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ABSTRACT

This research effort grew out of concern for the increasing use of force in settlement of disputes by the United States which has the tendency to reduce the moral stature of the UN (above all, the security council) an organization committed to the maintenance of international peace and security. It seeks to analyse the role of the United Nations security council in international conflict resolution, using tonal conflict resolution, using the UN Weapons inspection in Iraq as a case study. This research work sets itself to determining whether the Weapons Inpectors  did indict Iraq of  possessing WMD. The  central focus of the study is to determine whether the UN Security Council authorized the war or whether the war was a pre-emptive  action on the part of the U.S. and its allies. On the above premise, the theoretical framework of political Realism which holds that the overriding national interest of each State is its national Security and survival defined in terms of power. However, the study revealed that the U.S. invasion of Iraq was a clear-cut case of aggression and territorial annexation of another country and therefore a violation of State Sovereignty. The findings of this research are that the United Nations Security Council which is the only organ that can authorize war in modern International law did not authorize the war on Iraq. Consequently, in a bid to justify the war, the U.S and U.K anchored their action on UN Resolution 1441 which, however, never gave Member States an explicit permission to attack Iraq. The study also revealed that the U.S. led war on Iraq was pre-emptive. Most importantly, the work revealed that the war has a significant relationship with the U.S. foreign policy on the Gulf region. Based on these findings; the study concludes that for peaceful co-existence among Nations, all States should uphold the integrity and authority of the United Nations and of International Law.

CHAPTER ONE   

INTRODUCTION

  • BACKGROUND OF THE STUDY

The United Nations Organization was formed in 1945; it was to be a universal single purpose organization that would promote world peace and security. In order to ensure prompt and effective action by the United Nations, its members confer on the Security Council the primary responsibility for the maintenance of international peace and security and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

The United Nations Security Council (UNSC) is the organ of the United Nations charged with maintaining international peace and security among nations. While other organs of UN only make recommendations to member governments, the Security Council has the power to make decisions which member governments must carry out under Article 25 of the United Nations Charter, which reads “the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the president charter. The decisions of the Council are known as UNSC Resolutions. The Council is made up of 15 Member States, consisting of five permanent seats and ten temporary seats. The five permanent seats are China, France, Russia, The United Kingdom and the United States. These big five hold veto power over substantive but not procedural resolutions. The ten temporary seats voted in by the UN General Assembly on a regional basis. The presidency of the Security Council is rotated alphabetically each month.

The Security Council performs these functions on the basis of a universal phenomenon that has come to be known as collective security. This is a system in which aggression against a state is taken to be aggression against all that are parties to the treaty; consequently, a collective action is to be taken by other states to counter such an aggression. A good example was in 1991, when the United States led a coalition force of about 23 countries in a battle code- named “Operation Desert Storm” on Iraq for the formers invasion and annexation of Kuwait on August 2, 1990.

Resolution 687, adopted in 3 April 1991 set out terms of cease fire which demanded respect of inviolability of Iraq- Kuwait border, as well as inspection and destruction of Iraq’s weapon which range greater than 150 kilometres, together with related items paragraph 9 of the Resolution provided for the creation of the United Nations Special Commission (UNSCOM) with the mandate to implement immediate on- site inspections of Iraq’s chemical, biological and missile Capabilities, on the basis both of Iraq’s own declarations and of the designation of the special Commission itself. Iraq was equally obliged to declare its nuclear material, equipment and sub-systems to the International Atomic Energy Agency (IAEA).

A major reason given by the Bush administration for waging war on Iraq was that she possessed Weapons of Mass Destruction (WMD) as well as had  links with al-Qaeda (Osama Bin laden and Saddam Hussein). This led to the adumbration of a doctrine of “pre-emption” by the Bush administration; in Blair’s words, “it is a matter of time unless we act and take a stand before terrorism and weapons of mass destruction come together, and I regard them as two sides of the same coin”.

  • STATEMENT OF PROBLEM

In the period before the war, when it became apparent that a specific UN Security Council authorization was unlikely, States and international lawyers criticized the proposed US-led military action in Iraq as unlawful since this action was not a case of self- defence. To the extent that the invasion was based on a claim of anticipatory self- defence, Article 51 has been stretched beyond endurance. Secondly, to the extent that the invasion was based on claims of threats to international peace and security sufficient under Chapter vii to justify Security Council authorization, but with those claims poorly argued and the council eventually by passed, the credibility of the whole Charter system has again been frontally challenged. And thirdly, to the extent that the invasion was based on Saddam Hussein’s record of tyranny over his people- but again, poorly and inconsistently argued, and with the council by passed – we have almost choked at birth what many were hoping was an emerging new norm justifying intervention on the basis of the principle of “responsibility to protect”.

Finally, this work would analyse the war on Iraq and its implications for international law. The law is clear, no amount of weapons a state has whether chemical, biological, and nuclear, laser and blinding weapons can be conceived as an attack by the possessor state against another state. Such possession may however be styled by the UN as constituting a threat to peace. A threat to National Security is not a recognized basis for use of force. President Bush, in giving the President of Iraq Saddam Hussein, a 48 hours ultimatum to leave Baghdad said: “the United State of America has the Sovereign authority to use force in assuring its own national security”. It becomes the task of this thesis to ascertain whether every state can launch a pre-emptive war against any state, she regards as a threat to her national security, which implies that international law no longer exists for nations to obey or that international law only entitled the right of pre-emptive war on the United State of America.  Nevertheless, the study will be guided by the following research questions.

  • Did the UN Security Council Support for the invasion of Iraq help eliminate the production of Weapons of Mass Destruction in Iraq?
  • Did the UN Security Council Sanctions on Iraq help minimize the Iraqis quest

For Weapons of Mass Destruction?

  • Did the IAEA of the UN fail to discover Weapons of Mass Destruction in Iraq?
    • OBJECTIVES OF THE STUDY

The broad objective of this study is to critically examine the UNSC and International Conflict Resolution. Whereas the specific objectives of the study are:

  • To determine whether the UN Security Council Support for the invasion of Iraq helped eliminate the production of Weapons of Mass Destruction in Iraq.
  • To determine whether the UN Security Council Sanctions on Iraq helped minimize the Iraqis quest for Weapon of Mass Destruction.
  • To determine whether the IAEA of the UN discover Weapons of Mass Destruction in Iraq.
    • SIGNIFICANCE OF THE STUDY

This study has both theoretical and practical significance. Theoretically, this research seeks to contribute and bring fresh insight to the understanding of the UN Security Council Weapon Inspection in Iraq. As a result it will reveal how America, invaded Iraq. Therefore, the significance of this thesis is predicated on the fact that it would re-echo, the need for nations to support the concept of collective security, a process in which all members of the international community join strengths to deter or punish those who resort to violence and aggression and discourage unilateral action on the part of powerful nations in pursuance of its national interest. The study will add to existing literature in this area and serve as a reference material for students and scholars with interest Weapon Inspection in Iraq. We hope that the study will stimulate further investigation in this area as little or no research has be done regarding Weapon Inspection in Iraq.

At the Practical level, the findings of this study willhighlight the role the United Nations Security Council played in trying to discourage and prevent the United States from attacking Iraq. This work will help to reaffirm and increase the moral status of the UNSC among States especially third world States (the weaker and vulnerable members of the international system who depend upon these institutions to protect their sovereign status). This work hopes to make a modest contribution by way of addition to the extant literature on the US-led war on Iraq and its implication for international law by showing that, both the UN Charter and international law made adequate provisions for peaceful settlement of disputes among States.

This work is equally important as it will act as a light and a guide on the paths of powerful States not to use their privileged positions in the UN to telescope and interfere with any UNSC weapons inspection activities in the future. Finally and most importantly, this work will show that, the United States and the United Kingdom stand accused of having waged an aggressive war against Iraq, exactly the same crime of which Iraq was accused in 1990 following the invasion and occupation of Kuwait. International law protects the sovereignty of disagreeable regimes, just as it did not matter in 1990 whether Kuwait was well governed, so it was irrelevant to this indictment that the governing regime in Iraq in 2003 was deeply unpleasant. Also, the findings of this study will help policy makers in Africa and Nigeria in particular to weigh options critically before acting especially, in international politics where betrayal has become almost a norm of statecraft.

  • LITERATURE REVIEW

The literature review focuses on the diverse scholarly perspectives on the vexed issue of the invasion of Iraq considered fundamental in understanding and answering the questions posed in this paper. This includes the theoretical arguments with regards to the legality and justification of the invasion, the history and dynamics of UNSC’s role in the invasion of Iraq.

DID THE UN SECURITY COUNCIL SUPPORT FOR THE INVASION OF IRAQ HELPS ELIMINATE THE PRODUCTION OF WEAPONS OF MASS DESTRUCTION IN IRAQ?

In the decade before the latest Iraq war, were numerous crises giving rise to demands for military action and particularly for intervention in States without the consent of those states government. Force has been used in a wide variety of circumstances and with a wide variety of legal justifications and authorizing bodies. Some of these actions have challenged certain aspects of the existing body of international law relating to the resort of force, in particular, they have been seen as either violating, moving beyond or reinterpreting the two principal accepted legal grounds for the use of force or self- defence as recognized in Article 51 of the UN Charter and authorization by the UN Security Council.

According to Anjali  (2002),  the power of Security Council in dealing with disputes and situations that may disrupt international peace and security are the logical consequences of the “primary responsibility” conferred under Article 24, the specific powers given to the Council under Chapter VI and VII of the  Charter can be conveniently grouped under two headings; those powers that the organ may excise to maintain or restore international peace and security once peace has been threatened or breached (1946-1990).

According to Amechi (2003), it should be noted that the maintenance of international peace and security is a primary function not of the state but of the U.N as an international institution with a judicial personality, it is therefore unacceptable for a member of the UN to develop a foreign policy incompatible with this provision. He cited Article 33 which provides that:

 

Parties to dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall first of all seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort. To regional agencies or arrangements, or other peaceful means of their own choice (Amechi, 2003:81).

 

Amechi  (2003) further observes that Article 2(3) and 33 impose a duty on all to settle difference by peaceful means for either to do otherwise is a breach of the charter and therefore a breach of international law.

According to him…The United States did not exhaust the remedies provided in Article 33, Article 2(4) requires All members not only to use force against other states, but also not to threaten any other state with use of force: both the threat of force and the use of force are in conflict with Article 2(4) of the charter.

The United States and its allies not only threaten Iraq with use of force if it did not allow the UN inspectors “free access” as understand by the US, it would be attacked not by the UN but by the US and its allies.

Similarly, Adam (2003) has expressed that; the greatest problems regarding the legitimacy of uses of force arise when they are neither authorized by the Security Council nor a straight forward case of self- defence in response to an armed attack. To put it appropriately in his words:

It would be easy to say that, apart from the cases of self-defence, force should never be used except when explicitly authorized by the Security Council.

Supporting this position was the views contained in a letter from sixteen international law teachers, according to them , when it became apparent that a specific UN Security Council authorization was unlikely, states and international lawyers criticized the proposed US-led military action in Iraq as unlawful since this action was not a case of self-defence against an actual armed attack by Iraq, and did not have explicit authorization of UN Security Council, could easily be viewed as having at best a doubtful basis in international law.(Keir, 2003:51).

Some writers in the field of international relations believe that the inability of UN Security Council to handle the Iraq crisis has rendered the organization irrelevant. One of such scholar is Michael (1989) According to him:

The failure of the UN Security Council to agree on any coherent line on Iraq before the outbreak of war on 19-20 march 2003 confirmed in spectacular fashion, certain limitations of the council…with the rapture of the UN Security Council, it became clear that the grand attempt to subject the use of force to the rule of law had failed (Michael, 2003: 120).

 

Mat (2003) partially supported this stance when he stated that, the failure to overcome council division followed by the US-led invasion of Iraq in March 2003 without explicit council authorization for the use force, added further to the sense of foreboding among those anxious for the council to play its charter-prescribed role in the field of peace and security.

Herbert (2003) reasoned differently when he asserted that, the UN perfectly embodies in institutional form the strategic paradox of our age; it has become indispensable before it has become effective. As Adam Roberts puts it. The Security Council, while having no monopoly on international security issues, did not become entirely irrelevant to the Iraq crisis, in which its existing resolutions were of crucial important; and international law, while in a state of contestation has developed significantly in response to events since the end of the cold war and continues to provide useful criteria for consideration of particular uses of force. Adam (2003) maintained further that:

 

 

The council is quite simply, the only forum of its kind; that is , a forum able to address, if not resolve security challenges of international concern and crucially to confer near-universal legitimacy on the actions of states or groups in a way that no alternative candidate or agency, real or proposed has been able to do (Adam, 2003: 45).

 

 

According to Martin (1999)  As the council’s recent handling of Iraq weapons inspection Crisis made abundantly clear, power politics within and outside the organization is alive and well, and the entirely predictable persistence of conflicts of interest and value among members states means that the council is at one level, inescapably doomed to “ineffectiveness’, this is true above all, when the core or vital interests of states are seen to be at stake and when, as in the case of Iraq, issues of coercion are involved (Martin, 1999: 78).

An underlying issue informing the present article is whether the UN Security Council has become irrelevant in its handling of the weapons inspection crisis in Iraq considering the fact that majority of countries and people of the world were opposed to the US-British disregard of international law and bypassing of the UN Security Council. According to Mats (2003),

The intense diplomatic effort by Britain and the United States to secure an explicit authorization for the use of force, however unsuccessful and flawed the diplomacy, is itself testimony to the importance attached to the council’s legitimizing role. Not only that, but both the US and the UK, in justifying the resort to force and explaining the need for military action have continued to rely heavily on UN Security Council Resolutions, a fact that only reinforces the sense that neither country felt they could dispense with some kind of UN sanction for its chosen curse of action (Mats, 2003: 55).

 

Supporting this view was the speeches and statements made by delegates to the XIII summit meeting of the Non-Aligned movement in Kuala Lumpur. According to them, “This esteem in which the Council continues to be held derives in large part from its custodial role as protector of principles and rules seen by the vast majority of member States as foundational to international order-above all, the principle of sovereign equality of states and its corollary, the rule of non-intervention by states in the affairs of other states. (Ari, 2003: 23).

To the extent that military action in Iraq has been viewed in many parts of the world as a challenge to these principles, one may expect to see a renewed commitment to the UN by the membership at large. This, in turn, is unlikely to diminish the need for major powers to work through the UN to secure legitimacy for its actions.”

According to Toby and Steven (2002),

…the US has repeatedly been drawn back to the UN, finding that the legitimacy it    confers on its actions, if not indispensable to taking action, is extremely costly to ignore…The very decision by Bush to confront the issue of Iraq’s non-compliance through the UN is testimony to this fact(Toby and Steven, 2002: 451).

 

As Steven (2002) puts it, “the US-led war has come to be regarded-right or wrong as an unwarranted, illegal and unjustified assault on sovereignty of an independent nation. To the majority of the UN’s Member States, the perception of operational Iraqi freedom as a test case of the Bush doctrine on pre-emption…has only reinforced the importance of the UN’s custodial role as protector of key character principles.

According, a nationwide poll (2003) conducted after the start of hostilities on the United Nations showed that the importance of the UN had not been diminished as a result of its failure to approve action over Iraq. Confirming this stance was Colin Powell’s assertion that a “UN role might help lend legitimacy to a post-war Iraq occupation and reduce hostility toward the US and its allies in the region and around the world. While Gareth (2002) holds that: “Threats to international peace are what the Security Council says they are” Fighting against.

Weapons of mass destruction were a major pretext by the Bush administration for waging war on Iraq. According to Paul (2002), The issue of weapons of mass destruction was the point of greatest agreement among Bush’s team among the reasons to remove Saddam from power, the truth is that for reasons that have a lot to do with the US government bureaucracy, we settled on the issue that everyone could agree on, which was weapons of mass destruction as the core reason.

Mike (2002) asserted that, as early as January 2002, President Bush had declared that; states like Iraq and their terrorist allies constitute an axis of evil, arming to threaten the peace of the world by seeking weapons of mass destruction; these regimes pose a grave and growing danger. They could provide these arms to terrorists, giving them the means to match their hatred. They could attack our allies or attempt to blackmail the United States.

In his State of the Union address, President Bush linked the case for war against Iraq to the September 11 attacks, implying that Saddam Hussein would replicate them once he got unclear weapons. In his words: “Saddam is a threat and we are not going to wait until he does attack, he declared, his weapons of mass destruction are a direct threat to this country, if the world fails to confront the threat posed by the Iraqi regime…., from nations would assume immense and unacceptable risks, the attack of September 11, 2001, showed what the enemies of America did with four airplanes. We will not wait to see what terrorist states could do with weapons of mass destruction.

In the same speech, he stated emphatically that:

Saddam Hussein is a threat to our nation, September, 11 changed   the… strategic thinking, at least as far as I was concerned, for how to protect the country… used to be that we could think that you could contain a person like Saddam Hussein, that oceans would  protect us from his type of terror. September 11 should say to the American people that we’re now a battle field, that weapons of mass Destruction in the hands of a terrorist organization could be deployed here at home (Bush, 2002: 18).

 

According to the Washington post (2002), when asked about the possible human and financial costs of a war with Iraq, the President answered, the price of doing nothing exceeds the price of taking action…The price of the September 11 attack was enormous …And I’m not willing to take chance again.

The failure to date of the Pentagon to turn-up evidence that any weapons of mass destruction existed in Iraq poses obvious problems for the US. According to Patrick (2003)  “ The unprovoked war was manifestly illegal, waged without the sanction of the UN and without any prior attack from Iraq” The absences of chemical and biological weapons have only confirmed what millions around the world have concluded, the justification for the war was nothing but a pack of lies. According to the New York Time, Documents were forged by the Bush Administration purporting that Iraq was trying to import Uranium from Niger with the intention of creating false impression that Iraq has weapons of mass destruction and is close to manufacturing nuclear bombs.

This false allegation according to the paper was refuted by Retired Ambassador Joseph Wilson who was asked to travel to Niger to see if this was true and he reported that it was not. Furthermore, the U.N Monitoring, Verification, and Inspection Commission (UNMOVIC) 18th Quarterly Report refuted the allegation by the Bush administration that Iraq possesses several Unmanned Air Vehicle (UAV) programmes that were intended to deliver chemical and biological weapons, and concluded that there was no evidence that Iraq developed drones. Remotely Piloted Vehicles (R.P.V.s) and (U.A.V.s) of prohibited ranges or capable of delivering chemical or biological weapons. According to the report;

These systems were more likely intended for conventional military                          Purposes such as air defence training, data collection and Surveillance (Joseph, 2002: 4).

 

According to Patrick (2004), “compounding the failure of the US to find any weapons stockpile are declarations by leading Iraq Weapons scientist that were in U.S custody, that Iraq’s previous chemical, biological and nuclear Weapons programs were dismantled after 1991 Persian Gulf War, during the regime of UNSCOM inspection” Again, the (Los Angeles Times of April 14, 2004), in its editorial gave a comprehensive on LT. Gen. Amir Saadi- Saddam Hussein top Science Adviser who turned himself over to U.S. forces in Baghdad on April 12. According to the report;

Lt. Gen. Amir Saadi told 2DF- a German television network which filmed  The event, that Iraq no longer possessed any weapons of mass destruction,  Declaring, I was telling the truth, always telling the truth, never told any Thing but the truth, and time will bear me out; you will see (Patrick, 2003: 24).

 

Hans (2003), a former Chief UN Weapons inspector denounced the US led invasion of Iraq. In his words:

The administration of US President George W. Bush must have other Reasons to invade Iraq besides the officially pronounced purposed to Find and destroy weapons of mass destruction, this is because the UN Weapons inspectors I led for several years and constantly monitored Failed to find any weapons of mass destruction in Iraq (Hans, 2003: 14).

 

According, to Bill (2003), the UN resolutions imposing sanctions included no reference to Iraq’s liberation; rather, they demanded that Iraqi biological, chemical and Nuclear weapons are “removed, destroyed or rendered harmless under the supervision of United Nations inspectors. Expatiating on this , Russian Foreign Minister Igor Ivanou declared “the decision cannot be automatic, it demands that conditions laid out in corresponding UN Security Council resolution be fulfilled…we need to be certain whether Iraq has weapons of mass destruction or not. “To put it appropriately in his words:

…In the course of the month-long war, no banned weapons were used   By Iraqi forces. News reporters- both those ‘embedded’ with US Military units and those merely in bed with the Pentagon- have Repeatedly issued breathless accounts of chemical or biological Weapons “finds” in Iraq. These reports have invariably been Disproved, with chemical weapons turning out to be pesticides or

Some other harmless material (Bill, 2003: 25).

 

On why the Iraqi government was initially unwilling to re-admit the inspectors back to Iraq, Scott (2002), a former Chief UN Weapons inspector maintained that; “President Bush had reportedly authorized the CIA to use all the means at its disposal- including U.S Military Special Operations Forces and CIA Para-military teams to eliminate Iraq’s Saddam Hussein”. According to the report, CIA is to view any such plan as “preparation” for a larger military strike. He stated further that, as early as 1992, the Iraqi’s viewed the teams he led inside Iraq as threat to the safety of their President. In his words:

…The Iraq’s were concerned that my inspections were nothing

More than a front for larger efforts to eliminate their leader (Scott, 2002: 25).

 

Martin (1999) added impetus to this stance when he posited that, Iraqi officials bitterly protested the activities of UNSCOM, declaring that its personnel were intelligence agents working for the United States, Britain, Israel and that its activities were aimed not at weapons monitoring, but at overthrowing the government of Iraq. According to him,

…these charges have now been confirmed not only in American press, but in the statements of Clinton administration officials, who have conceded that U.S intelligence agents worked undercover at UNSCOM and that data collected by UNSCOM was passed on to the intelligence services. The United States, Britain and Israel (Martin, 2002: 102).

 

This revelations according Martin (2002) has demonstrated that the Iraqi government was resisting not demands for weapons inspections, but demands that it expose the innermost working of its military and intelligence commands to agents of its bitterest enemies, to which no sovereign state could agree.

Consequently, Ron (2002) challenged the Bush administration to substantiate any of its claims that Iraq continues to pursue efforts to re-acquire its capacity to produce chemical and biological weapons, which was dismantled and destroyed by UN Weapons inspectors from 1991 to 1998. He concludes that, if the case for war is to be made, it should be based on proven facts rather than speculative rhetoric.

John (2002) observes that the Iraqi weapons Chief- Hussein Kamel who defected from the regime in 1995 had told UN inspectors that Iraq had destroyed its entire stockpile of chemical and biological weapons and banned missiles as Iraq claimed. According to him, these statements were ‘hushed’ up by the UN inspectors in order to “bluff Saddam into disclosing still more”. (John, 2002: 3).

According to Fairness and Accuracy (2003) in Reporting (FAIR), a complete copy of the Kamel transcripts was obtained by Glen Rangwala, the Cambridge University analyst who had earlier revealed that Tony Blair’s intelligence dossier was plagiarized from a student thesis.

Admittedly, the allegation of WMD was false, but the truth still remains that President George W. Bush of US carefully and craftily created a strategic framework aimed at giving a wrong impression among his people that Saddam Hussein possess WMD in order to wage a war against Iraq. In the words of Dana and Walter (2003)

Despite the effort to focus on Saddam’s desires and intentions, the bottom line is That Iraq did not have either weapons stockpiles or active production Capabilities at the time of the war (Dana, 2003: 125).

 

 

 

INTERNATIONAL LAW AND THE UNITED STATES NEW POLICY OF PRE-EMPTIVE ATTACK ON IRAQ

 

On March 20, 2003 the United States, aided by Great Britain and Australia, initiated a military invasion of Iraq. Both the US and UK contended that they had sufficient legal authority to use force against Iraq pursuant to Security Council Resolutions adopted in 1990 and 1991. President Bush also contended that given the nature and type of threat posed by Iraq” the US had a legal right to use force” in the exercise of its inherent right of self- defence recognized in Article 51 of the UN Charter. Given that the US had not previously been attacked by Iraq, that contention raised questions about the permissible scope of the pre-emptive use of force under international law. This section examines the issue as it has developed in customary international law and under the UN Charter.

Hyde (2003) posited that until recent decades international law deemed the right to use force and even go to war to be an essential attribute of every state as he summarized:

…it always lies within the power of a state to Endeavour to obtain redress for wrongs, or to gain Political or other advantages over another, not merely By the employment of force, but also by direct recourse To war (Hyde, 2003: 53).

 

He maintained that within that framework customary international law also consistently recognized self-defence as a legitimate basis for the use of force:

An act of self-defence is that form of self-protection which is directed against an aggressor or contemplated aggressor. No act can be so described which is not occasioned by attack or fear  of attack. When acts of self-preservation on the part of a state are  strictly acts of self-defence, they are permitted by the law of  nations, and are justified on principle, even though they may  conflict with the…right of other states (Hyde, 2003: 96).

 

Again, the recognized right of a state to use force for purposes of self-defence traditionally included the pre-emptive use of force, i.e. the use of force in anticipation of an attack. Hugo Grotius, the father of international law, stated in the seventeenth century that; it be lawful to kill him who is preparing to kill.

Emmerich (2002) a century later similarly asserted:

The safest plan is to prevent evil, where it is possible. A Nation has the right to resist the injury another seeks to inflict upon it, and to use force…against the aggressor. It may even anticipate the other’s design, being careful however, not to act upon vague and doubtful suspicious, lest it should run the risk of becoming itself the aggressor (Emmerich, 2002: 24).

 

The classical formulation of the right of pre-emptive attack was given by Secretary of State Daniel (2003) in connection with the famous Caroline incident. In 1837 British troops under the cover of night attack had sank an American ship, the Caroline in US waters because the ship was being used to provide suppliers to insurrectionists against British rule in Canada headquartered on an island on the Canadian side of the Niagara River. The US immediately protested this “extraordinary outrage” and demanded an apology and reparations. In the curse of the diplomatic exchange Secretary of States Daniel Webster articulate two conditions essential to the legitimacy of the pre-emptive use of force under customary international law. According to him,

“An intrusion into territory of another state can be justified as an act of Self-defence only in those “cases in which the necessity of that self- defence is instant, overwhelming, and leaving no choice of means and no moment for deliberation (Daniel, 2003: 22).

 

In another note, he asserted that the force used in such circumstances has to be proportional to the threat;

It will be for her majesty’s government to show, also that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of the United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it (Daniel, 2003: 30).

 

According to 1996 ICJ Reports, both elements- necessity and proportionality have been deemed essential to legitimate the pre-emptive use of force in customary international law.

EFFECT OF THE UNITED NATIONS CHARTER

According to David (2005), with the founding of United Nations, the right of individual states to use force was purportedly curbed. The UN Charter, States in its preamble that the UN was established to save succeeding generations from the scourge of war and its substantive provisions obligates Member States of the UN to settle their international disputes by peaceful means; (Article 2(3) and to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any manner inconsistent with the purposes of the United Nations, (Article 2 (4). In place of the traditional right of States to use force, the Charter creates a system of Collective Security in which the Security council is authorized to determine the existence of any threat to the peace, breach of the peace, or act of aggression and to decide what measures shall be taken…to maintained international peace and security Article 39 (2003).

Gareth (2001) asserted that while the Security Council’s power to approve force in acting to maintain or restore international peace and Security was left effectively open-ended, the traditional right of self-defence was spelt out in Article 51 in terms that are very far from open-ended and linked back to the council:

Nothing in the present charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security (Gareth, 2001: 51).

 

A contemporary example was when on June 7, 1981; Israel bombed and destroyed a nuclear reactor under construction at Osirik, Iraq. According to Carter and Trimble (1999), “the Security Council unanimously “condemned the military attack by Israel is clear violation of the Charter of the UN and the norms of international conduct and urged the payment of “appropriate redress”.

Thus, in both theory and practice the pre-emptive use of force appears to have a home in current international law. Its clearest legal foundation according to David M. Ackerman is in Chapter VII of the UN Charter.

In the words of Kofi Annan,

If states reserve the right to act unilaterally, or in adhoc coalition without waiting for agreement in the Security Council-this logic represents a fundamental challenge to the principles on which, however imperfectly, world peace and stability have rested for the last fifty-eight years (Carter, 2004: 25).

 

As Gareth (2001) puts it. “The problem is not with the principle of military action against non-imminent threats as such, it is perfectly possible to imagine real threats which are not imminent. The problem boils down to whether or not there is credible evidence of the reality of the threat in question, taking into account, as always, the capability and specific intent, whether the military attack response was the only reasonable one in all the circumstances; and crucially who makes the decision, in his words:

The question is not whether preventive military action can ever be taken: it is entirely within the scope of the Security Council’s power under Chapter VII to authorize force if it is satisfied a case has been made. The question is whether military threat can even be taken unilaterally (Gareth, 2001: 55).

 

 

Thus as Wu Miaofa (2000) has rightly observed;

Politically, the implications of the doctrines of pre-emption and unilateralism are fundamentally destructive to the purpose and principles of the UN Charter and the basic rules of the international system as an immediate result, the UN Charter is in danger of deviating from its multilateral nature toward a unilateralist one, which is bound to sap its capacity for coping with various challenges to world peace and non-traditional security threats such as terrorism and proliferation of weapons mass destruction (Wu Miaofa, 2000: 16).

 

Thus the express terms of Article 51 refers to the right of self-defence if any armed attack occurs and which has been interpreted by the international court of justice on several occasion. For instance, in the Nicaragua case, the court held that the right of individual or collective self-defence is triggered only by acts grave enough to amount to an armed attack. According to the court an armed attack triggering unilateral self-defence, may include “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed farce against another state of such gravity as to amount to…an actual armed attack conducted by regular forces…

Finally, in the Nicaragua case (Nicaragua V. US) 1986 ICJ 14 (June 27) where the court was assessing the US claim that its use of force against Nicaragua was a lawful act of collective self-defence of EI-Salvador, the court held that Nicaragua was not shown to be responsible for providing weapons and supplies to EI-Salvador rebels and that even if it had done so, the supply of weapons was not the same as an armed attack and that, EI-Salvador had not reported to the Security Council, nor had it invited the US to assist in its self-defence.

This confirms the assertion made by Gareth Evans earlier on that, the question is not whether preventive military action can even be taken; that it is entirely within the scope of the Security Council’s Power under chapter VII authorize force if it is satisfied a case has been made. Therefore according to Mary (2013), it is consistent with the authoritative interpretation of Article 51 by the international court of justice (ICJ), the general consensus about when an armed attack begins for purposes of the right of self-defence is that an attack must be under way or must have already occurred in order to trigger the right of unilateral self-defence. Any earlier response requires the approval of the Security Council, there is no self-appointed right to attack another State because of fear that State is making plans or developing weapons unusable in a hypothetical campaign.

THE USE OF FORCE ON IRAQ AND UN SECURITY COUNCIL

 RESOLUTION 

 

According to Keir (2003), “UN Resolution 678 which was passed in 29 November 1990 towards the commencement of the Gulf War was the only UN Resolution that explicitly authorized the use of force against Iraq and the only action it authorization was such force as was necessary to restore Kuwait sovereignty.” Liberation of Kuwait and restoration of peace and security in that region was thus the objective.

In his words, “this was the only Security Council Resolution expressly authorizing the use of force (2003).

Ogaba (2003) supported this view when he stated that;

‘The most unambiguous exposition of unilateralism under the                                        Clinton administration with direct reference to the Iraq war was operation desert fox. The reason for this description Emanates from the fact that UN Resolution 678 of 1990 Authorized the use of force with which Iraq was evicted From Kuwait, following which the authority to use force Could only come from the UN Security Council which never ranted it (Ogaba, 2003: 78).

 

Some writers have equally argued that post Security Council Resolutions provides a continuing or revived authority to use force. Reacting to this, Adam Roberts noted that…Resolution 687 of 3rd April 1991, the Mather of all Resolutions spelled out the detailed terms of the cease fire….it provided for a system of international inspection and weapon destruction by the UN special commission. He cryptically remarked that, Resolution 1441 taken on its own was not a clear authorization of the use of force.

According to him,

Resolution 1441 did not authorize force against Iraq, the legal

Justification for US led military action initiated in March 2003

Would have been significantly simpler, and therefore more                                      persuasive, If the US and the UK has succeeded in their effort to                                 get the UN Security Council to follow up with a second                                          resolution (Adam, 2003:15).

 

Nevertheless, the US and the UK have argued that Resolution 1441 implicitly revived the authorization of the use of force contained in resolution 687 and other previous resolutions. But according to Gareth Evans, “All UN Security Council resolutions are for specific purposes. Resolution 678 of (1990) terminated with the adoption of resolution 687 of 1991 which spelled out the detailed terms of the cease fire, as he put it. But even in my finest full wigged days i don’t think i could have managed to persuade myself, or anyone else, that either resolution 687 back in April 1991 or resolution 1441 as later as November 2002, or any resolution in between actually in themselves authorized the use of force in the way that Resolution 678 clearly did for 1990 Gulf war; or that they require anything other than further resort to the council before force could be used.

Vanghan (2002), a professor of public international law Oxford University has argued that UN resolutions should be seen in either contemporaneous context. According to him, considering  the objective of the UN Charter which is to preserve peace as far as possible, it would be contrary to this objective if individual states willy hilly capitalize on previous UN authority or framed up or implicit authorization to use force against other sovereign states as the case with the war on Iraq.

Marc (2000), supported this position when he stated that; “The Security Council has been careful in all its Resolutions to assert a link with the preservation of international peace and security”. The argument that there can be continuity and resumption of the authority to use farce contained in previous UN Security Council Resolutions was advanced at the time of the 1998 crisis over inspection, when the US and the UK launched Operation Desert Fox against Iraq, it was contested in the Security Council most notably by Russian which asserted that the US and UK had no right to act independently on behalf of the UN or to assume the function of world policeman. Christine Grey, who is critical of the concept, has referred to it as a claim of “implied authorization to use force”.

She likened the US-UK position in the Iraq crisis to that of the NATO countries in respect of the military action against Serbia in 1999, according to her; “this doctrine of implied authority to use force is itself extremely controversial; it may involve the distortion of the words of the relevant resolutions and ignore their drafting History”.

Also, the (London Times of 22 March, 2003), report that one of the three Deputy legal Advisers in the foreign and Common-Wealth office, Elizabeth Wilmshurst, resigned her post because she was unhappy about Tony Blair’s argument that he sufficient basis for war under UN resolutions.

According to Grey (2000) ”  the US and UK have argued that resolution 1205 (1998) implicit receive the authorization of the use of force contained in Resolution 678.” 78 Refuting this position, Grey maintained that the matter was debated at the 39/30th meeting of the Security Council on 23 September 1998, when the majority of States speaking in the debate argued that the use of force by the UK and US under the purported authorization of Resolutions 687, 1154 and 1205 was unlawful (2000).

As Adam (2003), puts it, at the Security Council meeting on 17 March, the UK and US governments had to face the consequences of defeat in their efforts to obtain a second resolution. In his words, “it was small consolation that they had stated on several occasions that such a resolution would be politically desirable but was not legally necessary.” Consequently, Secretary General Kofi Annan remarked as he left the meeting and announced the withdrawal of UN personnel from Iraq in view of the imminence of war, “…I have also said if the action is to take place without the support of the council, its legitimacy will be questioned and the support for it will be diminished.”

DID THE UN SECURITY COUNCIL’S SANCTIONS ON IRAQ HELP MINIMIZE THE IRAQIS QUEST FOR WEAPON OF MASS DESTRUCTION?

 

On November 8, 2002, the United Nations Security Council gave Iraq “a final opportunity to comply with disarmament obligations under relevant resolutions of the Council” with the adoption of Resolution 1441. Iraq formally accepted the resolution and inspectors began their work in Iraq on November 27. On December 7, Iraq provided a 12,000-page declaration of its WMD programs and capabilities, which largely recycled old declarations and maintained that Iraq has no weapons of mass destruction (WMD). On December 19th, the International Atomic Energy Agency (IAEA) and the U.N. Monitoring, Verification and Inspection Commission (UNMOVIC), the two organizations charged with inspecting Iraq, reported that the declaration was incomplete. UNMOVIC and the IAEA told the U.N. Security Council that Baghdad “missed an opportunity” to come clean about its arms programs.

Between November 2002 and mid-March 2003, UNMOVIC and IAEA inspectors conducted 750 inspections at 550 sites. They conducted unannounced inspections, interviewed Iraqi personnel, taken samples, and collected documents. Although Iraq initially objected to reconnaissance flights (by U-2, Mirage 4 and Russian Antonov aircraft) and reportedly actively discouraged scientists from being interviewed in private, by mid-February Iraq acquiesced to these rights of the inspectorate. Both UNMOVIC Executive Chairman Hans Blix and IAEA Director General Mohamed ElBaradei generally characterized Iraqi cooperation as good on process and lacking on substance. U.N. Security Council Resolution 1441 states that “the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations” (emphasis added). Although four years had lapsed in inspections since 1998, President Bush’s September 12, 2002 speech to the United Nations and Congress’ authorization of the use of force against Iraq (P.L. 107-243) in October 2002 lent urgency to the inspections.

In retrospect, a key question is: What purpose did inspections serve? Were they a trip-wire for military action to disarm Saddam Hussein, or were they part of an on-going inspection and disarmament process that will continue at some point in the future? In the same interview, Rice said: “We have a country that continues to flaunt its international obligations undertaken in 1991 in the armistice that continues to try to acquire weapons of mass destruction. After all, there is a reason that Saddam Hussein does not want weapons inspections in Iraq. It’s…obviously he’s got something to hide.”

“What Does Disarmament Look Like?” The White House, January 23, 2003. These examples minimize key differences in the situations. For one, Ukraine and Kazakhstan inherited nuclear weapons from the breakup of the Soviet Union and might not ever have had nuclear weapons ambitions, and second, the South African government, according to many, acted to dismantle its nuclear weapons when it became clear that regime change was inevitable. In March 2002, before war against Iraq seemed imminent, National Security Advisor Condoleeza Rice remarked in an interview that: We need to be very clear on the purpose of weapons inspections. These are not Inspection for inspections’ sake. They are instrumental to make sure that … Iraq is not trying to acquire weapons of mass destruction.

In fact they were supposed to be the ability to give testimony that there are no such programs. And so when we focus on weapons inspections in Iraq, we have to   on weapons inspections that would be effective enough to be sure that this man is not trying to do what we know he has tried to do over the last 20 years. Ultimately, the United States believes that regime change in Iraq is going to be best for the Iraqi people and for the region. But clearly weapons inspections that are tough, weapons inspections that cannot be challenged, weapons inspections in which Saddam Hussein is not trying to soften the edges of them would be a helpful step forward.

Few doubt the difficulty of establishing confidence that Iraq is free of weapons of mass destruction. On the one hand, inspections in Iraq have the logically impossible task of proving a negative – which Iraq is not trying to acquire WMD. For those who believe that inspections cannot provide such assurances, obstruction of those inspections hints at (or to some, proves) the concealment of some WMD related activities.4 In this view, even cooperation in the process of inspections provides few assurances of the absence of WMD programs, and the failure of inspections to turn up evidence of WMD-related activities would, in this view, not confer innocence, but illustrate the shortcomings of inspections.

For some observers who are opposed to inspections, a key assumption is that the task of disarming Iraq is insurmountable without genuine Iraqi cooperation, which requires the leadership in Iraq to give up its WMD aspirations. The Bush Administration in January 2003 cited South Africa, Ukraine, and Kazakhstan as models of cooperative disarmament and contrasted Iraq’s actions with those of the three models.

The former deputy executive chairman of UNSCOM (U.N. Special Commission), Charles Duelfer, compared inspections in Iraq with those conducted in Germany between World War I and World War II, which was ultimately unsuccessful. Duelfer argued that this kind of coercive disarmament by an international organization is doomed to failure.

The CIA Director George Tenet remarked in a hearing before the Senate Select Committee on Intelligence on February 11, 2003, that “unless he Saddam Hussein provides the data to build on, provides the access, provides the unfettered access that he’s supposed to, provides us with surveillance capability, there’s little chance you are going to find weapons of mass destruction under the rubric he’s created inside the country.

Other observers point to the knowledge gained from 1991 to 1998 by inspectors about the extent of Iraq’s WMD programs, even in the face of strong Iraqi resistance and deception, to the uncertainties of waging war against an opponent that may have and be inclined to use WMD, and to the value in an approach that has broad international support. Some questioned the ability of intelligence agencies alone to detect WMD programs, citing reports of the CIA’s lack of knowledge about Iraq’s WMD programs prior to 1991 and the evident surprise about the 1998 Indian and Pakistani nuclear tests.

In the non-proliferation community, most agree that treaties and agreements ultimately cannot stop a country that is determined to acquire WMD, but rather make the process more difficult and costly, thereby buying time for political change. In the case of Iraq, four years without inspections elapsed with relatively little public debate, but the tragedies of September 11, 2001 seem to have convinced many observers that delay in disarming Iraq could increase the threat to international security. A relatively new concern in the debate on Iraq’s disarmament is the alleged support Iraq might provide to terrorists. Some observers say there appears to be little evidence linking Iraq to Al Qaeda, but some posit that Iraq might have incentives to provide WMD materials or weapons to terrorists, which would call for quick disarmament of Iraq.

The inspections conducted in Iraq following the 1991 Gulf War verified Iraq’s violation of the Nuclear Non-proliferation Treaty, the Biological Weapons Convention, and the 1925 Geneva Protocol prohibiting the use of bacteriological or chemical weapons in warfare. From May 1991 to December 1998, UNSCOM and the IAEA’s Action Team on Iraq conducted several thousand inspections at over 1,000 facilities. The extent and scale of Iraq’s programs to develop biological weapons, chemical weapons, and nuclear weapons surprised even that Knowledgeable in those areas.

IAEA inspections uncovered a Manhattan-Project like nuclear weapons program, which employed thousands of scientists and explored many avenues of producing weapons-grade material. Nonetheless, Iraq had not produced any real weapons-grade material, although it did have a crash program to secretly divert highly enriched uranium under IAEA safeguards for a warhead, as well as a crude weapons design.

Inspections also uncovered bulk biological weapons agent production and a rudimentary delivery capability. Much about Iraq’s biological weapons program is still unknown. In contrast, Iraq’s capabilities in chemical weapons and missiles were relatively well-known. Inspectors destroyed 38,500 munitions, 480,000 litres of chemical agents, and 1.8 million litres of precursor chemicals (but the fate of about 31,600 chemical munitions, 550 mustard gas bombs, 4,000 tons of chemical precursors and Iraq’s capabilities to produce VX agent are still unknown). Prior to the Gulf War, Iraq had a robust missile force and some domestic production capability, most of which was destroyed in the war. About 130 Soviet-supplied Scud missiles remained after the war; inspectors accounted for all but two. The history of inspections in Iraq is well-known and well-documented.

After the first few years, most of the breakthroughs in knowledge about Iraqi WMD programs either resulted from or benefitted from intelligence tips from governments or from information provided by defectors. In particular, the defection of Hussein Kamel, Saddam Hussein’s son-in-law, in 1995, provided an intelligence windfall about WMD programs. (Kamel was subsequently lured back to Iraq and killed.) The shortcomings of the inspections between 1991 and 1998 are also well known.

Iraqi officials frequently delayed inspections, spied on inspectors (bugging hotels and offices), harassed inspectors and lied about its capabilities. Major problems included interviewing scientists and engineers with Iraqi “minders” in the room, tip-offs of short-notice inspections, and exclusion from “sensitive sites.” Eight presidential sites became a lightning rod for obstruction, with Iraq complaining of violated sovereignty and accusing inspectors of spying. Former inspectors have also detailed stories of confrontation and intimidation, including shooting over the heads of inspectors, telephone threats, ransacking of hotel rooms, verbal and physical abuse, as well as Iraq’s efforts to infiltrate the inspection regime with spies.

In addition, Iraqis systematically destroyed or removed evidence to mislead inspectors about the capabilities of certain facilities. Over the 7 years, however, inspectors developed their own techniques for getting around obstacles that the Iraqis placed in their way. They made better use of intelligence resources, developed tactics to mislead the Iraqis about intended destinations, and improved interviewing techniques. Two other features of the inspections from 1991 to 1998 were political friction between UNSCOM and the IAEA, and increasing dissent among the permanent five members of the U.N. Security Council. According to some observers, UNSCOM and the IAEA clashed over several issues, including sharing of information, conduct of inspections, and approach to inspections. There were also reports of friction between Rolf Ekeus, Executive Chairman of UNSCOM and Hans Blix, then-Director General of the IAEA. Most apparent was a difference in how aggressively inspections were conducted. Critics of UNSCOM suggest that an overly aggressive approach is ultimately ineffective because inspectors cannot force Iraq to cooperate; supporters suggest that UNSCOM inspectors were appropriately aggressive in their techniques and approach, unburdened by any past relationship with Iraq (unlike the IAEA).

On the U.N. Security Council, “sanctions fatigue,” among other things, helped weaken resolve over Iraq, which Iraq exploited. By the mid-1990s, UNSCOM Chairman Ekeus was unable to get the Security Council to agree that Iraq was in material breach of resolutions and in 1996; he compromised for the first time on the modalities of visits. In October 1997, within days of China, France and Russia abstaining on UNSCOM’s determination that Iraq was violating UNSCR 1115, which required immediate, unconditional and unrestricted access to all sites and records, Iraq demanded U.S. personnel be withdrawn from UNSCOM. Iraq’s obstruction intensified in 1998, and UNSCOM inspectors left Iraq in December 1998 on the eve of U.S. and British air strikes (which became known as Operation Desert Fox). Although their work of uncovering, destroying or rendering harmless Iraq’s WMD capabilities was far from complete, they had reached an impasse.

A New Inspection Regime: Resolution 1441

When the U.N. Security Council adopted UNSCR 1441, it sought to redress some of the previous problems in inspections. UNSCR 1441 reaffirms the rights and responsibilities of the inspectors and their Iraqi counterparts, but there are a few new details, discussed below. A key issue in drafting the resolution was the question of what would constitute a new material breach of Iraq’s obligations, since a low threshold might make war more likely. UNSCR 1441 states that Iraq is currently in material breach of its obligations and that “false statements or omissions in the declarations and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach.”

To some, omissions in Iraq’s declaration by them would constitute a material breach; to others, evidence of a lack of cooperation would additionally be required. In the end, however, the U.N. Security Council did not vote on another resolution to declare Iraq in material breach.

DID THE IAEA OF THE UN FAIL TO DISCOVER WEAPONS OF MASS DESTRUCTION IN IRAQ?

Under a dramatic and fir-reaching global spotlight the International Atomic Energy Agency’s experience in Iraq reached a turning point in March 2003.
Its nuclear inspection team- together with teams of the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) and the rest of the UN organizations operating in Iraq had to withdraw ahead of announced military operations.

‘The diplomatic route to disarming Iraq had reached an impasse.
Today, international inspection teams tracking weapons of mass destruction (WMD) programmed in Iraq work in the wings ready to resume operations in Iraq at the UN Security Council’s call. The mandate of international inspection stands, with the IAEAs Iraq Nuclear Verification Office (INVO) in Vienna in charge of the nuclear file.

The IAEA’s nuclear inspection and verification experience in Iraq stretches over a span of three decades, addressing activities from the mine to the weapon. Agency inspectors led the discovery and dismantlement of Iraq’s secret nuclear weapons programme in the 1990s, and after the 1990s round of inspections had stopped, they had found no evidence, up to March 2003, that the programme had been revived since 1998. Since the first Iraq inspections under Security Council mandate in early 1991, the road of nuclear verification in Iraq has proved to be long and hard, and valuable lessons were learned that have benefitted the international community and strengthened the IAEA inspectorate. Much is known in the nuclear verification community about the limitations of IAEA safeguards in the 1980s and of the corrective steps that were taken.

Until then, the nature of the traditional approach, thought to be adequate by the international community, had enough loopholes for Iraq to begin a clandestine nuclear weapons programme and remain undetected for a decade. It is unfortunate that in some arenas some continue to portray the early safeguards limitations as an indicator of the IAEAs inability to provide credible assurance of a State’s adherence to its obligations under non-proliferation agree indents Iraq had joined the global Nuclear Non-Proliferation Treaty (NPT) in the I 970s as a non-nuclear-weapon State and had concluded the required NPT safeguards agreement with the Agency. Back then, it seemed that the international community was convinced that NPT non-nuclear-weapon States would remain committed to their pledges, and thus, the Agency’s role would simply be the verification of the State’s declared nuclear materials and installations.

The mistake of the whole community was not to acknowledge that a meaningful replication system must implement measures aimed at detecting if a State was trying to deceive the system via the conduct of undeclared activities. Addressing these loopholes — i.e. developing the lessons learned of the initial discovery of Iraq’s undeclared programme under the tougher inspection regime mandated by the Security Council in the I 990s was the main objective of the IAEA’s programme for strengthening safeguards and ultimately led, in 1997, to the adoption of the Additional Protocol to NPT safeguards agreements.

The Protocol gave IAEA inspectors more authority, broadening the scope of information and access that States had to provide to the IAEA for nuclear safeguards and verification. If inspectors had such authority in 1991, for instance, Iraq would not have been able to develop most of its clandestine activities in undeclared buildings at its Tuwaitha Nuclear Research Centre, as turned out to be the case.

Had the Agency been able to put together and analyze information from an extended declaration required from the inspected country, from the quite numerous open sources in the late I980s, and from information from other States, they would have known more about Iraq’s apparent intentions and the world would not have waited for Iraq’s invasion of Kuwait before zeroing in on the clandestine nuclear programme.

IAEA and UN inspections of Iraq’s weapons of mass destruction programmes worked, Newsweek magazine reported in February 2004. The magazine cites the record of international inspections and of the is led Iraq Survey Group, whose past leader, David Kay reported his findings.

According to Zakaria (2003), we were all wrong,” says weapons inspector David Kay. Actually, no. There was one group whose prewar estimates of Iraqi nuclear, chemical and biological capabilities have turned out to the devastatingly close to reality the U.N. inspectors. Consider what Mohamed ElBaradei. head of the U.N. nuclear agency, told the Security Council on March 7, 2003, after his team had done 247 inspections at 147 sites: “no evidence of resumed nuclear activities… nor any indication of nuclear-related prohibited activities at any related sites.” lie went on to say that evidence suggested Iraq had not imported uranium since 1990 and no longer had a centrifuge program. He concluded that Iraq’s nuclear capabilities had been effectively dismantled by 1997 and its dual-use industrial plants had decayed. All these claims appear to be dead-on, based on Kay’s findings…

The real lesson is that international bodies, like ElBaradei’s can work.
The magazine features an interview with IAEA Director General ElBaradei on the role of IAEA and international inspections. “I think the sanctions worked, and more importantly, the inspections worked,” Dr. Baradei says. “A combination of sanctions and inspections managed to disarm Iraq.” Dr. ElBaradei underlined the importance of having IAEA and international inspectors return to Iraq. “We still have a request by the Security Council to verify that Iraq has no nuclear weapons.”

On 7 March 2003, Director General Mohammed ElBaradei told the Security Council that the IAEA has found no evidence or plausible indication of the revival of a nuclear weapons programme in Iraq. However, he added that more time was still needed for the Agency to complete its investigations on whether Iraq had attempted to revive nuclear programme between 1998 and 2002. Neither the changes in Iraq over the past years nor the investigations by Iraq Survey Group set up to complete Iraqi disarmament have done anything to contradict the Agency’s assessment of the situation.

However, conclusions should certainly not be drawn before the IAEA team has had a chance to complete its assessment. Once the Security Council revisits its mandate, as foreseen in resolution 1483 and 1546, and terms can return to Iraq. As highlighted in major newspapers and magazine editorials, the IAEA seems to have been right in its assessment of Iraq’s nuclear capabilities. In my view, this was no coincidence, but the result of a well thought out and reliable approach. It is the Agency’s role to provide the international community in a timely fashion, with facts and conclusions when, and only when, they become indisputable, and to inform them about uncertainties as long as they exist.

This is what the IAEA’s Iraq teams did routinely, but more spectacularly in October 1997 and March 2003. The fact that the Agency has 137 Member States forces it to put great distance from any single political agenda and its associated pressure (which is not the case for national analysts who, at a given point in time, may feel under the pressure explicit or implicit, from a single political line). But if the ethics of the approach provide the framework for the work, it does not provide the end product.

The methodology that leads to the “credible assurance” that the international community expects from the verification body relies first on assembling top quality personnel, whose contribution is required to be disconnected from any “a priori” belief that would lead to preconceived conclusions. Experts must be of geographical diversity, and redundancy of expertise is certainly mandatory in sensitive areas, again to avoid unwanted bias. Then, it is fundamental to remember that the information that leads to a conclusion cannot be limited to a declaration taken at face value, “the last HUMINT” (human intelligence) or the “last sample analytical result”. Rather, it has to include data that is as comprehensive as possible in nature, origin and time. Another key parameter is certainly to keep in mind one’s own limitations, to avoid excessive extrapolating far from the facts and forgetting the inherent presence of uncertainties.

Of course, no verification is meaningful, unless the inspectors have, on a continuous basis, the appropriate level of authority that enables drawing credible conclusions while limiting the uncertainties. Absence of inspections, like in Iraq from 1999-2002, turns the whole community blind. Providing the IAEA inspectorate with the right level of authority (even short of the dream conditions as in Iraq) is a win-win situation. It benefits .the international community, which receives the level of assurance it seeks, and also the inspected party, which is given the opportunity to demonstrate the reality of its compliance. As proven in Iraq, inspections work, and they have no substitute.

  • THEORETICAL FRAME WORK

The theoretical framework of this research work is anchored on Political Realism. We shall adopt this approach as basis for analysing why the US invaded Iraq and why the war is unjust and a gross violation of international law. Hans Morgenthau elevated Realist principles to an unprecedented height in Post- World War 11 academic discuss. It was his view that nations must control other nations by force, acquire territories by force and must not have any moral considerations in respect of justice, fairness and common interest.

According to Ogonor (2000), this view conditioned the cold war international relations as it influences the foreign policies of the super powers.  Realist theories share the following assumptions which make it the best for this work: (i) the international system is anarchic. There is no authority above States capable of regulating their interactions; State must arrive at relations with other States on their own, rather than it being dictated to them by some higher controlling entity. (ii) Sovereign States are the principal actors in the international system. International institutions, multinational corporations. (iii) Individuals and other sub-State actors are viewed as having little independent influence. (iv) States are rational unitary actors each moving towards their own national interest. There is a general distrust of long term cooperation or alliance. (v) The overriding national interest of each State is its national security and survival. (vi) In pursuit of national security, States strive to amass resources (vii) Relations between States are determined by their comparative level of power derived primarily from their military and economic capabilities. (viii) There are no universal principles which States can use to guide their actions. Instead, a State must be ever aware of the actions of the States around it and must use a pragmatic approach to resolve the problems that arise. Political realism derives it impulse from the view that the nature of man is sinful, aggressive and conflictual.

Realism holds that political theory must flow from observation of history and experience of people and of States and that these shows a pattern of violence and aggressive behaviour. With reference to the US invasion of Iraq, it is not surprising that the charges levelled against the United States are that the invasion lacked just authority, just cause and right intentions. Firstly, the 2003 war lacked the explicit authorization of the Security Council. Secondly, it was well documented that America’s self-interest was a determining factor in the decision to get involved in the Gulf crisis.

This proposed invasion would constitute an important precedent. It would be the first test of the new doctrine articulated by President George W. Bush of “pre-emption” which declares that the United States has the right to invade Sovereign countries and overthrow their governments if they are seen as hostile to US interests.

1.7       HYPOTHESES

The study will be anchored on the following hypotheses:

  • The UN Security Council Support for the invasion of Iraq helped eliminate the production of Weapons of Mass Destruction.
  • The UN Security Council Sanctions on Iraq helped minimize the Iraqis quest for Weapon of Mass Destruction.
  • The IAEA of the UN failed to discover Weapons of Mass Destruction in Iraq.

1.8     METHOD OF DATA COLLECTION    

The method of data collection for this study is the qualitative method. According to McNabb (2005), qualitative method is a set of non-statistical inquiry techniques and processes used to gather data about social phenomena. Thus, qualitative data refers to some collection of words, symbols, pictures, books, journals, conference proceeding, internet sources or other non-numerical records, materials or artefacts that are collected by a researcher and is data that has relevance to the social group under study. The use of these data go beyond simple description of events and phenomena; rather they are used to creating understanding, for subjective interpretation and for critical analysis as well.

First, in qualitative research, cases can be selected purposefully, according to whether or not they typify certain characteristics or contextual locations. Second, the researcher’s role receives greater critical attention. This is because in qualitative research the possibility of the researcher taking a ‘neutral’ or transcendental position is seen as more problematic in practical and or philosophical terms. Hence, qualitative research reflects on the role of the researcher in the research process and makes this clear in the analysis. Third, qualitative data analysis can take a wide variety of forms, and approaches analysis holistically and contextually, rather than being reductionist and isolationist. Nevertheless, systematic and transparent approaches to analysis are almost always rewarded as essential for rigour.

Burnham et al (2005) sees the qualitative method as “very attractive in that it involves collecting information in depth but form a relatively small number of cases”. He goes on to state that “analytic induction is often used by qualitative researches in their efforts to generalize about social behaviour. Concepts are developed intuitively from the data, and are then defined, refined and their implications deduced from the data” Burnham et al (2005).

1.9.1    METHOD OF DATA ANALYSIS                       

In the study, we adopted the qualitative descriptive method in analysing our data. Qualitative descriptive analysis according to Asika (2006: 118) essentially has to do with summarizing the information generated in a research, so that appropriate analytical methods could be used to further discover relationship among the variables. The adoption of the foregoing analytical method is necessary because the study principally relied on secondary sources of data.

 

 

1.9.2     RESEARCH DESIGN

In research, unassailable answers are reached through a research design. This is because it “involves a set of decisions regarding what topic to be studied among which population with research method and purpose” (Babbie, 2007:112). Research design helps the researcher to reach plausible answers and permit control of extraneous sources of variance (Leege and Francis, 1974:66). It is a logical model of proof that allows the research to draw inferences concerning causal relations among variables under investigation.

Research design noted Asika (1991:28) can be classified into three main categories which are: Survey, experimental and Ex-post-facto. In this study, we adopted the ex-post-facto research design knowing that this study is basically non-experimental and qualitative (see, Bailey, 1978; Nnabugwu, 2006). Cohen and Manion (1980) define ex post facto design as those studies which investigate possible cause-and-effect relationships by observing an existing condition and searching back in time for plausible causal factors. For Kerlinger (1977) it is a form of descriptive research in which an independent variable has already occurred and in which an investigator starts with the observation of a dependent variable; he then studies the independent variable in retrospect for a possible relationship to and effects on the dependent variable. An ex post facto design is used when experimental research is not possible, such as when people have self-selected levels of an independent variable or when a treatment is naturally occurring and the researcher could not “control” the degree of its use.

According Landmand (1988:62) it is used to refer to an experiment in which the researcher, rather than creating the treatment, examines the effect of a naturally occurring treatment after it has occurred. In other words, it is a study that attempts to discover the pre-existing casual conditions between groups. The researcher starts by specifying a dependent variable and then tries to identify possible reasons for its occurrence. That is why the researcher need to establish a plausible reason (hypothesis) for why there might be a relationship between two variables before conducting a study (Diem, 2002).

This design is very relevant for our study given the nature of the phenomenon under investigation. The treatment of the design on the hypotheses shall follow the following order:

Hypothesis 1: That the UN Security Council support for the invasion of Iraq helped eliminate the production of Weapons of Mass Destruction. The independent variable (X) is UN Security Council support for invasion of Iraq whereas the dependent variable (Y) is help to eliminate the production of Weapons of Mass Destruction.

Hypothesis 2: That the UN Security Council Sanctions on Iraq helped minimize the Iraqis quest for Weapons of Mass Destruction. The independent variable (X) is UN Security Council Sanctions Iraq whereas the dependent variable (Y) is helping minimize the Iraqis quest for Weapons of Mass Destruction.

Hypothesis 3: That IAEA of the UN failed to discover Weapons of Mass Destruction in Iraq. The independent variable (X) is IAEA of the UN whereas the dependent variable (Y) is discover Weapons of Mass Destruction in Iraq. The adoption of the ex post facto research design is essential in this study because in theoretical terms, noted Michael (2009:69) we think of the independent variable as having an effect on the dependent variable. In fact, in everyday life and in theorizing in political research, we think in terms of causality. Again, the ex post facto design is very fundamental for this study because a hypothesis is a statement of relationship.

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