Whatever your opinion on Britain’s involvement in the Iraq war; that it was immoral, catastrophic and a humanitarian disaster; a price worth paying or the continuation of the imperial designs of global powers or necessary for global security, the question is, was it legal? More specifically, was Jack Straw complicit in an illegal act via the invasion of Iraq or via the UKs conduct during the occupation? This blog is concerned primarily with the legal case; morality is a personal and much more complicated matter that must come down to each person’s conscience.
The United Nations charter is very clear regarding the legality of the threat or use of force in international relations. Without a Security Council resolution it is illegal. The only exception is found in Article 51, the right to self-defence, but an ICJ (International Court of Justice) ruling found that an actual armed attack had to have occurred by one state against another to invoke this clause. There have been attempts to argue that pre-emptive strikes are legal but these are yet to be accepted as part of international law. As Iraq had not actually attacked the UK and that the pre-emptive doctrine is not widely accepted the only course left is via a Security Council resolution. Did the use of force against Iraq have such a resolution? The answer varies depending on one’s point of view as is the case with much in international law. The resolution most looked to is resolution 1441. United Nations Security Council Resolution 1441 offered Iraq under Saddam Hussein “a final opportunity to comply with its disarmament obligations” that had been set out in several previous resolutions. Does this resolution allow for the use of force?
Those who argue that resolution 1441 sanctions the use of force mainly pin their hopes on the interpretation of the phrase “serious consequences”. It is reasonable to argue that, due to the extensive sanction regime that Iraq was under prior to the invasion it is hard to imagine what “serious consequences” could mean other than the use of force. As Jack Straw states, “Everyone knew what ‘serious consequences’ meant — war”. He continues by asserting that “Hard-nosed negotiators from Paris, Moscow, Berlin and Beijing knew full well its military consequences”.
However, the resolution specified the requirement for the Security Council to further deliberate on how to respond after the disarmament inspection team reported back. Paragraph 12 states the Council, “Decides to convene immediately upon receipt of a report [….] in order to consider the situation […]”. The phrase serious consequences appears in the next paragraph and only calls for the Security Council to see any material breach in the context, “that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations”. Therefore, even if “serious consequences” was understood by all to mean military action, resolution 1441 did not authorise it. As Professor Mary Ellen O’Connell argues, “in the event of non-compliance the United States [or the UK] is not automatically authorized to take unilateral military action […]”.
The need for a second resolution is implicit in 1441. This follow up resolution authorising these “serious consequences” never happened. Instead the invasion of Iraq went ahead with all its tragic consequences. All the more tragic if the statement of the Secretary-General is to be believed, that “Perhaps if we had persevered a little longer, Iraq could yet have been disarmed peacefully or – if not – the world could have taken action to solve this problem by a collective decision, endowing it with greater legitimacy, and therefore commanding wider support, than is now the case”.
The next Security Council resolution relating to Iraq was concerned not with invasion but with the occupying forces obligations under international humanitarian law. Resolution 1472 “Requests all parties concerned to strictly abide by their obligations under international law […] including those relating to the essential civilian needs of the people of Iraq […]”. Stating also that, “the Occupying Power has the duty of ensuring the food and medical supplies of the population […]”. As the Secretary-General requested “I hope that all parties will scrupulously observe the requirements of international humanitarian law”. These requirements were not accomplished by the occupying powers, as has often been noted; the invasion was a success, the occupation a disaster. Jack Straw himself accepts that, “the reconstruction programme was a shambles”.
It would seem reasonable by this admission and the harsh realities of occupied Iraq to conclude that the occupying forces did not achieve their international legal obligations regarding civilian care. It would also seem reasonable to conclude that the invasion of Iraq was not sanctioned by the Security Council and was therefore illegal. So it seems that we have two counts of illegal behaviour by the UK Government. As a prominent part of that Government with responsibility for foreign Affairs, and considering Jack Straw himself admitted, “I could have stopped us going to war in Iraq” he must accept some responsibility for these illegal acts. Indeed when facing the Iraq Inquiry Jack Straw stated “I made my choice. I have never backed away from it, and I do not intend to do so, and fully accept the responsibilities which flow from that”. Finally, the moral case for and against the war, as with many moral questions, is a matter of opinion and personal conscience. Indeed in international as in domestic law morality and legality are not always in sync. However, in this case, in my opinion, they are. The Iraq war was both illegal and immoral.
Resolution 1441 (2002) Adopted by the Security Council at its 4644th meeting, on 8 November 2002
Resolution 1472 (2003) Adopted by the Security Council at its 4732nd meeting, on 28 March 2003