states Iraq does not possess 'Weapons of Mass Destruction' (WMD). See above n 8.
[10] Resolution 1441- The situation between Iraq and Kuwait, SC Res 1441, UN SCOR, 57th sess, 4644th mtg, UN Doc S/Res/1441 (2002)
[11] Note in particular the full report by UNMOVIC made on 6 March 2003, 'Unresolved Disarmament Issues. Iraq's Proscribed Weapons Programmes'. (An oral report by UNMOVIC was delivered to the UNSC on 7 March.) The Report notes little difficulty in accessing inspection sites and problems in operating aerial surveillance have been overcome. 'However this is not to say that the inspection of weapons is free from frictions, but at this juncture we are able to perform professional no-notice inspections all over Iraq.' Further, it suggests that the declaration issued by Iraq under Resolution 1441 may have been somewhat lacking, although, inspections were uncovering what the declaration may have missed. Continued inspections and analysis were thought to be required. The report notes that Iraq has attempted on occasion to attach conditions to inspections but it did not persist in these. Iraq was thought to be 'active' or even 'proactive' in terms of cooperation with UNMOVIC but cooperation was not thought to be ' immediate'. Nevertheless, cooperation was 'welcome and UNMOVIC is responding to them in the hope of solving presently unresolved disarmament issues.'At the conclusion of his oral address to the UNSC, Hans Blix announced that he thought inspections would be concluded within months as opposed to years or weeks. See above n 8.
[12] 7 March 2003. Colin Powell addresses UNSC requesting that a vote should be brought before the Council to enforce UN Resolution 1441. See above n 8.
[13] It is suggested that OIF was 'oddly entitled' because any operation that destroys in order to restore necessarily contains a variety of paradoxes in relation to the notion of 'freedom' in both the legal and moral senses.
[14] These concepts are discussed in greater detail below.
[15] M Dixon & R McCorquodale, Cases and Materials on International Law (4th edition 2003), 521.
[16] There exists an extensive range of literature covering the objections to violence as a means of dispute resolution - such general philosophical debate will not be entered into throughout this article; it is taken as given, therefore, that the objections are many and compelling. Municipal law may deal with force related issues with a degree of confidence by relying on hierarchical structures of 'authority and control', whereas international law faces some challenges in this regard.
[17] Consequently, international law is obliged to attempt to minimize and regulate State use of violent or forceful measures, 'without itself being able to enforce its will'. M Shaw, International Law (4th edition 1997), 777
[18] Ibid, 778.
[19] 354-430 AD.
[20] I Brownlie, International Law and the Use of Force by States (1963), 5.
[21] Further, if war was waged by sovereign authority, accompanied by a just cause and supported by the right intentions on the part of the belligerents, then that war was justified. J Von Elbe, 'The Evolution of the Concept of the Just War in International Law' (1939) 33 American Journal International Law 665, 669.
[22] Shaw, above n 17, 778
[23] Ibid, 778.
[24] Grotius was a proponent of the growing positivist approach to law and process. He attempted to exclude ideological considerations as the basis of a just war, particularly in the light of the devastating religious conflicts of the seventeenth century.
[25] Shaw, above n 17, 779.
[26] Positivism generally means a system of philosophy originated by M Auguste Comte, which deals only with positives. It excludes from philosophy everything but the natural phenomena or properties of knowable things, together with their invariable relations of coexistence and succession, as occurring in time and space. Such relations are denominated laws, which are to be discovered by observation, experiment and comparison. This philosophy holds all inquiry into causes, both efficient and final, to be useless and unprofitable. Thus, the idea of a 'just war' could never hold sway in the face of positivism. See <http://dictionary.reference.com/search ?q=positivism> at September 2003.
[27] Brownlie, above n 20, 26-28.
[28] Ibid, 839. Further, the Council, by article 15, was to try to procure a settlement of the dispute. If settlement failed, however, the Council was to publish a non-binding report containing the facts of the case and recommendations deemed just and proper. If the report was unanimously accepted member States were prohibited from entering into war with any 'party to the dispute which complies with the recommendations of the report'. Whereas, if a majority accepted the report members were then entitled to 'take such action as they shall consider necessary for the maintenance of right and justice'. War was, therefore, not absolutely prohibited by the Covenant. If, however, a member State resorted to war without paying heed to the Covenant that State may be the subject of sanctions under article 16. Article 12 required that any dispute likely to lead to conflict between member States would be dealt with in one of three ways: Arbitration, Judicial Settlement, or Inquiry by the Council of the League.
[29] A Roberts and B Kingsbury, ‘The UN's role in International Society since 1945' in A Roberts and B Kingsbury (eds), United Nation, Divided World (2nd ed 1993), 6-13.
[30] To illustrate, there is a general expectation in the New Zealand law of contract that a contract validly entered into represents the intention of the parties to be bound to perform some obligation or the like. Similar expectations are found in the law of treaties codified in large part in the Vienna Convention on the Law of Treaties , opened for signature 23 May1969 1155 UNTS 331 (entereed into force 27 January 1980).
[31] This is known as the principle ofpacta sunt servanda also codified in the Vienna Convention on the Law of Treaties, above n 30, via article 26.
[32] Dixon and McCorquodale, above n15, 5.
[33] Article 1 goes onto say the purposes of the UN include 3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and 4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.
[34] Note: there are other articles in the UNC relevant directly or indirectly to use of force and the general attitude that it is not a generally lawfully, or morally, pleasing idea. Other areas relevant to use of force, self defence and the like will be discussed below where relevant.
[35] The Centre for Economic and Social Rights (CESR) - Emergency Campaign on Iraq, Tearing up the Rules: the Illegality of Invading Iraq (March 2003) <http://www.cesr. org/iraq> at August 2003.
[36] Except in certain expressly defined circumstances to be discussed below.
[37] The Dumbarton Oaks proposals are formally known as Proposals for the Establishment of a General Organisation (1944).
[38] The Brazilians suggested: All members of the Organization shall refrain in their international relations from any intervention in the foreign or domestic affairs of any other member of the Organization, and from resorting to threat or use of force, if they are not in accord with the methods and decision of the Organization. In the prohibition against intervention there shall be understood to be included any interference that threatens the national security of another member of the Organization, directly or indirectly threatens its territorial integrity, or involves the exercise of any excessively foreign influences on its destinies.
Ecuador suggested: The declaration that an attempt by a State against the territorial integrity or inviolability against the sovereignty or political independence of another State, shall be considered as an act of aggression against all the States which constitute the International Community
[39] I Brownlie and C Apperley, 'Kosovo Crisis Inquiry: memorandum on the International Law Aspects' (2000) 49 The International and Comparative Law Quarterly 878, 885.
[40] The exception being the right of individual or collective self-defence in accordance with article 51 of the UNC.
[41] Brownlie, above n 20, 112 the basis for this customary norm prohibition against the use of force is said by Brownlie to have existed in 1939 and rest on state practice, in particular the Kellogg- Briand Pact.
[42] Shaw, above n 17, 781 References made to use of force include threat thereof in accordance with the tenets of article 2(4) of the UNC.
[43] Military and paramilitary activities in and against Nicaragua (Nicaragua v United States) (Merits) [1986] ICJ Rep 14, para 190.
[44] J Burroughs, A Lichterman, J Lobel and M Ratner, The United Nations Charter and the Use of Force Against Iraq (2002) Lawyers Against the War website <http://www.lawyersagainstthewar.org/legalarticles/mandel.html> at August 2003.
[45] For a full discussion of the term force see Shaw, above n17, 782-784.
[46] The term 'force' is wider than its cousin 'war'.
[47] The issue of what might constitute a 'threat' was addressed by the International Court of Justice in its Advisory Opinion to the UN General Assembly on the Legality of the Threat of Use of Nuclear Weapons (1996) 35 ILM 809.
[48] These exceptions are discussed in some detail below.
[49] Article 2(4) of the UNC.
[50] This approach has received acceptance from the International Court of Justice. See further Shaw, above n 17, 784-785;Corfu Channel Case (1949) 16 ILR 155 Along similar lines, the ICJ has said that the essence of international relations lies in the respect by independent States of each other's territorial sovereignty See Nicaragua v United States, above n 42, 109-110.
[51] Shaw observes that article 19(3) of the International Law Commission's Draft Articles on State Responsibility provides that serious breach of international obligation/s of essential importance for maintenance of international peace and security may constitute an international crime for which the state may be criminally liable. This issue is further discussed in Shaw, above n 20, 544-545.
[52] Ibid, 782.
[53] Professor Nicholas Grief, ‘The anti-strike argument' (19th December 2002) BBC Website <http://www.bbc.co.uk/radio4/toda y /reports/archive/international/antistrike_argument> at August 2003.
[54] Some scholars suggest that other grounds for use of force may exist such as Humanitarian Intervention. It is observed, however, that instruments exist to deal with these wider issues. Larger arguments do exist but it is suggested that a sceptical eye should be applied to use of force outside the exceptions allowed for in the UNC. It is beyond the scope of this article to deal with these issues to any great degree, the issue is merely flagged as something that should not be overlooked but is most likely not applicable in this instance; it is, however, discussed briefly in the letter prepared by Michael Ratner, President, Centre on Constitutional Rights, New York and Jules Lobel, Professor of Law, University of Pittsburgh School of Law (2 October 2002) Lawyers against the War www.lawyersagainstthewar.org/legalarticles at August 2003.
[55] This article focuses on whether breach has in fact occurred as opposed to what consequences should ensue if breach is established. As a result passing remarks may be made as to the consequences of breach but such remarks will not be particularly detailed. See above n 35.
[56] It is relevant to note that article 25 states that the member States of the UN agree to accept the decisions of the UNSC.
[57] See article 39 of the UNC It is noted that an essential difference between Chapter VII and Chapter VI is that resolutions made under Chapter VII are binding, although even then, the UNSC is only allowed to act to maintain or restore international peace and security, it may go no further.
[58] See articles 40 and 41 of the UNC.
[59] See article 39 of the UNC
[60] This is demonstrated in the principles of the UN, particularly articles 2(3) and 2(4). Also see above n 54.
[61] Self-defence is not defined in the UNC and customary international law criteria appear to remain applicable. See further H Charlesworth & C Chinkin, The Boundaries of International Law: A Feminist Perspective (2000) 260. 62 Above n 47, 41-46
[63] There are further issues to be considered. The debate continues as to whether the alleged right to anticipatory self defence exists under article 51 or in customary international law. See J de Arechega, 'General Course in Public International Law' (1978) 159 Receuil des Cours).
[64] The classic statement regarding anticipatory self defence is the statement regarding the Caroline affair of 1837: Self defence is justified only where the necessity for action is 'instant, overwhelming, and leaving no choice of means, and no moment for deliberation'. See above n 54.
[65] Sir Robert Jennings Oppenheim 's International Law (9th ed 1991) 412.
[66] Above n 54. Further, 'Common Organs' theory does not legitimize actions by coalition forces throughout OIF purporting to 'act on behalf’ of the UN. Similarly it is recognized that a centralized system of use of force authorization is thought to be desirable as opposed to unilateral action outside the UN. See Dixon and McCorquodale, above n 15, 563.
[67] Above n 54.
[68] This resolution was issued prior to UN General Assembly action in 1950.
[69] UNSC resolution 678 authorized 'all necessary means' be employed for the purpose of expelling Iraq from Kuwait and to restore international peace and security throughout the area, which did result in lawful authorization of use of force manifested in Operation Desert Storm in the early 1990s. Resolution on Iraq-Kuwait SC Res 678, UN SCOR, 45th sess, 2963d mtg UN Doc S/Res/678 (1990).
[70] This is the sole basis of the UK Attorney Generals opinion that opined that OIF would be lawful. See Attorney General, Lord Goldsmith Address to UK Parliament (17 March 2003) <http://news.bbc.co.uk/go/pr/fr/-/hi/uk_politics/2857347.stm> at August 2003.
[71] Above n 69.
[72] Resolution on Iraq-Kuwait SC Res 687, 46th sess, mtg, UN Doc S/Res/687 (1991) In determining a threat to international peace and security this resolution declares effective a formal cease-fire ending the Gulf War, establishes the UN Special Commission on Weapons (UNSCOM) to supervise the destruction of proscribed weapons in Iraq, extends sanctions until compliance with list of conditions, in particular disarmament. Iraq was required to destroy, remove, or render harmless: all chemical and biological weapons and related systems, components and developments facilities, and; all ballistic missiles with a range greater than 150km. Iraq was required to unconditionally undertake not to use, develop, construct or acquire: nuclear weapons and related systems, components and development facilities. This resolution declared a cease-fire and also terminated the resolution 678 force authorization - although tenuous debate continues on this issue.
[73] Author Unknown, 'Analysis of the US Legal Position on the Use of Force Against Iraq', <http://www.impeach-bush-now.org/Articles/CampaignMore/greenpeace.htm> at September 2003.
[74] Above n8. Resolution 1441 Establishes 'an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process', demands that Iraq provide an 'accurate, full and complete' declaration of its proscribed weapons programs, recalls that 'the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations', and 'decides to remain seized of the matter.' Immediate, unconditional and active cooperation with UNMOVIC was required.
[75] See particularly paragraphs 8-13 of resolutions 687 (1991).
[76] See for example, above n 54; above n 35 and Campaign against Sanctions on Iraq (CASI), 'UNSC resolutions relating to Iraq' CASI Website <http://www.casi.org.uk/info/scriraq.html> at August 2003.
[77] As such, resolution 1441 must not be interpreted in a manner inconsistent with the intention of permanent members of the UNSC. Above n 53 Professor Grief notes that 'the draft resolution originally submitted by the UK and the USA, which in the event of a further material breach of Iraq's obligations would have authorized Member States 'to use all necessary means to restore international peace and security in the area', was unacceptable to other members of the Security Council; in particular France and Russia, either of which, as permanent members, could have vetoed the draft's adoption'.
[78] 'Security Council holds Iraq in 'material breach' of disarmament obligations, offers final chance to comply, unanimously adopting Resolution 1441 (2002)' (Press Release, 8 November 2002) <http://www.un.org/News/press/docs/2002/SC7564.doc.htm> at August 2003.
[79] See above 'Exceptions to article 2 (4) under the United Nations Charter'.
[80] European Association of Lawyers for Democracy and World Human Rights, Lawyers warn: Stop the War Against Iraq, <http://www.ejdm.de/stop%20the%20war.htm> at September 2003.
[81] Cited in 'Tearing up the Rules', above n 35.
[82] In accordance with the requirements of article 51.
[83] Above n 54.
[84] In September 2002 the Bush Administration advocated, in the 'National Security Strategy' that self defence should be extended to authorize 'pre-emptive' or 'preventative' strikes against States based on potential threats arising from possession or development of chemical, biological, or nuclear weapons and links to terrorism. See above n 54.
[85] Grief, above n 55. The argument for humanitarian intervention is fairly legally dubious which does not lie particularly well with the established procedures and principles of the UNC and international law. See further CESR, above n 35.
[86] For example, it was recently reported that North Korea is/was considering a preventative attack against US forces in South Korea. See Greenpeace, Illegality of War, <http://www.greenpeace.org/extra/> at September 2003.
[87] Also relevant is the emergence of evidence showing that the evidential bases for OIF relied on, in particular by the US, have weak foundations. For example in September 2003 Hans Blix stated 'I'm certainly more and more to the conclusion that Iraq has, as they maintained, destroyed almost all of what they had [weapons they were required to destroy in accordance with UN requirements] in the summer of 1991'. See <http://english.peopledail y .com.cn/200309/17/eng20030917 124443.shtml> at September 2003. The article states further that 'In 1991 the United Nations' International Atomic Energy Agency (IAEA) found what they called a secret nuclear weapons program in Iraq. The IAEA spent the next seven years dismantling Baghdad's nuclear capability, until its inspectors were thrown out of Iraq.
[88] A similarly cynical viewpoint may be taken as regards, say, a claim for reparations. The US has already demonstrated its willingness to ignore decisions of the International Court of Justice through, for example, the Nicaragua decision (see n 42 above), of which it has essentially taken no notice.
[89] For example the at time volatile relationship between China and Taiwan. For more details see Centre for Security Policy, 'Operation Iraqi Freedom - a timeline of Events' (22 April 2003) CSP website <http://www.csp.com/OIFtimeline.html> at August 2003.
[90] Ibid.
[91] It is noted that the UN Secretary-General has made murmurings in this regard - it is suggested that more open condemnation in the spirit of moving forward as a global community in the context of peace. Such an ideal would require delicate consideration of international relations issues.
[92] This is not only explicit but also any arguments that such terminology might result in encumbrance is immediately answered by referring to the still existing 'inherent' right to self defence, in legally appropriate circumstances.
[93] Action of this sort could take many forms such as: a public statement by the UN Secretary- General, acting under article 99 of the UNC, re-asserting that the UNSC as opposed to individual States is entitled to authorize force; and/or a UNSC resolution asserting the same; and/or an advisory opinion from the International Court of Justice could be requested on the issue. See further CESR, above n 35.
[94] CSP, above n 89.
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