By Nigel D. White
Ten years after the capture of Baghdad on 5 April 2003 by US troops, following an invasion of Iraq by US and UK forces, we are still awaiting the outcome of the Chilcot Inquiry which was set up by the government of Gordon Brown in 2009. The report has been delayed at least until the end of 2013 due to the reluctance of the government to release key documents, but the outcome as regards the illegality of the invasion should not be in doubt.
Any student of international law, and the laws governing the use of force in particular (the jus ad bellum), knows the recognized exceptions to the prohibition on the use of force (self-defence and enforcement action taken under the authority of the UN Security Council) and that attempts by the US and the UK to fit their actions of 2003 into these exceptions were either exercises in political hubris or damage limitation by skilled lawyers. Rather than rehearse these debates, I’ll attempt to lay out a path to a clearer understanding of the Security Council as a recognized source of authority for using force (The invasion of Iraq was purportedly undertaken under the authority of that organ to enforce disarmament resolutions of that very same organ.) Given the calamitous effects of the ill-judged invasion of Iraq in 2003, where no Weapons of Mass Destruction were found, we should have expected profound changes in the work of the Security Council and the attitude of the permanent members towards collective security.
There has been some evidence of positive change. The main protagonists in favour of the use of military force against Libya in the spring of 2011, France and the UK, were clearly mindful of the lessons from Iraq, taking care that their actions were underpinned by legality by securing a clear authorising resolution (Resolution 1973) from the Security Council. This suggested a return to respect for the jus ad bellum but, as the operation against Libya unfolded, it became clear that some of the problems that undermined the legality and legitimacy of the invasion of Iraq remain.
Resolution 1973 contained an enforceable no-fly zone, a measure that had been mooted since early in the Libyan crisis, but it also allowed NATO states to go further and take military action to protect civilians, leading to an on-going debate as to whether this could include the targeting of Gaddafi and his forces even when they were not attacking or about to attack civilians.
Thus, even though there was a clear and current authorisation to use force against Libya, there were shades of the debate that occurred in 2003 in relation to Iraq concerning the interpretation of older resolutions going back to Resolution 678 of November 1990. Nevertheless, there is a vast difference between the argument made by the UK in relation to Iraq in 2003 — namely that a 1990 authorisation to use force to implement Security Council resolutions in the context of removing Iraq from Kuwait was somehow still a valid authorisation 13 years later for invading Iraq and removing Saddam Hussein — and the interpretation of a Resolution adopted in March 2011 sanctioning necessary measures in Libya, which was being implemented by states within a week of its adoption by the Security Council.
The legal basis for the Libyan action was much stronger, but the Libyan operation didn’t eliminate fundamental problems within the UN collective security system so starkly revealed by the Iraq crisis of 2003. The system is rudimentary and depends upon political consensus between the five permanent members (P5) being present. Such consensus was achievable in March 2011 but not in March 2003. However, as with Resolution 678 (1990) in the case of Iraq, Resolution 1973 (2011) was to be the only source of authority for the use of force against Libya and, therefore, was subject to greater and greater demands placed upon it, stretching the Resolution beyond its meaning and contrary to the collective understanding of that resolution.
This process of deliberate misinterpretation by those permanent members wanting to act under the authorising resolution happened over a much longer period of time in the Iraq crisis, not only as regards the only clear authorisation for the force against Iraq in 1991 (Resolution 678), but also Resolution 1441 (2002) adopted in the build-up to the invasion of 2003, where the consensus in the Security Council was that it fell short of authorising force, particularly as it didn’t contain any authorisation of ‘necessary measures’. Let’s hope that there is no attempt by the US and others to reach back to 1950 to resurrect the authorising resolution against North Korea (Resolution 83), though recent discussion about possible breakdowns in the Korean War armistice is a worrying sign.
The change in the Security Council in 2011 that brought the P5 together sufficiently to adopt an authoring resolution appears to have been helped by the emergence in the early 21st century of the idea that there is a responsibility to protect (R2P) on the part of the international community, when a state has failed to protect its population from crimes against humanity or other similar egregious acts. The UN World Summit Outcome Document of 2005 seemed to place this responsibility on the Security Council if a state had failed to protect its own population. Although Resolution 1973 did invoke some of the language of R2P in condemning the Libyan regime, it clearly didn’t represent the development of a positive duty to act on the Security Council as the Council’s failure to act in the case of Syria shows. Crimes against humanity and systematic war crimes are being committed in Syria in a spiralling blood bath. Indeed an Independent Commission of Inquiry on Syria reported that crimes against humanity were being committed in Syria in 2011. We are now in 2013 and the situation, if anything, has got worse.
What started out in appearance at least, as an application of the emerging R2P doctrine to protect civilians in Libya based on a clear Security Council mandate, was within a few weeks heading towards another instance of illegal regime change as in Iraq in 2003, with all the problems that entailed. Unfortunately, the unwillingness of those permanent members using force in Libya (UK and France with the assistance of the US) to learn all the lessons of Iraq, by abusing the mandate given to them, has meant that those permanent members that normally advocate non-intervention (Russia and China) have a reason to block any move towards a resolution that authorises necessary measures, or indeed, remembering Iraq, any resolution that might be so construed. The temporary coming together of the permanent membership in March 2011 has proved to be the exception as the people of Syria know to their cost.
What’s the solution to such an unreliable, but central, component of the collective security order and the jus ad bellum? Reform of the Security Council? Definitely. Restrictions on the use of the veto? Certainly. For instance, if the Security Council were to be extended by the addition of new permanent members then three negative votes should be required for any decision to be blocked. But until all of that, and more, is achieved the Security Council and its permanent members must remember that when they cannot agree on military action action, they should at least agree at least on a common diplomatic and non-forcible approach to any crisis, including targeted sanctions, if they are to retain primary responsibility for peace and security.
Nigel D. White is a Professor of Public International Law at the University of Nottingham in the UK. He has written extensively on the United Nations, collective security and the international laws governing the use of force. His most recent book Democracy Goes to War: British Military Deployments under International Law was published by Oxford University Press in 2009, looks at the role international law plays in the political decision-making of the United Kingdom. He is Co-Editor of the Journal of Conflict and Security Law published by Oxford University Press.
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