The Dubious Legality of the Iraq War

Evidently, Prime Minister Tony Blair failed to “properly inform” the House of Commons about the legality of the Bush-Blair use of force against Iraq. Indeed, Blair may have deliberately misinformed them.

Commons passed on March 19, 2003, the British Government’s Motion on Iraq, which

“Notes that in the 130 days since Resolution 1441 was adopted Iraq has not cooperated actively, unconditionally, and immediately with the weapons inspectors, and has rejected the final opportunity to comply and is in further material breach of its obligations under successive mandatory UN Security Council Resolutions;

“Notes the opinion of the attorney general that, Iraq having failed to comply and Iraq being – at the time of Resolution 1441 and continuing to be – in material breach, the authority to use force under Resolution 678 has revived and so continues today.”

Blair based his request to Parliament for authorization to invade Iraq on what Blair characterized as the “opinion of the attorney general.”

However, the several opinions of Lord Goldsmith have now been made public, and it is obvious that Blair mischaracterized those opinions to the House of Commons and to his own Cabinet.

When Iraq invaded and “annexed” part of Kuwait in August 1990, the Security Council demanded – in Resolution 660 – that Iraq immediately withdraw all its armed forces and henceforth respect the sovereignty and territorial integrity of Kuwait.

In November, when Saddam hadn’t yet withdrawn from Kuwait, Resolution 678 authorized member states to “use all necessary means” to enforce Resolution 660 and supplementary resolutions.

Resolution 686 is the Gulf War “cease-fire” resolution. It requires Saddam Hussein to accept and abide by all previous Security Council resolutions – including Resolution 678 – “which remain in force.”

Resolution 678 is the only resolution that has authorized the use of “all necessary means” by member states against Iraq. It is important to know under what conditions and in what circumstances that authorization to use force applies.

Clearly, if Saddam had done something deemed to be a “material breach” of Resolution 686 – such as invading Kuwait, again – then member states would be authorized by Resolution 678 to use “all necessary means” to eject him.

But what if Saddam were ever found to be in “material breach” of some Security Council resolution other than Resolution 686?

Immediately following the cease-fire, UN observers entered Iraq and discovered that Saddam Hussein was in substantial noncompliance with several UN arms-limitation conventions, including the Treaty on the Nonproliferation of Nuclear Weapons (NPT). Their discoveries led to Resolution 687.

Resolution 687 imposed economic sanctions that were not to be lifted until Iraq was once again in substantial compliance with all UN arms conventions, including the NPT. All chem-bio weapons and the facilities capable of making nukes and chem-bio weapons were to be destroyed – under the supervision of the UN Special Commission – and never rebuilt.

By mid-1998, on the basis of reports submitted to them by the Commission, most members of the Security Council were of the opinion that Iraq was in substantial compliance with Resolution 687 and most wanted to lift the economic sanctions. President Clinton vetoed that, however, making it clear he would never allow the sanctions to be lifted so long as Saddam Hussein was in power.

Compliance with Resolution 687 should have meant the lifting of sanctions. Noncompliance with Resolution 687 merely meant the continuation of sanctions. There is no suggestion whatsoever that noncompliance with Resolution 687 would have automatically meant “the authority to use force under Resolution 678 has revived.”

More importantly, the recently released opinions of Lord Goldsmith reveal that he realized that for the majority of the Security Council members, noncompliance with Resolution 1441 would also not have resulted in an automatic authorization to use “all necessary means.” A second resolution, specifically authorizing that use, would have been necessary. Goldsmith’s opinion closes with this warning:

“Finally, I must stress that the lawfulness of military action depends not only on the existence of a legal basis, but also on the question of proportionality.

“Any force used pursuant to the authorization in Resolution 678 (whether or not there is a second resolution):

  • must have as its objective the enforcement [of] the terms of the cease-fire contained in resolution 687 (1990) and subsequent relevant resolutions;

  • be limited to what is necessary to achieve that objective; and

  • must be a proportionate response to that objective, i.e., securing compliance with Iraq’s disarmament obligations.”

So what do you think? Did the Bush-Blair use of force in Iraq satisfy those requirements?

Author: Gordon Prather

Physicist James Gordon Prather has served as a policy implementing official for national security-related technical matters in the Federal Energy Agency, the Energy Research and Development Administration, the Department of Energy, the Office of the Secretary of Defense and the Department of the Army. Dr. Prather also served as legislative assistant for national security affairs to U.S. Sen. Henry Bellmon, R-Okla. -- ranking member of the Senate Budget Committee and member of the Senate Energy Committee and Appropriations Committee. Dr. Prather had earlier worked as a nuclear weapons physicist at Lawrence Livermore National Laboratory in California and Sandia National Laboratory in New Mexico.