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IRAQ CRISIS:The legal aspects INLAP Information Sheet No 4 November 2002Once again we are living with rumours of war and daily developments are difficult to keep up with. This information sheet may well be out of date by the time it reaches you. However, whatever happens, this crisis provides us with an opportunity to assess the crucial importance of International Law as well as some of its shortcomings. CONTENTS
There is one guiding principle. War must not be seen as an intermittent misfortune like natural disasters. Countries can no longer invade each other at will. The Nuremberg Tribunal identified starting a war as the worst of crimes. The United Nations Charter states that "the main purpose of the UN is to "?maintain international peace and security" (Article 1), that states "shall settle their international disputes by peaceful means" (Article 2 [3], and that all members "?shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the purposes of the United Nations" (Article 2 [4]). The UN Security Council may authorise miltary action to deal with threats to peace and security. Since 1991, there has been no Security Council resolution that has clearly and specifically authorized the use of force to enforce the terms of the cease-fire, including an end to Iraq’s missile and chemical, biological, and nuclear weapons programmes. Any UN authorisation of action against Iraq requires a new clear and unambiguous resolution. The fact that the US and the UK are at present seeking this suggests that they implicitly accept this view. The only other legal occasion for war is self defence. In this case, the situation must be desperate - the danger must be immediate and overwhelming. The idea of Anticipatory Self-Defence is legally very suspect. This makes sense. Otherwise a country could make almost any remote danger an occasion for war. In any case, there is no convincing evidence that Iraq poses an immediate threat to the USA as such, let alone the UK. In any case anticipatory self-defence could justify pre-emptive action by Iraq on the grounds that it is certainly being threatened by the US. However, the US has invoked the right of Anticipatory Self-Defence to make war on Iraq and retains this as an option without a Security Council resolution. The UK might easily do the same. If Iraq is attacked on this basis alone, and without Security Council authorisation, this would mean that the UN itself would be flouted and international law mocked. There is an analogy with domestic restrictions on killing people. It can only be done lawfully with state authority or in extreme self-defence. Thinking that someone might be a danger to you, or that he mistreats his family and would be best out of the way, simply won’t do. International Law is partly based on formal treaties and conventions. However, it is also developed by state custom and practice - just as regular use of a footpath entitles it to the status of a public right of way. Even so, there comes a stage when such customary law has to be swept up into something more formalised. Customary International Law is not the same thing as "making it up as you go along" as the US seems to be doing at the moment. Some have suggested that there is an emerging state practice permitting Humanitarian Intervention. This was invoked during the Kosovo crisis and many people argue that the shortcomings of existing international law precluded effective action to prevent the Rwanda massacres. This is a compelling argument. It is also a licence for vigilantes. A powerful nation, or group of nations, can pick and choose where and when to intervene and is therefore open to the charge of self-interest. Much has been made of the odious nature of Saddam Hussein’?s regime and the benefits of liberating the Iraqi people from it. Although, on this occasion, the case for Humanitarian Intervention has not yet been deployed strongly, it might be appealed to as events develop. If Humanitarian Intervention is to become a norm, then we must establish internationally agreed criteria and proper systems of authority for its initiation. Law, to be just, cannot be applied on a selective basis. The UN is committed to "the equal rights of . . . nations large and small." Again, comparison with domestic law is instructive. There was a time when men could beat their wives and children with impunity and police shied away from "domestics". This is no longer acceptable but we have had to develop procedures for intervention by the authorities. On 8 November The United Nations Security Council adopted resolution 1441, requiring Iraq to submit to immediate and unrestricted weapons inspections. Whatever the intentions of Security Council members, there are already indications that that the United States and British governments are seeking to interpret the resolution 1441 on Iraq as a vote to make war possible, not a vote for peace. The resolution does not automatically authorise military action. It requires the Security Council to meet if UN weapons inspectors report a breach of its terms. However, US and UK lobbying has resulted in plenty of trip wires, any or all of which are capable of being used as the pretext for an attack. For example, if Iraq does not meet the various deadlines such as agreeing to the resolution, allowing the inspection team to start work, providing a full report of all Weapons of Mass Destruction programs, and expediting a report within two months, conflict can be triggered all too easily. Any mistake in the reporting, or simply disagreement on data can be used as a pretext for war. Iraq's barely functioning civil service makes this all too likely. The new resolution gives greater strength to US and UK arguments that they can now use force on the flimsiest pretext. However, a recent letter sent to the Guardian by Peacerights lawyer Phil Shiner, Peace activist Di McDonald and Comedian and journalist Mark Thomas argues that: "It is not for the UK or the US Government to decide whether Iraq should face "serious consequences" if there is an alleged non-compliance with the enhanced weapons inspection regime of Resolution 1441 (Guardian, 11.11.02, p4). Claire Short is correct to say that "the Security Council will decide what kind of action needs to be taken". We make three points: one, R 1441 does not of itself authorise force. When the SC wish to authorise force it uses the phrase "all necessary means." That is the language it used in the context of Kuwait (R 678), Bosnia (R 770), Somalia (R 794), Rwanda (R 929) and Haiti (R 940); two, the UK and US know that the "serious consequences" warning to Iraq is not an authorisation to them. They fought and lost a battle to have that key phrase included in this resolution; three, the SC warned Iraq of the "severest consequences" in R 1154 ADOPTED ON 2 March 1998 in the context of earlier non-compliance. Again, the US and UK fought and lost a battle within the UN SC that those words meant an automatic use of force was authorised. The threat by the US and UK to use force now against Iraq even if the SC do not authorise it are no less than a threat to seriously undermine the democratic structure of the UN and a concomitant threat to the rule of international law. All nations accept in joining the UN that the threat to use force, except in very limited circumstances, is vested in the UN SC. The UK public should be aware that if HMG takes any other view, it shows scant respect for democracy and the rule of law."In March 2002 Defence Secretary Geoff Hoon suggested that the Government is prepared to use nuclear weapons against non-nuclear states, such as Iraq, if they ever use chemical or biological weapons to attack UK armed forces deployed against them. The Ministry of Defence repeatedly assures us that "the United Kingdom would only consider using nuclear weapons in self-defence and in extreme circumstances, and subject to the rules of international law, and humanitarian law, applicable in armed conflict". Mr Hoon's pronouncements flout such undertakings. A chemical or biological attack in the field could, by no stretch of the imagination, qualify as a threat to the survival of the British state - the only circumstance in which the International Court of Justice has been unable to give a definite ruling that the use of nuclear weapons would be unlawful. Even then, any nuclear strike would almost certainly violate the need for the discriminate use of weapons demanded by International Humanitarian Law. Security
Council This gives rise to an even more challenging problem. Surely any Security Council resolution should itself be consistent with the UN Charter. At present there is no mechanism for ensuring that the Council does not act illegally. Mohammed Bedjaoui, a former President of the World Court, has argued that at present the Council is above the law. He proposes that its decisions should be subject to judicial review by the World Court which is, after all, the legal arm of the UN. This anomaly is raising concern among the majority of UN member states, especially since the Council has considerably increased its activity in recent years. Perhaps the present crisis can provide us with an opportunity to review this yawning gap in the world’?s legal system. At the very least an attempt should be made to ensure that the stillborn UN Military Staff Committee is properly set up. This would allow more consistency in the application of Security Council resolutions and encourage more rigorous oversight. Some of us might argue that law is irrelevant to war. War is Hell and should be opposed on purely moral grounds. On the other hand International Law provides us with the tools to oppose particular wars, such the one presently brewing. It's serious application makes it very difficult to initiate or prosecute such wars lawfully. We also have to deal with the Donald Rumsfield view of law. He argues that law has no meaning unless it is backed by force; and that in any case the US can interpret the law and flout treaties to suit its own interest regardless of the needs of the rest of the world. That way chaos lies and no state, however mighty, could escape the consequences. [At the time of publication - November 2002 - readers who wished to pursue this important issue with their MP were advised to ...] send this sheet to your MP asking for comment. Please post any reply to the address below. Alternatively, you might want to use some of the material as a starting point for your own letter. Please send any response to the address below. For the full Resolution go to http://www.no-war-on-iraq.freeserve.co.uk/unresolution.pdf or contact George Farebrother, 67 Summerheath Rd, Hailsham Susssex BN27 3DR, 01323 844 269, geowpcuk@gn.apc org. |
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