In October 1997, the government of Iraq once again suspended her cooperation with United Nations and International Atomic Energy Agency (IAEA) arms inspectors, in violation of her undertakings given to the UN Security Council at the conclusion of the Kuwait conflict. Although the United States and United Kingdom reserved the purported right to respond forcibly to this development, a diplomatic settlement of the crisis appeared to have been achieved in December. However, in January 1998, Iraq refused to cooperate with a delegation of UN inspectors which, in its view, was dominated by Western, in particular US nationals. This time, the US and UK responded by threatening the use of ‘substantial’ force in order to force Iraq to comply with her obligations. This note will investigate the legal aspects of this threat, in particular as it affects the understanding of the prohibition of the use of force and the notion of collective security.
What Is At Stake?
1.1 The prohibition of the use of force by states is perhaps the one key achievement in international relations of this century. Crudely put, states have agreed not to use force or threaten its use in pursuit of their interests, claims or rights. Instead, military force may only be applied by organs of collective security in responses to threats to the peace, breaches of the peace or acts of aggression, or by states in response to an on-going or imminent armed attack or a grave and overwhelming humanitarian emergency.
1.2 While armed conflict has of course occurred since the adoption of the UN Charter, governments have taken great care not to undermine the continued existence of this prohibition of war as a means of policy. The clearly established presumption against the lawfulness of the use of force contributes greatly to international stability and therefore reflects the long-term interests of all states, and in particular those which have global interests and responsibilities.
1.3 The threat and possible use of ‘substantial’ force against Iraq is prima facie inconsistent with the prohibition of the use of force. There does not exist a collective security mandate covering this policy, there is no evidence of an imminent armed attack being launched by Iraq, and the aim of the operation is not directed at the protection of significant segments of the Iraqi population in immediate danger of destruction.
1.4 Justifying this policy therefore either appears to extend existing justifications for the threat or use of force, or to create a new one. While few governments may be willing to object to such new justifications in view of the track record and political isolation of Iraq, it must nevertheless be remembered that present conduct creates precedents for the future.
1.5 Governments are also understandably reluctant to challenge present policy because they do not wish to undermine the credibility of the threat that has been made against Iraq. After all, the US and UK rightly assert that the entire international community is insisting on Iraqi compliance with mandatory Security Council Resolutions. And, it is argued, the only way of achieving such compliance is through the credible threat of military action. Hence, governments which do not wish to see force used against Iraq cannot really object to present policy, as the aim of the threat is ultimately to avoid having to implement it .
1.6 The difficulty with this position is that in having failed to object to the threat, governments have effectively also endorsed its implementation, should a peaceful settlement of the crisis not be possible. In addition, the threat of the use of force in itself amounts to a serious prima facie violation of essential rules of international law and must be legally justified, just like the eventual use of force, in order to avoid a dangerous precedent.
1.7 Another problem lies in the fact that a ‘legalistic’ approach might appear inadequate in the face of the present crisis. The original Security Council mandate to use force for the liberation of Kuwait is no longer available, and a new one is unlikely to be granted. Very comprehensive economic sanctions have been in place since August 1990 and have proven ineffective in obtaining full and unconditional compliance by Iraq with her obligations. Superficially, the only option left appears to be the threat or use of force.
1.8 It must be remembered, however, that the original Kuwait operation was conducted with such broad support and success, precisely because it was directed against the attempt by a state to secure its perceived rights, either to the territory of Kuwait as a whole or to two strategic islands and a cross-border oil-field, through the use of force. This time, it appears to be the US and UK governments that seek to implement rights or obligations incumbent upon Iraq through the use of force.
1.9 Of course, the obligations at issue here exist in relation to the international community as a whole, represented by the Security Council. However, if the US and UK are arguing that they are acting in order to implement Iraq’s legal obligations, they must demonstrate that they themselves are acting lawfully towards the end of ‘making Saddam comply with the law’. The question of the lawfulness of present policy is not a peripheral matter–it constitutes the key legitimising argument of the proponents of military force.
2.1 Resolution 687 (1991) of 3 April 1991 was adopted formally under Chapter VII of the UN Charter. The obligations contained therein are binding upon Iraq. In addition, Iraq has positively accepted the obligations in a legally binding way. Elements of these obligations, in particular as they relate to disarmament and arms control, have also been reinforced in supplemental memoranda of understanding.
2.2 The resolution and associated documents apply to nuclear weapons and weapons grade materials, chemical and biological weapons and all stocks of agents and components and development, support and manufacturing facilities. In addition, all ballistic missiles with a range greater than 150 kilometres and related major parts and repair and production facilities are covered.
2.3 The International Atomic Energy Agency (IAEA) and a specially created Commission operating under the authority of the Security Council (UNSCOM) are charged with the administration of a process that can be divided into three overlapping phases: the declaration of existing stockpiles and facilities, the destruction or rendering harmless of proscribed items and facilities and the long-term monitoring of Iraq’s undertaking not to acquire them in future.
2.4 The record of Iraqi compliance has been mixed. Cooperation with UNSCOM and the IAEA has been hesitant, and numerous crises of a smaller or larger dimension have occurred over the past six years as a result of Iraqi obstruction. On the other hand, it is widely agreed that Iraq’s nuclear weapons programme has been destroyed, and her substantial chemical arsenal has also been largely neutralised by UNSCOM. While it is not possible to exclude the existence of some proscribed missiles and launchers, her delivery capacity has also been sharply reduced. Greater uncertainty exists in relation to biological weapons.
2.5 Perhaps surprisingly, Iraq has also cooperated to a significant extent in the process of long-term monitoring. Video equipment has been installed at sensitive sites, and other sophisticated devices, such as heat and motion sensors have also been deployed.
2.6 Had it not been for recent difficulties, Iraq would have probably been considered to be approaching a state of substantial compliance with her obligations and, until recently, there was some pressure in the Security Council to induce Iraq to continue her cooperation by considering the partial lifting of economic sanctions. The fact that this pressure was likely to continue being resisted by some key states on the Council may have contributed to a view in Baghdad that substantive compliance was unlikely to be rewarded.
2.7 Instead, since October 1997, Iraq has refused access to so-called sovereign or presidential sites, has excluded members of UNSCOM on grounds of nationality, has interfered with monitoring equipment and has threatened to shoot down US planes operating on behalf of UNSCOM. Iraq’s actions are not legally justified, although her position has engendered some sympathy among UN members who share a traditional view of the sovereign dignity of states and who note that the criteria for compliance appear to have been strengthened over time. This view was reflected in the failure of the Security Council to respond with strong measures when the crisis erupted last October, and in a willingness to entertain a Russian-brokered arrangement which would have foreseen greater sensitivity to the issue of so-called sovereign sites.
2.8 Iraq’s complaint that UNSCOM teams are dominated by western experts with strong links to national military or other agencies is now, in a sense, being strangely validated. If military strikes are to be focused principally on weapons-relevant sites, the US and UK will not find it easy to rebut the allegation that detailed targeting information in relation to these facilities will have been partially obtained through UNSCOM or some of its members.
2.9 Overall, therefore, Iraq has in fact reluctantly but nevertheless significantly complied in respect of many if not most of her obligations. The presently on-going expert talks about the issues that remain to be resolved indicate that Iraq may be seeking a more definite list of exact obligations, the fulfilment of which will lead to a review of the embargo.
Implementing the ‘Will’ of the Security Council
3.1 Whatever progress has been made in the implementation of the relevant provisions of Resolution 687 (1991), it is entirely undisputed that Iraq has consistently failed to comply fully and unconditionally. Indeed, the Council has formally confirmed this fact repeatedly. The question is: what legal consequences flow from this situation?
3.2 As opposed to individual states or regional organisations, the UN Security Council can authorize military action in response to threats to the peace which fall short of an actual or imminent armed attack. Hence, the Council could grant a formal Chapter VII mandate, authorizing the use of measures necessary to destroy a particular Iraqi weapons capability, or perhaps even to constrain Iraq more generally to co-operate fully and unconditionally with UNSCOM. Of course, no such mandate exists, and it is unlikely that one will be forthcoming.
3.3 The US government appears to hold the view that Iraq has failed to respect the ‘will of the United Nations’ as reflected in mandatory resolutions and that it is now legally entitled to enforce this ‘will’ militarily. The legal basis for this view is unclear. In past practice, the Security Council has sharply distinguished between the demands it may have made, even in Chapter VII resolutions, and the authority to enforce them militarily. One may also recall the insistence of the UK on an explicit Council mandate before enforcing militarily a sanctions resolution in relation to certain oil shipments destined for Southern Rhodesia.
3.4 In 1990, the US and UK argued that they were legally entitled to enforce sanctions resolution 661 (1990) against Iraq and occupied Kuwait without a specific mandate. This view was resisted in the Security Council. Instead, the operation had to be justified as an act of collective self-defence on behalf of Kuwait, pending the adoption of resolution 665 (1990), which then explicitly authorized the naval ‘interdiction’ campaign against Iraq.
3.5 Of course, Iraq has been subjected to several military operations since the conclusion of hostilities in 1991. These operations have not triggered significant international condemnation. However, most of these operations were connected with the need to protect the Iraqi population from imminent and overwhelming harm and were justified, albeit somewhat daringly, according to the revived doctrine of humanitarian intervention, coupled with the right of self-defence. It was argued that if coalition aircraft are legally entitled to monitor the situation of threatened populations in northern and southern Iraq, then they must also be entitled to protect themselves from attack by destroying against anti-air installations.
3.6 A US military attack on an alleged Iraqi nuclear facility in the outskirts of Baghdad, undertaken while this humanitarian operation was mounted, did not commend itself to the other members of the coalition. The US argued that this action was triggered by Iraq’s failure to comply with the terms of Resolution 687 (1991). France dissociated itself from this argument and even the UK government, while not challenging it, did apparently not participate in this particular part of the operation.
3.7 It is obvious that a general right of states to appoint themselves the executors of the ‘will’ of the Security Council would lead to very significant instability. One only needs to flick through the over 1000 Security Council resolutions and identify the numerous situations where the ‘will’ of the Council has not been fully and unconditionally complied with to appreciate this point. Even in relation to the significantly smaller number of demands of the Council made in the context of Chapter VII, this theory would be immediately rejected by the US and UK if it were to be advanced by other states.
3.8 The US will not always remain the only superpower. Once China assumes and Russia regains that status, and once regional powers like India have developed their potential, the dangers of accepting a right to auto-enforce the will of the international community will be obvious. This doctrine also destroys the legal right to control the use of force on behalf of the UN through the exercise of the veto in the Security Council. It is difficult to see that the US or UK would be consciously willing to contribute to the undermining of their control over forcible mandates by admitting that these are, in fact, not legally necessary
The Issue of a ‘Material Breach’ of Resolution 687 (1991)
4.1 The reluctance to embrace a general right to implement the ‘will’ of the Security Council is reflected in the present attempt to construct instead an argument based on the theory of a material breach of cease-fire resolution. While this theory also responds to a failure to comply with requirements reflected in a mandatory Security Council resolution, its legal basis is fundamentally different. For, this argument seeks to revive the original mandate granted to states cooperating with the government of Kuwait in resolution 678 (199) of 29 November 1990, and terminated on 11 April 1991 when the Security Council President certified Iraq’s acceptance of resolution 687 (1991).
4.2 This theory reflects a good faith attempt, made especially by the United Kingdom, to justify the application of military force against Iraq without establishing damaging precedents in relation to the prohibition of the use of force in general. It also appears to have obtained the support of a former UN Secretary-General, and others, including a significant number of governments, may be tempted into accepting it in the face of US and UK pressure. Nevertheless, it fails in terms of law, and it does create a dangerous precedent.
4.3 The notion of a material breach is borrowed from the law of treaties. According to the Vienna Convention on the Law of Treaties, a material breach consists in the repudiation of a treaty or the violation of a provision essential to the accomplishment of its object and purpose. Iraq has not repudiated resolution 687 (1991). She has complied with many of its terms which concern a wide range of issues other than disarmament and arms control and overall, she has also hesitantly facilitated the implementation of those provisions.
4.4 However, the Security Council has found on previous occasions that her failure to cooperate fully and without condition with UNSCOM and the IAEA does amount to a material breach of her acceptance of the resolution. The Council may well adopt another such finding if the UK and US apply sufficient pressure towards that end. In the past, the Council has even added that the Iraqi undertaking to comply provided the condition ‘essential to the restoration of peace and security in the region’.
4.5 This reference to peace and stability in the region may have been meant to refer back to the terms of Resolution 678 (1990), which authorized the use of all necessary means to achieve the withdrawal of Iraqi forces to positions they held before the invasion, to implement the relevant Security Council resolutions adopted after the invasion and before the cease-fire, and to ‘restore international peace and security in the area’. Nevertheless, even a material breach, duly attested by the Security Council, does not revive the right to use force.
4.6 Fist of all, the doctrine of material breach is emphatically not applicable in relation to the prohibition of the use of force which enjoys the special legal character of ius cogens, that is to say, it may never ever be derogated from. As was noted above, it is the very essence of the prohibition that states may not respond forcibly to the violation of an international obligation by another state. Furthermore, even if the cease-fire was somehow no longer in operation as a result of a material breach, Iraq would still remain protected by the prohibition of the use of force. Under general international law, states may not resume hostilities some seven years after their conclusion to vindicate rights, whether or not a cease-fire exists or continues to exist.
4.7 In fact, from its very earliest practice, the Security Council itself has consistently and strongly opposed the claims of states which had been the victim of a significant cease-fire violation and which wanted to resume the use of force in response. In fact, even states which suffered from armed attacks were required to use only such limited force as was necessary to repel that particular attack, without questioning the continued operation of the cease-fire itself.
4.8 Secondly, the material breach does not exist in relation to the US or UK. The doctrine is intended to apply in situations where states grant to one another reciprocal rights. If a state violates an essential obligation in relation to another state or states, then it would be unreasonable to require the injured state or states to continue complying with that obligation in relation to the injuring state.
4.9 Neither the United States, nor the United Kingdom are party to such reciprocal obligations in relation to Iraq. By committing a material breach vis-a-vis the Security Council, they do not suffer a direct injury to their rights. This was confirmed in a somewhat analogous 1966 ruling of the International Court of Justice, when two states asserted unsuccessfully that South Africa had committed material breaches of her Mandate for South Africa and had thus lost her rights under the mandate.
4.10 The next phase in that case also demonstrated that the invocation of a material breach does not in itself suspend or terminate the obligation in question. Instead, the injured party, in this case represented by the Security Council, if the analogy can be applied this far, may or may not exercise the option of seeking to suspend or terminate the obligation. To this end, it must declare its intention. Thus, in Resolution 2145 (XXI) the UN General Assembly, acting in place of the League of Nations organs, concluded that South Africa had ‘in fact, disavowed the Mandate’ for South West Africa (Namibia). However, it was then necessary for the Assembly to take the additional step of deciding that the Mandate had been terminated.
4.11 In this instance, it would perhaps be possible for the Security Council to state that Iraq has, by committing a material breach in disavowed her obligations in relation to Resolution 687 (1991), and that as a consequence, the Council suspends or terminates the cease-fire resolution. In so doing, the Council would effectively grant a fresh mandate.
4.12 However, it is of course the very fact that the Council is not willing to grant a fresh mandate which has led to the invention of the theory of the material breach in the first place. Hence, through an exercise in circular logic, the theory removes the right to determine the lawful response to a material breach from the Council and vests it in individual states. Once again, an endorsement of this view would create difficult and dangerous precedents. It would permit states to do precisely that which the Security Council was unwilling to endorse.
4.13 In this particular case, there exist other difficulties. When the Council determined the existence of material breaches by Iraq in relation to resolution 687 (1991), it did so expressly in order to maintain, rather than suspend or terminate, the cease-fire regime instituted pursuant to that resolution. In resolution 707 (1991), for example, the Council found that there existed a material breach of the conditions essential to the restoration of peace and security in the region. However, instead of regarding the terms of the resolution suspended in consequence, it required Iraq to comply fully with the terms of resolution 687 (1991).
4.14 Finally, even if the mandate contained in resolution 678 (1990) could somehow be revived through the invocation of this theory, this would not really resolve the matter. The mandate gave authority for the liberation of Kuwait. Reference to other relevant resolutions and the restoration of peace and security in the area did not provide for an open-ended authority to use force once the liberation of Kuwait had been achieved. Such was not the intention of the states voting for the resolution at the time. This is evidenced by the relevant statements of delegations in the Council and by the fact that the authority to act is focused on states ‘cooperating with the Government of Kuwait’. It would be absurd to assert that after a finding of a material breach, Kuwait has a legal right to muster a coalition of states to implement through the use of force the provisions of relevant resolutions, say in relation to the payment of compensation, or forcibly to restructure the relations of the Middle East according to its understanding of peace and stability.
4.15 In short, the material breach theory undermines the prohibition of the use of force by suggesting that compliance with international obligations can be militarily enforced in relations among states. It undermines the stability of all cease-fire regimes by suggesting that non-forcible violations by one side may result in the suspension of the cease-fire. And it arrogates to individual states the very powers which the Security Council has been unwilling to grant to them. Such a power would be virtually unlimited, as it would be left to a self-selecting coalition to determine at what stage it regarded peace and stability as having been restored. Such an abuse may lead members of the Council to oppose the granting of forcible mandate when they are needed in the future to combat genuine threats to international peace and security.
The Threat Posed to the Region or the World at Large
5.1 When the US launched an attack of 44 cruise missiles against Iraq in 1996, this was justified by President Clinton with reference to the need to prevent future threats to the states of the region, ‘to reduce Saddam’s ability to strike out again at his neighbours, and to increase America’s ability to prevent future acts of violence and aggression’. Similar arguments have been put in relation to the present crisis and the US and UK are at present attempting to demonstrate that Iraq poses a threat to the region or to the world at large.
5.2 Of course, after more than six years of destroying Iraq’s capacity to possess or manufacture significant quantities of weapons of mass destruction through UNSCOM and the IAEA, no one argues that Baghdad retains at present a substantial arsenal of such weapons. Instead, attention is drawn to the small quantities of chemical and biological agents which can cause horrendous damage, and to the fact that Iraq could quickly regain her ability to manufacture such weapons. And while other states may still possess far more significant arsenals of such agents, it is rightly remembered that Iraq has uniquely used significant quantities of chemical weapons in past armed conflicts.
5.3 However, past practice or future potential do not furnish justifications for the unilateral application of military force in international law. Only the UN Security Council enjoys the unique legal power to authorize the use of force in response to mere threats to the peace. Outside of a Security Council mandate, international law does absolutely not recognise a right to wage pre-emptive or even preventative wars against more or less distant threats.
5.4 This essential rule also applies in relation to dangers involving weapons of mass destruction. When Israel bombed an Iraqi nuclear reactor in 1981, she justified this action with reference to the need to prevent Iraq from obtaining a nuclear weapons capability. Nevertheless, the UN Security Council unanimously condemned this use of force.
5.5 The dangers inherent in a doctrine of preventative war are obvious when one applies it to other situations. Israel herself would be unlikely to accept its persuasive force if it were to be invoked against her nuclear capacity by neighbouring states of the region. Pakistan might be entitled to launch a first strike against India, etc. Hence, international law balances the risk of instability inherent in preventative wars and the necessity of timely defence through the right of anticipatory self-defence. That right is available in response to an imminent armed attack. An armed attack is imminent, if a chain of events has been set in motion which will inexorably lead to the launching of the attack.
5.6 Recent practice in relation to Iraq has already substantially undermined the necessarily restrictive nature of this doctrine. When patrolling the self-proclaimed air exclusion zones in northern and southern Iraq, coalition planes have responded in purported self-defense to being illuminated by radar and even to the very presence of installations which might be used to detect and target coalition planes. Launching armed attacks against an even more abstract threat, which is neither made manifest in terms of capability nor in terms of an imminent intent of using that capability, would strain the definition of self-defence beyond breaking point.
5.7 The absence of an imminent and overwhelming threat in a legal sense is coupled with the fact that there appears to be no actual necessity of military action. In fact, negotiations about the level of Iraqi compliance are on-going, as are indeed other parts of the regular activities of monitoring. It is also doubtful that military strikes, even if ostensibly targeted at weapons-related sites, will destroy the allegedly hidden arsenals and production facilities. Hence, they may fail the legal test of ‘appropriateness’. Conversely, the threat of large-scale attacks against Iraq’s general military infrastructure conflicts with the legal requirement that force, if strictly necessary, may only be used in proportion to the concrete threat that is posed.
5.8 The argument that widespread bombardment is proportionate, as its aim is not to destroy Iraq’s weapons potential, but instead to force her government into compliance does not help in this context. States cannot establish an unlawfully wide aim for a military operation and justify the action with reference to the unlawful goal they have generated.
6.1 It may be tempting to see in the position of the US and UK an attempt to revive the promise of the New World Order—a vision so rashly abandoned after the conclusion of the Cold War. After all, this appears to be a case where individual states are willing to make their vast military potential available to implement the will of the international community. And the aims of this operation appear laudable: to vindicate the will of the United Nations and to rid the world of a dangerous future arsenal of weapons of mass destruction.
6.2 However, this action does in fact fundamentally challenge the presently existing structures of international order, rather than strengthening them. Here, for the first time since 1945, we see a significant example of the unilateral military enforcement of rights and obligations. The use of force by states is deemed once more acceptable for purposes other than resisting an armed attack or protecting a population in danger of extermination.
6.3 If this operation had the backing of a formal and explicit Security Council mandate, it would appear in a different light. Then, indeed, the US and UK would need to be commended for making available the facilities necessary to make the UN system of collective security work in relation to Iraq. The international community would have determined through the appropriate mechanism that Iraq’s posture represents a threat to the peace so severe that it must be addressed through forcible means, under the supervision of the Council.
6.4 In this case, the Security Council has indeed determined that there exists a serious violation of Iraq’s obligations. It has, however, not found that the violation is of a nature as to justify the application of military force. Instead, individual states take it upon themselves to identify which aims of the international community are to be pursued forcibly. The application of such force is not legally constrained, not even by the essential principle of proportionality.
6.5 To accept that such action can be taken outside of a Security Council mandate is to embrace anarchy and to return to an acceptance of war as a means of international, if not national, policy.
6.6 The argument of a material breach does not help to overcome this problem. It, too, locates the right to decide that force may be used in relation to Iraq away from the Council and in the hands of a coalition of the willing, who operate outside of the control of the UN. In addition, it undermines the stability of cease-fires elsewhere and it appears to subordinate the jus cogens prohibition of the use of force to misplaced analogies from the law of treaties.
6.7 Finally, individual states are of course not legally defenceless if they are confronted with a state threatening the use of its existing arsenal of weapons of mass destruction. If the threat is manifest and unambiguous, military action can be taken to the extent strictly necessary to remove it. On the other hand, to broaden the right of self-defence beyond circumstances of instant and overwhelming necessity, leaving no choice of means and no moment of deliberation, would virtually abolish the prohibition of the use of force. All uses of force could be justified under such a loose definition of self-defence.
6.8 The present crisis, it must be admitted, represents a difficult dilemma. Iraq must be required to comply with her obligations. However, if the states represented at the Security Council are not willing to grant a mandate for forcible action to that end, then the simple truth is that no force may be used. Instead, other avenues of pressuring the government of Iraq will need to be pursued. These might include measures to ensure that the embargo is not being undermined through uncontrolled traffic along Iraq’s land borders. In parallel, it may be necessary to establish a definite catalogue of concrete requirements which Iraq must fulfil, if there is to be a lifting of the embargo. If there is no prospect of ever achieving that aim because the standard for compliance is constantly raised, there is simply no incentive for Iraq to comply with her obligations. Ironically, once the embargo has been partially lifted, the Security Council gains a threat that is at present unavailable. In order to ensure that Iraq participates in the long-term monitoring programme of her weapons, it can credibly threaten to re-impose tough measures of economic constraint. Iraq would again have something to lose.
Marc Weller is the Deputy Director of the Centre of International Studies in the University of Cambridge, a member of the Faculty of Law of the University of Cambridge, a Fellow of the University of Cambridge Research Centre for International Law, a Fellow of Hughes Hall and Director of Studies in Law of Darwin College. He is the co-editor of The Kuwait Crisis in International Law, and the editor of Iraq and Kuwait: the Hostilities and their Aftermath.