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Advice debunked - Point by point.This document will, point by point, cover and argue against Australia's Attorney General's Department and the Department of Foreign Affairs and Trade, March 18, 2003 Memorandum of Advice on the Use of Force Against Iraq. MEMORANDUM OF ADVICEUSE OF FORCE AGAINST IRAQWe have been asked whether, in the current circumstances, any deployment of Australian forces to Iraq and subsequent military action by those forces would ... The hypothetical idea of Australian troops being sent to Iraq was talked about in retrospect, as troops had already left in January of 2003. At the time of the deployment, opposition leader Simon Crean was quoted as saying "I don't support the deployment of our troops in these circumstances." Prior to this, john Howard had promised a parliamentary debate before Australia became involved in the atack on Iraq.
...be consistent with Australia’s obligations under international law. The short answer is ‘yes’. Existing United Nations Security Council resolutions provide authority for the use of force directed towards disarming Iraq of weapons of mass destruction and restoring international peace and security in the area. We'll see shortly which resolutions allegedly provided the authority to: a) Disarm Iraq of WMD (Which do not exist.)
... This existing authority for the use of force would only be negated in current circumstances if the Security Council were to pass a resolution that required Member States to refrain from the use of force against Iraq. Experts around the world agreed that the advice actually "goes against the plain meaning of words and against the whole fabric of the UN charter".
Background2. Under Article 2(4) of the Charter of the United Nations (‘the Charter’), ‘all members of the United Nations are to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations’. Correct - This would also include the US, UK & Australia. None of these countries are exempt from the UN Charter.
3. The well-recognised exceptions to this requirement to refrain from the use of force are the right of self-defence in Article 51 of the Charter ... Article 51 States "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". Australia has never been attacked by Iraq, and no country on Earth has been attacked by Iraq since 1990.
... and action authorised by the Security Council pursuant to Chapter VII of the Charter.
** (Endnote 1) Chapter VII deals with ‘action with respect to threats to the peace, breaches of the peace, and acts of aggression’. Under Article 39, 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’. Under Article 42, those measures may include the use of armed forces of Members of the United Nations to take such action as may be necessary to restore international peace and security. The United Nations made no recommendations in regard to Iraq being an actual "Threat to the peace", in "breach of the peace", or acting aggressively. Article 41 empowers the Security Council to make reccommendations not involving the use of force to give effect to its decisions. Such measures "may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations." Article 42 empowers the Security Council, when provisions in Article 41 would be, or have proven to be inadequate, to "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." Article 42 does not specifically mention the use of armed forces.
Other justifications have been put forward such as ‘humanitarian intervention’. Given our view that authority for the use of force in Iraq in current circumstances is found in existing Security Council resolutions, it is not necessary to consider in this advice self-defence or other possible bases for the use of force. Subsequent to the invasion and occupation of Iraq, Australia, the US and the UK have began talking about 'humanitarian intervention' as a justification for attacking Iraq in absence of the phantom Weapons of Mass Destruction. By March 28, 2003, US President George W Bush told the world "The United States, the United Kingdom and our Coalition partners are acting together in a noble purpose to make the world more peaceful, to make all free nations of the world more secure, and to free the Iraqi people."
4. Following Iraq’s invasion of Kuwait, the Security Council adopted Resolution 678 (1990) (‘SCR 678’). Operative paragraph 2 of SCR 678 provides as follows: "Authorises 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." The opperative text here is "...unless Iraq on or before 15 January 1991 fully implements..." No matter what Iraq is accused of, March 2003 has been and always will be after January 1991. This reference is frivolous.
5. Operative paragraph 3 of SCR 678 provides: "Requests all States to provide appropriate support for the actions undertaken in pursuance of paragraph 2 above." Paragraph 3 of Security Council Resolution calls on all member states to participate in enforcing the provisions of Resolution 660 should Iraq fail to act within the alloted time (by Jan 15, 1991).
6. SCR 678 and the other resolutions of the Security Council mentioned below were adopted under Chapter VII of the Charter. Acting pursuant to the authority given in SCR 678, armed action was taken against Iraq in 1991. This is correct, Iraq was attacked in 1991 in an opperation called "Desert Storm"
7. Following that action, the UN adopted SCR 687 (1991) on 3 April 1991. Operative paragraph 1 of that Resolution provides: "Affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of the present resolution, including a formal cease-fire." The resolutions affirmed included SCR 678. The thirteen resolutions noted in 687:
8. SCR 687 required Iraq to ‘unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of all chemical and biological weapons and all stocks of agents - all ballistic missiles with a range greater than one hundred and fifty kilometres’. It also required Iraq to yield the chemical and biological weapons to a Special Commission and to destroy the missiles under the supervision of the Commission. 9. Paragraphs 33 and 34 of SCR 687 provides: "33. Declares that, upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the above provisions, a formal cease-fire is effective between Iraq and Kuwait and the Member States co-operating with Kuwait in accordance with resolution 678 (1990); 34. Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region." This is partially correct. Resolution 687 also covers many other areas in the cleaning up after the war and controls against Iraq's ability to re-militarise. Security Council Resolution 687 makes no mention of furthering, or beginning new military actions against Iraq. 10. Between the adoption of SCR 687 and the present day, the Security Council has found that Iraq has failed to comply with its obligations under SCR 687. (Endnote 2) For example, SCR 1115 (1997) (‘Condemns the repeated refusal of the Iraqi authorities to allow access to sites designated by the Special Commission, which constitutes a clear and flagrant violation of the provisions of Security Council resolutions 687 (1991) ...’); SCR 1137 (1997) (‘Condemns the continued violations by Iraq of its obligations under the relevant resolutions to co-operate fully and unconditionally with the Special Commission ...’); SCR 1194 (1998) (‘Condemns the decision by Iraq of 5 August 1998 to suspend co-operation with the Special Commission and the IAEA, which constitutes a totally unacceptable contravention of its obligations under resolutions 687 (1991) ...’); and SCR 1205 (1998) (‘Condemns the decision by Iraq of 31 October 1998 to cease co-operation with the Special Commission as a flagrant violation of resolution 687 (1991) and other relevant resolutions’). These observations are correct, but again these legal experts are being selective in their citing of UN Security Council Resolutions. They fail to mention Resolution 707 (1991) which acknowledges "noting that on the basis of Iraq's written agreement (S/22456) to implement fully resolution 687 (1991) the preconditions established in paragraph 33 of that resolution for a cease-fire had been met"
... This culminated in the adoption by the Security Council under Chapter VII of the UN Charter of SCR 1441 (2002) on 2 November 2002. In its preamble, this resolution recalled that SCR 678 authorised Member States to use all necessary means to uphold and implement SCR 660 and all relevant resolutions subsequent to SCR 660 and to restore international peace and security to the area. It also recalled that SCR 687 ‘imposed obligations on Iraq as a necessary step for the achievement of its stated objective of restoring international peace and security in the area’. Furthermore, the preamble provides: "Recalling that in its resolution 687 (1991) the Council declared that a cease-fire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein." Again this fails to mention that there has been no formal reversal of Resolution 707 and its acknowledgement of the conditions of a cease-fire being fulfilled and accepted. Resolution 1441 also "Requests all Member States to give full support to UNMOVIC and the IAEA in the discharge of their mandates." A request Australia, the US, and the UK failed to comply with. In a June 2003 article, the Guardian reported the UN's Chief weapons inspector, Hans Blix, accused the Bush administration of leaning on his inspectors to produce more damning language in their reports, and Some elements of the Pentagon of being behind a smear campaign against him. This came after his March 20 comments of "I do not think it is reasonable to close the door on inspections after 3 months," and "I would have welcomed more time." Resolution 1441 also fails to employ the UN's euphamism of "All Necessary Means" when proposing consequences of Iraq failing to meet 1441's demands. After lengthy debate, the term "Serious Consequences" was eventually agreed upon by the Security Council.
11. The operative paragraphs of SCR 1441 include: "1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991)." "2. Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council ..." "4. Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and co-operate 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..." "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 need for full compliance with all of the relevant Council Resolutions in order to secure international peace and security." "13. Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violation of its obligations." "14. Decides to remain seized of the matter". Again, while these quotes are relevant, none of them individually, or in concert, give legal authority for an attack on Iraq. 12. Since that Resolution was adopted, Dr Blix, the Executive Chairman of UNMOVIC has briefed the Security Council on a number of occasions. In his briefing on 7 March 2003, Dr Blix was positive about advances in Iraqi co-operation. However, he noted that co-operation ‘cannot be said to constitute “immediate” co-operation. Nor do they [initiatives] necessarily cover all areas of relevance’. The claimed destruction of all WMD remains unverified. There is no doubt that Iraq remains in breach of its obligations under Security Council resolutions. SCR 1441 confirms a continuing breach of SCR 687 and other relevant resolutions. Dr Blix’s conclusions confirm the failure to comply with and co-operate fully and immediately in the implementation of SCR 1441. Just one year later Blix was quoted as saying he is angry at the lack of attention paid by the British and American governments to the inspectors' findings in the rush to topple Saddam. "Why the hell didn't they pay more attention to us?" he asks. Mr Blix still cannot understand why his doubts and those of his professional teams of trained inspectors failed to make an impression on Mr Blair and President George Bush, who continued to mislead the public with categorical assertions about the existence of WMD with the fervency of religious crusaders. He accuses the British and US governments of "distorting" the reports of the weapons inspectors
13. A further draft Security Council resolution was tabled by the US, UK and Spain on 24 February 2003. A UK/US draft amended Resolution was tabled on 7 March 2003. Again irrelevant to the legal authority to invade Iraq. Neither of these documents, even if they had been approved by the UN Security Council, gave a clear trigger for war.
Reasons14. In our view, Iraq’s past and continuing material breaches of SCR 687 have negated the basis for the ‘formal cease-fire’. Iraq, by its conduct subsequent to the adoption of SCR 687, has demonstrated that it did not and does not ‘accept’ the terms of SCR 687. Consequently, the cease-fire is not effective and the authorisation for the use of force in SCR 678 is reactivated.Iraq's material breaches probably did demonstrate that it did not accept the terms of Resolution 687, and may have even negated the basis for the formal cease-fire, But the United Nations Security Council never came together and recommended military action against Iraq - as is required by Chapter 7 of the UN Charter. The cease-fire was, and is still effective, and the authorisation for the use of force in Resolution 678 is not reactivated. 15. We do not believe that the authorisation contained in SCR 678 has expired ((endnote 3) Resolution 1441, in its preamble, recalled SCR 678 in terms consistent with it having continuing force.) ... or that, coupled with SCR 687, it was confined to the limited purpose of ensuring Iraq’s withdrawal from Kuwait. Nor do we believe that the Security Council has either expressly or impliedly withdrawn the authority for the use of force in SCR 678 in all circumstances.The United Nations Security Council expressly withdrew the use of force in 678 when, in Resolution 707, it stated: "Recalling the letter of 11 April 1991 from the President of the Security Council to the Permanent Representative of Iraq to the United Nations (S/22485) noting that on the basis of Iraq's written agreement (S/22456) to implement fully resolution 687 (1991) the preconditions established in paragraph 33 of that resolution for a cease-fire had been met." This is evident no matter what the authors of this report believe. 16. Operative paragraph 2 of SCR 678 set out above itself contains no limitations in terms of time. Nor is the purpose for which the authority to use force was given confined to restoration of the sovereignty and independence of Kuwait. The authority to use force also was to uphold and implement ‘all subsequent relevant resolutions and to restore international peace and security to the area’. That purpose holds as good today as it did in 1990. There is no finite time under the Charter in which the authority given in a Security Council resolution expires. Nor is there any indication in resolutions subsequent to SCR 678 that the authority for the use of force contained in that resolution has expired. Indeed, subsequent resolutions indicate to the contrary. (Endnote 4.) See, for example, the 5th preambular paragraph of SCR 833 (1993): ‘Reminding Iraq of its obligations under resolution 687 (1991), and in particular paragraph 2 thereof, and under relevant resolutions of the Security Council, and of its acceptance of the resolutions of the Council adopted pursuant to Chapter VII of the Charter of the United Nations, which forms the basis for the ceasefire’. See also, SCR 949 (1994). Likewise, the actual cease-file does not have a time limit and the Security Council has not agreed on any resolutions that expire the cease-fire. The cease-fire in itself did however expire the authority for the use of force contained in Resolution 678. It should also be pointed out that international peace is the opposite of military force. 17 Given the existing authority for the use of force, suggestions that there is a legal requirement for a further resolution are misplaced. Also, suggestions that the use of force in Iraq in the absence of a further Security Council Resolution would be ‘unilateral’ are wrong. Given the existing authority for the use of force, there would not be a legal requirement for a further resolution, however, there is no existing authority for the use of force. According to dictionary.com, "unilateral" means: Of, on, relating to, involving, or affecting only one side. As the attack on Iraq was made without the concensus of the United Nations Security Council, the use of force against Iraq was indeed "unilateral".
18. It has been suggested that a number of relevant UN Security Council Resolutions refer to further action being taken by the UN Security Council, thus precluding UN Member States themselves from taking further action. In this respect, reference has been made to operative paragraph 34 of SCR 678 that states, in part, that the Security Council may ‘take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region’. In our view, this does not remove the authority given to Member States in SCR 678. (Endnote 5) For example, ‘Disarming Iraq under international law’ – February 2003 Update. Current Issues Brief No. 16, 2002-3, Angus Martyn Law and Bill’s Digest Group 26 February 2003. To begin with, it is Paragraph 34 of Resolution 687, not 678, that the above quote is taken from. Paragraph 33 of Resolution 687 says "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)" This official notification was officially acknowledge in the preamble of Resolution 707. Therefore Member States are involved in an ongoing cease-fire with Iraq. The fact that paragraph 34 gives authority only to the Security Council to impliment further steps, and does not mention member states shows what this reports authors' view is worth.
19. As at the date of this advice, the Security Council is considering a further draft resolution tabled by the United States, the United Kingdom and Spain. The content of that resolution is not settled. However, failure to adopt that resolution would not, in our view, negate the existing authority to use force. As noted above, in current circumstances that authority would only be negated by a Security Council resolution requiring Member States to refrain from using force against Iraq. The only reason the "Coalition of the Willing" tried pushing further resolutions through the UN Security Council was because even they did not believe they truely had the authority to wage a unilateral war against Iraq. According to this paragraph, the authority was negated back in 1991 when the Security Council acknowledged Iraq's acceptance of Resolution 687 and formalised the cease-fire. Roll on the International War Crimes Tribunal. Bill Campbell QC First Assistant Secretary Office of International Law Attorney-General’s Department Chris Moraitis Senior Legal Adviser Department of Foreign Affairs and Trade 12 March 2003 |
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