Is that an oxymoron? I’m sure somewhere in this blog, I’ve ranted about lawyers. And if I haven’t, I should have. But every once in a while, one redeems himself. I recently received this legal argument that even if the UN Security Council finds Iraq in material breach of Resolution 1441, war cannot be legal under international law. Unfortunately, it doesn’t include the author’s name. I haven’t bothered to search the web to see if this is out there somewhere; I’m just going to re-post it here assuming that even if he’s a lawyer, whoever wrote this would be more interested in spreading it as widely as possible than quibbling about copyright issues.
The US and UK governments insist on the need to act in
accordance with international law. They say that if the
United Nations should pass a second resolution saying that
Iraq is in ‘material breach’ of Resolution 1441,
then military action will be in line with international
law. This is not the case.
Firstly, there is no provision in the UN charter for
endorsing or legitimising war. The charter only permits the
limited use of armed force, in certain types of military
operations, that are conducted using the military doctrine
of Peace Enforcement. These operations are very
different from war-fighting operations. The US and UK
governments imply that there is a choice between being a
“bystander” or waging war. In fact they could choose (and
are required by the UN charter to choose) a third way – to
be a “policeman”, i.e. to use “minimum necessary force”,
and thus to uphold law, not wage war.
Secondly, certain conditions must be met before even the
limited use of armed force can be authorised by the UN
Security Council. Broadly speaking, all peaceful options
must have been exhausted. If the conditions are not met,
then no resolution, even if adopted unanimously, is valid.
A resolution obtained by power-politics (inducements or
threats) would be inconsistent with both the letter and the
spirit of the UN charter, and arguably as unethical as
bribing a jury.
The point is that no amount of voting in the U.N. can make
an illegal act into a legal one. The legal and acceptable
use of force by states is governed by Clause 2 of the U.N.
Charter, regardless of who votes for what.
Prior to the U.N. being constituted in 1945, the situation
in International Law was governed in similar (though less
detailed) terms by the 1928 “General Treaty for the
Renunciation of War” (more informally known as
the “Kellogg-Briand pact”) under which, as its name
suggests, the signatories undertook to renounce the use of
war for the furtherance of national policy. There were
eventually over 60 signatories to this treaty (including
Britain and the USA) and it was on this basis that the
surviving members of the Nazi government of Germany were
put on trial in 1946 for, among other things, the crime of
preparing for and waging a war of aggression (“crimes
against peace”). Significantly, 12 of the Defendants at
Nuremberg were convicted on this particular charge, and 7
of them were hanged for it. This was not the vague
condemnation of a regime in general terms, but the extreme
penalty meted out to specific individual government
ministers. This Treaty has never been abrogated, though it
was effectively superseded by Article 2 (4) of the U.N.
Charter (“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”) which is the current statement of the Law of
Nations on this issue.
If the war against Iraq cannot be justified under the U.N.
Charter either under Article 42 (“measures necessary to
maintain or restore international peace and security”) or
Article 51 (“the inherent right of self-defence if an armed
attack occurs against a Member”) then those who have
planned and prepared for this war are guilty of Crimes
Against Peace under Article 2 (4) and could be prosecuted
before an International War Crimes Tribunal.