Determination of the legality in international law of direct intervention in Iraq on the authority of Security Council Resolution 1441

International law provides for a general prohibition of the use or the threat of use of force to settle international disputes. Only very few exceptions from this rule exist and are clearly defined in the UN Charter.

The question must thus be, if resolution 1441 constitutes such an exception of the rule and thus authorises the use of force against Iraq. A close examination of the resolution shall therefore be the starting point of this discussion. However, it must be said that the wording of any Security Council resolution is subject to individual interpretation. A second step must thus be to apply rules for the interpretation of Security Council resolutions if such rules exist at all.

It appears that only very little authoritative guidelines to the interpretation of Security Council resolutions exist and that thus the only reliable source of guidance is previous interpretations. Those promoting direct intervention in Iraq without a further resolution refer to NATO bombings of Kosovo. Similarly to the present situation in Iraq, the Security Council did not explicitly authorise the use of force in that case either. Later, the international community claimed that because no agreement could be reached in the Security Council, military action without Security Council authorisation was necessary in order to prevent genocide. The argument being of course, that a legitimate aim could justify the use of illegal means.

The question whether direct intervention in Iraq can be legitimate on the basis of resolution 1441 seems to be a much broader question, which embraces moral and ethical considerations, too. Unfortunately, a discussion of the moral and ethical legitimacy of intervention in Iraq cannot be the topic of this essay. Nevertheless, it is important even in legal considerations to keep these aspects of the debate in mind, because the Security Council itself is not a purely legal but a political institution and any of its decisions is determined by more than just legal factors.

After having looked at the Kosovo case and its implications for the present situation it seems to be essential to examine the role of customary law for the Iraq conflict. This is because if an opinio juris has emerged among states to forcefully intervene for humanitarian or other reasons resolution 1441 would not be needed to authorise the use of force.

Resolution 1441

Apart from the provision that Security Council resolutions are binding, as laid out in Art. 25^[1], the UN Charter does not give any general rules concerning the interpretation of Security Council resolutions.

Michael Byers points out that “when it comes to interpreting Security Council resolutions […] the 1971 Namibia Advisory Opinion is one of the very few authoritative guides”^[2]:

The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussion leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council.^[3]

The language of the resolution thus is of great importance for its interpretation. The resolution then reads as follows:

Iraq is given a “final opportunity to comply with its disarmament obligations”^[4] under resolution 687. Furthermore, the resolution decides that any “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”^[5]. Any such non-compliance with the resolution shall be reported to the Security Council by the executive chairman of UNMOVIC. Finally, the resolution provides for the Security Council to “convene immediately […] 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”^[6] upon receipt of a report of Iraqi non-compliance with its obligations. And Iraq is also reminded, “that it will face serious consequences as a result of its continued violations of its obligations.”^[7]

Even more important then what the resolution says, is what it does not say. Here, it is worthwhile to recall that “in resolution 678 the Security Council specifically ‘authorize[d]’ Member States to use all necessary means to ensure that Iraq immediately and unconditionally withdraws all its forces from Kuwait and to restore international peace and security in the area. This was the basis for Operation Desert Storm.”^[8] This terminology then must be seen as the diplomatic wording for the authorisation of the use of force^[9]. As no such wording can be found in resolution 1441, it subsequently does not authorise the use of force against Iraq. That the wording ‘serious consequences’ can “authorise a single UN member to attack Iraq, can only claim, who has not read the UN Charter or consider it irrelevant.”^[10]

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^[1] Malcom D. Evans: International Law Documents, 5th edition, Blackstone Press, London, 2001, p.13

^[2] Michael Byers: ‘The Shifting Foundations of International Law: A Decade of Forceful Measures against Iraq’, in: EJIL, Vol. 13, No. 1, p.23

^[3] as cited in: Byers, op.cit., p.23

^[4] UN Documents: UN Security Council Resolution 1441, 8 November 2002, <http://ods-dds-ny.un.org/doc/UNDOC/GEN/N02/682/26/PDF/N0268226.pdf?OpenElement>, (22 February 2003), paragraph 2

^[5] ibid., paragraph 4

^[6] ibid., paragraph 12

^[7] ibid., paragraph 13

^[8] Christine Gray: ‘From Unity to Polarization: International Law and the Use of Force against Iraq’, in: EJIL, Vol. 13, No. 1, p.3

^[9] Diplomatic phrases are used in the Security Council because it is after all a political institution, although it is also an international law making body. It is however relatively clear to all members of the Security Council that “all necessary means” does mean the use of force.

^[10] Niels Kadritzke: ‘Serious Consequences: Die USA, Die Resolution 1441 und das Völkerrecht’, in: Le Monde diplomatique (German edition), Vol. 9, No. 2, February 2003, p.2