international law and the use of military force

8/2/2019 International Law and the Use of Military Force

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EVROPAEVMThe Europaeum was founded in 1992 as an association of

European universities, with a mission to:

promote excellence in academic links in research and teaching

collaboration between the Europaeum partners;

act as an open academic network linking the Europaeum partners

and other bodies in the pursuit of study;

serve as a resource for the general support and promotion of

European studies;

function independently in the search for new ideas;

provide opportunities for the joint pursuit of new pan-European

initiatives;

serve as a high level think-tank exploring new ideas and new

roles for universities in the new Learning Age; provide a pool of talent to carry out research and inquiry into

problems and questions confronting Europe today and tomorrow;

help train and educate future leaders for a new Europe.

The Europaeum consists of eight leading European university

institutions: University of Oxford, Universiteit Leiden, Universit

degli studi di Bologna, Universitt Bonn, Universit Paris I Panthon-Sorbonne, the Graduate Institute of International Studies, Geneva, and

Charles University, Prague, Complutense University, Madrid.

TheEuropaeum Lectures are part of a range of consortium activities

which also include collaborative, research projects, conferences, annual

student summer schools, joint teaching programmes, staff mobility

initiatives, and linked scholarship schemes.

Details of Europaeum activities are given in Annex A at the back of

this pamphlet.

i


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A EUROPAEUM LECTURE

DELIVEREDATUNIVERSITEIT LEIDENON

JUNE 6TH, 2003

International Law andthe Use of MilitaryForce : The United

Nations, the UnitedStates and Iraq

PROFESSOR SIR ADAM ROBERTS

ORGANISEDINASSOCIATIONWITHTHECENTREFOR POLICY STUDIES, CAMPUS THE HAGUE,

LEDIEN UNIVERSITY, LANG HOUSTRAAT 5-7,2511 CV DEN HAAG


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Professor Sir Adam Roberts

Adam Roberts is Montague Burton Professor of

International Relations at Oxford University and

Fellow of Balliol College. He is co-editor, with

Richard Guelff, of Documents on the Laws of War

(Oxford: Oxford University Press, 2000). ProfessorRoberts is author ofHumanitarian Action in War

(Oxford University Press, 1996).

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Contents

The Europaeum Mission ..................................................................... i

A note on Professor Adam Roberts ...................................................iii

Law and the Use of Force After Iraq ................................................. 1

Notes..................................................................................................33

Annex A : The Europaeum Record ................................................ 37

Annex B : The Europaeum Members............................................. 41

Annex C : The Europaeum Lectures .............................................. 45

2003 Europaeum / Adam Roberts

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Adam Roberts

International Law and the Use of

Military Force : The United Nations, the

United States and Iraq

1

A huge division of opinion has opened up, within Europe and also

across the Atlantic, about the legitimacy of the use of force. That divi-

sion has arisen most dramatically over Iraq in 2003. However, it has

also arisen due to the changed circumstances of our times: the concern

about how to implement an ever-expanding body of international law,

how to deal with the rise of terrorism and the proliferation of weapons

of mass destruction, and also, frankly, how to respond to the pre-emi-

nent role of the USA in international relations.

Because it reflects general causes, the crisis regarding the legitimacy

of the use of force will not disappear just because the UN is back in

business passing resolutions about Iraq; nor because the G8 leaders, so

recently at bitter odds, are now using photo opportunities to paper over

the cracks. Within Europe, as well as across the Atlantic, there are

fundamentally different views of how international relations should be

organized, and what the role of force should be in those relations. The

problem is thus intra-European as well as transatlantic.

In this city, and especially when lecturing under the auspices of Leiden

University, it would be a criminal offence to discuss these issues with-

out paying tribute to Hugo Grotius, who entered Leiden University in

1594 at the age of eleven. Grotius special contribution to the study of


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2

The UN, the US and Iraq

thejus ad bellum lay in his ambitious aim to provide an exhaustive

set of criteria enabling anybody to make out infallibly what is a just

ground for war and what is not.1 He recognized the complexity of this

undertaking when he saw those rights as falling under no less than four

main headings.

Since much that I say will relate to the Iraq crisis of 2002-3, I owe you

some indication of my views of it. There is a risk, as Mark Twain would

have said, of seeing more wisdom in this crisis than there is in it. I

would just make three initial points:

1. The nature of this crisis was very different from that of earlier

Iraq crises. Saddam Husseins Iraq had a peculiar capacity to

produce sharply different reactions. In 1990 Iraqs invasion

of Kuwait united the international community, and gave it a

chance to uphold the rule of law and the authority of the UN

Security Council. This led directly to the extraordinary optimism

ofAn Agenda for Peace (1992). Yet in 2002-3 this same coun

try, under the same ruler, and with gravely weakened armed

forces, succeeded in making a mockery of the great temples of

NATO, the EU, the UN, and international law an astounding

achievement that makes Samsons work in the temple look mod

est by comparison. Chris Patten, the European Commissioner

for External Relations, has referred to the sorry figure cut by

the EU.1 We have to consider what was so special about this

crisis, and so vulnerable about these institutions.

2. My own view in the crisis of 2002-3 was in favour of taking a

firm line in regard to Iraqi compliance with the UN-imposed

disarmament regime, but not in favour of resort to actual war in

circumstances in which there would be serious grounds for doubt

about the legitimacy and wisdom of such action.1 In the event

there were serious weaknesses in the conduct of this crisis by all

the major Western parties. There were weaknesses in the anti-


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Adam Roberts

war position, which was often shallow and opportunistic; but

there were also weaknesses in the pro-war position.

3. I do not agree with Michael Glennons article in Foreign Affairswith its claim that with the dramatic rupture of the UN Security

Council over Iraq, it became clear that the grand attempt to sub

ject the use of force to the rule of law had failed.2 But it is clear,

as I will try to indicate, that the law is under considerable strain,

and is having to adapt to cope with the strain.

The Iraq problem, to which I will return later, needs to be set against abroader background of events involving the threat or use of armed

force. In the period since the end of the Cold War, numerous crises

have given rise to demands for military action, and particularly for

intervention in states without the consent of their governments. Force

has been used in a wide variety of circumstances, and with a wide

variety of legal justifications and authorizing bodies. The UN Security

Council has played a significant role in these events. However, it has

not succeeded in ensuring that military action is restricted and man-

aged in quite the ways that were envisaged in the Charter. Some uses

of force have eluded the Councils control, often because it was di-

vided on this issue. Furthermore, some uses of force have challenged

certain aspects of the existing body of international law relating to the

resort of force thejus ad bellum . In particular, they have been seen as

violating, moving beyond, or reinterpreting the two principal accepted

legal grounds for the use of force: self-defence, and authorization by

the UN Security Council.

Three doctrines have been the foci of debates about a possibly ex-

panded right of states to use force in circumstances that differ signifi-

cantly from these two principal accepted legal grounds. None of these

doctrines is wholly new, but their articulation has contained new ele-

ments. They are, respectively:


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4

The doctrine under which states claim continuing authority to

use force on the basis of past UN Security Council resolutions;

The doctrine of humanitarian intervention; and

The doctrine reserving a right to act pre-emptively against emerg

ing threats.

These events and doctrines have involved some expanded justification

for intervention within states. While they create important opportuni-

ties for the UN Security Council, they also create problems. They can

be seen as challenging the twin normative principles of non-interven-

tion and the sovereign equality of states as enshrined in the UN Char-

ter, especially in Article 2(4). Further, some of these events, and the

doctrine of pre-emption, appear to challenge the meaning of self-de-

fence as outlined in Article 51 of the Charter:

Nothing in the present Charter shall impair the inherent right of indi-

vidual or collective self-defence if an armed attack occurs against a

Member of the United Nations, until the Security Council has taken

measures necessary to maintain international peace and security. Meas-

ures taken by Members in the exercise of this right of self-defence

shall be immediately reported to the Security Council and shall not in

any way affect the authority and responsibility of the Security Council

under the present Charter to take at any time such action as it deemsnecessary in order to maintain or restore international peace and secu-

rity.

This wording has long been seen as raising a number of questions.

Granted that the right of self-defence is inherent, to what extent did

it continue unaltered into the UN era, or was it restricted by the UN

Charter? What exactly constitutes an armed attack or (to take a wordused elsewhere in the Charter) aggression? Does Article 51 have to

be interpreted narrowly as excluding any self-defence other than that

in response to an actual armed attack? Why has the duty to report to



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5

Adam Roberts

the Security Council been of such little practical significance, particu-

larly in terms of the Council exerting its authority on the situation?1

On each of these questions there is scope for genuine disagreement,

whether among lawyers or among states. The disagreements all touch

on the question of the extent to which the concept of self-defence can

or cannot be understood broadly and can or cannot be a basis for justi-

fying certain acts of intervention.

Quite apart from a possible expanded interpretation of the right of self-

defence, other grounds have often been advanced in justification of

acts of military force. In particular, the impressive growth of interna-

tional law and institutions in the UN era has contributed to such grounds.

If a state persistently violates important legal norms for example, in

such fields as arms control, human rights, international humanitarian

law, or environmental conservation what should the response of other

states be? There is strong acceptance in contemporary international

law that forcible counter-measures are unlawful. Sometimes, however,having urged the state concerned to desist from such violations, other

states and international bodies may perceive a need to use force, yet it

may not always be possible to obtain Security Council authorization

for it.

At this point I must issue a health warning about international law.

There has been a tendency in the Iraq crisis to debate the question of

the use of force largely in terms of its international legality or illegal-

ity. Such an approach, while necessary, is not sufficient for a full evalu-

ation of the decision to use force. Traditional just war criteria, and also

considerations of wisdom and prudence, are also critically important.

The suggestion that the coalition powers may have had a degree of

continuing authority in respect of Iraq does not necessarily mean

that they exercised this authority wisely. Any evaluation of how the

US and UK used their continuing authority must encompass consid-

eration of two key supplementary questions:


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6

Was the decision to use force based on a thorough and conscien

tious appraisal and presentation of the evidence available at the

time regarding Iraqi weapons of mass destruction?

Was the use of force exercised responsibly, and in particular

was there serious planning and organization of the occupation

phase?

If the answer to either question is negative, then in prudential

terms, however good the concept of continuing authority, the

justifiability of the war is called into question.

I begin this survey by noting that the doctrine of non-intervention has

always suffered from certain limitations, and does so especially in to-

days unipolar world. I then explore the strengths and weaknesses of

the UN Security Council as a means of reaching decisions regarding

the use of force. I consider the issues surrounding the use of force

against Iraq in various crises since 1990, with particular attention to

the claim of what might be called existing authority or continuing

authority, as was advanced by the United States and other countries in

the 2003 war. Next I consider the two distinct but similar doctrines of

pre-emption and humanitarian intervention, and the reasons why they

have failed to command general assent. Finally, I draw some conclu-

sions from the varied practices of the postCold War period.

Non-intervention vs. Spheres of Influence

The non-intervention rule has long been, and remains, fundamental to

international order; its observance, however, has always been imper-

fect. Security concerns and related considerations have often in the

past led countries to intervene by force in other states, in circumstances

different from self-defence against ongoing armed attack. A wide vari-

ety of states, by no means confined to great powers, have at times

given a no less wide variety of reasons for intervention: self-defence



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Adam Roberts

against imminent threats, counter-intervention to prevent a rival state

from expanding its power, maintenance of peace and security, protec-

tion of nationals in other states, and protection of threatened populations

within the target state.

Major powers have often made systematic efforts to impose limits on

the freedom of action of other states. These efforts have always coex-

isted uneasily with doctrines recognizing the sovereign equality of states

and the principle of non-intervention. Arguments about preventing a

more dangerous situation from developing within a state frequently

loomed large as justifications as much political as legal for placing

restrictions on certain states freedom of action. In many cases, as with

the Monroe and Brezhnev doctrines, such arguments became associ-

ated with the concept of spheres of influence.

The sphere of influence that counts now is, at last, literally a sphere:

the world. If the United States can be threatened by terrorists or by

what it defines as rogue states half a world away, then it seeks some

right to intervene half a world away. If shocking abuses of citizens by

their own government can be shown on television screens around the

world, the demand arises for some right to intervene in distant conti-

nents. Previously, spheres of influence could be viewed as mere re-

gional exceptions to the general norm of non-intervention. Now there

is one sphere in which, because it is global in character, any norm

justifying intervention seems to pose a more direct and general chal-

lenge to the post-1945 normative framework limiting the resort to force.

This challenge to the normative framework is further complicated by

the fact that there is one pre-eminent military power, the United States.

This fact has naturally given rise to a concern to restore balance to the

international system: hence the varying degrees of French, Chinese,

and Russian attachment to the idea of a multipolar world and to the

idea of the UN as a central part of it. These states, and others, when

opposing certain US-led interventions, have generally cited the non-


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8

intervention norm as the basis for their stance. They are on firm ground

in doing so. While in some instances, especially Iraq in 1991, the United

States has used force for purposes that were perceived as internation-

ally sanctioned and entirely legitimate, some subsequent US-led uses

of force have undoubtedly posed problems for the non-intervention

norm. The US doctrine of pre-emption adds to the litany of such prob-

lems. Thus the different power-political interests of states, and their

different visions of how the world should be ordered, go hand in hand

with disagreements about the legality of certain types of intervention.

Authorization by the UN Security Council

Since the end of the Cold War, the UN Security Council has played

important roles both in authorizing use of force in a wide range of

situations, and in contributing to certain changes in the understanding

ofjus ad bellum. Moreover, the Council has asserted a degree of au-

thority over some recalcitrant states that has subsequently been impor-tant in debates concerning the use of force against those states. The

idea that the Security Council can, in certain situations, require states

to take certain actions inside their own borders (as with the 1998 reso-

lutions requiring Yugoslavia to facilitate the return of displaced per-

sons in Kosovo), and can even authorize a regime change by force (as

it did with its resolution on Haiti in 1994), appears to be widely if not

universally accepted. This is proof, if it is needed, that some limita-

tions on state sovereignty may be accepted even when others are not.

The UN Security Council has authorized the use of force in a variety

of situations, but has done so in ways somewhat different from those

envisaged in certain provisions of the UN Charter. When confronted

by situations requiring the large-scale use of force, the Security Coun-

cil has not generally commanded substantial military action in the ways

anticipated in many provisions of Chapter VII. Instead, its primary

method for dealing with this problem has been to authorize the use of



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Adam Roberts

force by member states (this was compatible with certain provisions in

Articles 48 and 53 of the Charter). Security Council resolutions have

implicitly or explicitly authorized the use of armed forces by US-led

coalitions, rather than under the command of the UN as such, in the

cases of Korea (1950), Iraq-Kuwait (1990), Somalia (1992), and Haiti

(1994). The Security Council authorized France to lead an operation in

Rwanda (1994), Italy in Albania (1997), and Australia in East Timor

(1999). UN authorization of limited use of force by states has also

become a common method for enforcing sanctions, air exclusion zones,

and other restrictions on particular states and activities.

In Bosnia and Herzegovina in 19921995, the arrangements for au-

thorization of force were particularly varied and complex. Resolution

836, adopted on June 4, 1993, included a decision that

Member States, acting nationally or through regional organisations or

arrangements, may take, under the authority of the Security Council

and subject to close coordination with the Secretary-General and

UNPROFOR [UN Protection Force, the peacekeeping force in the

former Yugoslavia], all necessary measures, through the use of air

power, in and around the safe areas in the Republic of Bosnia and

Herzegovina, to support UNPROFOR in the performance of its man-

date.

This was a basis for several military actions by the North Atlantic Treaty

Organization (NATO) in 19941995. Events exposed difficulties in

combining the threat or use of force with humanitarian and peacekeep-

ing activities, and in the system of joint UN and NATO authorization

of force. In AugustSeptember 1995, after the Serb conquest of the

two safe areas of Srebrenica and Zepa, and continuing attacks on

others, NATOs Operation Deliberate Force bombing campaign was

followed by a cease-fire. The Dayton Accords were concluded on No-

vember 2021, 1995. The NATO-led Implementation Force (IFOR),


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10

authorized by the Security Council and deployed in Bosnia in Decem-

ber 1995, had notably broad authority from the UN to use force.1

In addition to various forms of authorization to others, there was also atendency in the 1990s for the Security Council to grant unusual pow-

ers to use force to certain UN peacekeeping operations. Examples in-

cluded the ill-fated second UN Operation in Somalia (UNOSOM II)

and the UN Mission in Sierra Leone (UNAMSIL).2

With respect to terrorism, the Councils general approach in the 1990s

was one of firm insistence on the responsibility of states for stoppingterrorist activities on their own territories, not a license for interna-

tional military action.3 After the events of September 11, 2001, the

Security Council came closer to endorsing the use of force in response

to international terrorist acts. Resolution 1368 recognized the inher-

ent right of individual or collective self-defence in accordance with the

Charter, condemned the attacks of the previous day, and stated that

the Council regards such acts, like any act of international terrorism,

as a threat to international peace and security. It also expressed the

Councils readiness to take all necessary steps to respond to the ter-

rorist attacks of 11 September 2001, and to combat all forms of terror-

ism.4 These key points were reiterated in a resolution later that month,

which additionally placed numerous requirements on all states to bring

the problem of terrorism under control.5

These resolutions were not direct authorizations of force something

not specifically required for the initiation of a self-defence action.

However, by recognizing the right of self-defence in this context, they

helped to clarify that there was an international legal basis for the sub-

sequent US-led intervention in Afghanistan. Further, these resolutions,

and various associated statements and actions, can be seen as confirm-

ing that the law of self-defence encompassed actions by non-state en-

tities within the concept of armed attack, allowed for the possibility

of attacking terrorist bases operating on the soil of states unwilling or



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Adam Roberts

unable to prevent terrorist attacks, and recognized that a regimes re-

sponsibility was engaged for its failure to prevent and punish acts of

terrorism by a movement operating on its soil, and therefore that an

attack on that regime itself might be a permissible act of self-defence.6

Following the main phase of military hostilities in Afghanistan and the

fall of the Taliban regime in December 2001, the Security Council

again opted for an authorized but non-UN peacekeeping force the

International Security Assistance Force (ISAF), established in Kabul

and surrounding areas in January 2002. As with the Stabilization Force

(SFOR) and the NATO-led Kosovo Force (KFOR) in the Balkans, ISAF

was conferred with certain powers, including to use force, that are more

extensive than those of most UN peacekeeping operations.7

The fact that the Security Council has authorized or approved the use

of force in a large number of cases, and thereby has played an impor-

tant legitimizing role, cannot obscure the no less significant fact that it

has frequently been unable to agree on forcible measures.8 Sometimes,

as in Rwanda in early 1994, this has been due to an unwillingness of

states to supply forces. However, the failure to agree on forcible meas-

ures has more often been due to threat or use of the veto. Kosovo in

1999 was such a case, but after the war, Resolution 1244 of June 10,

1999, provided the basis for KFOR and also for a UN administration.

Another case in which the Security Council could not agree on the use

of force, Iraq in March 2003, is discussed in the next section.

The greatest problems regarding the legitimacy of use of force arise

when it is neither authorized by the Security Council nor a straightfor-

ward case of self-defence in response to an armed attack. It would be

easy to say that, apart from cases of self-defence, force should never

be used except when specifically authorized by the Security Council.

In virtually all crises, the argument for attempting to reach agreement

in the Security Council is strong.


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12

However, viewing formal Security Council authorization as a sine qua

non of any military action other than self-defence poses a number of

problems. It means that each of the five permanent members of the

Security Council can veto any and every use of force other than indi-

vidual or collective self-defence. Even if no veto is threatened, it means

that such uses of military force depend on votes from permanent or

non-permanent members who may be remote from the crisis. Histori-

cally, because of such factors, the Security Council has been more will-

ing to define the ends of policy than to authorize military means for

attaining those ends. There have been many situations in which, atleast in the view of certain key states involved, there was an over-

whelming case for the use of force, but the Security Council did not,

and probably could not, formally agree to authorize it. Such cases in-

clude the crises in East Pakistan in 1971, in the Kurdish areas of north-

ern Iraq in 1991, and in Kosovo in 1999. At the same time the Council,

in the latter two cases as well as in Iraq in 2003, was unable (and in

some instances clearly unwilling) to condemn the use of force by inter-

vening states or to demand an immediate cease-fire. In such instances

the use of force may be legally precarious, but it is not self-evidently

illegal in every case.

Sometimes the willingness of one or more member states to use force

in support of proclaimed Security Council objectives may actually

galvanize the other Security Council members to take action, because

of concern that, otherwise, they or the Council as a whole would be-

come irrelevant. The Iraq crisis in the months leading up to Resolution

1441 of November 8, 2002, can be read in this way. However, when in

March 2003 the United States and UK spectacularly failed to secure

Security Council support for a so-called second resolution on Iraq,

they proved that such a galvanizing strategy is by no means assured of

success, and may indeed incur resentment.



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War in Iraq

In the period before the 2003 Iraq war, when it became apparent that a

specific UN Security Council authorization was unlikely, states andinternational lawyers criticized the proposed US-led military action in

Iraq as unlawful.1 Since this action was not a case of self-defence against

an actual armed attack by Iraq, and did not have the recent and specific

authorization of the UN Security Council, it could easily be viewed as

having at best a doubtful basis in international law. Nevertheless, in

most cases the expression of this view did not include a detailed re-

sponse to the strongest part of the legal case for military action against

Iraq. Such an omission is not surprising, as the debate about the rea-

sons for, and legitimacy of, attacking Iraq lacked a clear focus.

Especially in the United States, discussion of possible action against

Iraq had long encompassed many different lines of argument. In 1998,

the joint houses of the US Congress passed the Iraq Liberation Act

which, in calling for the US to support efforts to remove the regime

headed by Saddam Hussein from power in Iraq and to promote the

emergence of a democratic government to replace that regime, cited a

wide variety of justifications.2 In the intense debate about Iraq from

summer 2002 onward, members of the Bush administration variously

suggested that military action was necessary and justified because of

the urgent need for an end to the repression of the Iraqi people, forregime change, for preventive war to stop a possible future threat, and

for anticipatory self-defence against an imminent threat. They also spoke

of Iraq as the next phase of the war on terrorism. Finally, they stressed

the importance of securing the implementation of Security Council

resolutions on Iraq. The range of rationales reflected accurately the

extraordinary number of issues involved in the Iraq crisis, but meant

that for a long time the debate lacked legal clarity.

In March 2003, when the United States and the UK finally took mili-

tary action against Iraq, the two governments relied on one main legal

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rationale: Iraqs failure to implement certain UN Security Council reso-

lutions, and the coalitions continuing authority to use force based in

particular on Resolutions 678, 687, and 1441.3 Mr Paul Wolfowitz, US

Deputy Secretary of Defense, subsequently told Vanity Fairmagazine:

For reasons that have a lot to do with US government bureaucracy,

we settled on the one issue that everyone could agree on, which was

weapons of mass destruction. He complains that this statement is some-

times quoted out of context. He did not mean that the war was fought

for purely bureaucratic reasons, but rather that there was a natural proc-

ess, common to all large bureaucracies, of simplifying a complex setof issues to a common agreed line.

The argument that past Security Council resolutions provide a con-

tinuing, or revived, authority to use force, in a different situation and a

dozen years after they were passed, may seem tortuous, but an exami-

nation of their terms suggests that there is some substance to it. In

1990, immediately following the occupation of Kuwait, a Council reso-lution had affirmed the inherent right of individual or collective self-

defence, in response to the armed attack by Iraq against Kuwait.4

Against this background, further authorization was not essential as a

basis for military action to achieve the restoration of Kuwait. How-

ever, Resolution 678 of November 29, 1990, in authorizing member

states to use force, specified that this was not just to secure Iraqi with-

drawal from Kuwait, but also to restore international peace and secu-

rity in the area.5 This was a prudent recognition of the need for a

range of measures to ensure stability. This resolution, including its ref-

erence to restoring peace and security, was reaffirmed in Resolution

686 of March 2, 1991, concluded at the end of the campaign to expel

Iraq from Kuwait. Then Resolution 687 of April 3, 1991, the mother

of all resolutions, spelled out the detailed terms of the cease-fire, as it

explained in its operative paragraphs 1 and 33. The resolution covered

such matters as boundary demarcation, a demilitarized zone, and re-

nunciation of terrorism. In requiring Iraq to renounce unconditionally

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any biological, chemical, or nuclear weapons programs, it provided

for a system of international inspection and weapons destruction by

the UN Special Commission, and imposed time limits for Iraqi disar-

mament, much of which should have been completed by August 1991.

Thereafter, numerous Security Council resolutions found Iraq to be in

breach of its cease-fire commitments. Many of them were passed unani-

mously. For example, Resolution 707 of August 15, 1991, condemned

Iraqs violations of Resolution 687 and proclaimed it to be in material

breach of that resolution, which had established the basis of the cease-

fire. In 1998, when Iraq ceased cooperation, Resolution 1205 of No-

vember 5, 1998, condemned the country as being in flagrant viola-

tion of its commitments. Resolution 1441 of November 8, 2002, pro-

claimed Iraq to be in material breach of its obligations under relevant

resolutions, recalled the 1990 authorisation of states to use force, fur-

ther recalled that in its Resolution 687 the Council declared that a

ceasefire would be based on acceptance by Iraq of the provisions ofthat resolution, and offered Iraq a final opportunity to comply with

its disarmament obligations. Resolution 1441, taken on its own, was

not a clear authorization to use force, but apart from its requirement

that the Council reconvene if Iraq failed to comply fully, it did not

weaken any authorization based on earlier resolutions.

The legal justification for the US-led military action initiated in March

2003 would have been significantly simpler if the United States and

UK had succeeded in their efforts to persuade the UN Security Council

to follow up with a so-called second resolution which would actually

have been the eighteenth regarding the use of force and Iraqi compli-

ance with disarmament terms. Such a resolution would have deter-

mined (once again) that Iraq was in breach of its obligations, and might

also have specifically authorized the use of force.

However, for many members of the Security Council this was a resolu-

tion too far. France, Russia, and China, as well as several of the non-

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permanent members including Germany, were plainly sceptical or to-

tally opposed. This was not surprising, given their different interests,

their different views of war, their different assessments of any threat

posed by Iraq, and their stated concerns about US dominance. It is

asking a lot of major states that they should formally approve the ini-

tiation of a war by another power, especially when it is a hyperpower

about whose policies they in any case have reservations. The effect,

naturally, was to encourage a US belief in the inadequacies of certain

international institutions.

The major split at the UN was an intra-European one, and highlighted

the lack of a common strategic culture in Europe. Curiously there does

not appear to have been any fundamental difference in the intelligence

information available to the principal governments involved in this

crisis, but there was a strong divergence of intelligence assessments,

of public perceptions, and of official policies. The split in Europe formed

around three principal countries. On the one side was the UK, stronglyand in some views excessively pro-US, whose Prime Minister needed

a Security Council resolution to protect him from criticism in Parlia-

ment, the Labour Party, and the country. On the other side, France,

deeply sceptical of this US-UK military project, was the main obstacle

to obtaining such a resolution. The moralistic tone and thin content of

some official French statements, and the implicit threats to deny EU

membership to applicant states that stepped out of line, did not serve

the anti-war cause particularly well. Frances President Chirac expressed

his position in surprisingly absolute terms, which was open to inter-

pretation or misinterpretation to mean that France would never sup-

port a resolution authorizing force against Iraq. Because this could be

viewed as an unreasonable veto something that Blair had indicated

he might feel free to ignore Chiracs statement had the paradoxical

effect of making it less difficult for Blair to by-pass the UN and to join

the US-led war. Germany, similarly, took its opposition to the point of

saying that it would not send troops to Iraq even if there were a UN

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resolution authorizing military action. On both sides, remarkably dog-

matic and even ill-tempered positions were taken.

In the run-up to the war, Donald Rumsfeld memorably called the twocamps old Europe and new Europe. The word old was as inter-

preted in France and Germany as unnecessarily dismissive of what

they saw as a principled anti-war stance, but the new did capture

something important. Many countries supporting the US position were

countries with living memories of one-party rule, leaving them with a

notably strong sense of the importance of standing up to dictators. The

split, a difficult experience for all European countries, was particularly

serious for Poland, which faced the historical nightmare of being op-

posed simultaneously by Russia, France and Germany.

Did the European disagreements about the use of force actually make

war more likely? In theory they might have done so, at least if it is

assumed that (a) the US policy was to obtain Iraqi cooperation in dis-

armament, and (b) Iraq was encouraged to avoid full compliance by

the evident splits in the Security Council, especially among its perma-

nent members. However, these large assumptions are open to question.

In particular, there was always a suspicion in Europe that the US sim-

ply wanted Saddam Hussein removed and had a timetable for starting

the war. This suspicion contributed strongly to anti-war positions in all

the countries concerned, and reinforced doubts about the legality of

the war.

At the Security Council meeting on March 17, 2003, the US and UK

governments had to face the consequences of defeat in their efforts to

obtain a second resolution. It was small consolation that they had

stated on several occasions that such a resolution would be politically

desirable but was not legally necessary.

In principle, can the violation of certain terms of a cease-fire constitute

a justification for an eventual use of force against the violator? A pro-

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vision in the chapter on armistices in the 1907 Hague Regulations on

land war suggests an affirmative answer: Any serious violation of the

armistice by one of the parties gives the other party the right of de-

nouncing it, and even, in cases of urgency, of recommencing hostilities

immediately.6 Against this, it can be argued: (a) that the post-Charter

legal order creates a presumption against the use of force by states; (b)

that the decision to resume hostilities should be in the hands of the

Security Council, especially in circumstances where the legitimacy of

the use of force before the cease-fire depends significantly on authori-

zation by the Council; and (c) that, although the cease-fire was be-tween Iraq and the coalition that had fought against it, it was the Secu-

rity Council had defined the terms of the cease-fire, was itself a party

to it, and should determine how to respond to violations.

The argument that there can be a continuity and resumption of the

authority to use force contained in previous UN Security Council reso-

lutions was asserted repeatedly in crises over Iraq in the 1990s. Thus,on January 14, 1993, in response to an attack the previous day by the

United States, the UK, and France on Iraqi missile launchers, UN Sec-

retary-General Boutros Boutros-Ghali said:

The raid, and the forces that carried out the raid, have received a man-

date from the Security Council, according to Resolution 678, and the

cause of the raid was the violation by Iraq of Resolution 687 concern-

ing the ceasefire. 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 conforms to the Charter of the United Nations.7

The argument of continuing authority was also advanced at the time of

the December 1998 crisis over inspections, when the United States and

UK launched Operation Desert Fox against Iraq. It was contested in

the Security Council, most notably by Russia, which asserted that the

United States and UK had no right to act independently on behalf of

the UN or to assume the function of world policeman. Despite such

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criticisms, the strongest case for the legality of military action against

Iraq in 2003 rested not on any general propositions about preventive

defence, nor on Resolution 1441 taken in isolation, but upon Iraqs

violations of specific UN resolutions and on the continuing authority

contained in certain resolutions.

How should the nature of the claimed authorization be characterized?

One critic of the concept has referred to it as implied authorization to

use force.1 She has likened the US-UK position in the Iraq crisis in

late 2002 to that of the NATO countries with respect to the military

action against Serbia in 1999, stating that this doctrine of implied

authority to use force is itself extremely controversial; it may involve

the distortion of the words of the relevant resolutions and ignore their

drafting history.2 While this warning is important, there is a differ-

ence between the cases of Serbia and Iraq. In 1999 the UN Security

Council had not specifically authorized the use of force against Serbia,

whereas in November 1990 it had authorized force against Iraq. Thequestion regarding Iraq in 2003 was whether that authority dating back

to 1990 could be said to have continued or resumed. Thus, what was at

issue regarding Iraq in 2003 was as much a claim of existing author-

ity as a claim of implied authority.

How much weight attaches to the past decisions of the Security Coun-

cil in authorizing force? Numerous resolutions on Iraq state that the

Council has decided to remain seized of the matter. This could be

taken as implying that only the current Security Council has the right

to provide authorisation for the use of force. Such an implication, while

attractive, would leave only a negative answer to the following key

question. If the Council authorizes certain member states to undertake

a task, but is then unable to agree on follow-up action, does the origi-

nal authorization still stand? The simple guiding principle has to be

that a resolution, once passed, remains in effect. In the absence of a

new resolution repudiating earlier positions (which will always be hard

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to achieve, granted the existence of the veto) a presumption of conti-

nuity is plausible.

The greatest difficulty with continuing authority in the light of eventsin Iraq in 2003 concerns not so much the proposition itself, which is

fundamentally strong, but its particular invocation in this crisis. Ac-

ceptance of the idea of continuing authority still leaves open the

question of what consequences flowed from the Iraqi breaches. Fur-

thermore, questions are raised by the doubtful quality of the evidence

available at the time that Iraq still possessed weapons of mass destruc-

tion in significant quantities (doubts that have been confirmed by sub-

sequent events), and also by the lack of responsible preparation for the

occupation phase in Iraq. Some unconvincing US and UK reports and

presentations before the war weakened the case. There was, inevita-

bly, scope for disagreement as to whether the UN verification system

operating under Resolution 1441 should have been set aside in favour

of a use of force when the disarmament process had produced at leastsome results. After the fall of the Iraqi regime, and the failures to find

massive stocks of prohibited weapons, there were inevitably some ex

post facto attempts to highlight other possible justifications for the

resort to force a shifting of rationales and of rhetoric that itself con-

tributed to scepticism about the Iraq policy.

A strong argument for some concept of continuing authority is as much

strategic as legal. If a major power acts on behalf of the Security Coun-

cil, as the United States undoubtedly did in liberating Kuwait in 1991

and in acting in effect as a guarantor of the 1991 cease-fire terms, to

what extent can its hands then be tied? The question is complicated by

the fact that under Saddam Hussein Iraqi compliance with such terms

was almost always the result of external military pressure. Up to a

point, this was accepted by members of the Security Council, who

were at times prepared to see the United States and its partners threaten

the use of force if that secured Iraqi compliance. Many, however, were

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unwilling to countenance full-scale war. The result was a stalemate in

which the United States found itself keeping large forces tied up in

neighbouring countries, its credibility called into question by the drawn-

out saga of an Iraqi disarmament process. In that perspective, the issue

was not so much Iraqs actual weapons of mass destruction, but rather

its failure to comply fully with the verification process, and the conse-

quent impossibility of reaching any kind of closure. The US and UK

leaders, relying instead on doubtful claims of an immediate threat from

Iraq, understated the strength of this argument.

Doctrines of Pre-emption

Discussion of this matter is complicated by different and inconsistent

uses of key terms. "Pre-emption," the term at the heart of recent de-

bates, is based on the idea of preventing an attack by disabling a threat-

ening enemy. It can encompass both anticipatory self-defence (mili-

tary action against an absolutely imminent threat) and preventive mili-tary action (to nip a future threat in the bud). Any "unilateral" use by

states of preventive war is particularly hard to square with existing

international law.

That force may have to be used by states to address a situation before it

develops into an actual attack is not a new idea. As Michael Reisman

has written, "International law has been grappling with the claim ofpreemptive self-defense for decades." In some countries, there is a

long tradition of thinking about the use of force in broadly preventive

terms.

For most of the post-1945 period, US governments, and the interna-

tional community more generally, have had ambivalent attitudes to-

ward anticipatory self-defence and have been very sceptical about anybroader concept of pre-emption. During the Cold War, successive US

administrations resisted the temptation to launch preventive strikes to

stop the Soviet Union and China from becoming nuclear powers. This

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disinclination to act pre-emptively is under challenge in an era of inter-

national terrorism, especially when there are concerns about weapons

of mass destruction getting into terrorist hands. States now face certain

dangers that cannot be deterred in any conventional sense, and that

may need to be tackled before they develop into an actual armed at-

tack.

Bush's advocacy of pre-emption was encapsulated in the September

2002 National Security Strategy. Some of the ideas in this document

represented a continuation of policies that had been evolving during

the Clinton administration. The document, produced annually as a

legal requirement imposed by Congress, had a huge impact nationally

and internationally - not because it was wholly new, but because it

seemed to set certain contentious propositions in stone.

The document is first and foremost a statement of national strategy.

However, in redefining US strategic doctrine it also necessarily ad-

dresses a number of issues that are self-evidently legal in character. In

a key passage the document states:

For centuries, international law recognized that nations need not suffer

an attack before they can lawfully take action to defend themselves

against forces that present an imminent danger of attack. Legal schol-

ars and international jurists often conditioned the legitimacy of

preemption on the existence of an imminent threat - most often a vis-

ible mobilization of armies, navies, and air forces preparing to attack.

We must adapt the concept of imminent threat to the capabilities and

objectives of today's adversaries.

This passage's reference to "imminent threat" harks back to a classic

exposition of the right of self-defence in the statement by US Secre-

tary of State Daniel Webster in April 1841. In response to a dispute that

involved the British capture and destruction of the US steamboat

Caroline on December 29, 1837, Webster famously stated that for self-

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defence to be invoked there must be "a necessity of self-defence, in-

stant, overwhelming, leaving no choice of means, and no moment for

deliberation." The case addressed a modern question. What is the proper

response of a state to an unofficial group launching a covert attack

against it across international borders? However, except at the tactical

level, the Caroline situation was not basically about pre-emption, as

the rebellion in Canada was actual and ongoing. Moreover, the case

for pre-emptive action today could not possibly be confined to the

Caroline criteria. In the Iraq crisis of 2002-2003, no one could claim

that there was "no moment for deliberation": few military actions can

have been the subject of more domestic and international deliberation.

The Bush doctrine suffers from a number of defects. The peremptory

manner of its emergence added to the confusion surrounding it. The

focus being almost entirely on the United States, it failed to consider

the consequences for international relations if there were widespread

claims by states of a right to act pre-emptively. It also failed com-

pletely to mention the non-intervention norm. By transforming the prob-

lem of how the United States might address a few hard cases into gen-

eral doctrine, it appeared to undermine the non-intervention norm more

directly than was necessary. Coupled with the proclamation of the "Axis

of Evil" in Bush's January 2002 State of the Union speech, its effect

internationally was to cause more anxiety and opposition than reassur-

ance.

The impact of the doctrine on the evolution of the Iraq crisis in 2002-

2003 was largely negative. The doctrine was not necessary for the war

against Iraq in 2003. In the event, official justifications for the war

were cast in the less abrasive terms of Security Council resolutions. It

was generally critics of the United States who viewed the war as the

first application of the pre-emption doctrine. Against these critics, one

could argue that, far from being the first pre-emptive war of the twenty-

first century, the Iraq War was actually a continuation of one that had

begun over twelve years earlier.

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A fundamental question raised by the doctrine concerns whether there

can be any international procedure with respect to what must always

be particularly contentious decisions to use force. The UN is not ig-

nored entirely in the National Security Strategy: it receives a couple of

brief mentions. Even after the spectacular failure of the UN Security

Council in March 2003 to adopt any coherent line on Iraq, the logic of

the Bush doctrine may compel the United States to take at least some

problems to the UN Security Council. International legitimacy for poli-

cies toward emerging threats will not come via an improbable change

in international law regarding when states may use force, but rather

through agreement to specific policy goals (and ultimately action in

support of them) by the Security Council and, possibly, other interna-

tionally respected bodies with legal standing with respect to particular

problems or regions.

Doctrines of Humanitarian Intervention

Humanitarian intervention may be defined as "coercive action by one

or more states involving the use of armed force in another state with-

out the consent of its authorities, and with the purpose of preventing

widespread suffering or death among the inhabitants." The experience

of humanitarian intervention since the end of the Cold War is an ob-

ject-lesson in the difficulties of turning an occasionally necessary type

of action into a fixed doctrine.

Since early 1991 there have been numerous crises in which the ques-

tion has arisen of whether or not external institutions should, on hu-

manitarian grounds, organize or authorize military action within a state.

Within the UN Security Council, in at least nine cases there have been

resolutions citing humanitarian considerations as a basis for action,

followed by multilateral military action, going well beyond traditionalpeacekeeping, by armed contingents from outside the country con-

cerned.

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The degree of "host-state" consent in these nine cases was varied. In

four of them (northern Iraq, Somalia, Haiti, and Kosovo), military ac-

tion was initiated without the approval of the government of the state.

In the remaining five cases (Bosnia and Herzegovina, Rwanda, Alba-

nia, Sierra Leone, and East Timor), there was a stronger element of

consent to the presence of foreign forces. However, even in the four

cases of humanitarian intervention proper, elements of consent to the

international presence did sooner or later play some part. In these four

cases (unlike in most of the consent-based operations), US forces took

the lead role in the intervening coalitions. In two of these cases (north-ern Iraq and Kosovo), there was no explicit UN Security Council au-

thorization of the military action. In the other two (Somalia and Haiti)

there was such authorization, as there was also in the five consent-

based operations, and therefore in terms of international law the initia-

tion of these operations was uncontentious.

Despite this range of practice, all attempts since the early 1990s toreach an agreed doctrine favouring humanitarian intervention have

failed. A critical test that any emerging norm or practice must pass, if it

is to be accepted as part of international law, is that it be generally

supported by states. Humanitarian intervention does not pass this test.

Several large and powerful states (China, India, and Russia) have ex-

pressed strong opposition. Equally important, large numbers of

postcolonial states, particularly in Africa and Asia, have opposed it,

especially as many of them fear that they would be potential targets of

intervention. Furthermore, some potential or actual interveners on hu-

manitarian grounds, including the United States, have shown no inter-

est in the development of a doctrine of humanitarian intervention, not

least because it might tie their hands.

This does not mean that humanitarian intervention is necessarily ille-

gal. In those cases in which it is specifically authorized by the Security

Council, as in Somalia and Haiti, its lawfulness seems to be accepted

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by most states. In certain other cases, from East Bengal in 1971 to

Kosovo in 1999, judgments about whether an action is lawful or not

seem to depend heavily on how the particular crisis is viewed. Such

judgments also depend on whether other issues are involved in the

intervention. Such additional issues can include self-defence, rescue

of nationals of the intervening country, maintenance of international

peace and security, and implementation of the goals proclaimed in UN

Security Council resolutions.

There are fundamental problems with the idea that states have a gen-

eral "right" of humanitarian intervention. It was therefore sensible of

the Canadian-sponsored International Commission on Intervention and

State Sovereignty, when it reported at the end of 2001, to avoid assert-

ing such a general right. Rather, it emphasized securing an acknowl-

edgment by states that they have a "responsibility to protect" - which is

first and foremost a responsibility of all governments in relation to

their own citizens. This is an ingenious attempt at a reformulation ofthe question of humanitarian intervention, but there is so far little sign

of states explicitly accepting such a responsibility. This reluctance of

states is partly due to their nervousness about subscribing to any doc-

trine that might become a basis for intervention.

Conclusions

In the period since the Kosovo intervention in 1999, differences over

the legitimacy of certain uses of force, and over doctrines related thereto,

have been even more problematic than usual in international relations.

The differences affect all regions of the world. Although the East-West

divide largely closed with the end of the Cold War, Russian suspicion

of what is perceived as US dominance and willingness to use force

abroad remains, and is shared by many other states. The divide be-

tween North and South persists, and issues relating to the legitimacy of

the use of force have become a major focus of contention.

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Within the EU and NATO, the differences over the use of force are

not just differences between governments that are supposed to be part-

ners, but also have a strong societal aspect. The Iraq crisis of 2002

2003 exposed this dramatically. In both France and Germany, the offi-

cial criticisms of the use of force were popular, and indeed in the Ger-

man case appear to have been the result of Chancellor Schroeders

electoral calculations. All this does not mean that Europeans are paci-

fists: as recently as 1999 European states had supported the NATO

war over Kosovo, even though that did not have authorization from the

UN Security Council. What it does mean is that Europeans are nerv-ous about a war that appears to be a war of choice rather than a

response to an urgent and ongoing crisis; are anxious about a use of

force when the legal basis for it appears to be thin; and are generally

distrustful of the judgement of the US government. Irrespective of the

rights and wrongs of Iraq, there is a need for Europeans to conduct an

honest debate about the legitimacy of the use of force in support of

international principles and UN resolutions, and also about Europes

response generally to the fact of US power.

It is improbable that the solution lies in a simple rejection of the US

approach to the use of force. Indeed, the element of Gaullism in the

French policy over Iraq may have encouraged, at least temporarily, a

super-Gaullism in the United States: a belief that the state, at least in

its US incarnation, is the supreme and enduring entity in international

politics, that the United States now has a unique capacity to wage war

effectively, and that international law and organization are of limited

importance. The absence of a plausible and appealing concept of how

Europe could unite to create an effective military rival to the United

States confirms that rejectionism leads into a blind alley, undermining

the multilateralism it is supposed to protect.

Any common European position will have to avoid two extremes: a

policy of slavish support for whatever the US decides to do will not

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work, but nor will a view of Europe as a separate pole existing in ri-

valry to the US. Instead, a European position will have to encompass a

firm but realistic emphasis on working through multilateral institu-

tions, including the UN: multilateralism rather than multipolarity. Any

European position, if it is to command respect in the USA and else-

where, will also have to encompass a clear recognition that there can

be a place for the use of force in support of international principles and

purposes, including in controlling the spread of nuclear, chemical and

biological weapons. There are some signs of European willingness of

unite around such principles.1 However, it is not so evident that Euro-

pean states could agree collectively that there can be occasions, such

as Kosovo in 1999, when force may have to be used even without

explicit UN Security Council support; and there is little sign of will-

ingness to increase defence budgets.

Beyond the modest movement towards a common European position

on security issues, can there be formal legal agreement, in Europe and

also more generally, on the circumstances in which intervention is le-

gitimate? Here, the circumstances are not propitious. Hard cases noto-

riously make bad law. They also make a bad basis for asserting that

there is no law. The issues of humanitarian intervention and of pre-

emption, and the prolonged crisis over Iraq, have all revolved around

cases that are hard in the sense that they raise the question of whether

force can be used in circumstances that go beyond self-defence and in

which there may be no recent and specific authorization by the UN

Security Council. That the answers to this question have been messy,

in the sense that they have failed to command universal assent, does

not mean that international law and organization are dead. There is no

prospect of general agreement to a new set of black-letter rules regard-

ing the circumstances in which the use of force may be legitimate, nor

regarding new institutions that might authorize force. However, thisconclusion does not mean that there has been no clear direction to the

events since the end of the Cold War, nor does it mean that there are no

useful guidelines to be deduced from these events.

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In a series of crises since the end of the Cold War, there has been some

expansion of the rationales seen as justifying the use of force. The UN

Security Council has authorized force in more situations than it did in

the UNs first forty-five years, and this has been largely accepted as

within the Security Councils competence.

An important, if more contentious, innovation has been the claim, made

principally by the US and UK, that there can be a continuing author-

ity from the Security Council to use force, and that, following the

1991 cease-fire, this provided the legal basis for major uses of force in

Iraq up to and including the 2003 war. The concept has not been widely

accepted. Some states have simply viewed the US-led military action

in Iraq as unlawful. In addition, many respected international lawyers

are sceptical about the concept. The opposition to any idea or practice

of continuing authority has been strengthened by the fact that the

particular application of this concept in the Iraq crisis in March 2003

was highly problematical, especially because it was based on doubtful

intelligence and an absence of serious planning. Yet despite all this

opposition, I have not yet seen a detailed and thorough critique of the

concept of continuing authority as it has been advanced in the Iraq

crisis.

As regards uses of force not specifically authorized by the Security

Council, there has also been a degree of cautious advancement of the

interlinked ideas that force may be used to implement the ends willed

by the Security Council even if it could not agree on the means, and

that it may on occasion be permissible to protect threatened people in

urgent humanitarian crises. Regarding the law on self-defence, there

has been recognition that actions by non-state entities can fall within

the concept of armed attack, that a regimes responsibility was en-

gaged for its failure to prevent and punish acts of terrorism by a move-

ment operating on its soil, and therefore an attack on that regime itself

might in exceptional circumstances be permissible.

This expansion of rationales has been heavily dependent on particular

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contexts, and attempts to turn its innovative aspects into general doc-

trine have been strongly contested. Hence the conspicuous lack of sup-

port from states for either the doctrine of humanitarian intervention or

the Bush doctrine of pre-emption. In both cases, these doctrinal inno-

vations were often presented in a manner that paid insufficient atten-

tion to the continued value of the non-intervention norm. This norm

remains fundamental to the conduct of international relations, and only

in very exceptional combinations of circumstances may it have to yield

to other norms and considerations.

The well-known weaknesses of the UN decision-making procedure

relating to the use of force have remained serious in the post-Cold War

era. They were already evident in the Kosovo crisis in March 1999,

when the prospect of a Russian veto led the United States and allies to

avoid even putting a resolution authorizing force before the Security

Council. The weaknesses were even more evident in March 2003, when

France indicated that it would veto a resolution authorizing force againstIraq. Never before has a major power, seeking to act militarily with the

claimed purpose of implementing UN Security Council resolutions,

faced the openly advertised prospect of veto by an ally. The crisis con-

firmed the conclusion that, if the UN is valuable in many of its roles, it

can fail conspicuously in others. The UN, despite the aspirations of its

Charter, will continue to coexist with a system of states that is older,

and is rapidly changing because of the unique US role. The actual and

perceived inadequacies of the UN system help to explain the US role

in the world as it is emerging in the postCold War era.

There is no obvious workable way to reform the existing UN decision-

making procedure so far as the use of force is concerned. Most pro-

posed changes to the UN Charters provisions regarding the composi-

tion or procedures of the Security Council involve increasing the number

of permanent memebrs. If they all had the veto, that would further

reduce the already limited chances of obtaining agreement on

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controversial measures. Any proposal to reduce the existing number of

states armed with the veto, or to limit the occasions on which the veto

may be used, has to surmount the major procedural obstacle that, if it is

to be passed, each veto-wielding state will have to consent.

Institutions outside the UN may on occasion be able to act, more or

less convincingly, as validating authorities for decisions on the use of

force. However, no other body commands the same degree of interna-

tional legitimacy. Any proposal for a union of democracies would run

up against the objection that the Iraq crisis has exposed huge differ-

ences among democracies. Alliances and regional organizations such

as NATO and the European Union have also been deeply divided over

Iraq. Furthermore, their tradition of operating by consensus means that

they are procedurally even less well equipped than the UN Security

Council to take controversial decisions.

The UN therefore remains damaged but not destroyed, as one vehicle

for reaching decisions on the use of force. Paradoxically, even when

attempts to obtain UN authorization for force fail, the appeal to UN

principles may have considerable value. In both the 1999 Kosovo cri-

sis and the 2003 Iraq crisis, the US-led coalitions presented as a key

part of the legal justification for the use of force the fact that the mili-

tary intervention had the purpose of ensuring implementation of UN

Security Council resolutions. In the case of Iraq there was the addi-

tional claim of continuing authority from the UN Security Council to

use force. These claims were more than the tribute that vice pays to

virtue: they were recognition that even in the new circumstances and

hard cases of the twenty-first century, force has an unavoidably close

relationship to law.

The continued significance of the UN as the pre-eminent vehicle for

approving and coordinating international action, including certain uses

of force, was indicated in the wake of the 2003 Iraq war by the passage

of Security Council Council Resolution 1483, which resolved that the

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UN should play a vital role in humanitarian relief, the reconstruction

of Iraq, and the restoration and establishment of national and local

institutions for representative governance, provided for the ending of

sanctions, and recognized the role of the UK and the United States as

occupying powers.1 Thus, as in Kosovo in 1999, the UN, although it

had earlier been unable to agree on a use of force amounting to war,

could nonetheless agree on some main outlines of post-war policy,

including through legitimation of current and future roles of external

armed forces. In neither Kosovo nor Iraq did the post-war Security

Council resolution proclaim the earlier military action to have beenlegal, but it did begin the long process of bringing the consequences

of such action within an international legal framework. However, it is

far from certain that the reconstruction of Iraq will provide an oppor-

tunity to overcome the schism between the US and many European

states. The debate over the rights and wrongs of the war continues, as

does distrust of US decision-making and trepidation about involve-

ment in a very difficult situation. What is clear is that if the schisms

over Iraq, and over the use of force more generally, are to be over-

come, the UN with all its limitations will have to be part of the proc-

ess.

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Notes

1 Peter Haggenmacher, Grotius and Gentili, in Hedley Bull,

Benedict Kingsbury and Adam Roberts (eds.),Hugo Grotius and

International Relations (Oxford: Oxford University Press, 1990),

pp. 164-5.

2 Chris Patten, In Search of a European Foreign and Security

Policy,Europaeum Review (Oxford), vol. 5, issue 2 (Spring

2003), p. 16.

3 In a paper at the FCO Leadership Conference in London on

January 6-7, 2003 I noted the rather obvious danger that a US-led

assault on Iraq might happen in circumstances which large

numbers of people and states considered did not justify such

action.

4 Michael J. Glennon, "Why the Security Council Failed," Foreign

Affairs 82, no. 3 (May/June 2003), p. 16.

5 For a discussion of these questions, see Albrecht Randelzhofer's

exegesis on Article 51 in Bruno Simma et al. (eds.), The Charter of

the United Nations: A Commentary, 2nd ed. (Oxford: Oxford

University Press, 2002), pp. 788-806. He concludes, remarkably:

"As regards UN members, it stands that Art. 51, including its

restriction to armed attack, supersedes and replaces the traditional

right to self-defence."

6 Resolution 1031, December 15, 1995, para. 14. Under Resolution

1088, December 12, 1996, IFOR was reduced in size and renamed

Stabilization Force (SFOR), while retaining the same authority to

use force.

7 On the extensive powers of these UN peacekeeping forces, see

esp. Resolution 814, March 26, 1993 (on Somalia); and

Resolutions 1270, October 22, 1999, and 1289, February 7, 2000

(on Sierra Leone).

8 Resolution 1189, August 13, 1998.

9 Resolution 1368, September 12, 2001.

10 Resolution 1373, September 28, 2001.

33

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and International Law, Oxford Monographs in International Law

(Oxford: Oxford University Press, 2001), p. 201, where

Chesterman comments: it is unclear what status should be

accorded to such a pronouncement by the Secretary-General.

21 Christine Gray,International Law and the Use of Force (Oxford:

Oxford University Press, 2000), pp. 191195.

22 Christine Gray, The U.S.National Security Strategy and the New

Bush Doctrine on Preemptive Self-Defense, Chinese Journal of

International Law (Boulder) 1, no. 2 (2002), p. 444. The article

was completed on November 15, 2002, and is available at

www.chinesejil.org/gray.pdf.

23 W. Michael Reisman, Assessing Claims to Revise the Laws of

War,American Journal of International Law 97, no. 1 (January

2003), p. 88.

24 On the long tradition of international, and US, ambivalence about

ideas of anticipatory self-defence, see esp. Marjorie Whiteman

(ed.),Digest of International Law, vol. 12 (Washington, DC: US

Department of State, 1971), pp. 4277.

25 National Security Strategy of the United States, Washington, DC,

September 2002, www.whitehouse.gov/nsc/nss.html.

26 For an excellent analysis of the USNational Security Strategy

document, drawing particular attention to the antecedents of the

policy it outlines and the limitations from which they suffered, see

Robert S. Litwak, The New Calculus of Pre-emption, Survival

44, no. 4 (Winter 20022003), pp. 5379.

27 The statutory requirement for the annual presidential report to

Congress on national security strategy is in Title 50, US Code,

chap. 15, sec. 404a, enacted on October 1, 1986.

28 National Security Strategy of the United States, p. 15.

29 Letter from Daniel Webster to Mr. Fox, April 24, 1841, British and

Foreign State Papers, vol. 29, pp. 1137-1138.

30 National Security Strategy of the United States, pp. vi, 7.

31 For a spirited critique of the concept of humanitarian intervention,

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see Ian Brownlie's Europaeum Lecture in Geneva, 1 February

2001.

32 See the fuller exposition of this argument in my article The So-

Called Right of Humanitarian Intervention, Yearbook ofInternational Humanitarian Law, vol. 3, 2000 (The Hague: T. M.

C. Asser Press, 2002), pp. 351.

33 International Commission on Intervention and State Sovereignty,

The Responsibility to Protect(Ottawa: International Development

Research Centre, 2001). The text of this two-volume work is

available at www.iciss.gc.ca and also on a CD-ROM supplied

with the report volume.

34 See the June 2003 paper, A Secure Europe in a Better World, by

Javier Solana, EU High Representative for Common Foreign and

Security Policy. On 19-20 June 2003 the Salonika meeting of the

European Council gave an initial welcome to it. It remains to be

seen whether it will be formally adopted as a basis of the security

policies of EU member states. The paper is available at http://

ue.eu.int/pressData/en/reports/76255.pdf

35 Resolution 1483, May 22, 2003.

I wish to thank Tony Aust, Michael Byers, Simon Chesterman,

Sebastian von Einsiedel, Mary-Jane Fox, Guy Goodwin-Gill, Gur

Hirshberg, Melvyn Leffler, David Malone, Thomas Pickering,Terry Taylor, and many others for their help with this paper.

Responsibility for all opinions and errors is mine alone. This

paper incorporates material published in Law and the Use of

Force After Iraq, Survival 45, no. 2 (Summer 2003), pp. 3155.

Another version will appear in due course in David M. Malone

(ed.), The United Nations Security Council since the Cold War

(Boulder, Colorado: Lynne Rienner).

36



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Annex A

I. International Conferences

1993 Oxford: Are European Elites Losing Touch with their Peoples?

1994 Oxford: Europe and America after the Cold War: the end of the

West

1995 Bonn: The Integration of East Central Europe into the

European Union

1996 Geneva: Defining the Projecting Europes Identity: Issues and

Trade-Offs at Geneva

1997 Paris I: Europe and Money

1998 Leiden: Human rights, with particular reference to plight of

immigrants and immigration policy in Europe

2000 Bonn: The Implications of the new Knowledge and Technology

2001 Berlin: European Universities Project:Borderless Education:

Challenges for the new Europe

2002 Paris: European Universities Project: New Times: New

Responsibilities

2003 Bonn: European Universities Project:New Partnerships:

Opportunities and Risks

II. Student Summer Schools

1994 Leiden: Concepts of Europe

1995 Bologna: The Problem of Political leadership between Historyand Social Science

1996 Bologna: The Civic Nation and the Ethnic Nation

1998 Budapest: Risk Policy Analysis

1998 Oxford: Human Rights

1999 Paris I: NATO and European Defence

2000 Bologna: European Policy and Enlargement

2000 Oxford: Church as Politeia: the political self-understanding

of Christianity

The Europaeum Record

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38

Annex A

2001 Oxford: Human Rights and the movement of people: Meeting

the Challenges of Racism, Migration and Displacement

2002 Oxford: The Economics of European Integration

2003 Prague: Old and New Ideas of European Federalism

III. Joint Teaching Courses and Programmes

1992 - European Community Law involving joint teaching

Oxford and study, and student exchanges linking Oxford,

Leiden and Sienna.

1999 - Economics of European Integration module open to

Paris Europaeum undergraduates and graduates.

1999 Political Cultures and European Political Systems joint

Bologna MA programme, linking Bologna to Oxford and

Leiden.

2000 International Refugee Law joint teaching programme

Geneva linking Geneva and Oxford.

2003 Leadership Programmein European Business,

Leiden Cultures, and Institutions linking Leiden and

Oxford.

2003 MA inEuropean Political Cultures, Institutions and

Bologna History linking Bologna, Leiden and Oxford.

Cross-Europe academic networks function in Economics, History,

Politics and Theology, helping to promote collaborative teaching and

mobility of graduate research students. Other initiatives link scholars in

Classics, History of Science and International Relations and Diplomacy.

The Europaeum played the key role in the creation at Oxford of the

Centre for European Politics, Economics and Society, the Oxford Institute

of European and Comparative Law, the European Humanities Research

Centre plus a number of fellowships, the Chair in European Thought

and, most recently, theBertelsmann Europaeum Visiting Professorshipin 20th Century Jewish History and Politics. The Europaeum is also

supporting many other projects such as the Leiden University diplomacy

training programme.


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Annex A

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IV. Scholarship Programmes

The Oxford-Geneva Link Programme provides annual bursariesfor student exchanges between Oxford and the Graduate Institute of

International Studies, together with other collaborative activities including

joint teaching and Europaeum Lectures.

The Europaeum Scholarships in Jewish Studies have provided up

to six places each year for Europaeum graduate students to spend a year

in Oxford studying for the Diploma in Jewish Studies at the Oxford Centre

for Hebrew and Jewish Studies between 1995 and 2001. Discussions

continue to create a new scheme to accompany the upgrading of the

Jewish Studies programme to an MA course.

The Scatcherd European Scholarships scheme, founded at Oxford,

as part of the Europaeum initiative in 1997, offers fully funded places at

Oxford for European graduates, including all Europaeum partner

institutions; and also places for Oxford graduates at leading European

Universities, including Europaeum partner universities.

V. Joint Research Projects and Support A Research Directory of interests of staff involved in European

Studies in partner institutions is accessible via the Europaeum internet

site to build and encourage academic collaboration.

The Europaeum Project on theFuture of European Universities,

supported by DaimlerChrysler Services A G, a three-year investigation

into the impact of new technology and the Knowledge Revolution was

initiated in 2001. International conferences onBorderless Education:

Bridging Europe (Berlin 2001);New Times New Responsibilities (Paris2002); and New Partnerships: Opportunities and Risks (Bonn 2003)

have been held.

TheEuropaeum Research Project Groups scheme encourages

collaborative research across the association. The following groups have

been backed so far: The Churches and the Family; European Monetary

Integration; The Kosovo Stability Pact; International Intervention;

European identity; Unilateral Action; Regulation of E-commerce;

Liberalism in 20th Century Europe; Transmission and Understanding inthe Sciences; and Cultural Difference in Europe.


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Annex A

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Past international Europaeum research projects have been on Party

System Changes (1997) and The origins and aftermath of the Kosovo

crisis (2000).

VI. Mobility Schemes

The Europaeum New Initiatives Scheme provides seed funding for

new, innovative and imaginative forms of academic collaboration within,

but not exclusive to, the Europaeum academic community.

More than 20 projects have been supported including Staff Exchanges

on e-commerce; a Theology summer lecture se