Last updated on: 9/24/2009 1:12:00 PM PST
Did the UN Security Council Resolution 1441 provide sufficient legal basis for military action against Iraq?
General Reference (not clearly pro or con)
United Nations Security Council Resolution 1441 (UNSCR 1441), adopted on Nov. 8, 2002 by a vote of 15-0, stated in part:
"Recognizing the threat Iraq's noncompliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security,
Recalling that its resolution 678 (1990) authorizes Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to Resolution 660 (1990) and to restore international peace and security in the area...
Deploring also that the Government of Iraq has failed to comply with its commitments pursuant to resolution 687 (1991) with regard to terrorism, pursuant to resolution 688 (1991) to end repression of its civilian population and to provide access by international humanitarian organizations to all those in need of assistance in Iraq, and pursuant resolutions 686 (1991), 687 (1991), and 1284 (1999) to return or cooperate in accounting for Kuwait and third country nationals wrongly detained by Iraq, or to return Kuwaiti property wrongfully seized by Iraq...
Acting under Chapter VII of the Charter of the United Nations,
1. Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA [International Atomic Energy Agency], and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991)..."
Nov. 8, 2002 - UNSCR 1441 (58 KB)
Michael Byers, PhD, Canadian Research Chair in International Law and Politics at the University of British Columbia, in an Apr.-June 2004 Global Governance article titled "Agreeing to Disagree: Security Council Resolution 1441 and Intentional Ambiguity," wrote:
"United Nations Security Council Resolution 1441, adopted unanimously on 8 November 2002, was initially celebrated as reflecting a newfound sense of unity and resolve among the Council's fifteen members... But deep differences soon emerged as to whether the text of the resolution authorized UN member states to use force to uphold its provisions...
A careful perusal of Resolution 1441 reveals grounds for arguments both for and against the existence of a Security Council authorization for the use of force against Iraq in 2003 -- and this in a document that resulted from eight weeks of negotiations among governments that were working hard either to secure or deny such authorization. The failure to close off one or the other sets of arguments suggests that the ambiguities were intentional and that the potential for deep disagreement over the legal meaning of the document was consciously accepted at the time."
Apr.-June 2004 - Michael Byers, PhD
Peter Goldsmith, QC, PC, Attorney General of England and Wales at the time of the quote, wrote in a Mar. 7, 2003 memo to then Prime Minister Tony Blair:
"...[T]he language of resolution 1441 leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the [UN Security] Council as to the legal effect of the resolution. Arguments can be made on both sides."
Mar. 7, 2003 - Peter Goldsmith, QC, PC
Anne-Marie Slaughter, PhD, JD, Dean of Princeton University's Woodrow Wilson School of Public and International Affairs, stated in a Mar. 4, 2003 Council on Foreign Relations interview titled "International Law Expert Says U.S. Should Delay an Iraq Attack Until It Gains Security Council Backing," on www.cfr.org:
"I think it is certainly true that eight out of 10 international lawyers would say that would be a violation of international law. That view would also be supported by the legal advisers of most other countries in the United Nations. On the other hand, the United States has said from the beginning that it did in fact have authorization for the use of force, based on a string of resolutions going back to the original [Gulf War] ceasefire resolution in 1991.
And certainly it was clear in November under Resolution 1441 that we were reserving the right to act without a second Security Council resolution. The other members of the council were insisting that we should come back for a second vote. So this is an area in which the law is sufficiently undeveloped that I think you can reasonably agree to disagree. There’s no question, however, that many, many, many other countries-—the majority of other countries and certainly many of our European allies—-will not see a unilateral American-led attack as explicitly authorized by the Security Council."
Mar. 4, 2003 - Anne-Marie Slaughter, PhD, JD
John B. Bellinger, III, Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the time of the quote, wrote in an Apr. 10, 2003 letter to members of the Council on Foreign Relations/American Society of International Law Roundtable:
"The United States has clear authority under international law to use force against Iraq under present circumstances...
The legal authority to use force to address Iraq's material breaches is clear. Nothing in UNSCR 1441 requires a further resolution, or other form of Security Council approval, to authorize the use of force. A 'material breach' of the cease-fire conditions is the predicate for use of force against Iraq. And there can be no doubt that Iraq is in 'material breach' of its obligations, as the Council reaffirmed in UNSCR 1441."
Apr. 10, 2003 - John B. Bellinger, III
Richard Holbrooke, US Special Representative for Afghanistan and Pakistan at the US Department of State, stated at a Sep. 11, 2003 Council on Foreign Relations speech titled "What Future for the UN? A Prelude to the 58th UN General Assembly":
"They [the Bush administration] didn’t need the second resolution. Any decent international lawyer could have stated that the 1441, which was a substantial diplomatic achievement, plus the preceding 15 resolutions, going back to... 687 in 1991, constituted a sufficient case for the use of force. And after all, the Clinton administration had used force several times without any resolutions."
Sep. 11, 2003 - Richard C. Holbrooke
Jeane J. Kirkpatrick, PhD, former US Permanent Representative to the United Nations under President Reagan, in a June 13, 2003 American Enterprise Institute article titled "Legitimate War: The Case of Iraq," wrote:
"The legal authority to use force to address Iraq’s material breaches is clear and a matter of record. Nothing in Resolution 1441 requires a further resolution, or other form of Security Council approval, to authorize the use of force. 'Material breaches' of cease-fire conditions serve as a predicate for the use of force against Iraq. The coalition war vs. Iraq is not now and never has been illegal.
This is the position on which the United States and the coalition rested its case."
June 13, 2003 - Jeane J. Kirkpatrick, PhD
Richard N. Haass, PhD, Director of Policy Planning and Principal Adviser to Secretary of State Colin Powell at the time of the quote, stated in a in a Mar. 7, 2003 interview with Charlie Rose titled "A Discussion with Richard Haass" on www.charlierose.com:
"We are not acting alone... if we do come to act we will have a multilateral, a multinational coalition of the willing. And, by the way, all of this was, in many ways, anticipated by Resolution 1441 of the Security Council, which all 15 members, including Russia, including France, including Germany, including Syria, all voted for. They told Iraq what it had to do, they set forth some very clear criteria, and they also warned Iraq that 'serious consequences' would follow if Iraq didn't meet these criteria. Now 'serious consequences,' everyone knew, meant the possible use of force, it did not simply mean more months of inspections."
Mar. 7, 2003 - Richard N. Haass, PhD
John Keegan, Defense Editor of the London Daily Telegraph, in his 2004 book The Iraq War, wrote:
"Much has been made subsequently by legalists of the Security Council's failure to adopt its usual form of words, 'all necessary means,' to warn of the threat of military action. That seems specious. Resolution 1441 clearly menaced Saddam with severe penalties at the hands of the responsible powers unless he opened Iraq to unrestricted inspection of its military facilities. Should he fail to do so, a repetition of 1991 would follow. Then his forces had been deployed on the territory of Kuwait, proclaimed by him, illegally, to be Iraq's nineteenth province. What he now risked, if he persisted in intransigence, was a direct Western attack on the territory of Iraq proper."
2004 - John Keegan
Matthew Happold, PhD, LLM, Reader at the University of Hull Law School, wrote in a Mar. 13, 2003 Guardian article titled "The Legal Case for War with Iraq":
"Security council resolution 1441 does not authorise the use of force. Any attack on Iraq would consequently be illegal.
Resolution 1441 finds Iraq to be in 'material breach' of its disarmament obligations under earlier security council resolutions. It gives Iraq a 'final opportunity' to comply with its obligations and, to that end, establishes an onerous and rigidly-timetabled programme of Iraqi disclosures and UN inspections...
But the resolution does not authorise the use of force. The term 'serious consequences' is not UN code for enforcement action (the term used is 'all necessary measures'). And, in their explanations of their votes adopting resolution 1441, council members were careful to say that the resolution did not provide such an authorisation."
Mar. 13, 2003 - Matthew Happold, PhD, LLM
Kofi Annan, MS, UN Secretary-General at the time of the quote, stated in a Sep. 16, 2004 interview titled "Excerpts: Annan Interview" with BBC journalist Owen Bennett-Jones on news.bbc.co.uk:
"[Owen Bennett-Jones] (Q): Do you think that the resolution that was passed on Iraq before the war did actually give legal authority to do what was done?
Kofi Annan (A): Well, I'm one of those who believe that there should have been a second resolution because the Security Council indicated that if Iraq did not comply there will be consequences. But then it was up to the Security Council to approve or determine what those consequences should be.
Q: So you don't think there was legal authority for the war?
A: I have stated clearly that it was not in conformity with the Security Council - with the UN Charter.
Q: It was illegal?
A: Yes, if you wish.
Q: It was illegal?
A: Yes, I have indicated it is not in conformity with the UN Charter, from our point of view and from the Charter point of view it was illegal."
Sep. 16, 2004 - Kofi Annan, MS
Harold Hongju Koh, JD, MA, Legal Advisor to the US Department of State, in a May 1, 2003 Stanford Law Review article titled "Foreword: On American Exceptionalism," wrote:
"In my view, the Iraq invasion was illegal under international law. While justifying the war through narrow parsing of U.N. Security Council resolutions is far preferable to unmoored claims of 'preemptive self-defense,' the legal arguments based on 'revived force' under resolution 678 and 'serious consequences' under resolution 1441 still strike me as unpersuasive...
[R]esolution 1441 gave Iraq 'a final opportunity to comply with its disarmament obligations' and warned Iraq of 'serious consequences' if it did not comply. But by choosing the words 'serious consequences,' not authorizing the member states to use 'all necessary means'- the term of art used to authorize the use of force under Security Council resolutions authorizing intervention in Rwanda, Bosnia, Somalia, Haiti, and Iraq itself- resolution 1441 deliberately avoided authorizing force, apparently hoping that, when the time came, there would be a clearer political consensus to do so."
May 1, 2003 - Harold Hongju Koh, JD
US Senate Resolution 28, passed on Jan. 29, 2003, included the following:
"United Nations Security Resolution 1441 (2002) does not authorize the use of force but instead stipulates that the Security Council will convene immediately to consider any failure on the part of Iraq to comply with the Resolution."
Jan. 29, 2003 - US Senate Resolution 28 (28 KB)
The Arab League / League of Arab States, stated in Resolution 243, adopted on Mar. 1, 2003:
"Its satisfaction at the assurances given by the Syrian Arab Republic, the Arab member of the Security Council, concerning resolution 1441 (2002), the fact that the aforesaid resolution does not constitute a pretext for waging war on Iraq and the fact that the resolution does not provide for automatic recourse to military action, thereby expressing the Arab position of support for the international legitimacy represented by the Security Council and its mission of investigating weapons of mass destruction in Iraq."
Mar. 1, 2003 - Arab League / League of Arab States