06 Jun Illegitimate Alliances: Invasion Tales Within the United Nations Security Council
[Lily Zanjani is an Advanced LL.M Student of Public international Law at Leiden University. She is currently a legal intern at International Criminal Court and International Centre for Counterterrorism.]
This article will scrutinize the United Kingdom’s legal justifications concerning the use of force in Iraq in accordance with its interpretation of United Nations’ (UN) Resolution 1441. This resolution revolves around Iraq’s non-compliance with earlier resolutions and demands of the international community regarding the proliferation of weapons of mass destruction and long-range missiles. It was also a resolution that recalled UN Security Council’s (UNSC) authorization for member States to use all necessary means to uphold and implement Resolution 660 condemning Iraq’s unlawful invasion to Kuwait.
Even though the UN found no evidence of the Weapons of Mass Destruction; the UK chose to back the US in its invasion. When discussing the events of two decades ago, the US often attracts all the attention. Thus, there is little to no attention paid on the legal justifications brought forward by the UK in its decision to invade. Moreover, the UK’s legal accountability discourse did not face many challenges unlike other countries such as the US, Canada, and The Netherlands. The liberal internationalist theory that was used by the UK will be criticized in this article. It will uncover opinions by the UK’s legal advisors consisting of Elizabeth Wilmshurst as the Deputy Legal Advisor in the UK Foreign Office, Michael Wood as Chief Legal Advisor and Peter Goldsmith as Attorney General of the UK.
The UK legal advisors were expected to provide legal reasoning regarding the legality of the use of force in a sovereign state through utilizing either of the two exceptions to prohibition on the use of force in Article 2(4) of the UN Charter: (1) UNSC authorization; and/or (2) use of force for the purpose of self-defence (under Article 51).
Self-Defence: To Be Preventive or Pre-emptive? That Is the Question!
Iraq’s ignorance in acting in conformity to the demands and purposes of Resolution 660 which condemned Iraq’s unlawful invasion to Kuwait, brought forth Resolution 678. The latter Resolution gave power to all member states to “use all necessary means to uphold and implement Resolution 660 (1990)”. Following Iraq’s disallowance to give access to weapon inspectors, the UNSC then adopted Resolution 687. This Resolution in turn required Iraq to dismiss all its “chemical, biological and nuclear weapons capability as well as missiles with a range of more than 150 kilometres and to allow verification by inspectors from the UN Special Commission (UNSCOM) and the International Atomic Energy Agency (IAEA)”. Iraq, however, boldly attempted to assassinate President Bush in June 1993. In addition, the 9/11 attacks and American intelligence illustrating Al Qaida’s use of Iraqi territory for the purpose of training as well as Iraq’s material breach contrary to the demands of Resolution 678 of the UNSC from Iraq, provided the US with enough motive to act in self-defence through a pre-emptive war. The UK was a major supporter of the US in this act of self-defence, although the argument used by the US as the “imminent threat” was not applicable to UK.
Despite certain countries’ contempt (like France, Russia, and Germany) in interpreting Iraq’s violations as material breach under Resolution 687, other countries such as the UK accompanied US in its perception of Iraq’s act fulfilling a material breach of its obligations under this Resolution. The emergence of this two-sided approach led to Resolution 1441 where the UNSC announced Iraq’s final opportunity “to comply along with certain provisions strengthening the role of the UNSC”. Through the revival argument, UNSC explicitly recalled “the continued applicability of all previous resolutions on Iraq, including Resolutions 660, 678 and 687”. It also concluded that “Iraq has been and remains in material breach of its obligations under relevant resolutions”. Thus, the US and UK argued that Resolution 1441 provided implicit authorization due to the existing material breach which terminated or suspended Resolution 687. Hence, that translates to the revival of Resolution 678.
The Discourse of the Use of Force Legality by the UK
Wood stated that since there exists no new decision from the UNSC stating that Iraq was flagrantly violating its obligations under the cease-fire Resolution, the use of force is not legal based on the “original 660 Resolution”; which permitted the use of force in relation to the liberation of Kuwait. In conformity to Wood, Goldsmith’s advice indicated that to use legal force, it is essential for the UNSC to ascertain that the “breach of the cease-fire conditions” have occurred. Therefore, to renew utilization of the legal use of force, the UNSC must provide its contemplation that the breach of cease-fire conditions provided sufficient basis to use force. Thus, these two legal advisors disagreed with the revival theory that was suggested by the US. However, Goldsmith advised the UK Prime Minster that the revival theory was practicable. Nonetheless, it should be noted that a legal ground is better justified if further decision and clarification was provided by the UNSC. He also added that if there does not exist a resolution that authorizes the use of force in explicit terms, the legitimacy of a military action is controversial. Wilmshurst also argued that to “revive the authorization given in Resolution 678” for the purpose of a lawful use of force, the UNSC needs to provide the member states with a second resolution.
History of the Language “All Means Necessary”
When the UNSC authorized the use of force in its resolutions, a consistent practice emerged where those resolutions refer to member states being permitted to use “all means necessary”. Therefore, when the UN is considering the authorizing of the use of force by states, it uses the phrase “all means necessary” in resolutions to signal those states are allowed to use force in a particular situation.
UK advisors pointed out that UNSC Resolution 1441 mentioned disarmament, but it did not use the critical language of “all means necessary”. Given that the language is missing, it cannot be concluded that the UNSC was authorizing the use of force against Iraq. Therefore, neither the UNSC Resolution 1441 (2002) nor the Resolution 678 (1991) are enough bases for the use of force. They also rejected the US’ argument that the 1991 UNSC Resolution on the authorization of the use of force against Iraq can be revived and that authorization continues to live in 2002. Wilmshurst and Wood further argued that the use of force is not a lawful act of self-defence. Goldsmith agreed with the assessment that Resolution 1441 does not clearly signal the authorization of the UNSC. Therefore, further UNSC authorization is needed to legally use force. Ten days later, however, he reversed his opinion and concluded that Resolution 1441 on disarmament is enough and no further UNSC authorization is required.
Wood however emphasized that Article 16 of Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA) reflects customary international law. It states that “a state which aids or assists another State in the commission of an internationally wrongful act … is internationally responsible for doing so if
- That State does so with knowledge of the circumstances of the internationally wrongful act; and
- The act would be internationally wrongful if committed by that State”.
Wood characterized the UK’s partnership with the US as a wrongful act committed by the UK under ARSIWA, since the UN inspectors’ report suggested no evidence of WMD.
Liberal Interventionists and Iraq’s Regime Change, Revisited
Liberal internationalism refers to the foreign policy doctrine that aims to accomplish two main tenets; 1. promote democracy and rules-based norms in international organizations to reach multilateralism, and 2. to promote and pursue liberal aspirations in other countries through such international organizations.
Liberal internationalism and liberal foreign policy making possess their own perspective on what kind of international action should be taken when a state violates its obligations under international law. According to this school of international society, legitimacy of liberal norms is contested if liberal outcomes are not satisfied in the UN. Since 245 of Labour parliamentarians were in favour of Blair to use force, the advisors’ condemn to use force and join US, to what extent can it be said that liberal norms were not respected in this decision making? Counter-arguing this, it can be claimed that liberal norms were not respected in the intervention and international levels.
The goal of the UK was to uphold the UNSC’s authority even though it was aware that acts in relation to use of force in Iraq through revival interpretation was not endorsed by the majority in the UNSC. These actions were indeed sought to “undermine the SC’s authority”.
Hence, the UK’s dilemma was whether to respect the legal justification provided by its legal advisors that was indeed in line with the UNSC’s majority or to save its special relation with the US. UK’s view offered that a temporal solution such as removing Saddam Hussein is not sufficient to maintain peace and security as the “threat of use of WMDs or their proliferation” would have remained (specifically with having Taliban present in the region). Albeit political regime change of Iraq was reasoned differently between the US and the UK, one common knowledge between both parties cleared that “regime change in Iraq would not be lawful”. This in fact was not respecting the principle of sovereignty and therefore infringing Article 2(1) of the UN Charter.
Due to Iraq being governed by a dictator, the US suggested to intervene for a political regime change. The UK agreed with this suggestion and added that an international law regime change can only be authorized by the UNSC. The UK used the liberal interventionist theory as it could not even use the self-defence justification to the extent that the US was using. However, the question arises as to what extent is UNSC enjoying from the liberal norms such as democracy and an effective representation itself while having five permanent members with strong views, relations, and motives? Moreover, this act of the US and UK as liberal internationalists infringed Articles 2(1) and 2(4) of the UN Charter. According to these Articles, member states are ought to respect the sovereign equality of each other and shall not use force against the political independence of any states. By removing Saddam Hussain, the UK interfered with political independence and sovereignty of Iraq. Thus, was the price of imposing liberal norms in Iraq, killing other constituted norms at the international level such as the values acknowledged in the UN Charter? UK’s approach can also be observed in sanction regime change arguments.
Shift of Sanction Regimes for Imposing the Revival Doctrine
The limitation of revival theory as an argument in 1992-1993 was considered as impulsive by some UNSC delegations. It must be noted that even in 1991, the UK backed the US in its illegal use of force where it was not authorized by the UNSC. The peak of such actions was observed in 1998. This is where Resolution 1205 (1998) clarified the acts of Iraq as “flagrant violations, rather than a material breach” nor it clarified the use of “all means necessary” as a response to these flagrant violations. This Resolution was prescribed in such language particularly, to avoid any arguments in favour of using force by member states. Therefore, to establish this necessary mean, the US and UK governments talked about shifting the sanction regimes. One possible discussion that took place by Goldsmith was the determination of a no-fly zone and whether it could be maintained needless to considering use of force.
Even though the UK legal advisers expressed that even in the event of using force under UN’s revived authority, “the use of force had to be proportionate and necessary”, the UK justified its legal reasoning by stating that it had used limited use of force that was mainly targeting “Iraq’s weapons capability”. Thus, the UK used a biased narrative to find evidence of material breach by Iraq to legally justify its strategy directed on Iraq.
The unlawful trend for making alliances to pursue own’s interests is still visible and common within the UNSC’s system. The current world crisis –Ukraine’s invasion– is one of the main reasons for the creation of the UNSC. However, with having Russia as a permanent member of the UNSC and China being the illegitimate alliance of the contemporary world; it cannot be concluded that the main pillars of liberal internationalism (as it was the notion behind the UN’s creation) have been fulfilled.
Throughout this article, it was argued that UK’s invasion of Iraq was neither legal nor legitimate particularly through a liberal internationalist point of view as it infringed both tenets of liberal internationalism. This is due to the UK’s legal advisors condemning the use of force and its legality as well as the UK’s disrespect for liberal values such as democracy in the UNSC when the use of force was convicted and condemned by the majority. Therefore, the UK’s act was taking advantage of a non-liberal structure of the UNSC.