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 even without a second UN resolution. They claim Iraq is a
threat to world peace and security and that they are entitled to
take preventive unilateral military action. Contrary to these
claims, legal experts from around the world say that such an attack
would be illegal without a further Security Council Resolution
specifically authorizing the use of force. Furthermore the
'preventive' use of force currently being considered against Iraq
is against both the spirit and letter of international law; the
United Nations would be well-advised not to allow such a dangerous
precedent. Already it has been reported that North Korea is
considering a preventative attack against American forces in South
Korea. The claimed doctrine of preventive war is not only illegal;
it is dangerous, destabilising and destructive of international
peace and security.
Background
The UN was created after World War II to keep international
peace and security, because the old system of collective security
had failed to prevent devastating world wars. The old system, based
on shifting alliances between states, had not prevented
nationalistic governments of powerful economies from using force to
achieve their economic and political aims. The UN Charter binds all
member states to maintain international peace and security, through
the peaceful settlement of disputes, collective measures for the
prevention and removal of threats to the peace and most importantly
international cooperation.
This attempt to increase international cooperation has been
increasingly undermined by the US government in recent years. It
has pulled out of the Kyoto Protocol on climate change, failed to
ratify the Comprehensive Test Ban Treaty despite clear promises
made under the NPT (Non Proliferation Treaty), pulled out of the
ABM (Anti-Ballistic Missile) Treaty, refused to submit the treaty
on the International Criminal Court to the Senate for its consent
and refused to sign the Biological Weapons Protocol. At the World
Summit on Sustainable Development in 2002, US delegations to
international negotiations worked hard to weaken treaty language,
and then failed to ratify them anyway. All of these unilateral
actions by the United States are undermining the power and
authority of the UN, discouraging international cooperation and
breaking down the rule of international law.
Unilateral attack not legal
The US has recently claimed a right to take preventive military
action, including against Iraq, saying "if we wait for threats to
fully materialise, we will have waited too long" and that "Iraq is
a clear threat to international peace". While the US and UK claim
that Iraq is already in material breach of Resolution 1441 for a
number of reasons, this does not give them the right to start an
attack - only the United Nations can decide if a material breach
exists and only the UN can decide what to do about it. A further
Security Council resolution is clearly needed to authorise the use
of force.
The US claim ignores one of the major principles of the United
Nations. UN Charter Article 51 gives states a sovereign right to
start military action in self defense only if it has suffered armed
attack: "nothing in the present Charter shall impair the inherent
right of individual or collective self-defence if an armed attack
occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international
peace and security." The right of self-defence exists only where an
attack has already been made, or is plainly imminent. In one often
cited case involving the SS Caroline, there must be "a necessity of
self-defence, instant, overwhelming, leaving no choice of means and
no moment for deliberation". In the absence of this circumstance,
the correct and legal course is to ask the Security Council to deal
with the matter. In fact in 1981 when Israel attacked the Osirak
nuclear reactor in Iraq, claiming in effect a right of preventive
self-defence, the attack was strongly 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 the attack as a "clear,
preemptive military strike. Everyone now is quite pleased even
though they got the devil criticized out of them at the time." The
attack was illegal then and a similar attack would be illegal
now.
Iraq has not threatened to attack any State at this time, has
not mobilised its forces to do so and does not have the military
force to attack the United States, United Kingdom or Australia, all
of which have sent forces to the region. So repeated claims by
those States that a preventive attack on Iraq can be justified by
Article 51 have no legal basis. Even Henry Kissinger has stated
that "[t]he notion of justified pre-emption runs counter to modern
international law, which sanctions the use of force in self-defense
only against actual - not potential - threats."
Preventive attack, even with Security
Council approval, inconsistent with international law
There is no basis in international law for use of force as a
preventive measure when there has been no actual or imminent attack
by the offending State or widespread violence or humanitarian
emergency. If the Security Council were now, for the first time in
its history, to authorise preventive war against Iraq, where there
is no imminent threat to peace, it would seriously undermine
international restraints on the use of force. This would clearly
undermine the United Nations Charter objectives to maintain
international peace and security. To authorise a preventive war on
the basis that a state may have hidden weapons of mass destruction
would set a precedent for other preventive wars against up to 20
other countries. The use of force would resort to violence at the
cost of civilian as well as military lives at a time when threats
to international peace and security international proliferate.
There are sufficient International mechanisms available to
address the charges against Iraq and the Iraqi leadership. These
include, apart from the existing weapons inspection programme, the
establishment by the Security Council of an ad hoc international
criminal tribunal, the use of the International Criminal Court for
any crimes committed after July 2002, and the International Court
of Justice. Mechanisms to ensure compliance include diplomatic
pressure, negotiations, sanctions on certain goods with military
application or which could be used to produce weapons of mass
destruction, destruction of stockpiles of weapons of mass
destruction and inspections of facilities with capabilities to
assist in production of weapons of mass destruction.
The international community must address the question of weapons
of mass destruction through international cooperation, with
consistency and non-discrimination. Even the United States and
United Kingdom, together with China, France, India, Pakistan, and
Russia as nuclear powers, are bound by an obligation to "pursue in
good faith and bring to a conclusion negotiations leading to
nuclear disarmament in all its aspects under strict and effective
international control."
US war plans under Geneva
Convention
CBS News reported on Jan 24 that the Pentagon intends to start
the war with a massive attack on Baghdad, including attacks on
electricity and water supplies. Such a plan would contravene
Article 54 of Protocol I to the Geneva Convention:
2. It is prohibited to attack,
destroy, remove or render useless objects indispensable to the
survival of the civilian population, such as foodstuffs,
agricultural areas for the production of foodstuffs, crops,
livestock, drinking water installations and supplies and irrigation
works, for the specific purpose of denying them for their
sustenance value to the civilian population or to the adverse
Party, whatever the motive, whether in order to starve out
civilians, to cause them to move away, or for any other motive.
During the Gulf war, Iraqi water and electricity infrastructure
was destroyed, much of which was said to be "accidental collateral
damage", but there are indications that these were deliberate
attacks. In Jan 2003, over one hundred US law professors and NGOs
sent a letter to George Bush warning that recent US battle tactics
in Kosovo and Afghanistan indicate concern that international
humanitarian law will be broken in any attack on Iraq.
Use and threat of nuclear weapons are
illegal
A classified document known as National Security Presidential
Directive 17, signed by President Bush last September, was leaked
to the press in January. According to news reports, the document
states: "The United States will continue to make clear that it
reserves the right to respond with overwhelming force - including
potentially nuclear weapons - to the use of [weapons of mass
destruction] against the United States, our forces abroad, and
friends and allies". In 1996, the International Court of Justice
ruled that the threat or use of nuclear weapons would generally be
contrary to the rules of international law applicable in armed
conflict, and in particular the principles and rules of
humanitarian law; but did not conclude definitively whether the
threat or use of nuclear weapons would 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 of nuclear weapons in Iraq in
response to Iraqi chemical or biological weapons usage, or as an
attack on command bunkers would clearly be illegal under
international law.