Carne Ross: Iraq, WMD, sanctions and the war (yes, again)

The evidence given by Carne Ross to the Butler Inquiry on the use of intelligence in the run-up to the Iraq war was 'classified' and accordingly not published in the Inquiry's Carne Rossreport.  Ross was the First Secretary in the UK Mission (delegation) to the UN dealing with Iraq, WMD, sanctions, etc., for more than four years (specifically from December 1997 until June 2002), i.e. before the US/UK attack on Iraq in March 2003, but he kept in touch with former British and other colleagues throughout the period.  He resigned from the Diplomatic Service after giving his evidence to the Inquiry, on the grounds of his objections to the way UK policy towards Iraq had been pursued during the lead-up to the war and to the way in which the war had been publicly justified.

Last month (on 8 November 2006) a member of the House of Commons Foreign Affairs Select Committee made strenuous efforts to persuade Carne Ross to pass to the Select Committee his classified evidence to the Butler Inquiry under the protection of parliamentary privilege (the transcript of his exchanges with Ross and with the Chair is well worth reading), but the Committee seems subsequently to have decided not to ask for it [1].

Today, however, the Independent newspaper has published the full transcript of Carne Ross's hitherto secret evidence to the Butler Inquiry.  It contains a number of important and potentially damaging points which will repay detailed analysis by the commentariat.  One of these is of special interest to students of United Nations resolutions and their interpretation.  According to Ross, —

Resolution 1441 did not authorise the use of force in case of non-cooperation with weapons inspectors. I was in New York, but not part of the mission, during the negotiation of that resolution …. My friends in other delegations told me that the UK sold 1441 in the Council explicitly on the grounds that it did not represent authorisation for war and that it "gave inspections a chance".
Later, after claiming that Iraq was not cooperating, the UK presented a draft resolution which offered the odd formulation that Iraq had failed to seize the opportunity of 1441.  In negotiation, the UK conceded that the resolution amounted to authority to use force (there are few public records of this, but I was told by many former colleagues involved in the negotiation that this was the case). The resolution failed to attract support.

This is not the place for an intricate textual analysis of resolution 1441 and whether it implied authority for the use of force against Iraq in the event of Iraqi non-compliance with the UN and its weapons inspectors without the need for a further 'decision' by the Security Council.  To state the case briefly, it has been asserted on behalf of the British government that the absence of the word decision or decide from paragraph 12 of the resolution, requiring the Council only to "consider" the situation and not to take any further decision on what to do about it, means that the resolution did authorise force without the need for a "second resolution":

12.     Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, 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; … [My emphasis — BLB]

The validity of this obviously counter-intuitive assertion, which is at the heart of the British Government's defence against the charge that the attack on Iraq was illegal, depends on a number of factors.  One of these is close analysis of the Explanation of Vote by the British ambassador to the UN (which appears to confirm that the resolution does not contain any authorisation for force without a further Council decision, although it can just about be interpreted as falling very slightly short of this):

We heard loud and clear during the negotiations the concerns about "automaticity" and "hidden triggers" – the concern that on a decision so crucial we should not rush into military action; that on a decision so crucial any Iraqi violations should be discussed by the Council. Let me be equally clear in response, as a co-sponsor with the United States of the text we have adopted. There is no "automaticity" in this Resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in Operational Paragraph 12. We would expect the Security Council then to meet its responsibilities. [My emphasis — BLB]

Another element in the UK government's defence is the so-called 'negotiating history' of the resolution:  whether members of the Council knew from their private discussions of the text eventually adopted as Res. 1441 that the omission of the word decision or decide from Paragraph 12 would be taken by the US and the UK as constituting authority for them to attack Iraq without the need for a further resolution of the Council explicitly authorising them to do so.  However, since there is no official or other record of those secret discussions leading to Res. 1441, or none that is publicly accessible, we may have to wait for the memoirs of the participants before we can judge the weight to be attached to this proposition.  On the face of it, it looks flaky.  All the sadder that the Foreign & Commonwealth Office seems to have succeeded in preventing Sir Jeremy Greenstock (the British ambassador to the UN at the time) from publishing his memoirs, at any rate for some considerable time.

Meanwhile at least one of the interesting points to emerge from Carne Ross's Butler Inquiry testimony is his understanding at the time, from his New York contacts involved in these negotiations, that 

Resolution 1441 did not authorise the use of force in case of non-cooperation with weapons inspectors. …. My friends in other delegations told me that the UK sold 1441 in the Council explicitly on the grounds that it did not represent authorisation for war and that it "gave inspections a chance".

If, contrary to what Ross was being told at the time, members of the Council really did know and accept from the negotiation of the text that Resolution 1441 authorised the use of force against Iraq without the need for a further decision in a fresh resolution, it's hard to explain why Britain went to such inordinate lengths to secure a "second resolution" containing that authority, failing dismally to obtain it, and indeed why those members of the Council who were vocally opposed to the use of force at that time without the Council's explicit authority (including France, Germany, Russia, China and Germany, with others constituting a clear majority of the Council) nevertheless voted unanimously for Resolution 1441. 

All this may appear to some to be counting angels on the head of the proverbial pin.  But it goes to the heart of the question whether Britain was in breach of the Charter and thus of international law by participating in an unauthorised attack on a sovereign member state of the United Nations.  Such a breach is properly described as an act of aggression and indeed a war crime;  those responsible for committing it are equally properly described as war criminals.  The Independent [1], and Carne Ross, have performed a valuable service by contributing a new piece of evidence on this point:  it's not decisive, certainly, but it's suggestive, to put it at the lowest.   

[1] Update (19 December 2006):   In a later Ephems entry I have corrected a couple of factual errors in this piece concerning the actual roles of the Select Committee on Foreign Affairs and the Independent newspaper in arranging the publication of Carne Ross's previously secret written evidence to the Butler Inquiry.  Please also see Craig Murray's comment appended to it.


4 Responses

  1. John Miles says:

       You're probably quite right to suggest that "some people" may think that trying to interpret 1441 is like arguing about angels on a pinhead.

       Yet, as someone who's never actually got around to reading 1441, I'd like answers from these people to two stale, non-rhetorical questions.

       First, why does 1441 say "consider" rather than "decide"?

       (The obvious answer: it needed the support of people like Russia, China and France

    who would never have agreed to "decide."

       Or is there some other explanation?)

       Second, If 1441 was sufficient justification for our attack on Iraq, why did we make such a fuss about trying to get a second resolution?

          I'd suggest your "some people" fall into two main categories:

          People who've given the whole question even less thought than I have, and

          People like Mr Blair, my own (New Labour) MP and Lord Goldsmith.

          Are there any others?

    Brian writes:  John, please see my reply a separate Comment.

  2. Brian says:

    John, it was those who wanted to reserve for the Security Council the ‘decision’ on whether (and if so when) to authorise military action against Iraq, including France, Russia and China (three out of the five permanent members), and Germany, who wanted res. 1441 to stipulate that the Council would ‘decide’ what action to take if and when Iraq was clearly in material breach of its obligations under the resolutions of the Council:   it was the US and UK which resisted the inclusion of ‘decide’ and succeeded in getting it downgraded to ‘consider’, so that they could subsequently argue that res. 1441 effectively gave them, the Americans and British, carte blanche to decide for themselves that Iraq was in material breach and that therefore they already had authority under 1441 to attack Iraq, without the need for a further ‘decision’ (i.e. resolution) by the Council.  The question on which Carne Ross’s evidence to Butler, now released, purports to shed light is whether France, Russia, China, Germany and the other members of the Council opposed to authorising force without a second resolution, understood and accepted that by dropping their insistence on ‘decide’ and agreeing to the much weaker ‘consider’, they were giving carte blanche to those (mainly the US and UK) who wanted to use force and to claim UN authority for it without a further ‘decision’ in a second resolution.  Carne Ross says they didn’t;  defenders of the British government’s record on this seem to be saying that they did.

    Your second question ("If 1441 was sufficient justification for our attack on Iraq, why did we make such a fuss about trying to get a second resolution?") repeats the same question that I posed in my original post.  I suppose Lord Goldsmith and Tony Blair would reply that it would have been desirable, but not legally absolutely necessary, to have more explicit authority in a second resolution in order to put the matter beyond doubt and to avoid the kind of controversy that has in fact dogged them ever since.  Whether you find that convincing is a matter of judgement.  My own view is that the UK’s frenetic attempt to get a second resolution and above all the failure of that attempt make it virtually impossible to argue that res. 1441 was enough on its own to constitute UN authority for the use of force whenever any UN member state was satisfied that Iraq was in material breach of its obligations, or to claim that other members of the Council regarded 1441 as sufficient. 

    I shall shortly be putting a new post on Ephems about the publication of Carne Ross’s evidence to the Butler Inquiry, since I now find that it was the House of Commons Select Committee on Foreign Affairs which first published it, not the Independent.

  3. John Miles says:

    Your answer to my consider/decide question left me so confused I felt I really ought to read 1441.

    So I’m now one of us few, us happy few, who’ve actually read the thing from cover to cover. Perhaps I’m a little less confused now, but not much.

    Its overall message seems to be, "We’re unhappy about the way Iraq’s behaving, but haven’t the faintest idea what to do about it."

    The language is beautifully turgid – stacks of repetition, "Never use one word where forty five will do," and I can’t help feeling whoever wrote it has a remarkable gift for self-parody.

    I particularly liked its punchline: " Decides to remain seized of this matter."

    So is 1441 any more important or interesting than the fact that it’s quite obviously a multiple of 11?



    The latest buzz is that Greenstock, Goldsmith and Co justified our attack on Iraq not by 1441 but by several previous UN resolutions, none of which I’ve ever read.

    These apparently do authorise us to attack Iraq if they fail to tow the line

    But – apparently – none of these resolutions were supported by people like the French, the Russians or the Chinese.

    These three peoples issued a joint statement to the effect that "Resolution 1441 (2002) adopted today by the Security Council excludes any automaticity–what a lovely word! Remember Haig and his "duplicitous bastard? – in the use of force. In this regard, we register with satisfaction the declarations of the representatives of the United States and the United Kingdom confirming this understanding in their explanations of vote, and assuring that the goal of the resolution is the full implementation of the existing Security Council resolutions on Iraq’s weapons of mass destruction disarmament. All Security Council members share this goal In case of failure by Iraq to comply with its obligations, the provisions of paragraphs 4, 11 and 12 will apply. Such failure will be reported to the Security Council by the Executive Chairman of UNMOVIC or the Director General of the IAEA. It will be then for the Council to take position on the basis of that report. Therefore, this resolution fully respects the competences of the Security Council in the maintenance of international peace and security, in conformity with the Charter of the United Nations."

    For my money this joint statement seems to suggest that these peoples voted for 1441 because they thought it excluded automaticity if Iraq were to continue to misbehave.

  4. Barry says:

    I think they were trying to create a loophole. If they thought 1441 gave authority for war, why seek a new resolution?

    There are a number of resolutions on Iraq. 678 (1990) is the resolution authorizing the use of force in GWI. You can compare the language – ‘all necessary means’ is the automating phrase in the earlier resolution.

    The Security council…

    "2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;"

    Pretty clear, isn’t it, relative to 1441. "Authorizes Member States… to use all necessary means.."

    687 (1991) was the cease-fire resolution. I mention it because some put it that Iraq broke the cease-fire agreement by shooting on foreign aircraft in the no-fire zones, or had remained in breach of 867. In fact, the cease-fire was broken by the US, UK and France. France abandoned the no-fly zones eventually, but the US and the UK fired on Iraqi military outposts in those zones for 12 years up to GWII.

    From 687

    The Security Council…

    "6. Notes that as soon as the Secretary-General notifies the Security Council of the completion of the deployment of the United Nations observer unit, the conditions will be established for the Member States cooperating with Kuwait in accordance with resolution 678 (1990) to bring their military presence in Iraq to an end consistent with resolution 686 (1991)


    33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990);"

    You should read the others, John. They’re not  so long.