The Report
of the Iraq Inquiry
The United
Nations was established in 1945 “to save succeeding generations
from the
scourge of
war”. In its Charter, it set out its intention to “ensure, by the
acceptance of
principles
and the institution of methods, that armed force shall not be used,
save in the
common
interest”. The purposes of the UN include: “To maintain
international peace
and
security, and to that end to take effective collective measures for
the prevention and
removal of
threats to the peace …” (Article 1). States are forbidden to use
force against
the
territorial integrity or political independence of other States
(Article 2, paragraph 4).
Chapter VI
of the United Nations Charter contains prescriptions relating to
the peaceful
settlement
of disputes. Chapter VII contains, but is not limited to, what were
intended to
be
comprehensive prescriptions relating to the use of force in the
context of “action with
respect to
threats to the peace, breaches of the peace, and acts of
aggression”.
The UN
Charter envisaged that States would not need to use force to
protect their national
interests.
The intention was for any threat to the peace, breach of the peace
or act of
aggression
to be met by collective security, provided by the Security Council.
Article 39
provides
for the Security Council to determine the existence of a threat to
the peace,
breach of
the peace, or act of aggression, which must precede enforcement
measures
under
Articles 41 (sanctions) and 42 (military enforcement
measures).
Article 40
provides for the Security Council to call upon the parties to
comply with
such
provisional measures as it deems necessary or desirable, before
making
recommendations
or taking other measures to maintain or restore international
peace
and
security. That has proved, for political reasons, impossible to
achieve in the
form
envisaged under Chapter VII. Instead, the United Nations has
resorted to UN
peacekeeping
(in which the consent of the “host State” is required). On two
occasions,
UN Members
have been authorised (but not obliged, as the unimplemented
Charter
provisions
envisaged) to engage in assisting a State that had been invaded
(South Korea
in Security
Council resolution 83 (1950) and Kuwait in Security Council
resolution 678
(1990) in
repelling that attack.
Such
authorisations are in every way exceptional. In the case of Korea,
it was conducted,
formally at
least, under a United Nations Command. In the case of the 1990-1991
Gulf
Conflict,
the authorisation given in resolution 678 to “Member States
co-operating with the
Government
of Kuwait” was not under a unified UN command, but was the final
element of
an
immediately prior series of resolutions. The authorisation in both
cases – two examples
in nearly
60 years – was within the context of Security Council control. The
authorisations
for the use
of force were clear in their terms, as is consistent with the
Charter and the
primacy of
the responsibility of the Security Council (in contrast to the
General Assembly)
as
articulated in Article 24 of the Charter.
The idea
that “authorisation” by the Security Council is far from being a
routine basis for a
legitimate
use of force by a State, or coalitions of States, is further
suggested by the fact
that the
authorisation in both Security Council resolution 83 (1950) and
resolution 678
(1990)
referred to a use of force in assistance of the attacked country to
repel an invasion,
the
attacking State having failed to withdraw.
Article 48
of the Charter provides that action to carry out the decisions of
the Security
Council for
the maintenance of international peace and security “shall be taken
by all
the Members
of the United Nations or by some of them, as the Security Council
shall
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