Guest Column

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.

Dealing now 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 of force;
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.

Regime change 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 to commit.

Another aspect 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 and 1441.

Resolution 1441 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.

The argument 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 from Kuwait;
* 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 step;
* 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 situation.

Consequently 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 involved therein.

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 injured.

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.

Before even 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 this.

Those expressions 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.

Back to Top
 Back to Columns  

Copyright © 2001 Wijeya Newspapers Ltd. All rights reserved.