The Iraq Crisis and the Legal Use of Force
Krysti Guest
Law and Bills Digest Group
3 March 1998
Introduction
The Government has commented that possible US led military action against
Iraq is legally authorised by existing Security Council resolutions and
that the defence of United Nations' authority is a key element in such
action.(1) This Research Note sets out the international legal framework
concerning the use of force. Three key issues arise.
First, for the past century the international community has developed
legal principles concerning the use of force in international relations,
in order to prohibit recourse to violence as an instrument of foreign
policy. The most significant codification of these principles is the 1944
Charter of the United Nations.
Secondly, a fundamental purpose of the Charter is to 'save succeeding
generations from the scourge of war' by maintaining 'international peace
and security'. To this end, the overarching principle of the Charter is
that disputes shall be resolved by peaceful means.
Thirdly, two exceptions exist to this general prohibition on the use
of force. Force can be used when authorised by the UN Security Council
and States retain the inherent right to self-defence.
Resolution of Disputes by Peaceful Means
Article 2(4) of the Charter states that all Members 'shall refrain in
their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in
any manner inconsistent with the Purposes of the United Nations.' The
International Court of Justice has named this general prohibition on the
use of force as a norm of customary international law.(2)
Some commentators suggest that Article 2(4) permits the threat or use
of force that falls short of annexation or sustained loss of political
independence. This interpretation was rejected by the unanimous 1974 General
Assembly resolution on aggression, which defined aggression broadly to
include military attack, bombardment and blockade. Although General Assembly
resolutions are not binding on the Security Council, the Council has frequently
referred to this definition with approval.
Consequently, unless the use of force is connected to Security Council
action or self defence, it breaches treaty obligations under the Charter
and customary international law. States which assist in the threat or
use of force would also breach these obligations.
The Security Council and the Use of Force
In line with the United Nations' philosophy of collective security, Chapter
VII of the Charter permits the use of force in specific circumstances
when expressly authorised by nine Security Council members, including
the five permanent members (China, France, Russia, United Kingdom, United
States).
The Security Council is empowered to determine threats to, or breaches
of, the peace. Chapter VII is structured to permit a graduated response
to this determination. Article 40 permits the Council to call upon the
relevant parties to comply with provisional measures. Article 41 empowers
the Council to decide what measures not involving the use of armed force
shall be employed. Finally, Article 42 provides that should the Council
decide that measures provided for in Article 41 are, or will be, inadequate,
it may take such military action as may be necessary to maintain or restore
international peace or security.
The practice of the Security Council is to adopt a graduated response
to a crisis, with use of force as the final option. For example, during
the 1990 Gulf War crisis, the Council's first resolution was passed on
2 August 1990, and after ten increasingly harsh resolutions, a 29 November
1990 resolution finally authorised States to use 'all necessary means'
to reverse Iraq's annexation of Kuwait.
Individual and Collective Self Defence
In customary international law, States have an inherent right to individual
or collective self-defence. Article 51 of the Charter ensures that nothing
in the Charter impairs this right of self-defence if an armed attack occurs
against a member State.
The criteria for defining when the right to self-defence arises is contentious,
with one international lawyer asserting that the 'concept of self-defence
remains a convenient shield for self-serving and aggressive conduct.'
(3)
The classical position defined in the 1837 Caroline Case(4) is that the
right arises due to overwhelming necessity which leaves no other
choice and the response is proportional to the threat. This definition
suggests that the right can be sparked when an attack is imminent, a definition
which is broader that the Article 51 requirement that an 'armed attack'
has occurred. There is considerable disagreement as to which definition
is legally correct.
Arguments supporting the more limited definition in Article 51 state
that given the Charter's near global support, its unambiguous definition
should be applied over an early nineteenth century decision and that pre-emptive
strikes should be deterred. Arguments against this restrictive approach
can be classified as narrow and expansive arguments for anticipatory self-defence.
The narrow version argues that given current military technology, the
definition of an 'armed attack' should incorporate the steps leading to
attack (e.g. technically locking weapons on target) and that self-defence
is justifiable in these circumstances as long as it is proportionate to
the threat. The more expansive and contentious view is that anticipatory
self-defence occurs when any potential military action is undertaken by
an enemy State. There is no case law on this question. The right has been
claimed, for example, by Israel when it bombed an Iraqi nuclear reactor
in 1981. The Security Council unanimously condemned the Israeli attack
as a clear violation of Article 2(4).
Legal Aspects of the Current Crisis in Iraq
The 1991 cease-fire agreement between the United Nations and Iraq took
the form of a Security Council resolution under Chapter VII (resolution
687), a central aspect of which was that Iraq unconditionally accept the
destruction or removal of chemical and biological weapons and certain
ballistic missiles. Subsequently, the Security Council has passed a range
of resolutions condemning Iraq's persistent obstruction of UN weapons
inspection. However, despite having power to authorise the use of force
under Article 42, all resolutions only authorise non-violent measures
against Iraq pursuant to Article 41. No resolution specifically authorises
force against Iraq in relation to weapons inspection.
Australia, like the United States, argues that regardless of a specific
resolution, Security Council authority to use force exists on two grounds.
Firstly, by persistently obstructing weapons inspection and flouting relevant
resolutions, Iraq has fundamentally breached cease-fire resolution 687.
The cease-fire is consequently no longer operative, and the 1990 resolution
678 authorising the use of force against Iraq in light of its invasion
of Kuwait is re-triggered. The alternative argument is that Iraq has continually
ignored a range of Chapter VII resolutions authorising non-violent measures
to enforce weapons inspection. The sum of these resolutions, including
the cease-fire resolution, establishes authority for the use of force.
There is no precedent for this 'constructive authorisation' approach.
Arguments against it state that it is contrary to both the letter and
spirit of the Charter.(5) Chapter VII clearly states that the use of force
may only be authorised by the vote of nine Security Council members in
relation to a specific breach of international peace and security.
Resolution 678 specifically authorises force only in relation to the Security
Council demand that Iraq withdraw from Kuwait. No subsequent resolution,
including 687, authorises force in relation to the issue of weapons inspection.
If the 'constructive authorisation' argument is accepted, any breach of
the cease-fire agreement would allow any State to take military action
against Iraq at any time. This interpretation directly contradicts the
fundamental Charter principle that States are prohibited from using unilateral
force except in accordance with the right of self defence.
A second argument is founded on anticipatory self-defence. As Iraq refuses
to disarm in accordance with resolution 687, military action would prevent
it 'becoming a threat to the security of the Middle East and the world'.(6)
Arguments against this position state that given that the right to anticipatory
self-defence is contentious and, if it exists at all, must be strictly
in accordance with the requirements of necessity and proportionality,
it is an argument that would be difficult to sustain by a country as remote
from Iraq as Australia.
Finally, the Government has stressed the moral position that as military
action aims to secure enforcement of Security Council resolutions, the
defence of United Nations' authority is a key element. Arguments against
this state that by failing to respect the explicit process by which the
Security Council is empowered to authorise force, proposed military action
would have the opposite effect and 'be a severe blow to the authority
of the United Nations and could mark the beginning of its steep decline.'(7)
- Transcript of the Prime Minister the Hon. John Howard MP doorstop
interview Parliament House, Canberra, 9 February 1998.
- Case Concerning Military and Paramilitary Activities in and around
Nicaragua (Merits) 1986
- Franck, 'Who Killed Article 2(4)?', 64 American Journal of International
Law 224 (1977)
- See Jennings, 32 American Journal of International Law 82 (1938).
- Julie Dahlitz, (international law specialist), International Herald
Tribune, 17 February 98.
- DFAT:www.dfat.gov.au/hot/iraq
- Jozef Goldblat (consultant to UN Institute for Disarmament Research)
International Herald Tribune, 17 February 1998.
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