Debate: adjudicating Operation Iraqi Freedom.

Position:Proceedings of the One Hundredth Annual Meeting of the American Society of International Law: A Just World Under Law - Discussion

The debate took place at 9:00 a.m., Thursday, March 30, and was convened by Dino Kritsiotis of the University of Nottingham and Anne Orford of the University of Melbourne, who introduced the participants: the presiding judge, Diane Wood of the U.S. Court of Appeals for the Seventh Circuit; the associate judges, Christine Chinkin of the London School of Economics and Yoram Dinstein of Tel Aviv University; and two counsel, Philippe Sands of University College London and Ruth Wedgwood of the School of Advanced International Studied, Johns Hopkins University. *

PRESIDING JUDGE DIANE WOOD:

It is my pleasure to welcome you this morning to our debate on "Adjudicating Operation Iraqi Freedom." My name is Diane Wood. I am a judge on the United States Court of Appeals for the Seventh Circuit, and I assure you that such questions do not come before my court! It is my great pleasure to share this judging panel with my two colleagues: Professor Christine Chinkin from the London School of Economics and Professor Yoram Dinstein from Tel Aviv University.

We are very fortunate to have two highly qualified advocates to present the position in support of and against the intervention that took place in Iraq in March of 2003. Professor Ruth Wedgwood, who is from the School of Advanced International Studies at Johns Hopkins University, will be arguing the case for the lawfulness of the intervention and Professor Philippe Sands from University College London will be arguing the case against its lawfulness.

Now I would ask you all to engage in the mental exercise of putting yourself back a couple of years--three years to be exact--to the situation as it stood in March 2003. We are not going to take advantage of 20/20 hindsight in these arguments, although the terms that we have given to the advocates allow them to present positions that might have supported the intervention in 2003 even if no particular government was adopting them at that time.

As the program for this Centennial Meeting says, our hope is that this will be an opportunity for us to have a very thorough and careful look at the legal positions--both pro and con--for Operation Iraqi Freedom and to see how they stand up under the test of a less urgent moment or, shall we say, a more reflective atmosphere. So, with that, we will begin the proceedings and we will first hear from Professor Wedgwood.

PROFESSOR WEDGWOOD:

May it please this panel, it is a pleasure to appear before you today, together with my colleague Philippe Sands. I am, for some reason, in the posture of this case--the applicant--although I think the burden properly falls on Professor Sands. Nonetheless, let us proceed to argue the legality of the intervention in Iraq that began in March of 2003.

It is hard to take oneself back in time. Every war has unpleasant discoveries, every war is difficult and tragic, and therefore, I think we have to first focus on the fact that we are arguing the ex ante legality--not the legitimacy, not the political prudence, but the legality or illegality--of the intervention. As we do so, I think one will discover that in the world of multilateral politics and the operations of the United Nations as a political organism, that in fact, alas, politics has something to do with the way that the law has to be applied in the efficacy or inefficacy of the Security Council.

Now to go back and set the stage briefly. As we all recall, in August 1990, Iraq (under Saddam Hussein) swept into Kuwait. That action was the unwelcome climax of a previous unpleasant decade with the Iranian-Iraqi war, where chemical weapons had been used against Iranian solders, where rocket attacks were launched against Iranian cities. The Iraqi intervention also occurred in the unpleasant aftermath of the Anfal gas campaign in the north of Iraq, where chemical weapons were used against Iraqi citizens who happened to be of Kurdish origin. So the invasion of Kuwait wasn't just any invasion. Yes, it was an oil-rich environment but it was also undertaken by a person and a regime that had been consistently disruptive to the situation of the Persian Gulf.

And in August of 1990 the Security Council demanded that Saddam Hussein withdraw from Kuwait (Resolution 660). It imposed a regime of sanctions to force him to do so (Resolution 661), but as we all know, economic sanctions often don't have any real effect until after a long duration, and, often, they have no effect at all.

And then in November of 1990, the Security Council adopted Resolution 678 which provided that members of the United Nations were authorized to use all necessary means to effect the withdrawal of Iraq from Kuwait. And, as well, there were two other prongs to Resolution 678 which we must bear in mind. The intention behind the resolution was not simply to effect the withdrawal of Iraqi forces from Kuwait, but to enforce all "subsequent relevant resolutions"--and, further, to "restore international peace and security in the area."

So the authorization for the use of force did not terminate or vanish the moment that Iraqi forces were back inside their own borders. There was, of course, a pause for peace for a period of 90 days to give Yevgeny Primakov, President Gorbachev's Special Envoy to Iraq, the chance to speak to Saddam Hussein in the hope that he would still withdraw his forces voluntarily. He did not. I think that interval is a lesson to all international lawyers because it was in that interval--it was later found by the United Nations--that Saddam Hussein weaponized his biological reagents into aerial bombs and into warheads.

PRESIDING JUDGE WOOD:

Professor Wedgwood, I wonder if we could pause for a moment on the language of paragraph two of Resolution 678, which is the operative paragraph authorizing member states of the United Nations to--in this magic phrase--use "all necessary means" to accomplish the purposes you have just described. Is it not for this panel to decide what falls within the scope of the term "all subsequent relevant resolutions"? And is not the central question here whether the idea of relevance is tied to the restoration of Kuwait's boundaries or whether the idea of relevance is a much more expansive one?

PROFESSOR WEDGWOOD:

There is language in Security Council resolutions that is often a political language, a language which the members of the Council have negotiated with great care. Therefore, it may not always be transparent on the face of the resolution what the resolution is actually taken by the parties to mean. I would note that, whatever one's account of "subsequent relevant resolutions", one must take account of the third and final prong of Resolution 678 (which says "restore international peace and security in the area.") It doesn't say "to Kuwait"; it doesn't say "between Kuwait and Iraq." It says "in the area", and since it was widely know at the time that Saddam Hussein had been in general a rapscallion in the area, I think one might reasonably give that phrase a broad interpretation.

I also think that, at that point in time, the Security Council itself did not know what "subsequent relevant resolutions" it would pass. When we have the enactment or the passage of Resolution 687 at the cease-fire of the Gulf War--after the air and land campaign that turned out to be an amazingly ambitious and unique architectural framework to impose on Iraq in light of its past behavior, it was a singular, one-of-a-kind requirement of full disarmament of all chemical weapons, biological weapons, nuclear weapons and missiles over 150 kilometers. This was a requirement that had never before (except perhaps in World War I with analogous weapons systems in Germany) been imposed on any State party. Resolution 687 was therefore not simply enforcing existing disarmament treaties, but it said that in light of Iraq's past behavior, it could not be trusted with these kinds of capabilities. So, I take your point that a first-year law school class reading "subsequent relevant resolutions" might not know what that meant, but I think that what has to be understood here is that there was a reservation of authority, if you will, by the Security Council to give force to subsequent necessities in the area.

Is this matter justiciable before this panel? Well, if any of this is justiciable, I suppose that the panel will give it its meaning, but l think it ought to be a deferential meaning that certainly doesn't tie the hands of the Security Council in trying to deal with a very difficult regime.

JUDGE CHINKIN:

Professor Wedgwood, could I follow up from that question and ask more generally what principles of interpretation you are using to apply to a Security Council resolution? It has been commented by Sir Michael Wood that there are no accepted international law principles relating to the interpretation of Security Council resolutions as there are for treaties, for example. You have said several times that there is this conjunction of the political and the legal and intimated, I think a moment ago, that perhaps we have to think about some of the political background to the adoption of such a resolution. Given that there are no travaux preparatoires, and given that the language is formulated in such a political situation, what can we use as a starting point for the principles of interpretation of these resolutions?

PROFESSOR WEDGWOOD:

Well, I think your Honor's point about the particular opacity of the preparation of Security Council resolutions which may take place in the living room of the British Ambassador's residence or over dinner at The Leopard is one reason why in fact a court may wish to be peculiarly deferential toward the interpretation of these resolutions, either taken by the Council or by the members of the Council who were the leading parties in formulating a particular resolution. Furthermore, one can simply cite ordinary principles of interpretation of any text--those of plain meaning, teleology, whether an...

To continue reading

FREE SIGN UP