Submission to the Chilcot Iraq Inquiry on the Legal Basis for the 2003 UK Use of Force Against Iraq

Abstract

On 2 June 2010, the Chilcot Iraq Inquiry invited public international lawyers in the United Kingdom to make submissions concerning the legal arguments relied on by the UK government as the basis for the military action in Iraq which commenced in 2003. The legal basis for that action, as explained by the Attorney General in his advice to the Prime Minister of 7 March 2003, was essentially that UN Security Council Resolution (‘UNSCR’) 1441 had the effect of ‘reviving’ the authorisation on the use of force set out in UNSCR 678, without requiring either a further Security Council authorisation for the use of force, or a further determination by the Security Council of Iraqi non-compliance. The focus of this submission is not on the difficult and perhaps intractable issue of the ‘correct’ interpretation of UNSCR 1441, but rather on the validity of the ‘revival argument’ as a matter of principle, as dealt with in paragraphs 7-11 of the Attorney General’s advice of 7 March 2003, focusing on UNSCRs 678 and 687. If the ‘revival argument’ fails, the interpretation of UNSCR 1441 becomes irrelevant to the question of the legality of the use of force – it is incontestable that UNSCR 1441 did not itself authorise the use of force. This submission argues that the authorisation to use force under UNSCR 678 could not support the military action in 2003, as it was strictly limited to the restoration of the territorial integrity of Kuwait, and that UNSCR 687 did not expand the scope of the authorisation under UNSCR 678 but rather terminated it and established the conditions for a cease-fire. However UNSCR 1441 is interpreted, it therefore simply could not ‘revive’ any previous Security Council authorisation, as no such relevant authorisation existed.

Keywords: Iraq inquiry, Chilcot inquiry, use of force, jus ad bellum, international law, Security Council