Poetry: If I Were a Rich Man
Interview: League of Nations
Industrial: 20/20 Hindsight
Organising: On The Buses
Unions: National Focus
History: The Banner Room
International: The Slaughter Continues
Legal: A Legal Case For War?
Culture: Singing For The People
Review: The Hours
Poetry: I Wanna Bomb Saddam
Satire: Diuretic Makes Warne's Excuses Look Thin
The Locker Room
Re-considering The Accord
Strangers in the House
Nursing Home Concerns
A Legal Case For War?
The millions across the world who rallied in opposition to a war in Iraq have put pressure back on the Bush, Blair and Howard administrations to justify the case for war. While the moral case against waging war is a compelling one, the legal case hinges on whether any military action is authorised by the United Nations Security Council. For his part, George W. Bush has made it clear he considers UN backing no more than "useful" and certainly "not necessary" for launching an attack on Iraq. If Howard remains loyal to Bush would Australia be acting in breach of international law by joining a US-led coalition attack against Iraq in the absence of a UN Security Council authorisation? The hundreds of thousands of Australians who walked against the war joining with millions world wide clearly do not feel the use of force against Iraq is justified, but what exactly are Australia's obligations under international law?
The public justification for war
While revenge, cheap oil and domestic politics are all motivating the United States enthusiasm for war on Iraq, its public justification for the use of force is the destruction of stores of chemical, biological and other weapons of mass destruction Iraq is alleged to posses. The US and the Howard Government rely strongly on the assumption that Iraq has breached resolutions of the UN Security Council, which they consider as justification for military action. The US State Department also argue the use of force is justified on the basis of either the right to carry out a pre-emptive strike in self-defence or the right to respond in self-defence against an armed attack, in this case the attacks of 11 September 2001.
The use of force in international law
According to the United Nations Charter there are only two situations in which one State can lawfully use force against another:
(1) In individual or collective self-defence, or
(2) Pursuant to a UN Security Council resolution.
Would war on Iraq be an act of self-defence?
As in a court of law, the burden of proof in international law is on the US Administration and its allies to demonstrate the existence of a pressing and direct threat which could justify military action as an act of self-defence.
Despite the much anticipated briefing to the Security Council by US Secretary of State, Colin Powell, and the political propaganda perpetuated by conservative media commentators there is still no proof that Iraq has provided weapons or logistical or other support to Al-Qa'ida. In any event such support, even if it existed, would not amount to an armed attack on the US according to international law. Any proof of Iraqi involvement in the September 11 terrorist attacks would need to meet the standard set out in the case of Nicaragua v United States of America  where the International Court of Justice found in favour of the Reagan administration, despite clear and unambiguous proof of it having provided weapons, logistical and other support for the insurgency of Contra rebels against the leftist Sandinista regime. In a poetic irony of international law, applying this standard to the terrorist attacks of September 11, the remoteness of the relationship between Al-Qa'ida (assuming they were responsible) and the Taliban regime, at least on the evidence available in the public domain, did not justify at law the invasion of Afghanistan by the US. The complete absence of evidence of any link between Al-Qa'ida and Saddam Hussein leaves no justification for the use of force, as an act of self-defence, against Iraq.
More clearly, Australia has not been the subject of any direct attack which could, even arguably, be linked with Iraq. The only possible legal justification for Howard use of the military in Iraq is as an anticipatory form of self-defence against a future threat. Although it is not clear that international law recognises the right to use anticipatory force in self-defence, if there is such a right, it only exists in situations of great emergency. One fascinating example were the legal concept of self-defence was considered in international law is in the case of Israel's bombing of the Osirak nuclear reactor in Iraq on 7 June 1981. The French built reactor was under construction, although there was no evidence it was to be used to make nuclear weapons. An Israeli led air assault destroyed the nuclear facility on the basis that it was a threat to the Israel. (The pilot who lead the Israeli pre-emptive attack, Ilan Ramon, was an astronaut on the fated Columbia Space Shuttle mission.) Following the assault, the Security Council unanimously adopted a resolution strongly condemning the military attack by Israel as a clear violation for the Charter of the United National and the norms of international conduct.
Security Council Resolution
Without a further Security Council resolution the only legal argument the US could make in favour of military action is that the current resolution already authorises the use of force. This argument however would require a massive distortion of the language of the Security Council resolutions and would ignore the debates preceding Security Council resolution 1441.
The intentions of the majority of States that passed Resolution 1441 could hardly be clearer. It gives no authority whatsoever to use force in the event of non-compliance. The US attempted to persuade the Security Council to include an express authorisation of force and it failed.
Lets look back to what happened in 1989 prior to the Gulf War. Unlike the current situation, operation Desert Storm had the express authority of the United Nations. In all, the UN Security Council passed 12 resolutions on the prior to authorising the use of force for the purposes of "liberating Kuwait". In the Gulf War, Resolution 678 referred to the use of "all necessary means". This phrase does not appear Security Council Resolution 1441.
Force should only be used in the interest of the international community, not individual states. The international community interest is furthered by the centrality accorded to the Security Council's control over the use of force. Sundering the authorisation process to individual states or a coalition of states compromises this centrality. Such separation results in a strong potential for powerful states to interpret UN authorisations to serve their own national interests rather than the interests of the international community as defined by the United Nations.
Under the UN Charter, the only circumstances in which the use of force is permissible are in collective or individual self-defence against an actual or imminent armed attack, or when the Security Council has directed or authorised use of force to maintain or restore international peace and security. Neither of those circumstances exists. In the absence of these circumstances the use of force by the US, the UK, the Australian Government or any other members of the "coalition of the willing" against Iraq would be unlawful.
UN Security Council Resolution 1441 falls short of giving the express authority that the US and its allies, want. To be able to legally use force, they need a further and more clearly worded resolution. A Security Council mandate is the minimum authorisation required since the US and the "coalition of the willing" cannot credibly claim that an invasion of Iraq is necessary in self-defence. There is no known planned attack on the US for its "pre-emptive strike" to pre-empt.
Although the US may ultimately obtain the resolution it covets, any breach by Iraq of UN resolutions cannot, as a matter of proportionality, justify an all-out war anticipated to cost many more innocent lives.
If the US does ultimately wage war against Iraq without Security Counicl authorisation and then subsequently argues it did so as an act of self-defence, then it would become a green light for any country to conduct such actions unilaterally, outside of the framework of the United Nations. The dangers associated with such a move are very serious. It has the very real potential to render the UN Security Council irrelevant. If the US and its allies are able to justify the unilateral use of force in the name of an expanded conception of self-defence the Security Council's current role in authorising and limiting the use of force will be seriously undercut. It also threatens to replace the current law-based international order with a much more permissive environment, a situation in which states need only claim that they face an imminent threat to launch a unilateral pre-emptive war. Once the United States, Australia and others have claimed this right, on what basis can it be denied to Pakistan, China, Israel, North Korea, or others?
According to international law the use of force against Iraq would not be justified under international law unless:
- Iraq mounted a direct attack on Australia or one of its allies;
- An attack by Iraq on Australia or one of its allies was imminent and could be averted in no way other than by the use of force; or
- The United Nations Security Council authorised the use of force in clear terms.
Iraq has not attacked Australia, and there is no evidence that any attack is imminent. Current Security Council resolution 1441 does not authorise the use of force against Iraq. In the absence of express authorisation from the Security Council the US and Australian governments are not entitled to use force against Iraq and if they were to do so would be in breach of international law.
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