Since both Mehdi Hasan and Owen Jones claimed this week that the Iraq war was illegal and, according to the former, “every leading international lawyer” agrees with that verdict, I would like to briefly explain – again – why it was not.
First of all, people tend to forget that all arrangements between Saddam and the international community, after 1991, were based on a ceasefire, explicitly tied to Iraq’s disarmament. In particular Resolution 678, the legal basis for military action during the first Gulf war, and Resolution 687, which determined the conditions for the ceasefire between the UN and Iraq, were extremely important. Both were never revoked and authorisation to use force remained in being throughout the years and was also the legal basis for actions in 1993 and 1998.
So why not in 2003?
Furthermore, the legal advisor to the UN, Dr. Carl August Fleischhauer, confirmed that the original authority to use force in UNSCR 678 could revive, given the Security Council’s agreement that a violation of the ceasefire was in place.
This consideration was reflected in the drafting of UNSCR 1441. It not only confirmed that Saddam remained in “material breach” and gave him “a final opportunity to comply”, but also stated in operational paragraph 4, that a failure to comply unconditionally and immediately and fully with the inspectors was itself a further material breach. As a result, it authorised “serious consequences”, as indicated in operational paragraph 13. UNSCR 1441 was thus sufficient, in combination with previous UNSCRs, especially 678, but also 687, 660 and 1137, to lawfully take part in the invasion. Unanimously accepted, it was a legal refreshment.
Grossly exaggerated is also the significance of a second resolution, since it would have provided political legitimacy only. Not to forget that action was sanctioned by the British parliament, with 412 votes in favour to 149 opposed.
Last but not least, a consideration worth making, in regard to the matter of consistency in international law, is the following:
Sir Michael Wood, one of the Foreign Office lawyers against the war, confirmed in his written statement to Chilcot, that it would have made no legal difference if the wording of UNSCR 1441 had been “all necessary measures” (as in case of the recent Libya resolution – not unanimously accepted) instead of “all necessary means” (as in case of the 2003 Iraq resolution – unanimously accepted).
Given that, was Libya illegal, too?