[easypokergonj]

Chris, I thought perhaps you might be interested in the following article.

"IRAQ
Unjustified war

Centre for International and Public Law, Australian National University
27-3-2003


It may be underway, but that doesn’t alter the fact that the war against Iraq is illegal, according to Chris Maxwell and Hilary Charlesworth

THE start of hostilities against Iraq must not be allowed to distract attention from the illegality of the war.

This action, which is sought to be justified as enforcement of Iraq's international obligations, is itself a fundamental violation of international law.

To the question “Has the Security Council authorised this war?”, there can be only one answer: of course not. The coalition of the willing refrained from seeking the Security Council’s specific authorisation in the past few weeks precisely because they knew it would be refused. Their decision not to put a further resolution after 1441 was candidly explained to the world: a resolution authorising war would not have commanded even a majority of votes on the council.

No question of a veto by France or Russia would have arisen, so clear was the lack of council support. And the ground of opposition – which was a matter of public record, in the deliberations of the council and beyond – was simple and readily comprehensible: the inspections process appeared to be working and, accordingly, the last resort precondition for war was not met.

Faced with these unpalatable truths, the proponents of the war have tried to stitch together a cloak of authorisation from stray threads in earlier council resolutions, stretching back as far as 1990 and 1991. They claim that implicit approval of the war is to be found in a combination of resolution 678 (1990), which sanctioned the use of force after Iraq’s invasion of Kuwait, resolution 687 (1991), which set out the ceasefire terms, and resolution 1441 (2002), which dealt with strengthening the procedures to monitor Iraq’s disposal of its weapons of mass destruction.

This attempt to invent a ‘continuing authorisation’ for war against Iraq is unconvincing. It is also disingenuous. For example, the coalition's interpretation of resolution 1441 conveniently ignores the fact – once again a matter of public record – that the US put up an initial version of that resolution, authorising the use of force if Iraq did not adequately comply with its terms, but withdrew the draft when it became clear that the proposal did not command the council’s support.

Likewise, the US and UK ambassadors to the UN said to the Security Council on November 8, 2002 that resolution 1441 contained “no hidden trigger for war”. How it could now be seriously suggested that resolution 1441 implicitly authorises force is beyond comprehension.

As for the 1990 and 1991 resolutions, the coalition is effectively saying: “We much prefer what the Security Council said about the first Gulf War and we’ll pretend that it applies to unforeseen events 13 years later.” This is as ludicrous as if the US President had learnt that the necessary resolution authorising this war was not going to pass both houses of Congress, but had pressed ahead undaunted, calling on congressional resolutions endorsing the 1991 war.

So we must be more vigilant than ever, lest the members of the coalition be as careless with international law in their conduct of the war as they have shown themselves to be in launching it.

International humanitarian law places important limits on the means and methods of warfare. The Geneva Conventions of 1949 (to which Iraq and all members of the coalition are parties) and their 1977 protocols set out some of these limits: for example, the prohibitions on targeting civilian populations and civilian infrastructure and causing extensive destruction of property not justified by military objectives.

Intentionally launching an attack knowing that it will cause “incidental” loss of life or injury to civilians “which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” constitutes a war crime at international law. The military objective of disarming Iraq could not justify widespread harm to the Iraqi population.

The public statements of General Peter Cosgrove at the weekend suggest that the military commanders responsible for the deployment of Australian troops are paying careful attention to these legal constraints. But what confidence can we have that the same will be true of the onslaught on Baghdad, which is not under Australian control but in which Australia is complicit?

Prime Minister John Howard has referred repeatedly to his “passionate commitment” to the war against Iraq. Passion seems a curious driver for a war that undermines the system of collective security established by the UN charter, itself the product of lengthy negotiations.

The opening words of the charter serve as a sober reminder of what is at stake: “We the peoples of the UN determined to save succeeding generations from the scourge of war.” Those who would invoke the authority of international law should never forget that it is founded on a passion for peace.

Chris Maxwell is a barrister in Melbourne. Hilary Charlesworth is professor and director at the Centre for International and Public Law at the Australian National University in Canberra. This article originally appeared in the Australian."


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