UN authority

Should Britain support, or even take part in, the United States attack on Iraq which increasingly seems to be imminent? The issue looms larger by the day, and is now complicated by Saddam’s predictable and qualified offer to hold talks with the UN weapons inspectors about their possible return to resume their investigation of Iraq’s Weapons of Mass Destruction (WMD) and to destroy any WPD that they might find. Now he has also invited the US Congress to send a delegation to investigate the allegations made against him. As argued in earlier Ephems, the answer to the question whether to support US plans for an attack should depend on a few simple tests: has the United Nations Security Council (UNSC) explicitly authorised military action against Iraq in a new and unambiguous resolution? if so, is the US action consistent with the terms of the UNSC resolution, does it have a reasonable chance of succeeding in its declared objective, and will its intended effects be proportionate to its likely consequences, including the probable scale of civilian casualties? An important implication of the first test (a new and explicit UNSC resolution) is that the purpose of the action must be to compel Iraq to comply with the mandatory resolutions of the Security Council: the Council would never authorise an attack designed to topple Saddam, or indeed any other head of state, however pernicious. Of course a consequence of a successful action to compel Iraq to comply with the UN resolutions might well be that Saddam would fall or be pushed out, but there’s a big and material difference between a possible consequence and a primary purpose. So long as President Bush continues to insist that any attack would be focused on producing what he euphemistically calls "régime change" in Iraq, he is inevitably talking of an action with no basis in international law: the UN Charter clearly outlaws military action by one country for the purpose of toppling the government of another. Such an attack would be contrary to international law on at least two counts: its purpose could not justify the use of force, and it wouldn’t (and couldn’t) be authorised by the Security Council.

Mr Blair, among others, has tentatively argued that Iraq is clearly in breach of several Security Council mandatory resolutions by its failure either to co-operate with the UN weapons inspectors, or to allow the destruction of its WMD, or to terminate its WMD programme; and that accordingly there is no need for a further resolution explicitly authorising action (by force if necessary) to secure Iraq’s compliance. (It’s worth noticing, incidentally, that this argument couldn’t be used to justify an attack to topple the régime without UN authority.) But nothing in the Security Council’s existing resolutions authorises the US, or anyone else, to appoint itself as the UN’s enforcement agent with the right to launch a military attack on another country. In view of the shakiness of the proposition, why not test it by asking the Council for explicit authority in a new resolution? Because, clearly, Washington and London fear either that no such resolution could be negotiated, or, if a text could be agreed, that it would impose irksome conditions, e.g. by narrowly defining the objective of a military intervention, or by insisting on a further round of diplomacy before the resort to the use of force.

Yet another argument for by-passing the Security Council ("I didn’t do it, Your Honour, and even if I did, he hit me first") is that because of the threat to the security of other countries, including the US, allegedly—and plausibly—posed by Iraq’s WMD, the US can exercise its "inherent right of … self-defence" by intervening militarily to eliminate the threat, without the need for UN authority. A glance at the terms of the relevant Article of the Charter (Art. 51) is enough to dispose of this idea: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security…" [my emphasis]. The Charter certainly allows the Security Council to take pre-emptive action to deal with a threat to the peace (i.e. a potential breach of the peace) as well as with an actual breach of the peace (Art. 39), but it gives no such power to any individual government or group of governments to do so unless expressly authorised by the Council.

Finally, it’s argued that common sense rejects any idea that the legality of an attack must depend on prior approval in an explicit resolution of the Security Council, because that would enable Russia or China (or France) to veto military action even if such action were to be manifestly necessary, or because the changing membership of the Council makes a lottery of the task of securing a majority for a resolution at any given time, or because the Council is a political, not a judicial, body. There are many fatal flaws in this approach. First, it ignores the plain provisions of the Charter, to which we have all subscribed, which the US and UK helped to write, and by which we are all bound. Secondly, by purporting to legitimise armed action against another state without UN approval, it equally legitimises any attack by any country which claims to have detected a threat in the policies or activities of another state. This reintroduces the law of the jungle in which might is right and no country except possibly the superpower is safe. Thirdly, there are obvious virtues in requiring some form of international approval, representing a broad international consensus and including the acquiescence of the major powers, for the use of force by one state against another; and the only existing institution capable of conferring or withholding such international approval is the Security Council. Fourthly, whether to grant or withhold such approval is essentially a political, not a judicial decision, and it is entirely appropriate that an essentially political body should exercise it. And fifthly, the requirement to secure Security Council authority before using military force against another country is a valuable discipline, imposing a degree of restraint on the powerful in their dealings with the (relatively) weak: the Council will manifestly refuse to authorise an armed attack for an illegitimate purpose (such as overthrowing another country’s government) or intended to take place prematurely (before all possibilities of resolving the problem peacefully have been exhausted) or of a disproportionate kind (because the likely civilian casualties can’t be justified by the benefits to be conferred by the attack). In the case of Iraq, the Council would (very properly) need to be satisfied on all these points before authorising an attack on Iraq, and once so satisfied, might well have little difficulty in authorising it. As for the veto, it represents an essential protection for small, weak countries everywhere, not just for the five permanent members; and none of the five permanent members is likely to use its veto casually or without cogent cause when by doing so it would risk damaging its relations with the world’s sole superpower in a matter to which the superpower clearly attaches supreme importance. No-one is keen to fall out with Washington unless there’s a great deal at stake.