A US-led attack on Iraq without the UN isn't legal and may be a war crime
The initiation of a war against Iraq
by the self-styled "coalition of
the willing" would be a fundamental
violation of international law.
International law recognises two bases
for the use of force. The first, enshrined
in article 51 of the United
Nations charter, allows force to be
used in self-defence. The attack must
be actual or imminent.
The second basis is when the UN
Security Council authorises the use
of force as a collective response to the
use or threat of force. However, the Security
Council is itself bound by the terms of
the UN charter and can only authorise
the use of force if there is evidence
that there is an actual threat to the
peace (in this case, by Iraq) and that
this threat cannot be averted by any means
short of force (such as negotiation, further
weapons inspections etc).
Members of the "coalition of the
willing", including Australia, have
not yet presented any persuasive arguments
that an invasion of Iraq can be justified
under international law.
The United States has proposed a doctrine
of "pre-emptive self-defence"
that would allow a country to use force
against another country it suspects may
attack it at some stage. This doctrine
contradicts the cardinal principle of
the modern international legal order and
the primary rationale for the founding
of the UN after World War II - the prohibition
on the unilateral use of force to settle
The weak and ambiguous evidence thus
far presented to the international community
by US Secretary of State Colin Powell
to justify a pre-emptive strike underlines
the practical danger of a doctrine of
pre-emption. A principle of pre-emption
would allow national agendas to destroy
the system of collective security contained
in chapter VII of the UN charter and return
us to the pre-1945 era where might equalled
right. Ironically, the same principle
would justify Iraq now launching pre-emptive
attacks on members of the coalition because
it could validly argue it feared an attack.
But there is a further legal dimension
for Saddam on the one hand and Bush, Blair
and Howard and their potential coalition
partners on the other to consider. Even
if the use of force can be justified,
international humanitarian law places
significant limits on the means and methods
Conventions of 1949 and their 1977 protocols
set out some of these limits: for example,
the prohibitions on targeting civilian
populations and infrastructure and causing
extensive destruction of property not
justified by military objectives. Launching
an attack knowing it will cause "incidental"
loss of life or injury to civilians "which
would be clearly excessive in relation
to the concrete and direct overall military
advantage anticipated" constitutes
a war crime under international law.
The objective of disarming Iraq could
not justify widespread harm to the population,
more than half of whom are under 15 years
of age. The use of nuclear weapons in
a pre-emptive attack would seem to fall
squarely within the definition of a war
Until recently, the enforcement of international
humanitarian law largely depended on the
willingness of countries to try those
responsible for grave breaches of the
law. The creation of the International
Criminal Court last year has, however,
provided a stronger system of scrutiny
and adjudication of violations of humanitarian
law. The ICC now has jurisdiction over
war crimes and crimes against humanity
when national legal systems have not dealt
with these crimes adequately. It attributes
criminal responsibility to individuals
responsible for planning military action
that violates international humanitarian
law and those who carry it out. It specifically
extends criminal liability to heads of
state, leaders of governments, parliamentarians,
government officials and military personnel.
Estimates of civilian deaths in Iraq
suggest up to 250,000 people may die as
a result of an attack using conventional
weapons, and many more will suffer homelessness,
malnutrition and other serious health
and environmental consequences in its
From what we know of the likely civilian
devastation of the coalition's war strategies,
there are strong arguments that an attack
on Iraq may involve the commission of
both war crimes and crimes against humanity.
Respect for international law must be
the first concern of the Australian government
if it seeks to punish the Iraqi Government
for not respecting international law.
It is clearly in our national interest
to strengthen, rather than thwart, the
global rule of law. Humanitarian considerations
should also play a major role in shaping
But, if all else fails, it is to be
hoped that the fact that there is now
an international system to bring even
the highest officials to justice for war
crimes will temper the enthusiasm of our
politicians for this war.
- Page 1
This article was published in The Age and The Sydney Morning Herald on Februray 26, 2003.
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About the Author
This is a joint statement by Don Anton, senior lecturer, ANU; Peter Bailey, professor, ANU; Andrew Byrnes, professor, ANU; Greg Carne, senior lecturer, University of Tasmania; Anthony Cassimatis, lecturer, University of Queensland; Hilary Charlesworth, director, Centre for International and Public Law, ANU; Madelaine Chiam, lecturer, ANU; Julie Debeljak, associate director, Castan Centre for Human Rights Law; Kate Eastman, Wentworth Chambers, Sydney; Carolyn Evans, senior lecturer, University of Melbourne; Devika Hovell, lecturer, University of NSW; Fleur Johns, lecturer, University of Sydney; Sarah Joseph, associate director, Castan Centre for Human Rights Law, Monash University; Ann Kent, research fellow, Centre for International and Public Law, ANU; David Kinley, director, Castan Centre for Human Rights Law, Monash University; Wendy Lacey, lecturer, University of Adelaide; Garth Nettheim, emeritus professor, University of NSW; Penelope Mathew, senior lecturer, ANU; Ian Malkin, associate professor, University of Melbourne; Chris Maxwell, QC, Melbourne Bar; Tim McCormack, director, Centre for Military Law, University of Melbourne; Sophie McMurray, lecturer, University of NSW; Anne McNaughton, lecturer, ANU; Kwame Mfodwo, lecturer, Monash Law School; Wayne Morgan, senior lecturer, ANU; Anne Orford, associate professor, University of Melbourne; Emile Noel, senior fellow, New York University Law School; Dianne Otto, associate professor, University of Melbourne; Peter Radan, senior lecturer, Macquarie Law School; Rosemary Rayfuse, senior lecturer, University of NSW; Simon Rice, president, Australian Lawyers for Human Rights; Donald Rothwell, associate professor, University of Sydney; Chris Sidoti, professor, Human Rights Council of Australia; Michael Salvaris, senior research fellow, Institute for Social Research, Swinburne University; John Squires, director, Australian Human Rights Centre, University of NSW; James Stellios, lecturer, ANU; Tim Stephens, lecturer, University of Sydney; Julie Taylor, University of Western Australia; Gillian Triggs, co-director, Institute for International and Comparative Law, University of Melbourne; John Wade, director, Dispute Resolution Centre, Bond University; Kristen Walker, senior lecturer, University of Melbourne; Brett Williams, lecturer, University of Sydney; and Sir Ronald Wilson, former High Court judge and president of the Human Rights Commission.