To: Members of the CFR/ASIL roundtable
From: John B. Bellinger, III
Date: April 10, 2003
The United States has clear authority under international law to use force against Iraq under present circumstances.
- Since 1990, United Nations Security Council resolutions have authorized UN member states to use force to compel Iraq to comply with its international obligations. No additional authority is required for member states to use force against Iraq.
- Prior to the Gulf War, the Security Council adopted UNSCR 678, authorizing use of “all necessary means” to uphold UNSCR 660 (demanding Iraq’s withdrawal from Kuwait) and subsequent resolutions, and to “restore international peace and security in the area.” This was the basis for use of force against Iraq during the Gulf War.
- At the end of the Gulf War, the Security Council imposed obligations on Iraq requiring it to end its weapons of mass destruction (WMD) programs, as a condition of the cease-fire declared under UNSCR 687. Because Iraq has materially breached these WMD obligations, which were essential to the restoration of peace and security in the area, the basis for the cease-fire has been removed, and the use of force is authorized under UNSCR 678.
- This has been the longstanding position of the United States and has been reflected in the Security Council’s practice since UNSCR 687 was adopted in 1991. When coalition forces used force against Iraq in 1993 in response to Iraqi violations, the UN Secretary General stated publicly that the coalition “had received a mandate from the Security Council according to resolution 678, and the cause of the raid was the violation by Iraq of Resolution 687 concerning the cease-fire. So, as Secretary General of the United Nations, I can say that this action was taken and conforms to the resolutions of the Security Council and conformed to the Charter of the United Nations.” No new resolution authorizing “all necessary means” was deemed necessary.
- Coalition forces also relied on Iraq’s material breaches of the UNSCR 687 cease-fire conditions— namely Iraq’s ongoing WMD activities and its refusal to cooperate with UN weapons inspectors—as the international legal basis for airstrikes against Iraq in 1998, in Operation Desert Fox. These airstrikes were conducted without objection from the Security Council.
- When the Security Council has ended an authorization to use force in the past, it has done so in one of two ways: either expressly terminating the prior authorization or by setting an up-front time limit on the authorization. See, e.g., UNSCR 1031 (1995) (Bosnia) (deciding that “the authority to take certain measures conferred upon States by [various UNSCRs] shall be terminated”); UNSCR 954 (1994) (extending the mandate for the U.N. Mission in Somalia (UNOSOM II) for a “final period” until March 31, 1995). Unless the Security Council clearly states, using such language, that it has terminated UNSCR 678’s authorization for the use of force, that authorization continues.
- In UNSCR 1441 (2002), the Security Council unanimously decided again that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687. In the same resolution, the Council recalled that it had repeatedly warned Iraq that it would face serious consequences as a result of its continued violations of its obligations.
- The Council decided, however, to afford Iraq a “final opportunity” to comply with its disarmament obligations but warned that violations of UNSCR 1441 “shall constitute a further material breach.” Regrettably, Iraq failed to seize this final opportunity by failing to submit a currently accurate and complete declaration of its WMD holdings and failing to cooperate fully in the implementation of the resolution.
- The legal authority to use force to address Iraq’s material breaches is clear. Nothing in UNSCR 1441 requires a further resolution, or other form of Security Council approval, to authorize the use of force. A “material breach” of the cease-fire conditions is the predicate for use of force against Iraq. And there can be no doubt that Iraq is in “material breach” of its obligations, as the Council reaffirmed in UNSCR 1441.
- Accordingly, at the outset of hostilities, the United States formally advised the United Nations pursuant to UNSCR 678 that military operations in Iraq “are authorized under existing Council resolutions, including resolution 678 (1990) and resolution 687 (1991).” The United States noted that “Iraq repeatedly has refused, over a protracted period of time, to respond to diplomatic overtures, economic sanctions, and other peaceful means designed to help bring about Iraqi compliance with its obligations to disarm Iraq and permit full inspection of its WMD and related programs.”
- Although United Nations Security Council resolutions provide clear authority for the U.S. to use force to compel Iraq to comply with its international obligations, the U.S. also has the right to use force in its inherent right of self-defense, recognized under Article 51 of the UN charter. Article 51 provides that “nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.”
- The United States has long taken the position that a state’s “inherent right of self-defense,” which preexisted the UN Charter, permits states, in appropriate circumstances, to use force in anticipation of an armed attack, even if an armed attack has not yet occurred. International law has long recognized that the right of self-defense includes the right to act in anticipation of an attack or aggression, and that right was not cut off in the UN charter. Especially in the modern age in which terrorism and the proliferation of WMD pose grave risks to global security, states cannot be required to wait for an attack before they can lawfully use force to defend themselves against forces that present a clear and present danger of attack.