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Last Updated:  Sunday, 16 March, 2003, 10:47 GMT
Legal experts scour old resolutions
By Kathryn Westcott
BBC News Online

With war looming large and a fresh UN resolution specifically authorising military action appearing more and more elusive, legal experts are scouring previous resolutions to see whether a legal framework for action against Iraq already exists.

US soldiers inspect their new logistical base at Kiziltepe, some 150km from the Iraqi border
Soldiers could be walking into a legal minefield
Under the UN charter, military force is legally permitted only if it is sanctioned by the Security Council or in self-defence.

Some lawyers are arguing that resolutions dating back to the Gulf War provide such a sanction. These resolutions - 678 (1990) which authorised military action against Iraq which had invaded Kuwait, and 687, which established the 1991 ceasefire - were picked out for special mention in the preamble to resolution 1441.

  • Resolution 678: "Authorises member states co-operating with the Government of Kuwait... to use all necessary means to uphold and implement resolution 660 (1990) [demanding that Iraq withdraw from Kuwait immediately] and all subsequent relevant resolutions and to restore international peace and security in the area."

  • Resolution 687: "Decides that Iraq shall unconditionally accept the destruction, removal, or rendering harmless, under international supervision, of: (a) All chemical and biological weapons and all stocks of agents and all related subsystems and components and all research, development, support and manufacturing facilities; (b) All ballistic missiles with a range greater than 150 kilometres and related major parts, and repair and production facilities."

    Resolution 687 became known as the "mother of all resolutions". Ruth Wedgwood, professor of international law at John Hopkins School of Advanced International Studies, describes it as a "foundational resolution" - one that set up the requirements for the "perpetual post-war regime".

    Still standing

    Foundational, she says, is a word that is often used for keystone treaties - such as the UN charter.

    "The original foundational resolution 687 set the conditions of the ceasefire, and central among those positions is that Iraq accept on a continuing basis that it disarm itself of weapons of mass destruction," she told BBC News Online.

    "This was the core condition of the ceasefire and if it is not met, the ceasefire in every real sense is suspended and suspended automatically."

    Iraqi anti-aircraft guns are fired from the rooftop of a building in Baghdad in December 1998
    Operation Desert Fox looked to previous resolutions for authorisation
    She says that this resolution is given "teeth" by a companion resolution that says force can be used "not only to expel Iraq from Kuwait but as well as to give force to every subsequent relevant resolution."

    Resolution 687, Prof Wedgwood says, has so many parts and is so rigorous that it could not be deemed to have been repealed by subsequent resolutions - and certainly not resolution 1441.

    "There is nothing in 1441 that purports to repeal it - we [the US] would not have voted for it if it did."

    Lawyers argue that 687 has been used for the purposes of military action in the past. The 1998 Desert Fox operation, for example, was justified because Saddam Hussein was deemed to be in material breach of the resolution.

    Security Council must rule

    But Vaughan Lowe, an international law professor at Oxford University, argues that while acceptance of the 687 disarmament terms was a condition of the cessation of the hostilities, it does not follow that the coalition retained an indefinite right to "take the initiative back from the Security Council".

    A worker puts the finishing touches to a statue of Saddam Hussein
    Saddam Hussein is deemed to be in breach of previous resolutions
    "These resolutions addressed a specific circumstance - they are not like statutes that gives some standing authority that any time, at any moment, that 12-year coalition chooses to go and impose peace in the Middle East," he told the BBC.

    Most lawyers agree that Resolution 1441 alone is not sufficient authority to wage war. It speaks only of "serious consequences" if Iraq fails to disarm. The phrase differs significantly from the traditional UN term for armed intervention - the "all necessary means" of Resolution 678.

    But what, if anything, can be done if the US-led coalition is believed to be in breach of international law?

    The new International Criminal Court, for example, does not have jurisdiction over the legal issue of going to war. It could deal with possible war crimes, but this would centre on how soldiers conducted themselves, not on the legality of the war in the first place.

    The Yugoslavia case

    Colin Warbrick, professor of law and expert in international law at Durham University, says the International Court of Justice at the Hague could deal with such an issue.

    However he says many countries have not accepted what is known as the "optional clause jurisdiction". It would take one country that has signed up to bring action against another country that has also accepted that jurisdiction.

    "The UK has conditional acceptance of the jurisdiction but none of the permanent members of the Security Council have," Professor Warbrick told BBC News Online.

    "It is inconceivable that an EU state would have the political will to bring such a case, no Arab state has accepted the optional clause, but there could be a problem with a Commonwealth country."

    Even then, a country would encounter difficulties. In 1999, Yugoslavia tried to bring an immediate end to Nato air strikes by asking the International Court of Justice to rule that Nato's air campaign amounted to genocide.

    But the judges voted 12 to four that the court was not competent to judge Belgrade's application against Nato countries.

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