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Legal issues surrounding 1441
Posted by David Traynier,  Sat May 29, 2004
Many journalists and politicians have argued that UN Resolution 1441 authorized an attack on Iraq in the event of its breach. Further, such people also maintain that Iraq did breach 1441 or, failing that, that previous Resolutions provided authority (the British Attorney General, Peter Goldsmith, for instance). In this short essay, I attempt to refute each of these claims and demonstrate that the invasion of Iraq was illegal.

Let me say at the outset that Iraq was not in full compliance with UN Security Council Resolutions up to – but not including – 1441. UNSCR 1441 gave Iraq a ‘final opportunity’ to comply, at risk of facing serious consequences. There are several relevant issues here.

The SC, quite obviously, never ruled that Iraq had missed its ‘final opportunity’ to comply and it must be stressed that the SC is the +only+ body with the right to issue a ruling on whether its requirements have been met. This should be a perfectly obvious point but I’ll explain it fully because it is fundamental.

Firstly, the SC is a legally constituted authority with a jurisdiction and rules, much like a court. If a court laid down a series of requirements upon an individual, upon pain of imprisonment, the only body legally able to judge whether those requirements had been met is that Court and, in the event of an appeal, a higher court. In the case of the SC the only higher authority is the General Assembly. Certainly, member states individually have no right whatsoever to judge whether a Resolution has been complied with. The UN Charter -the highest international law and the highest law of the US- makes this clear. One could make a case that the evidence did not show full compliance but it is up to the Security Council, by vote, to decide.

A couple of thought experiments illustrate the logic of this. For example, consider how the ‘West’ (principally the US and UK) would have reacted if China had decided in January 2003 that Iraq had not complied and then invaded and occupied. Or, to take another example, if the US is allowed to unilaterally decide on UN Resolutions, why is Iran not allowed to unilaterally decide that Israel has failed to comply with its duties under UN Resolutions and invade accordingly?

One could respond that the Resolutions concerning Israel were not passed under Chapter VII and so do not admit military force -however, that is only because the US has vetoed any attempts to pass stronger Resolutions. In which case, why can’t Iran pronounce those to be ‘unreasonable’ vetoes (to follow the precedent established by Tony Blair) and invade? Our attitude to such hypothetical examples should also apply to the real world example provided by the US and UK. Otherwise, we should admit our hypocrisy and stop our prattle about international law.

There is also a second issue that is generally overlooked. Resolution 1441 laid out a series of requirements upon Iraq but it never specified any which, if not met, would automatically mean that Iraq had failed to take its ‘final opportunity’. Item 4, for example, states 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 cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations’. Notice here that it states +further+ material breach. As 1441 made clear at the beginning, Iraq was +already+ in material breach of its obligations. Therefore, even if one accepted that the evidence clearly demonstrated Iraq was in breach, then one would have to admit that the evidence actually showed that Iraq was already in clear breach. Therefore, any state was justified in attacking at any moment after the Resolution had passed.

This is clearly an absurdity and is resolved by the rest of item 14, which makes clear that breaches ‘will be reported to the Council for assessment’. +Assessment+ not simply of whether they were breaches but whether they meant that Iraq had failed to take its ‘final opportunity’ -and by the SC, not the US or UK. This was not a case of strict liability -since Iraq had long since failed that- but a balanced assessment of whether Iraq’s behaviour left +no other option+ but massive violence and loss of life.

Any incidents or lack of compliance during the inspections process (or in its declaration) would constitute +further+ breach but that is all -they would not be qualitatively different from previous breaches and they would not, in themselves, automatically mean that Iraq had missed its ‘final opportunity’. Instead they were to be assessed by the SC, which would weigh up the evidence.

The sense of this is obvious, since Iraq could have provided full and complete cooperation to the satisfaction of everyone (I’m speaking hypothetically here, obviously -the US wasn’t interested in cooperation) but, through some accident or oversight, could have failed to comply in some technical way. As Ritter and Blix have said, not opening a door immediately is technically non-compliance but, if it takes some Iraq guard a couple of minutes to find a key, it is sensible to judge that in context. A strict liability approach would make that misplaced key the trigger for an attack. One might say then that the context of certain breaches makes them more serious -but who is to judge the context? Answer -the SC, not the US/UK. One might be correct to point to issues of further material breach but they are not -in themselves- the same as saying that Iraq missed its ‘final opportunity’.

Returning to the case in hand, in fact, the SC was never allowed the opportunity to assess Iraq’s compliance with 1441 because the US and UK made it clear that they would attack Iraq regardless, despite the fact that they were not competent to decide whether the SC had received sufficient cooperation. When, on February 24th, the UK introduced the text of a draft resolution to the SC, stating that Iraq had ‘failed to take the final opportunity afforded to it in Resolution 1441’ it was clear that it would not be passed and so the UK withdrew it. This is as clear a statement as one could wish for: the SC - the only body with the right to decide - had rejected the use of force at that time.

Nor did 1441, whether breached or not, authorize military action; in fact it was only passed on the specific condition that it did not. As the Los Angeles Times reported at the time,

"‘There's no 'automaticity' and this is a two-stage process, and in that regard we have met the principal concerns that have been expressed for the resolution,’ stated US ambassador Negroponte at the time, ‘Whatever violation there is, or is judged to exist, will be dealt with in the council, and the council will have an opportunity to consider the matter before any other action is taken.’" (Los Angeles Times, November 8th 2002). The British ambassador to the UN, Sir Jeremy Greenstock concurred, “We heard loud and clear during the negotiations the concerns about automaticity' and hidden triggers… There is no automaticity' in this resolution.’ (New York Times, November 17th 2002).

Naturally, the US/UK were also guilty of cynicism, double-dealing and arrogance but this is only to be expected of states possessing overwhelming military force. So, at the same time Negroponte reassured the UN that 1441 did not authorize the US to attack wantonly, officials in the US were able to say ‘The president has all the authority he needs, should he decide to strike Iraq, thanks to the congressional resolution.’ (Quoted in the London Guardian, November 8th 2002). This betrays the genuine US Government attitude: that it is not bound the UN Charter and the authority of the Security Council and reserves to itself the right to violate international law (and its own Constitution, which declares the UN Charter the highest law of the land). There is nothing new in this, the unprovoked ruination of Afghanistan in 2002, for instance, was done in violation of all international law -quite intentionally- and was international terrorism writ large.

The statements about Congress’ authorization are irrelevant, however, as what matters is the text of Resolution 1441. This made it clear that Iraq had a ‘final opportunity’ to meet its obligations or face ‘serious consequences’. What it did not do, however, was authorize force (the phrase for that is ‘by all means necessary', as in the Resolutions that authorized force to expel Iraq from Kuwait). The US and UK claim that they were enforcing the will of the SC was entirely baseless. Such unilateral action is forbidden -precisely because it can be abused in the manner it was by the US/UK. Item 14 of Resolution 1441 clearly states that the Council ‘Decides to remain seized of the matter,’ meaning that it had not specified what action would be taken if it decided that Iraq had breached 1441, let alone derogated responsibilities or powers to member states pursuant to that.

At this point, various legal sophists including the British Attorney General, fall back on a second defence: that the US and UK attacked under the authority of Resolutions 678 and 687. Goldsmiths argument ran as follows. Resolution 678 authorized the use of force to expel Iraq from Kuwait. Resolution 687 laid down a series of conditions upon which the ceasefire at the end of the Gulf war rested. Goldsmith’s argued further that 687 merely suspended the authority to use force, but did not terminate it and that any material breach reactivated such authority. Goldmith then points out, accurately, that 1441 found that Iraq was in material breach. 1441 also stated that any further instances of non-compliance would also constitute ‘further material breach’. Therefore, Goldsmith continues, that Iraq had clearly failed to comply and was therefore in ‘further material breach’. Thus, the Attorney General concludes, the authority to use force was ‘reactivated’ and that no further Resolution was required (  ).

Goldsmith’s view is, to say the least, unconvincing (indeed, it provoked the resignation of his deputy, Elizabeth Wilmshurst). It is also widely believed that he conveniently changed his mind: having originally agreed with the Foreign Office view that a second Resolution was necessary, as this proved elusive, he changed his mind in order to reassure a nervous military. According to the Independent on Sunday, ‘the Attorney General's staff produced a paper dealing with the issues raised by the military chiefs, but its careful discussion of points for and against fell short of the legal authorisation the chiefs of staff wanted. "The military said they needed something harder if they were to commit troops," a legal source said. Lord Goldsmith's advice argued that a UN resolution from 13 years ago, passed at the time of the first Iraq war, remained in force.’ (Independent on Sunday, February 29th 2004)

The reason why Goldsmith’s (later) opinion seems so shaky is that 1441 logically put previous Resolutions into abeyance. The logic of this is clear upon reflection. If an attack on Iraq was legitimatized by prior Resolutions then this would have been the case during the formulation and negotiations over 1441 and at any time during the inspections process until a Resolution was passed declaring that Iraq had fulfilled its obligations. As Goldsmith himself states, 1441 declared Iraq already to be in ‘material breach’ -and if that declaration reactivated the use of force, then such a reactivation occurred the moment 1441 was passed. If this were true, then any state could have attacked Iraq under the same Resolutions at any point; for example during the 45 days that Iraq was granted to comply with 1441’s demand that inspectors be readmitted. This is clearly absurd, however, if one wishes to disagree then one must specify when, after 1441 was passed, the use of force was reactivated. It cannot simply be when Iraq was found to be in ‘material breach’, since they already were. If the answer is that force was reactivated when Iraq was found to be in ‘further’ material breach, the question logically follows, ‘when did the UN find Iraq in further material breach?’ The answer is ‘never’ -in fact, the SC clearly refused to make such a finding when the UK submitted its draft Resolution claiming precisely that.

Furthermore, both resolutions 678 and 687 (which the US and UK used to justify the attack) were adopted solely for the purpose of securing Iraq's withdrawal from Kuwait. Once that withdrawal occurred, the use of force authorisation no longer applied. The Council did not, indeed constitutionally could not, issue an authorisation that applied for all time to come. In any case, the ceasefire of 1991 was between the UN and Iraq, not the US and Iraq, since the coalition ejected Iraq from Kuwait under UN authority and the actions taken were a combined UN operation.

1441 provided a period of ‘final opportunity’ to comply with its obligations, so it is nonsensical for Iraq to have been open to attack at any point during that period. For example, Iraq could have been complying to the satisfaction of the US and UK but, even so, France would have been able to attack if it were not satisfied. This absurdity demonstrates the greater legal absurdity of trying to justify the attack on the basis of previous Resolutions.

I hope this demonstrates clearly that Iraq was not in breach of 1441, that only the Security Council was competent to decide the matter, and that previous Resolutions did not legalise the attack.