US interpretation of Article 13 of UN Security Council Resolution 1441 may have influenced Goldsmith

PEJnews -Joan Russow - Global Compliance Research Project -Currently 

in Great Britain there is an inquiry into the Iraq war (Chilcot Inquiry).

The Guardian reported on January 27, 2010  that “Lord Goldsmith, attorney general at the time of the Iraq war, acknowledged today that he changed his advice on the legality of the invasion twice in the five weeks leading up the start of the conflict. He admitted that he was first convinced by American counterparts in February 2003 that military action might possibly be legal without a second UN resolution”

On November 8, 2002, the UN Security Council passed a resolution on Iraq; in the resolution under article 13 there was a key phrase “Iraq will face serious consequences”:

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On November 8, 2002, the UN Security Council passed a resolution on Iraq; in the resolution under article 13 there was a key phrase “Iraq will face serious consequences”:

Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations; (13).

This resolution was passed unanimously but there was an important reservation appended by Russia, China and France – three of the five members, with veto powers,  of the UN Security Council  In the â€śJoint statement issued by Russia, China and France was their interpretation of UN of the resolution:

"Resolution 1441 (2002) adopted today by the Security Council excludes any automaticity in the use of force. In this regard, we register with satisfaction the declarations of the representatives of the United States and the United Kingdom confirming this understanding in their explanations of vote, and assuring that the goal of the resolution is the full implementation of the existing Security Council resolutions on Iraq's weapons of mass destruction disarmament. All Security Council members share this goal.

In case of failure by Iraq to comply with its obligations, the provisions of paragraphs 4, 11 and 12 will apply. Such failure will be reported to the Security Council by the Executive Chairman of UNMOVIC or the Director General of the IAEA. It will be then for the Council to take position on the basis of that report.”

This reservation by France, Russia and Chna indicated that Russia, France and China, in agreeing to UNSC resolution 1441 would not have signed it if “serious consequences” had been interpreted as justifying a military intervention.

Great Britain must have been fully aware of this reservation and that is why it called for another UNSC Resolution that would support the UNSC sanctioning an invasion.

BUT WHAT HAPPENED IN FEBRUARY TO CHANGE GOLDSMITH’ POSITION ON THE LEGALITY OF THE INVASION

At that time, President Bush and Vice President Cheney were stating that the inclusion of the term “serious consequences” was sufficient UN justification for the invasion. This interpretation was widely circulated by the media.

Subsequently, I remember interviewing the Russian Ambassador Sergev Lavrov after his press Conference in March 5 or 6, 2003, and I asked him about his interpretation of “serious Consequences” and he affirmed that his support for the resolution in no way meant that he interpreted the expression “serious consequences” as giving justification to the invasion of Iraq. In fact, he indicated that he was assured when he raised the issue that “serious consequences” did not justify an invasion. He also pointed out that Syria, also a member of the UNSC would also never have supported the resolution if “serious consequences” would have been used to indicate UNSC support for an invasion.

During the same time, Canada also interpreted “serious consequences” in an ambiguous  document that was being circulated. Canada had taken the position that it would have been involved in the invasion  only if there were  a clear mandate from the UN Security Council. Canada was working on a revised resolution that, while advocating the delay of the invasion for two weeks, would give UN Security Council Support to an invasion.

Unfortunately, the US and the UK went directly to the UNSC, under Chapter VII of the UNSC, rather than under
Chapter VI- the Peaceful resolution of disputes. Under this Chapter there is a section which proposes the seeking of an advisory opinion from the International Court of Justice. There was an active international campaign to call upon Iraq to go to the International Court of Justice. [there could not be a campaign to call upon the US because the US does not respect the jurisdiction of the International Court of Justice]. Unfortunately as well, the Goldsmith did not  advice the Tony Blair to seek advice from the ICJ.

Starting in November 2002, along with others, we were calling for the invoking the 1951 Uniting for Peace Resolution, which essentially stated: in a situation where the UN Security Council failed to make a decision, the responsibility reverted to the UN General Assembly. Subsequently, the Uniting for Peace Coalition was formed, and called for an emergency session of the UN General Assembly. The campaign spread widely and was receiving so much  support  that the US wrote a threatening letter to all members of the UN General Assembly; a letter in which they indicated their strong opposition to calling an emergency session of the UNGA. [It was the Chilean ambassador that revealed that this letter had been sent]

In March 7 2003, after the presentation of Hans Blix to the United Nations UN Security Council, there was a demonstration, “Women say no to war with posters in 27 different languages, adjacent to the United Nations. While the media from all over the world was lined up for blocks in front of the United Nations, and we went and personally talked to all the media representatives. Only the media from France and Germany came over to interview us. The media from many of the countries were complicit in supporting the war. Many of the members of the media. particularly in the US, supported the US interpretation of “serious consequences” and perpetuated the notion that the UN Security Council was dysfunctional. In fact, while I believe the UN Security Council violates a fundamental principle in the Charter of the United Nations – the sovereignty equality of states- this was one time where the UNSC did function through not sanctioning the US invasion of Iraq.

If there had been an emergency session of the UN General Assembly, there is a strong possibility that over 80% of the member states of the United Nations would have opposed the invasion; this opposition would have sent a strong message to the US, and possibly Goldsmith would have reassessed his assessment of the legality of the invasion.

While I believed that any military intervention into Iraq would have been in violation of the fundamental objective of the Charter of the United Nations- to prevent the scourge of war and to oppose aggression – under international law an invasion is deemed to be legal if supported by the United Nations Security Council.