TWENTY YEARS ON, A REVIEW OF THE UNITED NATION’S SECURITY

COUNCIL RESOLUTION ON IRAQ WAR

Sam Uche Okoro Esq, BA, LLB, LLM, PHD

I decided to research on the Iraq war and it’s enabling Resolutions 1368 and 1373
because of its place in the history of modern times as a war that had an overwhelming
endorsement at both UNs’ SC and GA, yet turned out to be a very much criticised and
unpopular war. To my opinion, the Iraq war is highly symbolic as it marked the
beginning of G W Bush’s administration’s “operation enduring freedom” which has
come to characterise and define President Bush’s 2 terms (8 years) in power. I, like most
people knew nothing about this war, and an opportunity to set my own question in this
field was an opportunity to research on this war.

EVERY NATION IN EVERY REGION NOW HAS

A DECISION TO MAKE.
EITHER YOU ARE WITH US,
OR YOU ARE WITH THE TERRORIST”

The idea of a war on terrorism is problematic because “terrorism is an

undefined set of tactics and ideologies rather than a defined enemy”. It is
almost by definition, a permanent or semi-permanent war”.

With such a hawkish, bullish, daring and intimidating tone, George .W.
Bush cloaked in the apparels of power of the US, the indisputable,
hegemonic, super-power of the world, snuffed out the chances of any
immediate dissecting views both at domestic and the international arena.
The resultant effect was that within the space of 3weeks, two resolutions
(1368 & 1373) where passed by the SC and ratified by the GA. These 2
resolutions were pushed for by the US under the ambit of Article 51, but as
Higgins observed, Article 51 must not be used in isolation, because there is

Sam Uche Okoro Esq, BA, LLB, LLM, PHD

“the charter relationship established between Article2 (4) and Article 51”.
When you juxtaposition the two quotes, one from a leader with the
wherewithal to execute his actions, and the one from an intellectual expert
capable of telling us the short term and futuristic implications of the other’s
speech, then we know we have an international problem on our hands.

This study is “suspicions” of the unilateral support given to the US by the

UN members as more coercive speeches kept reeling from the
administration within that short period, Kohen captured it thus, “Almost
immediately after……11\09\2001, the American administration began to
speak of “war”….Bush considered that they were more than acts of terror.
They were acts of war as Ismael pointed out, “this jingoistic discourse has
served to disallow questioning the US policy in the Middle East”. Colin
Powell explaining that “the American people had a clear understanding that
this is war….you cannot see it any way, whether legally that is correct or
not……and we have got to respond as if it is war”. Our suspicion would
have been given more to the war credence by the reservations and
condemnations that were shown by hitherto obliging nations. O’sullivan
captured some of such protests on October 31, the Syrian president…stated:
we condemn terrorism, but we did not say we support an international
coalition for war”. O’sullivan went on to also quote Iranian president as
stating that while Iran condemned the terrorist attack and is an active partner
in the global coalition against terrorism, yet, he sharply criticised the US
attack as “military revenge and retribution”. Given the short space of time
between 9\11, the resolutions of 12\9 and 28\9 and the emergence of these
dissents, it becomes imperative to bring in Brownlie’s recipe for the

Sam Uche Okoro Esq, BA, LLB, LLM, PHD

application of the customary law of defence “customary rule permitting
anticipatory action must be treated with caution”.

While this essay is not yet another Bush-bashing exercise, still, the
importance of the reaction of the US Bush led administration to the 9\11
attacks can never be over-emphasised, this is in view of the fact that it took
the international community through an uncharted annals of international
law. As if in concurrence with our point, Eden & O’Donnell asked a couple
of “but” for questions to buttress the fact despite the unison behind the
resolutions, no number of inquests, autopsies or revisits would be too much
on establishing the jus ad bellum symbolic war of this. Their first question
was; “but for 9\11 would SC resolutions 1373 and 1540 have been passed?
No. But for 9\11 would the US action against Afghanistan have received
widespread international support or demurral? No…

For a balanced and unbiased assessment of the event in discourse to be

made, a historical path for the purpose of the use of force by States against
others as well as its precedents must be traced. Gray implicated the US and
Israel as possibly the sole culprits in the recoursing to Art 51 to justify a
violations of Art 2(4),”use of force in response to terrorist attacks have been
made by only a few states, before 9\11. The USA and Israel. It is an agreed
fact that from the earliest times, of the formation of states, extra boundary
use of force has existed. Higgins went on to state that as early as the 15 th
century, Grotius identified 3 areas where the use of force could be justified:
defence, recovery of property, and punishment. She equally noted that …
League of Nations sought further to control and contains the use of force
(though) without prohibiting it. Her tracing then pointed out that it was
Sam Uche Okoro Esq, BA, LLB, LLM, PHD
“after the cataclysmic…2nd world war…it was necessary to make specific in
the UN charter that force could be used only in self-defence”.
K.Schmalenbach concurred with Higgins as per the theme running through
the apex world body. Since at least the founding of the UN in 1945, the
international legal system has been dominated by an explicit prohibition of
the use of force. Recently in 1970, as Shakv pointed out. The 1970
declaration on principles of international law recalled the duty of states to
refrain…from…any other forms of coercion”.

If it therefore obtains that the UN while explicitly urging restraint on the use
of force but on the other hand leaves a room for the application of the same
under certain circumstances. It then becomes vital to briefly explore the
grounds under which force may be used. While Art 2(4) prohibits the use of
force under the UN Charter and binds all members, Wallace observed that;
however the prohibition on the use of force is now regarded as a principle of
customary international law which has attained the character of jus cogens,
and as such is addressed to all members of the international community.

The various phrases in the customary law prohibiting the use of force has
been severally open to varying interpretations by states and lawyers to suit
their purpose. The key phrase in Art 2(4) which can trigger the use of force
for instance is the case of “Armed Attack”. Higgins noted that as early as
1970, Professor .T.Franck had observed that a new kind of Lancuna was
opening in the area of “wars of national liberation were” (where) new kinds
of assistance were being given. However, no matter the attempt by a state to
bend or tamper with the meaning of “armed attack”, the ICJ in the Nicaragua
vs. US case cited the GA resolution on the definition of aggression stated
Sam Uche Okoro Esq, BA, LLB, LLM, PHD
that an armed attack could include not merely action by regular armed
forces…but also the sending by or on behalf of a state of armed bands…”.
These 2 phrases we have surveyed are copiously missing m in the 9\11
attack. But just as we are used to in law, the ICJ has decided to leave
pertinent issues in the right to anticipatory self defence open to
interpretations as Higgins puts it: the court was purporting to deal with
customary international law rather than the charter; the court in terms
avoided pronouncing upon the implications”.

This openness to interpretation has been exploited many times by the US as

basis of justification for its military activities in the other countries. The
reference case for armed intervention by the US on the basis of “collective
self defence”, the 1990 gulf war and the recent incursions into Afghanistan
and Iraq were all equally based on the same doctrine but an indicting report
by Kohen suggests they do not deal with international law at all, he further
noted that these regimes always resort to an elaborate attempt to apply the
doctrine of self defence in a generous and misleading way.

Having established that the US upon perceiving ‘provocation’ would latch

unto Art 51, to interpret the event in question within its realm ‘conjure’ up
some customary laws to fall into place in the jig-saw and either take their
desired action as a self-defence act, as in the case of Nicaragua or, if they
enjoy the world’s goodwill (as in 9\11), then they table the issue before they
act –pre-emptive. What is worth remarking here is the institutionalised
pattern of action at all cost that run through the US successive regimes and
the flagrant disregard for any international bodies that chides their
behaviour, (see their reaction to the ICJ ruling on the Nicaragua case).
Sam Uche Okoro Esq, BA, LLB, LLM, PHD
The importance of revisiting and re-analysing the decisions of the SCin
passing resolution 1368 and 1373 lies in the context of the legal arguments
employed by the US government in their quest for war, the constructive
criticisms emanating from such revisits could only be used to improve the
modus –operandi of the UN and make the US take a sober reflection at its
past acts, after all according to John Strawson, no government wants to be
tainted with or accused of illegal conducts.

An analytical look at the concepts of self-defence and the use of force in

international law: Every act of force or aggression by a state which
transcends its boundaries and encroaches into another must be subjected to
the norms of international law; the use of force on Afghanistan by the US in
retaliation for the 9\11 attacks is exception. From the catalogue of researches
conducted on this matter by scores of experts of international law, this essay
has come to establish two clear facts: ‘1’ that Art 2(4) of the UN charter
prohibits the use of force by states and that no expert disputes this. ‘2’, it is
the self-defence enabling clause of Art 51 that has been subjected to a galore
of interpretational surgeries, defacements and appendages. And at the
epicentre of this raging debate is the precise circumstance when the rights
inherent in this Article may be triggered. Since the US relied on the
authority of the UN for this attack, then our first task would be to go through
the literature of resolution 1368 and 1373 to see whether they expressly
permitted the use of force. Kohen draws the first salvo here by arguing that
the US cannot rely under ‘self-defence’ element of Art 51 because 9\11
terrorist acts did not fall within the ambit of self-defence. This is a serious
indictment considering that the attack was conducted under the auspices of
Sam Uche Okoro Esq, BA, LLB, LLM, PHD
the key ingredient for self-defence as identified by Webster was missing in
this case: the attack should be under way and that the aim is to repel it’.

Schmalenbach went further on this issue by identifying that the key

ingredient that gives inherent right under Art 51 is an armed attack and that
armed attack must in turn consist of three elements:
- An act of a state (at least must be attributable to a state).
- Comparable to inter-state combat in its scale and effect.
- The ‘armed attack’ has not ended but is on-going.
This work have tried but failed to find any compatibility between the
terrorist attacks on the US and the US subsequent attack on Afghanistan and
the above tripartite test.
First, on the attribution test, Schmalenbach identifies a need for the actor to
be having some\acting in official capacity and that the difficulty with person
lacking a position of appointment is that he becomes a defacto organ as
defined in draft Art 8- this essay must suffix it here that there is no position
of office held by Osama Bin Laden neither is there any established facts
indicating that he acted in defacto capacity for the Taliban Government. This
view is upheld by O’Sullivan. It is questionable whether Afghanistan
acquiescence in the presence of Al-Qaeda within its territory constitutes
Afghanistan’s substantial involvement. Infact, the closest we came to seeing
a link was the now discredited British Government dossier of October 4 th
2004.

Schmalenbach also noted that the Nicaragua vs. US case, the ICJ refined its
criteria for attribution and underlined the importance of the element of

Sam Uche Okoro Esq, BA, LLB, LLM, PHD

effective state control of the specific Para military operation. (This has also
not been effectively established here).
Schmalenbach went on to observe that the ICTY went a step further to lower
the standard of test set in the Nicaragua case by declaring ‘in order to
attribute the acts of a military or Para military group to a state, it must be
proved that the state wields overall control over the group. (This also can not
be applied to Taliban vis-à-vis Al-Qaeda).
-Comparable to inter-state combat: This hit and run style cannot fit into this
category. The huge scale of the destruction, both human and economic aside,
the 9\11 attack should be defined as what it is without sentiment: an
opportunistic terrorist attack, nothing more. It did not involve war fare
ammunition or Para military training, just the art of flying with just about 10
or less terrorists taking part.
-Attack is on-going: The wording of Art 51 requires that the end of the
attack should also bring about the end of the ‘right of self defence’. Since the
above sounds ambiguous, Schmalenbach researched further to find clearer
worded guidelines on this matter and I quote ‘The Friendly Relations
Declaration adopted by consensus by the General Assembly in 1970
according to him, here the states (still) have a duty to refrain from acts of
reprisal and if the threat consists of several successive attacks, it would be
judged on a case-by-case basis. Hence the US action would equally fail this
test. But for want of space, this work would have gone on and on to put
other wordings and phrases of the enabling Art 51 to the test to prove that
they do not amount to a go ahead for the US attack.

Having applied the US attack on Afghanistan to the key phrases of Art 51

and seeing it come short, we cannot but wonder openly like Kohen, ‘still,
Sam Uche Okoro Esq, BA, LLB, LLM, PHD
can security council resolution 1368 and 1373 (2001) be considered as a
recognition that the united was in a situation of self defence?’.

Self defence as a defence for the violating Art 2(4) must on its own pass the
test of necessity and that of ‘proportionality’ as propounded in the Caroline
case, it is the opinion of the O’Sullivan that,’ The Caroline correspondence
between the US and British Governments are now generally accepted as
embodying customary international law’.
O’Sullivan went on to define the standards for action to be taken on a
necessity of self defence as ‘an instant, overwhelming, leaving no choice of
means and no moment for deliberation- the case in hand would woefully fail
this test.

On the second self defence test of proportionality, for an action taken in self
defence to be lawful, it must be proportionate and fall in line with the
Caroline requirement that states: exercising the right to self defence must not
do anything unreasonable or excessive. While the US and Britain may argue
that they met this test, Tony Blair’s utterance in the independent of
November One 2001, shows an objective that is not proportionate with the
dealing of the issue at stake. “The end we desire is this-Al-Qaeda shot down
in Afghanistan, the Taliban regime out”.

Since this work has attempted but so far been unsuccessful in establishing
that resolutions 1368 and 1373 gave a legal basis for the 2001 Afghanistan
war, and that all known international and customary laws and precedents do
not give interpretation to resolution 1373 and 1368 as legal mandate for war,
we would now finally explore the wordings of these resolutions to see
Sam Uche Okoro Esq, BA, LLB, LLM, PHD
whether the so far illusive legal justification could be found x-raying the
lines. As C.Gray puts it: This search for legitimacy has made the US involve
other states as it looks for ‘political legitimacy’. But this essay is of the
opinion that no ‘political legitimacy’ could amount to legality because
populism and law are strange bed-fellows.

A read through M.Happold’s analysis of these two resolutions and the

implications of their passage by the SC point (for want of space, this essay
wont go into details) to the fact that the resolutions were condemnatory of
states that harbour such attackers and mandated member states through
measures such as suppress the financing to tackle terrorism, but express
mandate for war. He likened it to resolution 1373 to those set out in the 1999
convention for the suppression of the financing of terrorism. He noted that
the major difference was that in 1373, the CTC was left to define the various
terms.

Kohen is also quite sure that while the wordings of 1373 stated that “all
states shall take the necessary steps to prevent the commission of terrorist
acts”, they never provided a general authorisation to resort to force in order
to achieve its goals, as was the case in previous practise.

This work has tried to find such ‘previous practise’ so as to spot the
difference and M.Mandel readily did that for us. First, he pointed out about
S R 1373: it’s hard to see how any honest reading of these resolutions could
possibly conclude that they authorise the use of force…They take a whole
host of measures to suppress terrorism, especially S R 1373 which has 2
dozen operative paragraphs outlining legislative, administrative and judicial
Sam Uche Okoro Esq, BA, LLB, LLM, PHD
measures for the suppression of terrorism”. Perhaps one of the most
important points he noted was that ‘not once does either of these resolutions
mention military force or anything like it. They don’t even mention
Afghanistan by name.
He went to compare SR 1373 &1368 with SR 678 of November 29 1990
which he noted “used the accepted formula, all necessary means”. This
phrase according to him authorised the 1990 gulf war. He equally pointed
out that it was in the preamble in one of the paragraphs to the 2001
resolutions that the phrase “collective self defence” was inserted and that
anyone with a passing familiarity with the English language can see that this
doesn’t even come to authorising the US attack.
He also went on to note that in S R 661 of August 6 1990, the S C affirmed
the right of self defence, but that the attack on Afghanistan does not fit in the
right of self defence.
And that is why the attack is illegal. This essay has also noticed that the
1991 gulf war was only authorised after extensive UN deliberations which
lasted 4 months, included conflict resolution measures and there were a total
of 12 resolutions before force was authorised. Also Iraq was given (via 678)
a pause of goodwill for six weeks before military actions.

In contrast with the 1991 Iraq war, Afghanistan was given conditions which
would have raped them of their nationhood and brought about the end of the
Taliban government. Even at that, their then information minister claimed
his country was ready to cooperate with the US government but that they
needed proof that their guest “Osama Bin Laden” was involved in the 9\11,
‘we in Afghanistan do not allow Osama Bin Laden to use Afghan territory to
launch any attack on any government”.
Sam Uche Okoro Esq, BA, LLB, LLM, PHD
Though totally out of words-space, this essay would also wish to show its
disapproval for the robust conservative stance in which eminent US scholars
like T.Franck use in attempting to legalise what is in most opinions not
legal, this might be due to patriotic sentiment.
This essay concludes on a worrying note,” the main legal issue regarding the
Afghan war concerns the attribution of ‘private acts’ of terrorism to a state
(i.e. defacto organ). The danger that this new interpretation may be used by
states to justify bombing other states.

BIBLIOGRAPHY

Rebecca M.M Wallace, International law, London, Sweet & Maxwell. 2002.

Rosalyn Higgins, Problems $ Process, International law and how to use it. Oxford,
Clarendon Press, 2004.

Malcolm N Shaw, International Law, Cambridge, university press. (5th edition 2003).

Christine Gray, International Law and the use of force. Oxford University Press. (2nd
edition 2004).

Ian Brownlie, International Law and the use of force Oxford University Press. 2002.

Therese ‘O’ Donnel, 9\11 as a Turning Point for International Law? in Paul Eden
&Therese ‘O’Donnel, September 11, 2001: A Turning Point In International And
Domestic Law. New York, Transnational Publishers Inc, 2005.

Tareq Y Ismael and Jacqueline S Ismael, in September 11 and American Policy in the
Middle East, in John Strawson (editor) Law After Ground Zero. Sydney, London and
Portland: Glasshouse Press 2004.

Sam Uche Okoro Esq, BA, LLB, LLM, PHD

Michael Mandel, Opinion: Illegal Wars and International Criminal Law in Anthony
Anghie, Bhupinder Chimni, Karin Mickleson and Obiora Okafor (editor), The Third
world and International Order Law, Politics and Globalisation. Leiden\Boston, Martinus
Nijhoff Publishers. 2003.

Michael Byers and George Nolte (editors), United States Hegemony and the Foundations
of International Law. Cambridge, university Press. 2003.

JOURNALS.

David O Sullivan,’ the Bombing of Afghanistan’.

New Law Journal. Vol; 151, 2001, Friday, November 30.
1749-1784.

Kirsten Schmalenbach,’ the world we (international) are in: Law and Politics One Year
After 9\11. German Law Journal Vol 3. No 1, 2002 September 1.

www.un.org
www.timesonline.com
www.cnn.com

ABBREVIATIONS

UN- United Nations

SC- Security Council
GA- General Assembly (United Nations)
ICJ- International Court of Justice
US - United States of America
Art- Article
CTC- Counter Terrorism Committee
SR- Security Council Resolution.

Sam Uche Okoro Esq, BA, LLB, LLM, PHD

Sam Uche Okoro Esq, BA, LLB, LLM, PHD