An illegal war

The report of a United Nations-affiliated human rights organisation makes it clear that the United States and its allies are guilty of `the supreme international crime' - an unlawful act of aggression against a sovereign country.

THE question of whether the United States-led war against Iraq has legal sanction may appear esoteric at a time when the lives of millions of people in Iraq - particularly children, who constitute half the population - are in grave danger. But those opposed to the war believe that the issue will be tested against the canons of the rule of law because they reckon that it is the only way the world can be saved from descending into lawlessness. The U.S.-led invasion, bypassing even the pretence of a discussion within the framework of the United Nations, marks a defining moment in the history of international law. A recent legal report prepared by the New York-based Centre for Economic and Social Rights (CESR), a human rights organisation affiliated to the U.N., has termed the war as "unequivocally illegal under the U.N. Charter and international law".

The report, titled Tearing Up the Rules: The Illegality of Invading Iraq, observes that the legal issues at stake "cut to the heart of the claimed legitimacy of this war". Faced with anti-war protests across the world, those running the war machine have had "to derive legitimacy from somewhere other than the will of the people". Indeed, on the eve of the war, the governments of the U.S., the United Kingdom and Australia felt obliged to justify the war in legal terms. While U.S. Secretary of State Colin Powell declared that the war had legal sanction, the Tony Blair-led U.K. government sought the opinion of its Attorney-General to justify its participation. The CESR observes that the core principles of international law need to be respected if the world is to be prevented from descending into a situation in which "the law of the jungle prevails over the rule of law". Failure, it notes, will result in "potentially disastrous consequences" for the human rights of not only the Iraqi people but people all over the world.

The CESR report poses the "central question" thus: "Can the U.S. and U.K lawfully attack Iraq - either with Security Council approval or, in the absence of such approval, on the basis of previous Council resolutions or under the principle of self-defence?" It proceeds to address the issue from various angles.

DURING the last 50 years, the framework of international law binding the community of nations has been significantly strengthened by the universal acceptance of the U.N. Charter, the Universal Declaration of Human Rights and the Geneva Conventions. These have laid the basis for citizens and states to resolve disputes within a legal framework in a peaceful manner. The CESR report notes that legality, in its essence, "is (the) principled, predictable, and consistent application of a single standard for the strong and weak alike". The "selective manipulation of international law by powerful states undermines its legitimacy, just as domestic order is destroyed when powerful individuals are allowed to act above the law".

The CESR observes that despite the fact that more than 20 million lives have been lost in 250 conflicts across the world since the U.N. Charter came into effect in 1945, "the imperfect instrument of the United Nations remains the best hope for closing the gap between the universal ideal of international law and its selective enforcement in practice". Although the U.N. system has failed to prevent war in the past, this is the first time that the Security Council, "the prime guarantor of peace and security", has been "openly challenged" by two permanent members, the U.S. and the U.K. The U.N.'s role as "a system of collective security" is therefore in danger of being undermined by the war. In fact, U.N. Secretary-General Kofi Annan remarked barely a week before the U.S. decided to attack Iraq: "If the U.S. and others were to go outside the Council and take military action, it would not be in conformity with the Charter."

Referring to the attack on the legal framework, the report observes: "The Iraq crisis presents the world with a stark choice: allow the dismantling of already-limited legal protections for humanity in times of war, or join together to reinvigorate the multilateral framework for ensuring peace, security and human rights for all. This is not an abstract debate. Human lives hang in the balance."

The CESR points out that most jurists specialising in international law "consider the U.N. Charter as the highest embodiment of international law - codifying and superseding existing laws and customs". This is because the use of force is antithetical to the "central purpose" of the U.N. Charter, which, by definition, outlaws the use of violence to settle disputes among nations at the expense of peaceful ways and means. The Charter as a whole imposes "a general prohibition on the use of force" to resolve conflicts. In fact, this prohibition is not only enshrined in the Charter but also figures as a "peremptory norm" in customary international law. This prohibition is so critical that the Vienna Convention on the Law of Treaties permits "no derogation" of this principle. The report observes that the prohibition of the use of force to settle issues among nations is the "cornerstone of the collective security system established by the U.N. to prevent any recurrence of the horrors of World War II".

What are the exceptions to the rules that proscribe the use of violence as a means to settle issues among nations? The report observes that the Charter recognises only two exceptions, which allow countries to employ the "lawful use of force" in disputes with other nations. The first relates to a situation in which a country acts in self-defence (Article 51 of the Charter) in response to an armed attack, and the second relates to a situation in which the Security Council specifically authorises the use of force, "as a last resort to maintain international peace and security, under Chapter VII of the Charter". The CESR warns that if the U.S.-led invasion of Iraq "fails to meet the specific criteria set forth in these exceptions, or under principles of customary international law, then it will be an unlawful act of aggression - defined and condemned by the Nuremberg Military Tribunal as `the supreme international crime'."

The report then proceeds to analyse the claims of the U.S. and U.K. governments to act against Iraq in self-defence. It points out that the U.N. Charter sets narrow limits to acts that cite the self-defence clause to justify a military action against another country. For one, Article 51 of the Charter, which recognises the right of member-states to retaliate against an armed attack by another country, only applies in the case of an "actual armed attack". Neither the U.S. nor the U.K., which has not been attacked by Iraq, can claim refuge under this section of the Charter. Moreover, the very notion of "anticipatory self-defence" is beyond the pale of the Charter because it goes against the fundamental tenet of the Charter, which prohibits the use of force by nations in resolving disputes.

The CESR, citing an earlier ruling of the International Court of Justice, points out that even "lawful self-defence" must be "both proportional to the armed attack and necessary to respond to it". The claim of the U.S. and the U.K. that Iraq's acquisition of weapons of mass destruction poses a threat at an unspecified time in the future will not be adequate to claim refuge under this legal principle. The CESR points out that despite these claims, neither country has cited any credible proof that Iraq "possesses any proscribed weapons, let alone the intent and capacity to use them in an imminent attack". The report observes that the war on Iraq citing a "dubious hypothetical future threat is neither a necessary nor proportionate response. In essence, the U.S. and U.K. argument for a pre-emptive strike closely resembles the long-discredited doctrine of preventive war, definitely abolished after World War II".

The notion of "pre-emptive war is unequivocally illegal", observes the report. Referring to the proceedings of the Nuremberg trial after the Second World War, it points out that the Tribunal rejected as illegal Germany's contention that it was forced to attack Denmark and Norway in order to prevent an invasion by the Allied forces. The Tribunal's condemnation of a preventive war was later incorporated into the U.N. Charter and it was accepted by the Security Council. In fact, in 1978 the U.S. moved the Security Council against Vietnam after Vietnamese troops moved into Kumpuchea to overthrow the dreaded Khmer Rouge government. The U.S. then rejected the Vietnamese justification of the intervention on humanitarian grounds and alleged that the Charter was violated by Vietnam. The CESR points out that the Nuremberg trial held German leaders responsible for using the pretext of preventive war and held them individually accountable as war criminals.

The CESR regards the articulation of a new doctrine favouring `humanitarian intervention' as "legally dubious". International legal practitioners treat this doctrine with scepticism because "it circumvents well-established procedures and principles of the U.N. Charter and international law". It points out that "even supporters of the doctrine concede that humanitarian intervention is a moral argument rather than a legal right". The CESR, which has conducted several studies on the humanitarian impact of the more than a decade-long sanctions against Iraq, points out that Security Council-mandated sanctions against Iraq have resulted in the violation of human rights in the country. It remarks that the death of hundreds of thousands of innocent civilians "is disproportionate to any political gains" obtained by containing the Iraqi regime led by President Saddam Hussein.

The report counters the contention of the prime aggressors that previous Security Council resolutions are sufficient to justify the assault on Iraq by pointing out that their contention rests on the original Security Council Resolution 678 authorising the use of force against Iraq after its occupation of Kuwait in 1990. The report recalls that Resolution 678 was based on the two counts on which exceptions were granted from the Charter's general proscription of the use of violence, following Iraq's illegal occupation of Kuwaiti territory. However, Resolution 687 of 1991 terminated the authorisation for the use of force against Iraq. The report points out that the "language" of the Resolution was clear in that any such authorisation of force would be done by the Security Council as a body, rather than by individual members. The report also notes that during the debate in the Security Council preceding the adoption of Resolution 1154 in March 1998, which warned Iraq of the "severest consequence" for non-compliance with other resolutions, Russia rejected the idea that individual states could undertake unilateral action to punish Iraqi non-compliance with the relevant U.N. resolutions. Despite this, the U.S. and the U.K. launched Operation Desert Fox.

The language of the latest Resolution 1441 of 2002 was even weaker, warning Iraq of "serious consequences" if it was found to be in material breach of the relevant resolutions. In fact, China, France and Russia - constituting a majority of the permanent members of the Council - felt compelled to add a written proviso warning that the Resolution did not authorise "automaticity in the use of force" if and when Iraq was found to be in breach of Security Council resolutions. They argued that no action could be undertaken by individual members citing violations of resolutions of the body as a whole.

Faced with stiff resistance from other permanent members of the Council, the U.S. and the U.K. moved the ingenious suggestion that any vote passed by more than nine members in the Council would be enough to sanction military strikes against Iraq. The CESR points out that this went against the policy that the U.S. has practised at the U.N.; the U.S. has used the veto more number of times than all the other permanent members put together.

Would the mere passage of a fresh resolution in the Security Council authorising the use of force have been legal? Not necessarily, notes the CESR. The more important issue is "whether such authorisation is lawful". Although the Security Council "has wide latitude to determine and respond to a threat to peace, the Council is not a law unto itself, and its scope of action is not unlimited". It also points out that the U.N. Charter "directs the Council to act within the specified purpose and principles of the U.N. itself, which include promoting peace and encouraging respect for international law". The CESR points out that international lawyers, alarmed by the threat to peace and the very existence of the U.N. system, have "rapidly developed a consensus" that the war "violates the outer limits of laws regulating the use of force".

THE CESR, affiliated to the United Nations Economic and Social Council, also serves as the Secretariat for the International Network on Economic, Social, and Cultural Rights, with hundreds of organisations from across the world as affiliates. Since the first Gulf War in 1991, it has produced a series of legal and humanitarian reports on Iraq.

Among these are the first independent report on the public health crisis after the 1991 Gulf War; the first post-war epidemiological survey to document increased child mortality in Iraq as a result of sanctions; the first medical journal article to report over half a million excess child deaths since 1991; the first law journal article to report on war crimes by U.S.-led coalition forces; and the first legal report to condemn the U.N. sanctions policy for violating the human rights of the Iraqi population.

The CESR is preparing reports outlining the legal standards that would apply to war crimes committed in Iraq and evolve "mechanisms of prosecution at international and domestic levels" in order to bring to book those who are responsible for such crimes. It is also working with "litigation-oriented groups" in the U.S., the U.K, Canada, and Australia to prosecute violators.