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.<\/p>\n
<\/p>\n
The US and UK governments insist on the need to act in
\naccordance with international law. They say that if the
\nUnited Nations should pass a second resolution saying that
\nIraq is in ‘material breach’ of Resolution 1441,
\nthen military action will be in line with international
\nlaw. This is not the case.<\/p>\n
\nFirstly, there is no provision in the UN charter for
\nendorsing or legitimising war. The charter only permits the
\nlimited use of armed force, in certain types of military
\noperations, that are conducted using the military doctrine
\nof Peace Enforcement. These operations are very
\ndifferent from war-fighting operations. The US and UK
\ngovernments imply that there is a choice between being a
\n“bystander” or waging war. In fact they could choose (and
\nare required by the UN charter to choose) a third way – to
\nbe a “policeman”, i.e. to use “minimum necessary force”,
\nand thus to uphold law, not wage war.<\/p>\n
\nSecondly, certain conditions must be met before even the
\nlimited use of armed force can be authorised by the UN
\nSecurity Council. Broadly speaking, all peaceful options
\nmust have been exhausted. If the conditions are not met,
\nthen no resolution, even if adopted unanimously, is valid.
\nA resolution obtained by power-politics (inducements or
\nthreats) would be inconsistent with both the letter and the
\nspirit of the UN charter, and arguably as unethical as
\nbribing a jury.<\/p>\n
\nThe point is that no amount of voting in the U.N. can make
\nan illegal act into a legal one. The legal and acceptable
\nuse of force by states is governed by Clause 2 of the U.N.
\nCharter, regardless of who votes for what.<\/p>\n
\nPrior to the U.N. being constituted in 1945, the situation
\nin International Law was governed in similar (though less
\ndetailed) terms by the 1928 “General Treaty for the
\nRenunciation of War” (more informally known as
\nthe “Kellogg-Briand pact”) under which, as its name
\nsuggests, the signatories undertook to renounce the use of
\nwar for the furtherance of national policy. There were
\neventually over 60 signatories to this treaty (including
\nBritain and the USA) and it was on this basis that the
\nsurviving members of the Nazi government of Germany were
\nput on trial in 1946 for, among other things, the crime of
\npreparing for and waging a war of aggression (“crimes
\nagainst peace”). Significantly, 12 of the Defendants at
\nNuremberg were convicted on this particular charge, and 7
\nof them were hanged for it. This was not the vague
\ncondemnation of a regime in general terms, but the extreme
\npenalty meted out to specific individual government
\nministers. This Treaty has never been abrogated, though it
\nwas effectively superseded by Article 2 (4) of the U.N.
\nCharter (“All members shall refrain in their international
\nrelations from the threat or use of force against the
\nterritorial integrity or political independence of any
\nState”) which is the current statement of the Law of
\nNations on this issue.<\/p>\n
\nIf the war against Iraq cannot be justified under the U.N.
\nCharter either under Article 42 (“measures necessary to
\nmaintain or restore international peace and security”) or
\nArticle 51 (“the inherent right of self-defence if an armed
\nattack occurs against a Member”) then those who have
\nplanned and prepared for this war are guilty of Crimes
\nAgainst Peace under Article 2 (4) and could be prosecuted
\nbefore an International War Crimes Tribunal.<\/p>\n","protected":false},"excerpt":{"rendered":"
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… Continue reading A Good Lawyer?<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[4],"tags":[],"class_list":["post-378","post","type-post","status-publish","format-standard","hentry","category-politics","entry"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p9mOtr-66","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/blog.redhorse.me\/index.php?rest_route=\/wp\/v2\/posts\/378","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.redhorse.me\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.redhorse.me\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.redhorse.me\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.redhorse.me\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=378"}],"version-history":[{"count":0,"href":"https:\/\/blog.redhorse.me\/index.php?rest_route=\/wp\/v2\/posts\/378\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.redhorse.me\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=378"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.redhorse.me\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=378"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.redhorse.me\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=378"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}