Global Policy Forum

By Michael Byers

The prime minister has been talking to his lawyers. George Bush has decided to attack Iraq, and Blair wants to join in. There is one obvious way forward: the UN security council could authorise military action. But, since Russia and China have the capacity to veto any resolution, the council can't be counted on to agree. Blair knows that Bush detests the UN. Having hamstrung a dozen major treaties already, he's hardly going to ask permission to take out Saddam Hussein.

What about the no-fly zones?" Blair asks. "Didn't we use existing security council resolutions then?" "The council authorised the Gulf war with resolution 678. But it then adopted resolution 687, which superseded resolution 678 and imposed a ceasefire. The US has argued that, by denying access to weapons inspectors, Iraq breached resolution 687 and the earlier authorisation was thus revived. The problem is, resolution 687 states that the council: 'Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the region.' No-fly zones might be considered implicitly welcome assistance to the council, but the same could hardly be said of a full-blown war. In any event, Saddam could undercut the argument by allowing some inspectors in."

"What about self-defence? Didn't we use that against the Taliban?"

"The military action in Afghanistan was based on self-defence, but in response to attacks. Although self-defence is part of customary international law, the UN charter has imposed certain limits, including a stipulation that self-defence arises when "an armed attack occurs". As a result, since 1945 few countries have claimed a right of pre-emptive action. Israel justified the strikes that initiated the Six Day war on the basis that Egypt's blocking of the Straits of Tiran was a prior act of aggression. The US justified its 1962 blockade of Cuba as regional peacekeeping, and the 1988 downing of an Iranian Airbus as a response to an armed attack. Since Iraq has not attacked anyone since 1991, self-defence cannot be used."

"George says the prohibition on pre-emptive action is outdated, that waiting for weapons of mass destruction to be used is not an option. Surely we can update the rule?"

"Rules of customary international law and interpretations of the charter do evolve in response to the behaviour of states. But such changes require the express or tacit support of the majority, which has not been forthcoming."

"How do we make it happen?"

"One could seek advance consent to an extension of the self-defence rule. The Americans tried this after the 1998 embassy bombings in Kenya and Tanzania. A few hours before he ordered strikes against targets in Sudan and Afghanistan, Bill Clinton telephoned the leaders of France, Germany and the UK and requested their support. All three immediately agreed, and followed this up with public statements.

"Last September, the formation of the coalition against terrorism was based on a similar strategy. Article 5 of the North Atlantic Treaty was invoked even though Nato was never called into military action. As in 1998, countries were asked to give advance consent to an extended claim of self-defence. If you want to push for another change in the rule to allow pre-emptive action now might be the best time to do so, while the scale of the action and the tactics and weapons to be employed remain unknown.

What the lawyers didn't tell Blair is that any right of pre-emptive self-defence would be dangerous. Who decides that a threat justifies anticipatory action? How does one protect against opportunistic interventions justified on the basis of pre-emptive self-defence? The UN charter is clear: in the absence of an attack, the security council alone can act.

Pressing ahead against Iraq without council authorisation would be illegal under current international law and would undermine a significant accomplishment. The charter has helped prevent wars by maintaining a delicate balance between the good achieved by collective action and the catastrophic destruction that might result if an intervention conflicted with the vital interests of a major power. Only those who have no reason to fear military force can contemplate a world without these protections. It is the possession of a credible nuclear deterrence - and plans for missile defence - that make Bush think he can disregard the UN. The UK, as a middle power, needs international law. The effective use of the UN, not Trident, is what enables the UK to punch above its weight.

Why didn't the lawyers tell Tony this? Who knows, perhaps they did.

Michael Byers teaches international law at Duke University, North Carolina

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