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25 March 2003: "Illegal war? Say what? (cont'd)"

I received an e-mail from a Marjolein, in the Netherlands (it's nice to know I'm being read in my home country), regarding my "Illegal War?" entry, and perhaps "Unique Legitimacy" as well. On with the discussion...

Marjolein helpfully included a link to a Joint declaration by France, Russia, and China on resolution 1441, the salient points of which I shall quote, albeit not entirely in their original order:

Resolution 1441 (2002) adopted today by the security council excludes any automaticity in the use of force.

Well, that's a lovely sentiment; pity the three Permanent Members in question didn't actually have that incorporated in the resolution itself.

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 by the director general of the IAEA. It will be then for the council to take a position on the basis of that report.

Unfortunately for France, Russia and China, this is not what the resolution actually says; paragraph 12 reads:

[The Security Council] 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;

Maybe I'm an unrestrained arsewit, but I don't see any mention of a prerogative on the Council's part; paragraph 12 calls upon the Council to convene and consider the situation and nothing more. Of course, there's paragraph 14, which gives the default conclusion to every UNSC resolution, which is that the Council "Decides to remain seized of the matter." Between paragraphs 12 and 14, of course, is 13:

[The Security Council] 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;

I think I pointed this out before, but considering that every coercive measure short of a ground war has already been slung at Saddam without success, what the bloody hell else can "serious consequences" mean but, indeed, ground war? Especially when one considers that Iraq had already been threatened five years ago with "severest consequences" in paragraph 3 of resolution 1154 (1998) if it continued to ignore its obligations? I might add (again) that 1154 was, like 1441, passed unanimously by the Council.

Let's see if I've got this right:
Iraq is supposed to get rid of its NBC weapons, development programmes and delivery systems;
to make certain it does so, inspectors are sent to verify that it is doing/has done so;
Iraq is required to cooperate "immediately, unconditionally and actively" with the inspectors;
if it does not do so, it will be faced with "serious consequences" (which are presumably heavier than "the severest" consequences, since that was five years ago);
and now I'm supposed to believe that the "more serious than severest" consequences consist of sending more inspectors (with whom the Iraqi government can also not cooperate)?
In the words of Gavan Griffith QC, this is "a fanciful proposition, an Alice in Wonderland inversion of meaning of plain words."

The essential point as regards the legal angle, though, remains to which extent the conditions of 1441 have been met by the various members of the Council; and by that I do mean the conditions set out in the resolution; not in some accompanying declaration which has no legal validity (it's not like the Council voted on it or anything), of which two of the signatories aren't even parties to the 1991 cease-fire.
Iraq failed to comply with 1441 (when full compliance is called for, partial compliance is no compliance), and Blix said so in just about every offical report to the Council he made, and the Council convened and considered the issue. Check, check, and check. Conditions fulfilled, 1991 CFA violated, resumption of hostilities is warranted, end of story.

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