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
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 Vienna
Convention, '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 Vienna Convention was adopted by the UN Conference
on the Law of Treaties in May 1969.)
The US/UK argument is that by its
noncompliance with its disarmament duties as laid down in UN Security
Council Resolution 687, Iraq has so seriously breached the 'treaty'/Resolution,
that other aspects of the Resolution can also be terminated or
suspendedincluding the Gulf War ceasefire. Iraq's incomplete
disarmament allows a resumption of the 1991 Gulf War, in other
THE 1991 'CEASEFIRE'
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 lawboth from
academics and from stateshas 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 <www.casi.org>.)
WHAT CONSTITUTES A 'MATERIAL BREACH'?
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)
WHO CAN MAKE THE JUDGEMENT?
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.)
DOES 'MATERIAL BREACH' = 'AUTHORISATION FOR WAR'?
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
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.
THE ALLEGED PRE-EXISTING 'AUTHORISATION FOR WAR'
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 a reference
in Resolution 678 to Resolution 660 'and all subsequent relevant
resolutions' includes all Resolutions passed after Resolution
678, thus (they say) authorising the use of 'all necessary means'
against Iraq on subjects the Security Council had not yet raised
in Nov. 1990. Absurd. Also absurd is the idea that the Security
Council intended that the phrase 'and to restore international
peace and security' to mean an everlasting authorisation to use
force against Iraq if it allegedly disturbed 'international peace
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.
War Plan Iraq: Ten Reasons Why We Shouldnt Launch Another War
Against Iraq by Milan Rai
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about the risk of war'. Professor Paul Rogers, Bradford
School of Peace Studies
'Timely and important'. Hilary
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