Greenpeace volunteers entered Southampton's Marchwood Military Port letting off coloured flares and setting up a peace camp in the military tanks destined for the Gulf.
The US and UK governments claim they have the right to invade
Iraq evenwithout a second UN resolution. They claim Iraq is a
threat to worldpeace and security and that they are entitled to
take preventiveunilateral military action. Contrary to these
claims, legal expertsfrom around the world say that such an attack
would be illegal withouta further Security Council Resolution
specifically authorizing the useof force. Furthermore the
'preventive' use of force currently beingconsidered against Iraq is
against both the spirit and letter ofinternational law; the United
Nations would be well-advised not toallow such a dangerous
precedent. Already it has been reported thatNorth Korea is
considering a preventative attack against Americanforces in South
Korea. The claimed doctrine of preventive war is notonly illegal;
it is dangerous, destabilising and destructive ofinternational
peace and security.
Background
The UN was created after World War II to keep international
peaceand security, because the old system of collective security
had failedto prevent devastating world wars. The old system, based
on shiftingalliances between states, had not prevented
nationalistic governmentsof powerful economies from using force to
achieve their economic andpolitical aims. The UN Charter binds all
member states to maintaininternational peace and security, through
the peaceful settlement ofdisputes, collective measures for the
prevention and removal of threatsto the peace and most importantly
international cooperation.
This attempt to increase international cooperation has
beenincreasingly undermined by the US government in recent years.
It haspulled out of the Kyoto Protocol on climate change, failed to
ratifythe Comprehensive Test Ban Treaty despite clear promises made
under theNPT (Non Proliferation Treaty), pulled out of the ABM
(Anti-BallisticMissile) Treaty, refused to submit the treaty on the
InternationalCriminal Court to the Senate for its consent and
refused to sign theBiological Weapons Protocol. At the World Summit
on SustainableDevelopment in 2002, US delegations to international
negotiationsworked hard to weaken treaty language, and then failed
to ratify themanyway. All of these unilateral actions by the United
States areundermining the power and authority of the UN,
discouraginginternational cooperation and breaking down the rule of
internationallaw.
Unilateral attack not legal
The US has recently claimed a right to take preventive
militaryaction, including against Iraq, saying "if we wait for
threats to fullymaterialise, we will have waited too long" and that
"Iraq is a clearthreat to international peace". While the US and UK
claim that Iraq isalready in material breach of Resolution 1441 for
a number of reasons,this does not give them the right to start an
attack - only the UnitedNations can decide if a material breach
exists and only the UN candecide what to do about it. A further
Security Council resolution isclearly needed to authorise the use
of force.
The US claim ignores one of the major principles of the
UnitedNations. UN Charter Article 51 gives states a sovereign right
to startmilitary action in self defense only if it has suffered
armed attack:"nothing in the present Charter shall impair the
inherent right ofindividual or collective self-defence if an armed
attack occurs againsta Member of the United Nations, until the
Security Council has takenmeasures necessary to maintain
international peace and security." Theright of self-defence exists
only where an attack has already beenmade, or is plainly imminent.
In one often cited case involving the SSCaroline, there must be "a
necessity of self-defence, instant,overwhelming, leaving no choice
of means and no moment fordeliberation". In the absence of this
circumstance, the correct andlegal course is to ask the Security
Council to deal with the matter. Infact in 1981 when Israel
attacked the Osirak nuclear reactor in Iraq,claiming in effect a
right of preventive self-defence, the attack wasstrongly condemned
by the Security Council in Resolution 487 (1981),including by the
United States, as a "clear violation" of the Charter.Significantly,
US Secretary of State Colin Powell has since praised theattack as a
"clear, preemptive military strike. Everyone now is quitepleased
even though they got the devil criticized out of them at thetime."
The attack was illegal then and a similar attack would beillegal
now.
Iraq has not threatened to attack any State at this time, has
notmobilised its forces to do so and does not have the military
force toattack the United States, United Kingdom or Australia, all
of whichhave sent forces to the region. So repeated claims by those
States thata preventive attack on Iraq can be justified by Article
51 have nolegal basis. Even Henry Kissinger has stated that "[t]he
notion ofjustified pre-emption runs counter to modern international
law, whichsanctions the use of force in self-defense only against
actual - notpotential - threats."
Preventive attack, even with Security
Council approval, inconsistent with international law
There is no basis in international law for use of force as
apreventive measure when there has been no actual or imminent
attack bythe offending State or widespread violence or humanitarian
emergency.If the Security Council were now, for the first time in
its history, toauthorise preventive war against Iraq, where there
is no imminentthreat to peace, it would seriously undermine
international restraintson the use of force. This would clearly
undermine the United NationsCharter objectives to maintain
international peace and security. Toauthorise a preventive war on
the basis that a state may have hiddenweapons of mass destruction
would set a precedent for other preventivewars against up to 20
other countries. The use of force would resort toviolence at the
cost of civilian as well as military lives at a timewhen threats to
international peace and security internationalproliferate.
There are sufficient International mechanisms available to
addressthe charges against Iraq and the Iraqi leadership. These
include, apartfrom the existing weapons inspection programme, the
establishment bythe Security Council of an ad hoc international
criminal tribunal, theuse of the International Criminal Court for
any crimes committed afterJuly 2002, and the International Court of
Justice. Mechanisms to ensurecompliance include diplomatic
pressure, negotiations, sanctions oncertain goods with military
application or which could be used toproduce weapons of mass
destruction, destruction of stockpiles ofweapons of mass
destruction and inspections of facilities withcapabilities to
assist in production of weapons of mass destruction.
The international community must address the question of weapons
ofmass destruction through international cooperation, with
consistencyand non-discrimination. Even the United States and
United Kingdom,together with China, France, India, Pakistan, and
Russia as nuclearpowers, are bound by an obligation to "pursue in
good faith and bringto a conclusion negotiations leading to nuclear
disarmament in all itsaspects under strict and effective
international control."
US war plans under Geneva
Convention
CBS News reported on Jan 24 that the Pentagon intends to start
thewar with a massive attack on Baghdad, including attacks on
electricityand water supplies. Such a plan would contravene Article
54 of ProtocolI to the Geneva Convention:
2. It is prohibited to attack,
destroy, remove or render uselessobjects indispensable to the
survival of the civilian population, suchas foodstuffs,
agricultural areas for the production of foodstuffs,crops,
livestock, drinking water installations and supplies andirrigation
works, for the specific purpose of denying them for theirsustenance
value to the civilian population or to the adverse Party,whatever
the motive, whether in order to starve out civilians, to causethem
to move away, or for any other motive.
During the Gulf war, Iraqi water and electricity infrastructure
wasdestroyed, much of which was said to be "accidental collateral
damage",but there are indications that these were deliberate
attacks. In Jan2003, over one hundred US law professors and NGOs
sent a letter toGeorge Bush warning that recent US battle tactics
in Kosovo andAfghanistan indicate concern that international
humanitarian law willbe broken in any attack on Iraq.
Use and threat of nuclear weapons are
illegal
A classified document known as
NationalSecurity Presidential Directive 17, signed by President
Bush lastSeptember, was leaked to the press in January. According
to newsreports, the document states: "The United States will
continue to makeclear that it reserves the right to respond with
overwhelming force -including potentially nuclear weapons - to the
use of [weapons of massdestruction] against the United States, our
forces abroad, and friendsand allies". In 1996, the International
Court of Justice ruled that thethreat or use of nuclear weapons
would generally be contrary to therules of international law
applicable in armed conflict, and inparticular the principles and
rules of humanitarian law; but did notconclude definitively whether
the threat or use of nuclear weaponswould be lawful or unlawful in
an extreme circumstance of self-defence,in which the very survival
of a State would be a stake. The use ofnuclear weapons in Iraq in
response to Iraqi chemical or biologicalweapons usage, or as an
attack on command bunkers would clearly beillegal under
international law.