US attack on Iraq illegal and immoral
By C.G. Weeramantry, Former Judge of the International
Court of Justice
Excerpts from a talk delivered at the Symposium on Legal and Moral
Implications of the military intervention in Iraq. Peace
is a central value highly prized by all the religions and it is
therefore most appropriate that the question of the legal and moral
implications of the invasion of Iraq should be seen in the context
of the teachings of the major religions.
I stress this
at the start because more than four billions of the world's population
of six billion derive their moral values from the great religions
and while all the religions teach peace, the world still seems unable
to avoid war.
I shall be
writing of the legal and moral implications of the current hostilities,
but whether we are talking in terms of law or morality, we cannot
lose sight of the religious matrix in which our fundamental moral
attitudes have been set. It is not enough to pay lip service to
the religions. It is essential to follow their quintessential teachings
and peace lies at the heart of those teachings. It is therefore
impossible to address questions of war and peace without due regard
to this basic worldwide inheritance of teachings regarding peace.
with the legal aspects, I should start by pointing out that the
current hostilities run totally counter to the Charter of the United
Nation, the basic organization of the United Nations, and at least
a dozen basic principles of international law.
War runs counter
to the preamble to the UN Charter which speaks of the scourge of
war which twice in our generation has afflicted humanity. The UN
Charter, therefore, enshrines principles of peaceful resolution
of disputes and the outlawing of force, except under the strictest
limitations. The general principles of international law which are
violated are the following:
1. The outlawing
2. The outlawing of unilateral action;
3. The limitation of self defence to actual armed attack;
4. The principle of equality of nations;
5. The outlawing of aggression;
6. The outlawing of pre-emptive strikes;
7. The imperative nature of exhausting all avenues to the peaceful
settlement of disputes under Article 33 of UN Charter;
8. The outlawing of weapons of mass destruction, an offense of
which the nations attacking Iraq are themselves guilty;
9. The principle of consistency for one cannot apply one rule
to oneself and another rule to others.
is not an objective of international law and stringing a few states
together as a coalition of the willing does not give legitimacy
to the illegal acts which the "willing" states are prepared
of the illegality of the present war depends upon the interpretation
of the UN resolutions which have been invoked as giving legitimacy
to the use of force. These are the relevant resolutions: 678, 687
was deliberately framed in vague terms when it used the expression
"serious consequences" which Iraq must face if it did
not get rid of weapons of mass destruction.
of the attacking powers is that the authority to use force was granted
by 678, twelve years ago, that that authority has always continued
and that the failure of Iraq to disarm automatically revives 678.
This is untenable because:
* 678 gave
authority to use force in the context of ejecting Iraqi forces
* that objective having been achieved, this authority lapsed;
* there were numerous resolutions in the intervening 12-year period
dealing with various nuances of the Iraqi situation, but none
of them authorizes the use of force;
* 687 was a resolution passed after the expulsion of Iraq from
Kuwait and warned Iraq that it should rid itself of nuclear weapons,
but did not directly refer to the use of force, and merely stated
that the Security Council would take such further steps as might
be required for implementing that resolution;
* this provision clearly required another resolution as a further
* 1441 deliberately used the vague expression "serious consequences"
because there was no agreement that force should be used, but
that should be left open for later decision;
* Several parties to 1441 such as Russia, France and China expressly
indicated at the time that another resolution was necessary if
force was to b used;
* It was generally agreed that there was no "automaticity"
in the use of force under 1441;
* Paragraph 12 of 1441 expressly foreshadowed the need to convene
immediately on receipt of a report of violation to consider the
the argument that 1441 gave authority to use force is totally insufficient
and is not the basis on which nations could go to war. I may also
state that the Attorney General of the UK gave an opinion to the
effect that 1441 read with 678 authorised the use of force. For
the reasons stated above this opinion is quite untenable.
It is also
necessary to deal with the humanitarian aspects of the sort of attack
that was planned and has in fact taken place. Thousands of air raids
upon thickly populated cities necessarily caused multiple civilian
deaths which are now numbered in their thousands. This is a totally
foreseeable effect of such bombing and those who undertake it are
responsible for it and for the violations of the Geneva Conventions
There was also
the experience of the first Gulf War to show that massive slaughter
cold result from thousands of air attacks. Nor can we lose sight
of the fact that a number of the troops of the attacking power have
themselves been subjected to unnecessary and avoidable deaths. This
death toll alone is around 150 with several hundred more being seriously
All this is
totally unnecessary and avoidable suffering inflicted. All this
human suffering could well have been avoided if Article 33 of the
UN Charter had been followed and all available means of peaceful
settlement were tried out and exhausted. Indeed, even the inquiry
process that was already in progress and was yeilding results, namely
the weapons inspection, was not permitted to go ahead and to add
to it all, up to now no weapons have been found.
the Security Council can authorize an attack the burden is on the
Security Council to satisfy itself that the basic precautionary
measures to avoid a humanitarian catastrophe have been set in place.
Interruption of water, electricity and food supplies, coupled with
the breakdown of the civilian administration means that health services
break down, and law and order disintegrate. No power is entailed
to inflict this on any other power without planning in advance for
it. Nor could even the Security Council have sanctioned such a procedure
within the law without first ensuring that relief measures were
already in place.
There is a common
misconception that if the Security Council had authorized the use
of force, force can be used by the power so authorized, in such
a manner as that power may determine. This is not correct for the
responsibility lies on the Security Council to ensure that the basic
humanitarian principles underlying the UN Charter are observed.
This is a violation of such basic principles.
Lastly, I would
like to say that I detect in many quarters a view that now that
the attack has taken place, and all efforts to prevent the war have
failed, it is futile to spend more effort on this matter. We are
faced with a fait accompli which we must all accept. Nothing could
be further from the truth. We are in a situation where the basic
fundamentals of international law and around a dozen of its bedrock
principles have been violated. That sets the clock back by centuries.
Unless all the world unities to assert that we will all be the sufferers
and so will our children and our children's children.
There has here
been a series of violations which the world community will not accept.
If there can be a violation of this sort involving unilateral action
and pre-emptive strike by the world's leading super power, every
other nation which has a grievance with its neighbour can say it
is justified in acting likewise and we would be back to the law
of the jungle and the rule of force which it required two world
wars to overcome in the form of the UN Charter. Tens of millions
of people around the world have demonstrated their disapproval of
of disapproval must continue for unless principles of law and justice
are asserted, they will tend to lapse and lose their force. All
peace loving people of the world should rally to the cause and there
should be a continuing groundswell of world opinion asserting in
unmistakable terms the determination of the people of the world
to assert the rule of international law, however strongly vested
interests and military force may seem to be ranged against these
principles. If good people stay silent, violations of the law tend
to recur. It is all important that public opinion should assert
and re-assert itself in this seminal crisis in world history.