Legal Background Paper

OVERSEAS AND DEFENCE SECRETARIAT
CABINET OFFICE
8 MARCH
SECRET UK EYES ONLY

Text of the Iraq: Legal Background-March 8, 2002 memo from UK Foreign and Commonwealth Office (office of Jack Straw, Foreign Secretary) to Tony Blair advising him on the legality of the use of force against Iraq.
CONFIDENTIAL
IRAQ: LEGAL BACKGROUND
(i) Use of Force: (a) Security Council Resolutions
(b) Self-defence
(c) Humanitarian Intervention
(ii) Security Council Resolutions relevant to the sanctions regime
(iv) Security Council Resolutions relating to UNMOVIC
(i) Use of Force: (a) Security Council Resolutions relevant to the Authorisation of the Use of Force
1. Following its invasion and annexation of Kuwait, the Security Council authorised the use of force against Iraq in resolution 675 (1990); this resolution authorised coalition forces to use all necessary means to force Iraq to withdraw, and to restore international peace and security in the area. This resolution gave a legal basis for Operation Desert Storm, which was brought to an end by the cease-fire set out by the Council in resolution 687 (1991). The conditions for the cease-fire in that resolution (and subsequent resolutions) imposed obligations on Iraq with regard to the elimination of WMD and monitoring of its obligations. Resolution 687 (1991) suspended but did not terminate the authority to use force in resolutions 678 (1990).
2. I the UK’s view a violation of Iraq’s obligations which undermines the basis of the cease-fire in resolution 687 (1991) can revive the authorisation to use force in resolutions 678 (1990). As the cease-fire was proclaimed by the Council in resolution 687 (1991), it is for the Council to assess whether any such breach of those obligations has occurred. The US have a rather different view: they maintain that the assessment if breach is for individual member States. We are not aware of any other State which supports this view.
3. The authorisation to use force contained in resolution 678 (1990) has been revived in this way on certain occasions. For example, when Iraq refused to cooperate with the UN Special Commission (UNSCOM) in 1997/8, a series of SCRs condemned the decision as unacceptable. In resolution 1205 (1998) the Council condemned Iraq’s decision to end all cooperation with UNSCOM as a flagrant violation of Iraq’s obligations under resolution 687 (1991), and restated that the effective operation of UNSCOM was essential for the implementation of that Resolution. In our view these resolutions had the effect of causing the authorisation to use force in resolutions 678 (1991) to revive, which provided a legal basis for Operation Desert Fox. In a letter to the President of the Security Council in 1998 we stated that the objective of that operation was to seek compliance by Iraq with the obligations laid down by the Council that theoperation was undertaken only when it became apparent that there was no other way of achieving compliance by Iraq, and that the action was limited to what was necessary to secure this objective.
4. The more difficult issue is whether we are still able to rely on the same legal base for the use of force more than three years after the adoption of resolution 1205 (1998). Military action in 1998 (and on previous occasions) followed on from specific decisions of the Council; there has now not been any significant decision by the Council since 1998. Our interpretation of resolutions 1205 was controversial anyway; many of our partners did not think the legal basis was sufficient as the authority to use force was no explicit. Reliance on it now would be unlikely to receive any support.
USE OF FORCE: (B) SELF-DEFENCE
5. The conditions that have to be met for the exercise of the right of self-defence are well known:
i) There must be an armed attach upon a State or such an attack must be imminent;
ii) The use of force must be necessary and other means to reverse/avert the attack must be unavailable;
iii) The acts in self-defence must be proportionate and strictly confined to the object of stopping the attack.
The right of self-defence may only be exercise until the Security Council has taken measures necessary to ensure international peace and security and anythign [sic] done in exercise fo [sic] the right of self-defence must be immediately reported to the Council.
6. for the exercise of the right of self-defence there must be more than “a threat