The GULS Law Review

Getting you through the GU law degree!

header photo

Chilcot and the Law: An Analysis of the Report and its Application in International Law.

In this article, Cameron Kane (3rd Year LLB ),  discusses the Chilcot Inquiry's position in international law, and the procedural requirements of an international legal case against the parties involved.

Chilcot and the Law: An Analysis of the Report and its Application in International Law.

On the 6th of July 2016, the product of an intensive seven year investigation into the UK’s involvement in Iraq was published with a national interest that is rarely - if ever - seen in British politics.  Over two and a half million words split into twelve volumes, of evidence and critical analysis regarding the invasion and subsequent occupation, culminated in what can only be described as a damning analysis of the actions of several key political figures in the then-UK government.  Throughout this article, I will discuss various factors relating to the results of the Chilcot Inquiry and how its applies to current international law relating to armed conflict.

The final conclusion of the Chilcot inquiry raised several interesting points which must be referenced prior to any further discussion.  The evidence collected from various public and private hearings; witnesses and scrutiny of Government documents raised three main issues.  The first is that military action was taken before all peaceful methods of disarmament were used,[1] the second is that there was no imminent threat from Saddam Hussain,[2] and finally that a high level of certainty regarding the presence of weapons of mass destruction (WMDs) was promoted at a time when there were insufficient facts to support this conclusion.[3]  These key factors will be the focal points of the discussion, as well as a comparative analysis to the position of international law.

 

Position of International Law:

When looking to any conflict in international law, particular attention must be given to the classification of the fighting itself, as whether it is of an international or national nature determines the legal regime applicable.  By following the definition of an armed conflict established in the case of Tadic,[4] we can see that an armed conflict exists where:

            there is a resort to armed force between States, or protracted armed violence                      between governmental authorities and organized groups, or between such groups                     within a State. 

Looking at this in terms of the facts, we have an invasion by the coalition governments against the troops of the state of Iraq, thus fulfilling the first potential scenario in this definition.  It is clear from the precedent set in Tadic[5] that we have an international armed conflict between these state groups.  This determines the regime of law relating to the conflict, namely: the rules found in the Geneva Conventions; the First Additional Protocol to the Geneva Convention; and additionally this brings into play a wider scope of war crimes under Art. 8(2) of the Rome Statute of the International Criminal Court.

Moving forward to look at the position under international law, reference must be made to the United Nations and their charter, of which all of the coalition Governments of the 2003 invasion are signatories to.[6]  Under Article 2(4) of the charter:

            “All Members shall refrain in their international relations from the threat or use of             force against the territorial integrity or political independence of any state, or in any   other manner inconsistent with the purposes of the United Nations”.[7] 

It is also important to highlight that this article is jus cogens by virtue of its status given under the UN charter.  This means that the Charter is binding over all states and that states have no legal grounds for derogation from its rules.[8]

Looking to the Charter, the United Nations Security Council (hereafter, UNSC) has jurisdiction under matters where it decides that there has been a “threat to the peace, breach of the peace or act of aggression” and will make recommendations or decide the measures to be taken to “maintain or restore international peace and security”.[9]  From this list, “act of aggression” would be the most appropriate ground to take forward. The term “aggression” is satisfied when an international state is acting in an aggressive manner – having been defined in 2010 as:

            the use of armed force by a State against the sovereignty, territorial integrity or                   political independence of another State, or in any other manner inconsistent with the     Charter of the United Nations”.[10] 

The broad nature of this definition makes this the clear choice, meaning the next step is therefore to look to whether this has been breached by the actions of the coalition governments.

Firstly, when beginning to analyse this definition we must look at what constitutes “force” in this context.  There are several important - but separate - sources from where such a definition can be found, nonetheless attention must be drawn to the fact that the judgements of the United Nation’s Security Council have been intentionally broad as to its definition.[11]  However, there is consensus between states in practice that the agreement covers specifically armed force.[12] Therefore we can again make reference to the Tadic case as a definition of armed force, which will be fulfilled here.

Given that the conflict takes place between the coalition states and Iraq, the first issue related to Article 2(4) is fulfilled, meaning this can be classified as an International conflict under the UN Charter.  As mentioned above, the definition of “force” has been left intentionally broad by the Security Council, and so the 2003 invasion could be viewed as “armed force” by reading Article 2 alongside the definition in the Tadic case.  This also covers a “direct use” of force as was established in the case of The United States of America v Nicaragua,[13] where a military intervention constitutes this definition under international law. A question does exist however, as to the intensity of the conflict. Following the case law, small-scale skirmishes can be of such little concern to the international community that the right of self-defence cannot be claimed.[14] This bar is set in order to prevent nations from seeking larger reciprocal attacks under the justification of self-defence, following a smaller scale attack or “frontier incident”.[15]  In order to establish the bar, set by the de minimis threshold of this defence, the level can be found by looking at the scope and the consequences of the actions.[16] However, by following international precedent this bar does not require a high level of severity in order to be above the threshold.[17] Nonetheless, there is no real precedent for the level of this bar looking at a “pre-emptive attack”, meaning this is in dispute. I would therefore suggest, that the events leading up to the invasion of Iraq were of sufficient severity to render them above the bar set in precedent.

A further fundamental question that arises from the reading of Article 2(4) is the consequence of the use of force. To breach Article 2(4), an attack must be “against the territorial integrity or political independence” of the victim. Whilst the principle of territorial integrity is intended primarily to prevent changes to borders or the advancement of secessionist movements, the conclusion of the 2003 invasion was an eight-year occupation by UK and coalition forces, meaning that this can clearly be shown to have affected the “political independence” of the state of Iraq. We can therefore see that this probably resulted in a breach of Article 2(4) of the UN Charter.

Finally, we must reference that the Chilcot Inquiry’s analysis came to the conclusion that all peaceful methods of disarmament had not been exhausted before the invasion commenced.  Under the UN charter, the Security Council may “decide what measures not involving the use of armed force are to be employed to give effect to its decisions”,[18] and only if the Council finds that the measures “provided for in Article 41 would be inadequate or have proved to be inadequate”, can it “take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security”.[19]  These articles therefore expressly state that – if the UNSC finds an “act of aggression” in this case - in order for armed force to be justified, there must have been an exhaustion of all non-violent methods of restoring international peace.  By following the Chilcot Inquiry’s judgement and by applying international law, we must therefore assume that the use of armed force is not justified in this scenario.

Following the breakdown of Article 2(4) and the relevant aspects of the Chilcot Report, it would appear the UK’s involvement in the war in Iraq is itself a potential breach of international law.

 

Defences to the Breach:

Following this conclusion, it is important to stress that defences to this article do exist.  The main defence that arises here are claims of either “pre-emptive self-defence”, or of a “humanitarian intervention”.

The first main defence that can be claimed regarding Article 2(4) is of “pre-emptive self-defence”. The discussion of such a “pre-emptive self-defence” claim was initially started by the United States, who have been the main proponents of this theory in international law since the September 11th Attacks.[20] Under the UN charter, the prohibition of use of force does not hinder a state’s “inherent right of individual or collective self-defence if an armed attack occurs”.[21] The coalition invasion however raises questions, as there has been no actual attack against any state, and a claim of “pre-emptive self-defence” has no official precedent in international law.  The only source of this defence comes from its express acceptance in a speech by then-Secretary General of the United Nations Kofi Annan in 2005.[22] However, the test for such a defence is strict, as the United Nations Security Council has denounced the legality of an attack against a non-imminent threat.[23] Therefore the claimant must be certain of their position relative to the imminence of the attack before there is justification for their actions. Imminence however has no clear legal definition, with potentially its broadest definition being found in academic writing, whereby an “imminent attack” is an:

            “impending attack over which there is reasonable levels of certainty that it will occur            in the foreseeable future, and must be a specific and identifiable attack”.[24]

This definition does not fit the scenario as depicted in the Chilcot report, meaning that a claim of pre-emptive self-defence could not be successfully plead, granting the parties no claim in declaring the invasion bellum justum[25] under international law.

Another potential defence that could be claimed under international law is of a “humanitarian intervention”.  As mentioned above, under the UN Charter, the Security Council – acting through the member states - may take such actions by land, sea or air in order to maintain international peace or security.[26] This would tie in with the coalition’s intention to protect the Iraqi population from Saddam Hussain’s perceived oppressive regime. However, the main caveat for this comes expressly within the text of the article itself, where we have already discussed that the use of force can only be justified if non-forceful measures found in Article 41 have been exhausted.[27] This is at odds with the result of the Chilcot report, where we have already seen that the peaceful methods of disarmament had not been expended.  As a result, the humanitarian defence presumably cannot be claimed in this scenario. [28] It is also important to note that the coalition forces did not claim this defence at the time of the invasion[29], which also raises the question as whether the United States and United Kingdom had any faith in this defence when first considered.

Therefore, by looking at the defences available to the proposed breach, it is also possible that – should a breach of the Charter be found – there would not be a defence applicable to the invasion.

 

Resulting Litigation and Liability?

The final issue to analyse with the Chilcot report - and its position in international law - concerns the rules and laws of the institutions of the United Nations or domestic courts, and how they would apply if there was found to be a breach of international law.  In terms of international criminal liability for the parties, there has not been a case regarding the crime of aggression since the 1980s under agreement that there would be no cases until a definition of an act of “aggression” was created.  This definition was given above when looking at the actions of the coalition governments, as:

            The use of armed force by a State against the sovereignty, territorial integrity or                 political independence of another State, or in any other manner inconsistent with the     Charter of the United Nations.[30] 

As there is now a widely accepted definition, and a suitable reason for raising the case, we can presume that the issue may go on to litigation.

In raising an action to the International Criminal Court (hereafter, ICC), we must follow the rules established in the Statute of the International Criminal Court.  The Court will have jurisdiction to the crimes of genocide, crimes against humanity, war crimes or the crime of aggression.[31]  Furthermore, only states can be parties to an action,[32] and such an action can be raised only in three ways: by the UNSC; by the public prosecutor; or by the state itself.[33]  If raised by either of the two latter parties, there is an extra criteria that the incident must have occurred on the territory, or by a national of a state that is a party to the Rome Statute.[34]

Looking at the war crimes found in Art. 8(2) of the Rome Statute, there is an expansive list of potential crimes that are classed as war crimes - provided that actions of the party are of such an excessive nature that it can be classed as a breach.  Furthermore, owing to the conflict’s presumed nature as an international armed conflict, the larger list of crimes under Art. 8(2) of the Rome Statute shall apply, thus giving the court a greater scope as to their case.  If such a party given above decides to raise a case to the ICC, they will take any war crimes from the list found in this article. 

Whist it must be mentioned that the ICC only has jurisdiction where the national courts are unwilling or unable to convict,[35] at this time, the International Criminal Court is still in the preliminary investigation stage of their case regarding the 2003 invasion.[36]  There is however, the potential for an international criminal case in the future. 

Aside from the ICC, the UNSC may also choose to impose sanctions on the coalition governments, if it finds that there has been a breach of the charter.  As mentioned above, the UNSC may determine the existence of an act of aggression, resulting in a breach of Article 2(4).  From this, the Security Council can impose a variety of sanctions, such as economic penalties or - in extreme circumstances - the severance of diplomatic relations with the belligerent state.  This broad reading of the powers of the UNSC may be an option in the event of a breach.

 

Conclusion:

In conclusion, the Chilcot report has been one of the most divisive and controversial political documents released in recent memory.  Following analysis under current international law and its application in relevant cases, there are potential grounds for finding a breach of the UN charter, and subsequent defences to this claim appear to fail on de facto grounds to prove bellum justum.  However, whilst the results of the Chilcot Inquiry have potentially highlighted several breaches of international law, ultimately this matter will be decided if the International Criminal Court or the United Nations Security Council decides to take this matter further into litigation or to impose the relevant sanctions on the belligerent states.

 

 

[1] Chilcot Report, Executive Summary, 6/7/16

[2] Ibid.

[3] Ibid.  

[4] The Prosecutor v Dusko Tadic (Case No. IT-94-1-AR72; 35 ILM (1996) 32)

[5] Ibid

[6] http://www.un.org/en/member-states/index.html

[7] Charter of the United Nations, Article 2(4)

[8] Ibid, Article 103

[9] Ibid, Article 39

[10] Resolution 6, International Criminal Court, 2010

[11] A. Randelzhofer, “Article 2 (4)”, in B. Simma, et al. (eds.), The Charter of the United Nations: A Commentary, 3r ed., Oxford, OUP, 2012, p.209.

[12] Ibid.

[13] United States of America v Nicaragua, ICJ Supra Note 20 §195

[14] Ibid.

[15] Ibid

[16] Ibid.

[17] Oil Platforms (Islamic Republic of Iran v United States of America), Judgment, ICJ Reports 2003, p.161

[18] Charter of the United Nations, Article 41

[19] Ibid, Article 42

[20] National Security Strategy of the United States of America of 17 September 2002 - www.state.gov/documents/organization/63562.pdf [Accessed 15/10/2016]

[21] Charter of the United Nations, Article 51

[22] In Larger Freedom: Towards Development, Security and Human Rights for All, UN Doc. A/59/2005, 23 May 2005, §124 (Compendium 24).

[23] Democratic Republic of Congo v Uganda ICJ Rep. 2005, §161

[24] N. Lubell, The Problem with Imminence in an Uncertain World, M. Weller, (ed.) The Oxford Handbook of the Use of Force in International Law, Oxford, OUP, 2015, Ch. 31, part VII.

[25] Bellum justum “just war”

[26] Charter of the United Nations, Article 42

[27] Ibid, Article 42

[28] Chilcot Report, Executive Summary, 6/7/16

[29] Letters from the Permanent Representative from the UK and US dated 20/03/03, UN Doc 5/2003/350 (UK), UN Doc 5/2003/351 (US)

[30] Resolution 6, International Criminal Court, 2010

[31] Rome Statute, International Criminal Court, Article. 5

[32] Statute of the International Criminal Court, Article 34(1)

[33] Rome Statute, international Criminal Court, Art. 13 - 14.

[34] Ibid, Article. 12(2)

[35] Rome Statute, International Criminal Court, Article. 1

[36] https://www.icc-cpi.int/iraq

Go Back

Comment