(Work in progress)
International legislation relating to the waging of war.
CONVENTION (I) FOR THE PACIFIC SETTLEMENT OF INTERNATIONAL DISPUTES (HAGUE I) (29 July 1899)
TITLE I. ON THE MAINTENANCE OF THE GENERAL PEACE
Article 1
With a view to obviating, as far as possible, recourse to force in the relations between States, the Signatory Powers agree to use their best efforts to insure the pacific settlement of international differences.
TITLE II. ON GOOD OFFICES AND MEDIATION
Article 2
In case of serious disagreement or conflict, before an appeal to arms, the Signatory Powers agree to have recourse, as far as circumstances allow, to the good offices or mediation of one or more friendly Powers.
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III
CONVENTION RELATIVE TO THE OPENING OF HOSTILITIES
Entered into Force: 26 January 1910
Article 1
The Contracting Powers recognize that hostilities between themselves must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war.
By early March the only argument left, the only plausible justification, would be to run the argument that the Security Council had somehow already authorized the use of force.
It was not difficult to predict that Tony Blair would have to make this argument, which had already circulated in academic circles and had been raised in informal meetings of the Security Council. Fifteen British and other European academics — myself included — foresaw that Britain would claim that resolution 1441 (and possibly also the earlier resolutions 678 and 687 of 1990 and 1991) might somehow be claimed to authorize the use of force. This was even more likely if (as the British government feared) France or Russia were to veto a second resolution. We wrote a letter to the Prime Minister to pre-empt a claim which the overwhelming majority of our academic colleagues around the world considered to be without any merit:
“We are teachers of international law. On the basis of the information publicly available, there is no justification under international law for the use of military force against Iraq. [. . .J Neither Security Council resolution 1441 nor any prior resolution authorizes the proposed use of force in the present circumstances. Before military action can lawfully be undertaken against Iraq, the Security Council must have indicated its clearly expressed assent. It has not yet done so. A vetoed resolution could provide no such assent.”
We agreed on the law but were divided on whether an express Security Council resolution would make it a just war. To accommodate both views we added a further line: ‘A lawful war is not necessarily a just, prudent or humanitarian war.’ We also sent a copy to The Guardian newspaper, which published it the following day, on 7 March. (The New York Times declined to publish a similar letter from American academics.) It ran as a lead story on the front page and was picked up by the BBC and the wire services. For the next couple of days, radio and TV were full of interviews and news stories about the legality of any war on Iraq. The arguments for and against the legal-
ity of an Iraq war even made it onto breakfast television chat shows. The effect was catalytic, as the legality of the war became a significant political issue. During a crucial ten-day period after ~ March, the Attorney General was required to provide a clear and decisive statement on the legality of force in the absence of a further Security Council resolution.
In unprecedented circumstances, on 17 March 2003 the Attorney General was invited to respond to a parliamentary question on the legal basis for the use of force by the United Kingdom against Iraq. The written answer required just 337 words. It set out with remarkable economy the basis for his view that authority to use force against Iraq existed from the ‘combined effects’ of UN Security Council resolutions 678, 687 and 1441. The argument was beguilingly simple:
1. In Resolution 678, the Security Council authorized force against Iraq, to eject
it from Kuwait and to restore peace and security in the area.
2. In Resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under Resolution 678.
3.. A material breach of Resolution 687 revives the authority to use force under Resolution 678.
4. In Resolution 1441, the Security Council determined that Iraq has been and remains in material breach of Resolution 687, because it has not fully complied with its obligations to disarm under that resolution.
5. The Security Council in Resolution 1441 gave Iraq ‘a final opportunity to comply with its disarmament obligations’ and warned Iraq of the ‘serious consequences’ if it did not.
6. The Security Council also decided in Resolution 1441 that, if Iraq failed at
any time to comply with and co-operate fully in the implementation of Resolution 1441, that would constitute a further material breach.
7. It is plain that Iraq has failed so to comply and therefore Iraq was at the
time of Resolution 1441 and continues to be in material breach.
8. Thus, the authority to use force under Resolution 678 has revived and so
continues today.
9. Resolution 1441 would in terms have provided that a further decision of
the Security Council to sanction force was required if that had been intended. Thus, all that Resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorize force.
The argument is well spun and could, at a pinch, win the prize for the most plausible response to the question: what is the best possible argument to justify the use of force in Iraq in March 2003? But it masks a host of complex issues. It is a bad argument, and very few states and virtually no established international lawyers see its merits. On i8 March, the day after the argument was published, the Foreign Office’s Deputy Legal Adviser, Elizabeth Wilmshurst, tendered her request for early retirement or resignation. ‘I regret that I cannot agree that it is lawful to use force without a second ~Security Council resolution,’ she wrote. After noting the evolution of the legal views, she added: ‘I cannot in conscience go along with advice within the Office or to the public or Parliament — which asserts the legitimacy of military action without such a resolution,
particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law.’
The Attorney General’s reliance on resolution 678 is misconceived. That resolution was only intended to get Iraq out of Kuwait. It required that Iraq comply fully with resolution 660, which demanded that ‘Iraq withdraw immediately and unconditionally all its forces to the positions in which they were located on 1 August 1990’. There
was nothing in resolution 66o, or any other resolution adopted between that one and 678, which mentioned regime change, or the overthrow of Saddam Hussein’s government. The British Ambassador to the UN at the time, Sir Crispin Tickell, was one of the main drafters of resolution 678. He clearly understood that the resolution would have no purpose beyond the removal of Saddam Hussein’s forces from Kuwait. Similarly, writing in his memoir in 1995, Colin Powell is explicit: ‘The UN resolution made clear that the mission was only to free Kuwait. (. . .) The UN had given us our
marching orders, and the President intended to stay with them.’ His British counterpart, Sir Peter de la Billiere, does not demur: ‘We did not have a mandate to invade Iraq or take the country over.’ The same point is made by others who were in power at the time. John Major was Prime Minister when resolutions 678 and 687 were adopted. In his view: ‘Our mandate from the United Nations was to expel the Iraqis from Kuwait, not bring down the Iraqi regime [. ..] We had gone to war to uphold international law. To go further than our mandate would have been, arguably, to break international law.’ No ambiguity there.
If resolutions 660 and 678 did not provide any basis for over-throwing Saddam Hussein in 1991, how could they have done so in 2003? A right to use force which did not exist in 1991 cannot ‘revive’ in 2003. Similarly, the ceasefire established by resolutions 686 and 687 was premised on the use of force only to remove Iraq from Kuwait. Resolution 687 stated expressly that it was for the Security Council to implement the resolution and secure peace and security in the region. Moreover, there is nothing in 687 which allows one or more members of the Security Council or the British Prime Minister — to decide what further steps are needed.
Whether right or wrong, it is the very essence of the system of collective security which America and Britain created, and which gave rise to resolutions 678 and 687, that decision-making is collective. It is not individual, or prime ministerial. And this was the
view put by the Foreign Office legal advisers in a note which was first circulated in March 2002. They concluded that since the ceasefire had been proclaimed by the Security Council in resolution 687, ‘it is for that body to assess whether any such breach of those obligations has occurred. The US have a rather different view: they maintain that the assessment of breach is for individual member states. We are not aware of any other state which supports this view.’ Moreover, as Professor Vaughan Lowe, the Chichele Professor of International Law at the University of Oxford, has written: ‘there is no known doctrine of the revival of authorizations in Security Council resolutions.
Even if resolutions 678 and 687 could be construed to authorize a right to use force to overthrow Saddam Hussein — which they do not on what basis could such a right be said to ‘revive’? Did resolution 1441 provide a basis for the revival of the right to use
force, as the British Attorney General implies? There are established rules and practices for interpreting Security Council resolutions, like any other international agreements. Resolution 1441 must be interpreted in good faith, in its context, and in the light of its object and purpose. All these elements seem to have been ignored by the Attorney General. If that approach leads to any ambiguity or obscurity then it is appropriate to look at the preparatory work involved in the negotiation of the resolution. The preparatory work would be unhelpful to the argument and it too seems to have been inadequately considered. The operative paragraph of resolution 1441 provides that “false statements or omissions in declarations submitted by Iraq pursuant to this resolution and 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 and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below.”
Paragraph11 provided for the inspectors (the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) and the International Atomic Energy Agency) ‘to report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations’. By paragraph 12 the Council decided ‘to convene immediately upon receipt of a report. . . to consider the situation and the need for full compliance with all of the relevant Security Council Resolutions.
Any argument that by resolution 1441 the Council was reviving the authority to use force contained in resolution 6781 is defeated by the wording of paragraph 4 of resolution 1441. It is absurd to claim that the requirement in that paragraph for ‘assessment’ by the Council could be met merely by a report to, and discussion of Iraq’s
failures by the Security Council: the clear intention of the drafters is that the Council would take a decision after assessing the situation — whether Iraq had committed a breach of its obligations sufficient to justify force. Resolution 1441 is not a revival of the authorization to use force; it requires that the Council meet again and decide upon the situation in the event of an adverse report from Messs Bliz or El Baradei. This is plain from the language of the resolution, and is not altered by any statements made at the time of the resolution’s adoption. As the Russian Deputy Foreign Minister, Yui Fedotov put it on 8 November 2003: Russia, with the support France, China and other UN Security Council members, to took steps to remove the most unacceptable formulations from the draft, including ‘provisions which would permit an automatic unilateral use of force’
In adopting resolution 1441, the understanding of all but a small minority of the members of the Security Council was that it would be for the Council to decide what to do if Iraq failed to comply with the requirements of that resolution. When resolution 1441 was being negotiated, the drafters were well aware of the ‘revival’ argument. During one of the informal sessions, they had put before them a 1998 academic article setting out the views of a senior legal adviser at the US State Department. This articulated the revival argument which was eventually relied on by America and Britain as well as the claim that the US alone could determine the existence of a material breach of a Security Council resolution. There is no indication members of the Security Council accepted that view.
Against that background, it is difficult to understand on what basis the Attorney General could claim, as he did, that resolution 1441 merely required reporting to and discussion by the Security Council of Iraq’s failures, but no express further decision to authorize force. ‘The Attorney General must have overlooked completely the entire context of the negotiations to reach the conclusion he did in respect of 1441,’ I vas told by one diplomat who was involved throughout the negotiations of 1441. The US Permanent Representative to the United Nations John Negroponte said in his Explanation of Vote that ‘resolution 1441 contains no “hidden triggers” and no “automaticity” with the use of force’. Sir Jeremy Greenstock, the UK Permanent Representative, was even clearer:
“We heard loud and clear during the negotiations the concerns about ‘automaticity’ and ‘hidden triggers’ ... there is no ‘automaticity’ in this Resolution. If there is a further Iraqi breach of the 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.”
In adopting resolution 1441, the great majority of the members of the Security Council understood that it would be for the Security Council to decide what to do if Iraq failed to comply. The consequences of that were spelt out by Lord Thomas in a House of Lords debate: ‘Neither the United Kingdom nor the United States is entitled to enforce the “will” of the Security Council.’
I believe that the Attorney General’s argument — that a non-existent authority to use force can ‘revive’ at the behest of three of the fifteen members of the Security Council — makes a mockery of the UN system. The claim has rightly been called ‘risible’. It undermines Britain’s credibility at the UN. ‘My Ambassador was very very angry when the British used the “revival” argument in March 2003,’ I was told by a senior adviser to one of the Security Council members that had negotiated resolution 1441. It caused Kofi Annan to speak out, describing the actions of the UK and the US diplomatically as lacking legitimacy. The Attorney General would have known that his arguments would face considerable difficulties before an English court or the World Court.
II. JURISDICTION AND GENERAL PRINCIPLES
Article 6....
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.
From the Kellogg-Briand Pact (also known as the General Treaty for the Renunciation of War, or the Pact of Paris)
The Kellogg-Briand Pact was signed by the US, UK and 13 others in 1928, and then later on by 47 further countries (including such currently relevant ones as the Kingdom of Serbia, Afghanistan, Persia and Venezuela). The treaty contained no methods of enforcement, and has for that reason been described by some as ineffective, but it actually played a central role at the Nuremberg Trials, and was commonly cited in deliberations concerning the the crime of aggression ('crimes against peace'). In its final judgement, the Tribunal argued:
The nations who signed the Pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the Pact, any nation resorting to war as an instrument of national policy breaks the Pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression, and such a war is therefore outlawed by the Pact.
From The Nuremberg Judgment (emphasis added)
Incredible though it might seem, in signing this treaty in 1929 the UK thereby expressly renounced war with other contracting parties to this treaty - including with Afghanistan and Serbia. The UK solemnly agreed that the settlement of disputes with treaty signatories should never be sought except by pacific means. And just for the record - neither Serbia nor Afghanistan broke the terms of the treaty first.
As far as Iraq is concerned, having created the country, the UK was in control at the time of the treaty - so Iraq is not a co-signatory. I wonder what the legal niceties are here: no doubt Lord Goldsmith could construct an argument to the effect that Britain had not signed any treaty with its constituent or colonial parts, so it might do what it liked with them. But in any case, and from the quote above, it appears that the Tribunal took the view that not only was war between treaty co-signatories illegal, but (aggressive) war was illegal per se - and that signing the treaty was an acknowledgement of that fact.
Treaty signed at Paris, August 27, 1928; proclaimed, July 24, 1929 (and never revoked).
(Extracts only. For the whole treaty and list of signatories see Kellog-Briand Pact)
Deeply sensible of their solemn duty to promote the welfare of mankind;
Persuaded that the time has, come when a frank renunciation of war as an instrument of national policy should be made to the end that the peaceful and friendly relations now existing between their peoples may be perpetuated;
Convinced that all changes in their relations with one another should be sought only by pacific means and be the result of a peaceful and orderly process, and that any signatory Power which shall hereafter seek to promote its national interests by resort to war a should be denied the benefits furnished by this Treaty;
Hopeful that, encouraged by their example, all the other nations of the world will join in this humane endeavor and by adhering to the present Treaty as soon as it comes into force bring their peoples within the scope of its beneficent provisions, thus uniting the civilized nations of the world in a common renunciation of war as an instrument of their national policy;
...
ARTICLE I
The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.
ARTICLE II
The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means...
The Purposes of the United Nations are:
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures...
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence 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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
For the purpose of this Statute, "war crimes" means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property...
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:
(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;
(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;
(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission...
(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;
(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;
(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;
(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;
(x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind...
(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;
(xii) Declaring that no quarter will be given;
(xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;
(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;
(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;
(xvi) Pillaging a town or place, even when taken by assault;
(xvii) Employing poison or poisoned weapons;
(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;
(xix) Employing bullets which expand or flatten easily in the human body...
(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict...
(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;
(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;
(xxv) Intentionally using starvation of civilians as a method of warfare...
(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
...
(part of Article 8 . Emphasis mine)