THE CRITICAL PHRASE
A newspaper headline put it well: ‘What will be the trigger for war? As inspectors begin checking Iraqi sites, peace hinges on the interpretation of one phrase: “material breach” ‘ Curiously, the article that followed did not go on to explain what this crucial phrase meant, saying only that, ‘there are conflicting views not only among Washington, London, Paris, Moscow and Beijing, but also within the British and US governments’. (Guardian, 27 Nov. 2002, p. 20). The US and UK claim that if Iraq is found in a further ‘material breach’ of its disarmament obligations, they are empowered by past UN Security Council Resolutions to use force unilaterally against the government in Baghdad. The important questions then seem to be: What is a ‘material breach’ and why is it important? In this case, what constitutes a ‘material breach’? Who is authorised to make a judgement as to whether a ‘material breach’ has occurred? And, the heart of the matter, if a competent authority finds Iraq in ‘material breach’ of its obligations under UN Resolutions, does this legally justify a war? One critical issue is whether there has to be a new UN Resolution finding Iraq in ‘material breach’ and authorising military action (please note, these are two separate decisions) before war. If there doesn’t have to be a new Resolution, Britain and the US can just go to war by claiming that Iraq is in ‘material breach’.
The British Government has not helped matters by revealing that it is a matter of policy not to be clear about this critical point. In response to CND’s legal case against an unauthorised war on Iraq, Peter Ricketts, director general for political affairs at the Foreign Office said, ‘It would be prejudicial to the national interest and to the conduct of the Government’s foreign policy if the Government were to be constrained to make a definitive statement of its legal position under international law in relation to issues concerning the international relations of the United Kingdom.’ (This argument was accepted by the High Court when it dismissed CND’s case. Law Report, Times, 27 Dec., p. 35) Mr Ricketts added that, ‘The UK’s international alliances could be damaged by the incautious assertion of arguments under international law which affect the position of those other states.’ Finally, Mr Ricketts also said, ‘it is frequently important for the successful conduct of international affairs that matters should not be reduced to simple black and white, but should be left as shades of grey and open for diplomatic negotiation.’ (Telegraph, 19 Dec. 2002, p. 14) Well, that’s clear then. To sum up: we must avoid diplomacy with Iraq which could lead to a peaceful resolution, but we must leave legal loopholes so that our diplomats can twist words to justify war.
WHAT IS A ‘MATERIAL BREACH’? (AND WHY IS IT IMPORTANT?)
According to Article 60 of the 1969 Vienna Convention (governing the Law of Treaties), ‘A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.’ The US/UK argument is that by failing to comply with its disarmament duties as laid down in UN Security Council Resolution 687-and expanded in Resolution 1441-Iraq has so seriously breached these ‘treaties’/Resolutions, that other aspects of the Resolution can also be terminated or suspended-including the Gulf War ceasefire. According to Washington and London, Iraq’s allegedly incomplete disarmament allows them to resume the 1991 Gulf War.
THE 1991 ‘CEASEFIRE’ WHAT CONSTITUTES A ‘MATERIAL BREACH’? WHO CAN MAKE THE JUDGEMENT? DOES ‘MATERIAL BREACH’ = ‘AUTHORISATION FOR WAR’? THE ALLEGED PRE-EXISTING ‘AUTHORISATION FOR WAR’ SUMMARY
Let’s take a closer look at what the Resolution asked of Iraq, in return for a ceasefire. Resolution 687 required many things of Iraq, including the payment of foreign debts repudiated by Iraq. Iraq was aslo required ‘to inform the Security Council’ that it would not support terrorism or harbour terrorists, and ‘to condemn unequivocally and renounce’ all forms of terrorism. The crucial demands were to ‘unconditionally accept the destruction, removal, or rendering harmless, under international supervision,’ of Iraq’s chemical and biological weapons, and long- range missiles, and to ‘unconditionally agree not to acquire or develop nuclear weapons or nuclear- weapons-usable material’. Iraq also had to allow UN weapons inspectors to verify its disarmament process. Article 33 says the Security Council, ‘Declares that, upon official notification by Iraq to the Secretary- General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the Member States cooperating with Kuwait in accordance with resolution 678 (1990).’ Resolution 687 did not say that the ceasefire depended on continuing compliance by Iraq with the terms of the Resolution; it said that the ceasefire came into effect when Iraq notified the UN that it accepted the Resolution. Furthermore, Dr Glen Rangwala, an international lawyer at Cambridge University, points out that since the introduction of the UN Charter, there has been a general prohibition on the use of force in international relations, as stated in Article 2.4. Therefore, a ceasefire cannot simply be revoked and war re-started if the terms of the ceasefire treaty are violated. Dr Rangwala comments, ‘the standard view in international law-both from academics and from states-has been that a ceasefire returns the parties to a state of peace, and any prior right to use force is terminated.’ (You can find his arguments at
The short answer is that a ‘material breach’ is whatever the party to the treaty says that it is. At the present time, it is generally understood that a further ‘material breach’ of Iraq’s disarmament obligations would have to consist of both verified deceit/omissions in the Iraqi weapons dossier AND ‘a pattern of delays or outright refusal to provide access to a site or an official’. (Guardian, 27 Nov., p. 20)
It is for the party/parties to a treaty to decide whether or not there is a ‘material breach’ of the treaty. If the 1991 ceasefire was between Iraq and the UN Security Council, then the judgement as to whether Iraq is living up to its obligations is up to the Security Council. Dr Rangwala points out that if the ceasefire was between Iraq and ‘Kuwait and the Member States cooperating with Kuwait’, as Resolution 687 puts it, then Kuwait and all its allied States involved in the 1991 war (and not just Washington and London) would all have to decide ‘by unanimous agreement’ on the material breach (Article 60 of the Vienna Convention again). The only exceptions in the Convention are if one state is ‘specially affected’ or if the breach ‘radically changes the position of every party’ with respect to the treaty. Neither applies here. (Please note that neither the US nor UK has so far argued that the ceasefire is between Iraq and the entire Gulf War ‘coalition’. For reasons that should now be clear.)
The finding that Iraq is not complying with its disarmament obligations ‘entitles’ the Security Council to move on to state that Baghdad is in ‘material breach’. There is nothing automatic about this process. The Security Council is ‘entitled’ to make this declaration, it is not obliged to do so. If the Security Council does declares Iraq in ‘material breach’ of Resolution 687, this does not mean it is entitled to tear up the 1991 ceasefire. Dr Rangwala comments, ‘An example would be Israel’s agreements with its neighbouring states in 1949 at Rhodes: no-one claimed that a violation of the terms of the armistice led to a “material breach” and a nullification of those agreements… neither parties to the dispute nor Security Council members said that because, say, Israel launched an attack on Egypt [in 1956], the armistice [ceasefire] agreement was now invalid, and Egypt would be entitled to resume the war on Israel.’ ‘A similar case would be between Israel and Lebanon/Syria today: both sides’ attacks on each other have been condemned as violations of the UN Charter, which would not be the case if armistices could still be suspended’ as was possible before the adoption of the UN Charter.
Resolution 687 is about the ceasefire. The supposed authorisation to begin fighting came earlier, in Resolution 678. Passed in Nov. 1990, this authorised States co-operating with the Government of Kuwait to use ‘all necessary means’ to ‘uphold and implement Security Council resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area’. In other words, to expel Iraq from Kuwait as required in Resolution 660 and all Resolutions passed between 660 and 678. So the claimed ‘authorisation’ to start a war in 2003 over Iraq’s weapons of mass destruction (and actually aimed at the political leadership of the country), is based on a Resolution over twelve years old, which was aimed at the removal of Iraq from Kuwait, something accomplished in February 1991. Britain and the US claim that reference in Resolution 678 to Resolution 660 and ‘all subsequent relevant resolutions’ includes all Resolutions passed after Resolution 678, which authorised the use of ‘all necessary means’ against Iraq on subjects the Security Council had not yet raised. Absurd. Also nonsensical is the suggestion that the Security Council intended that the phrase ‘and to restore international peace and security’ to mean a continuing authorisation to use force against Iraq for disturbing ‘international peace and security’.
The US and Britain cannot unilaterally declare Iraq in ‘material breach’ of its disarmament obligations. Even if the UN Security Council declares Iraq in ‘material breach’ of Resolution 687, there is no legal basis for a war against Iraq. The 1991 ceasefire cannot be ripped up in 2003 to justify a new war, because the UN Charter has banned the use of force except in self- defence, or unless specifically authorised by the UN Security Council. The words ‘material breach’ are irrelevant to the legality of a new war on Iraq.
WHAT CONSTITUTES A ‘MATERIAL BREACH’?
WHO CAN MAKE THE JUDGEMENT?
DOES ‘MATERIAL BREACH’ = ‘AUTHORISATION FOR WAR’?
THE ALLEGED PRE-EXISTING ‘AUTHORISATION FOR WAR’