16 INTERNATIONAL LAW AUTHORITIES SAY WAR WOULD BE ILLEGAL

national | miscellaneous | news report

Saturday March 08, 2003 19:56

by Anthony Coughlan

jcoughln at tcd dot ie

Trinity College, Dublin

16 INTERNATIONAL LAW AUTHORITIES SAY WAR WOULD BE ILLEGAL

Letter in today's "Guardian" newspaper, London, Friday 7 March, sent to you for your information by Anthony Coughlan, Trinity College, Dublin

16 ACADEMIC INTERNATIONAL LAW AUTHORITIES SAY WAR WOULD BE ILLEGAL

We are teachers of international law. On the basis of the information
publicly available, there is no justification under international law
for
the use of military force against Iraq.

The UN Charter outlaws the use of force with only two
exceptions:individual
or collective self-defence in response to an armed atttack,and action
authorised by the Security Council as a collective response to a threat
to
the peace, breach of the peace or act of aggression.

There are currently no grounds for a claim to use such force in
self-defence. The doctrine of pre-emptive self-defence against an
attack
that might arise at some hypothetical future time has no basis in
international law. Neither Security Council resolution 1441 nor any
prior
resolution authorises the proposed use of force in the present
circumstances.

Before military action can lawfully be undertaken against Iraq, the
Security Council must have indicated its clearly expressed assent. It
has
not yet done so. A vetoed resolution could provide no such assent. The
Prime Minister's assertion that in certain circumstances a veto becomes
"unreasonable" and may be disregarded has no basis in international
law.

The UK has used its Security Council veto on 32 occasions since 1945.
Any
attempt to disregard these votes on the grounds that they were
"unreasonable" would have been deplored as an unacceptable infringement
of
the UK's right to exercise a veto under UN Charter Article 27.

A decision to undertake military action in Iraq without proper Security
Council authorisation will seriusly undermine the international rule of
law. Of course, even with that authorisation serious questions would
remain. A lawful war is not necessarily a just, prudent or humanitarian
war.

UNIVERSITY OF OXFORD: Prof Ulf Bernitz, Dr Nicolas Espejo-Yaksic,Agnes
Hurwitz, Prof.Vaughan Lowe, Dr Ben Saulk, Dr Katja Ziegler;

UNIVERSITY OF CAMBRIDGE: Prof.James Crawford, Dr Susan Marks, Dr Roger
O'Keefe;

LONDON SCHOOL OF ECONOMICS: Prof.Christine Chinkin, Dr Gerry Simpson,
Deborah Cass;

SCHOOOL OF ORIENTAL AND AFRICAN STUDIES: Dr Matthew Craven;

UNIVERSITY COLLEGE LONDON: Prof.Phillippe Sands, Ralph Wilde;

UNIVERSITY OF PARIS: Prof.Pierre-Marie Dupuy

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Comments (8 of 8)

Criminals

by Shelta

Sat Mar 08, 2003 20:07

If politicians such as Ahern are engaging in illegal acts why are they not prosecuted?

They're wrong

by Avi H.

Sat Mar 08, 2003 20:45

I used to teach international law too. There is in fact a right of pre-emptive self-defence. This right can be inferred from the right of self-defence contained both in Article 51 of the UN Charter and general principles of international law. To put it another way, it is not reasonable to expect a state to wait until a threat to its population has become barely insurmoutable before acting.

In this case, it is a primarily a question of evidence,not principle. I would suggest that the Iraqi Regime is sufficiently immoral and duplicitous, with a known history of ruthlessness, animosity towards the West and a proven desire to obtain and use the most horrific weapons, that it is not reasonable to expect the UK and the US to wait until they incur thousands or millions of casualties before acting.

Congratulations Lawyers

by James McKenna

Sat Mar 08, 2003 21:31

The writing is on the wall for Bush and his illegal murder plans. Now to get the Murdering Psychopath Sharon! Bertie and gang are not quite as exempt from the International Criminal Court so they really should watch their continued complicity in this proposed illegal mass murder

Avi

by Daithi

Sat Mar 08, 2003 22:15

Can you give an example of a situation where pre-emptive self-defence as proposed by Bush against Iraq has ever been accepted in international law? I don't believe it is intellectually tenable to relate situations like the Caroline (where the U.S. attacked a ship that was literally sitting on its border without waiting to be attacked first), responding to the massing of Arab forces on Israel's borders in 1967 (the classic pre-emptive strike under int'l law) or even Osirak (where Israel bombed an Iraqi nuclear reactor), and even this was criticised by the IAEA and the UN (and for the sake of argument, let's accept that Israel was right in this case and did not act illegally). The article 51 self-defence right is (a) a narrow one, and (b) terminated when the Security Council is actively dealing with the matter - not to say that a mere raising of the issue precludes unilateral action, but when U.N. employees are acting pursuant to Res. 1441 and preceeding resolutions, the S.C. is clearly seised of the matter. The inherent right of the state to self-defence (again, this is argued over but let's take the most favourable interpretation to the U.S. for discussion purposes) requires necessity and proportionality - not to mention some kind of direct threat - and in no way includes 'regime change', which is a violation of article 2.4 and 2.7 of the U.N. Charter and the General Assembly declarations on Friendly Relations and on Aggression. In short, self-defence is a very narrow window and also is distinct from the violation of a S.C. resolution, which is sometimes the position of the U.S., depending on what day of the week it is.

(Having said that legal questions are not the only or even the primary grounds of opposition to this war, but I do think it's worth discussing).

League of Nations?

by UN Hater

Sun Mar 09, 2003 01:38

The UN has shown it is too weak and inept to disarm Saddam.

We're moving into a post UN world in terms of international security, although the UN may retain a role in charity work.
The US will have to act as chief defender of the western powers until some new global body is formed.

The UN will go the way of the League of nations.

Legal Underpinnings

Sun Mar 09, 2003 02:23

Daithi, you're right Art. 51 of the UN Charter is narrow. However, we have to look beyond the UN Charter. Art. 51 was drafted as a partial enactment of a principle of customary international law. As such, the UN Charter does not replace those principles, many of which are very old, but adds to them. In any case, the drafters felt that it was prejudicial to international order to enact a principle of pre-emptive self-defence in the charter itself, despite the fact that such self-defence has been practised by states since time immemorial.

In the case of Iraq at the present day, we are dealing with an entirely unprecedented factual matrix. Accordingly, we can only work out a position by inference, using generally accepted legal principles. Moreover, the issue concerns threat, which is another word for 'risk'. In the common law, at least, the level of a risk is a function not just of its likelihood but also of the magnitude of the misfortune that might conceivably result. With weapons of mass destruction, we are talking about potentially millions of people dying horrific deaths.

All we need to do now is put the elements together: Iraq is country with vast financial resources due to its oil wealth. Therefore, it can acquire high technology and expertise. It is run by a known psychopath - Saddam, who is, moreover, one of the most evil leaders ever known. Its political and social culture is corrupt. It has attacked its neighbours twice. It has already fought a war with the West and hates the US, Britain and Israel.

When the governments of those countries look at Iraq, what they see is an unacceptable risk of being attacked, directly or indirectly, sooner or later, by Saddam in a devastating way. Looked at in this manner, the response of the US and Britain is proportionate to the level of risk posed by Iraq. Further, regime change is appropriate because that is clearly the only way to ensure that Iraq stays disarmed permanently, given the truly awful nature of the Saddam's regime.

The UN

Sun Mar 09, 2003 02:28

UN Hater, you're absolutely right. In fact, the writing has been on the wall for the UN for quite a while; specifically, since its hopeless bias against Israel, the debacles of Srebrenice and Rwanda, etc.

Avi:

by MG

Mon Mar 10, 2003 10:33

By your logic, Saddam Hussein would be entirely within his rights to launch a pre-emptive attack on the United States and Britain due to their stated intention to bomb the shit out of his country. Saddam can't be expected to sit around waiting for the US/British terrorist network to attack him, can he?

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16 INTERNATIONAL LAW AUTHORITIES SAY WAR WOULD BE ILLEGAL

Comments (8 of 8)