Reviewed by: Robert Whitehouse
Author: Lindsay Moir
Publisher: Hart Publishing
Whatever else may have changed on 11 September 2001, international law did not.’ This was the blunt conclusion of Sir Michael Wood, once a legal adviser to the Foreign and Commonwealth Office. As the 10th anniversary of the events of 9/11 approaches, it is fitting to re-examine Sir Michael’s hypothesis through the latest contribution to the torrent of books and articles published over the past 10 years.
For such a re-examination, there is no surer guide to this intricate topic than Lindsay Moir’s new book on the use of force in international law (jus ad bellum). It is a deceptively short work, running to only 160 pages of text. Yet within this space, Moir manages to address everything one would care to know about this contentious subject, each section weaving its way expertly through the multitude of sources clustered in the footnotes.
The book is divided into two parts dealing with jus ad bellum before and after 9/11. There is an analysis of relevant decisions of the International Court of Justice (ICJ). However, what is significant in this portion of the book is how tangential the work of the ICJ has been in formulating legal permissions for the use of armed force. It is apparent that the ICJ is very much a marginal actor in the interpretation of the UN Charter compared with the activism of the Security Council through the latter’s horde of resolutions, providing authoritative guidance on the scope and mobility of the charter provisions.
The first part sets out the main legal concepts articulating the use of force in international law. Key terms such as ‘anticipatory self-defence’, ‘armed attack’, ‘proportionate response’ and so forth are critically investigated through the developing literature on the subject. International law after 9/11 is then explored by posing a series of questions applying these concepts to determine the justification for the attacks upon Afghanistan (2001) and Iraq (2003).
The result is a particularly effective deconstruction of the British and US governments’ legal rationalisation of their collective military actions against these two nations. There is nothing polemical or pejorative in Moir’s approach. It is a coolly objective dissection, thus making the resulting conclusions largely uncontroversial.
The invasion of Afghanistan to remove the Taliban regime was justified as that regime was responsible as a matter of law for the armed attack upon the US. However, in the case of the invasion of Iraq, Moir finds that the military action was not a lawful response to the policy of Saddam Hussein as the invasion was neither an act of self-defence nor authorised by the Security Council.
The legal doctrine whereby the US and UK sought to argue that the cumulative effect of Security Council resolutions 678, 687 and 1441 was sufficient to warrant a military assault on Iraq is subject to relentless criticism. At a fundamental level, both the US and UK ignored the primary presumption that, unless by express provision to the contrary, resolutions of the Security Council are war-restraining and not war-activating mechanisms.
Moir’s book was written before the UN intervention in Libya. However, the posture of the Security Council in this conflict undoubtedly substantiates Moir’s penetrating analysis of the legal position with respect to the invasion of Iraq. In dealing with Libya, the Security Council was careful to draft Resolution 1970 to eliminate any ambiguity that the resort to armed force was not a permissible response to its breach.
Only with the subsequent passing of Resolution 1973 was the use of armed force expressly authorised, but then only with the specific prohibition of foreign occupation of any part of Libyan soil.
Robert Whitehouse is a solicitor with Hodders Law