Noot 10 (bij artikel “Nederland is anders”)

Aantekeningen voor college buitenlandse studenten (Veiligheidsraad)

Leiden, Faculteit Sociale Wetenschappen, 20 januari 2005

2002

12 September: Bush address UNGA. “Are SC resolutions to be honored and enforced, or cast aside without consequence? Will the UN serve the purposes of its founding, or will it be irrelevant?”

11 October: Resolutions of both houses of US Congress.

8 November: res. 1441. Principal elements:

para 1: Decides  that Iraq has been and remains in material breach of its obligations under relevant resolutions.

para 2: Decides, while acknowledging paragraph 1 above, to afford Iraq, by this resolution, a final opportunity to comply.

para 12: Decides to convene immediately upon receipt of a report [in accordance with paragraphs 4 or 11 above], in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.

para 13: Recalls […] that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations.

Who got the better deal, US and UK, or France and Russia? At first sight, more or less a draw, but paras 1, 2 and 13 are all short of an authorisation, whereas para 12 clearly implies that a second resolution is needed to authorise the use of force. US and UK may argue that it does not say so and that Iraq’s non-compliance over more than a decade legitimises the use of force, but the US/UK’s desperate attempt at securing a second resolution, followed by their failure even to obtain 9 positive votes (so that there was not even a need for France, Russia and China to cast a veto) vitiates that argument.

The proposal for a second resolution was ingloriously withdrawn, and on 20 March 2003 US and UK invaded Iraq without the clear mandate Tony Blair had so plainly coveted.

Virtually all discussions on Iraq boil down to the question of the legitimacy and the wisdom of that invasion. In my Cleveringa lecture I make a distinction between the decision to invade Iraq and the way that decision was carried out. Many people who had supported the decision to invade must have been horrified by the way it was executed. We probably all agree that the execution of the invasion was a disaster and that launching such an operation without adequate preparation for the post-conflict phase was, to quote Kerry, a colossal error of judgment. But in Europe there seems to be a majority view that the decision itself was illegitimate because of the absence of a SC mandate.

The purpose of this lecture (and next week’s on Kosovo) is to show that the academic debate on the legitimacy question does not arrive at such a straightforward conclusion. There are different schools of thought. The majority view, worldwide, probably is that for the use of force to be legitimate it must be either authorised by the SC or warranted by the inherent right of individual or collective self-defence. Another school of thought, however, fears that strict observance of the prohibition of the use of force without SC authorisation would paradoxically prevent the Council from discharging its duties under Chapter VII. In chapter 9 of David Malone’s book on the Security Council, Adam Roberts warns that viewing formal SC authorisation as a sine qua non of any military action other than self-defence means that each of the five permanent members of the Security Council can veto any and every use of force other than individual or collective self-defence. “The link between a country’s consistent non-compliance with Chapter VII resolutions, the SC’s inability to take that country to task due to the protection it enjoys from one or two permanent members, and the eventual readiness of other states to intervene in that country without a SC mandate, cannot simply be ignored.”

 

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