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Bagaric, Mirko; McConville, James --- "The War on Iraq: The Illusion of International Law? Where to Now?" [2003] DeakinLawRw 7; (2003) 8(1) Deakin Law Review 147

[*] Head of School and Professor of Law, Deakin University.

[**] Lawyer, Allens Arthur Robinson. The views expressed in this article do not represent those of Allens Arthur Robinson.

[1] C G Weeramantry, Armageddon or Brave New World? Reflections on the Hostilities in Iraq (2003) preface.

[2] The weight of academic opinion favours the view that the war is unsupportable at the international law level: `The Administration has made clear that such an attack is based on long-term foreign policy, if not moral reasons, and not on any concept of defending the United States from an imminent military threat': The New York City Bar Committee on International Security Affairs, Fall 2002; `We consider that any future use of force without a new UN Security Council Resolution would constitute a crime against peace or aggressive war in violation of the UN Charter': Center for Constitutional Rights, on behalf of over 1,000 law professors and US legal organisations, January 24, 2002; `Our view is that current Security Council resolutions do not authorise the use of force against Iraq. Such force would require further authorization from the Security Council. At present the United Kingdom is therefore not entitled, in international law, to use force against Iraq': Public Interest Lawyers, January 23, 2003; 'The US Administration has offered several different justifications for a war against Iraq. Yet, in essence, the planned military action comes down to an act of aggression against Iraq, the characterisation of which as a “preventive” war does nothing to alter its illegality under international law': Freiburg Lawyers Declaration, on behalf of over 100 German jurists, February 10, 2003: cited in The Center for Economic and Social Rights Emergency Campaign on Iraq, 'Tearing up the Rules: The illegality of Invading Iraq', March 2003, New York (hereinafter, 'Tearing up the Rules'). See also Hillary Charlesworth, `No this war is illegal', The Age (Melbourne), 19 March 2003. For a contrary view, see Darin Bartram, 'A group of international lawyers: The case for a legal attack', The Australian, 18 March 2003.

[3] C W Weeramantry, a Judge of the International Court of Justice from 1991 to 2000 (including as Vice-President from 1997 to 2000), in a book released following the 2003 invasion of Iraq, described the 'Coalition of the Willing' as 'a coalition of those who are willing to disregard international law and the UN Charter'. See Weeramantry, above n 1, 26.

[4] For the purpose of this paper, we refer to the US as being the state that was at war with Iraq. While the UK and to a lesser extent Australia, played a role in the war, it is the US that initiated the war and provided the vast majority of troops and military arsenal.

[5] Although at the time of writing this paper, no such weapons had been found.

[6] The Iraqi regime used chemical weapons against the Kurdish population in 1988 and against Iranian armed forces between 1983 and 1988: Human Rights Watch, International Humanitarian Law Issues in a Potential War in Iraq (2003) 3. However, this was over a decade ago and the evidence is that the regime has `rehabilitated' since that time. At some point, events must be viewed as being of historical relevance only, otherwise arguments could be made that given that use by the US of nuclear weapons in WWII against Japan that it is likely to do so again.

[7] See Tearing up the Rules, above n 2.

[8] For a discussion of the deficiencies in the system of international justice, due to mainly to the lack of enforcement and compliance, see Louis Henken et al, International Law: Cases and Materials (American Casebook Series) (1982) 16; Ivan Anthony Shearer, Starke's International Law (11th ed, 1994) Ch 1; Malcolm N Shaw, International Law (4th ed, 1997) 10-12.

[9] See Weeramentary, above n 1, 107.

[10] See Anthony Dworkin, Iraq and the Bush Doctrine of Pre-Emptive Self-Defence (August 20, 2002), 2.

[11] For example,

'This is a very evil man [Saddam Hussein] who, left to his own devices, will wreak havoc against his own population, his neighbors and, if he gets weapons of mass destruction and the means to deliver them, on all of us. It is a very powerful moral case for regime change...If Saddam Hussein is left in power, doing the things that he’s doing now, this is a threat that will emerge, and emerge in a very big way:'

Condoleeza Rice, US National Security Adviser, Interview with BBC, reported at <http://news.bbc.co.uk/1/hi/world/americas/2193426.stm> (August 15, 2002) (emphasis added).

[12] See Weeramantry, above n 1, Ch 2.

[13] Pursuant to the Vienna Convention on the Law of Treaties (1969) Article 31, The other provisions of the Charter must be interpreted in accordance with this aim: `A treaty must be interpreted in accordance with its objects and purposes, including its preamble’.

[14] The International Court of Justice has described Article 2(4) as a peremptory norm of international law, from which States cannot derogate: Nicaragua v United States [1986] ICJ Reports 14, [190].

[15] See generally Timothy McCormack, 'The Use of Force' in Sam Blay et al (eds), Public International Law- An Australian Perspective (1997).

[16] Further, it should be noted that even though a state may defend itself through the unilateral use of retaliatory force without the a Security Council resolution, the right of self-defence is subject to the control of the of the Security Council. Article 51 provides:

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. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

[17] The International Court of Justice in the Nuclear Weapons Case. Available on-line at <http://www.law.nyu.edu/kingsburyb/fall01/intl_law/unit2/nuclearweapons.html>

also emphasised that lawful self-defence must be both proportional to the armed attack and necessary to respond to it.

[18] The Caroline (exchange of diplomatic notes between Great Britain and the US, 1842).

[19] The Caroline Criteria dates back to 1837. During a rebellion against British rule in Canada, British troops attached a ship (the Caroline) which was being used by private people in the United States to ferry supplies to the rebels. Following diplomatic correspondence between the US Secretary of State, Daniel Webster, and the British Foreign Office minister, Lord Ashburton, the above test was agreed upon as dictating the permissible use of force in self-defence.

[20] Adrian Kuzminski, Coastal Convergence Society, 'US Prepared to Violate International Law'(1 February 2003).

[21] See further Public Interest Lawyers on Behalf of Peacerights, Opinion Concerning the Legality of Use of Froce Against Iraq, 10 September 2002 (hereinafter, 'Opinion Concerning Legality of Use of Force Against Iraq').

[22] Nicaragua v United States [1986] ICJ Reports 14, [195].

[23] See Weeramantry, above n 1, Chapters 5 and 6; Shaw, above n 8, 841-844; Shearer, above n 7, Chapter 18.

[24] Examples of actions authorised by the Security Council under Chapter VII are the action in Korea in the 1950s and Operation Desert Storm against Iraq in 1991. For other more recent examples, see Jules Lobel and Michael Ratner, ‘Bypassing the Security Council: Ambiguous Authorizations to use Force, Cease-fires and the Iraqi Inspection Regime’ [1999] American Journal of International Law 124, 127. The more recent instances they discuss are use of ‘all necessary means’ to liberate Kuwait; SC Res 794, authorising ‘all necessary means to establish as soon as possible a secure environment for humanitarian relief operations in Somalia’, SC Res 940, authorising ‘all necessary means to facilitate the departure from Haiti of the military leadership’, SC Res 929, authorising France to use ‘all necessary means’ to protect civilians in Rwanda, SC Res 770, authorising states to take ‘all measures necessary’ to facilitate humanitarian assistance and enforce the no-fly zone in Bosnia. The above commentary and references are from: Opinion Concerning the Legality of Use of Force Against Iraq, above n 21.

[25] See Tearing Up the Rules, above n 2, 11.

[26] See Campaign against Sanctions on Iraq (CASI), UN Security Council resolutions relating to Iraq: <http://www.casi.org.uk/info/scriraq.html> .

[27] See Patrick McLaren, 'Settling the Score with Saddam: Resolution 1441 and Parallel Justifications for the Use of Force against Iraq' (2003) 13 Duke Journal of Comparative and International Law 233 (Lexis); Bill Campbell and Chris Moraitis, 'Memorandum of Advice to the Commonwealth Government on the Use of Force against Iraq' (2003) 4 Melbourne Journal of International Law 178.

[28] See, for example, George Williams and Devika Hovell, 'Advice to Hon Simon Crean MP on the Use of Force Against Iraq' (2003) 4 Melbourne Journal of International Law 183.

[29] As cited in Opinion Concerning Legality of Use of Force Against Iraq, above n 21.

[30] See Bartram et al, above n 3.

[31] See Opinion Concerning Legality of Use of Force Against Iraq, above n 21.

[32] Ibid

[33] (1971) ICJ Reports 15, [53]. See further Opinion Concerning Legality of Use of Force Against Iraq, above n 21.

[34] Press Release, United Nations (November 8, 2002). Available on-line at <http://www.un.org/News/press/docs/2002/ SC7564.doc.htm>

[35] See, for example, Christopher Greenwood, 'International Law and the Pre-Emptive Use of Force: Afghanistan, Al-Qaida, and Iraq' (2003) 4 San Diego International Law Journal 7. Greenwood argues that the right of pre-emptive self-defence is not subject to the prior authorisation of the UN Security Council, but rather is an aspect of the sovereign of the State (albeit subject to the limitations imposed by international law).

[36] See Christopher Posteraro, 'Intervention in Iraq: Towards a Doctrine of Anticipatory Counter-Terrorism, Counter-Proliferation Intervention' (2002) 15 Florida Journal of International Law 151; McLaren, above n 27, [*269]; Robert J Beck and Anthony C Arend, 'International Law and Forcible State Response to Terrorism' (1994) 12 Wisconsin International Law Journal 153, 213. Anthony C Clark and Robert J Beck, International Law and the Use of Force (1993) 72. For a succinct discussion of the operation of customary international law, see Paul L Szasz, 'General Law-Making Processes' in Christopher C Joyner (ed), The United Nations and International Law (1997) 30.

[37] See D W Bowett, Self-Defense in International Law (1958) 187-92.

[38] See J Wright, `The Soviet Cuban Quarantine and Self-Defence' (1963) 57 American Journal of International Law 597.

[39] Wright, ibid, 601. See also US President George W Bush's State of the Union Address, 28 January 2003:

Some have said that we must not act until the threat is imminent. Since when have terrorists and

tyrants announced their intentions, politely putting us on notice before they strike. If this threat is

permitted to fully and suddenly emerge, all actions, all words and all recommendations would come

too late.

[40] Louis Henkin, How Nations Behave (2nd ed, 1979) 144.

[41] Sir Robert Jennings and Sir Arthur Watts (eds) Oppenheim's International Law (9th ed, 1991) 41-42. See also Antonio Casee, International Law (2001) 311.

[42] For a range of views concerning the scope of pre-emptive self-defence, see Dworkin, above n 10.

[43] See Williams and Hovell, above n 28, 187; McLaren, above n 27, [*275]-[*286].

[44] See Tearing up the Rules, above n 2.

[45] Ibid.

[46] As was foreshadowed by Henkin, above n 40, 141.

[47] See Ben Clarke, 'Can the Gulf War (2) be justified under International Law?' (April 2003) (available on-line via Findlaw: <http;//www.findlaw.com.au/articles/default.asp?task=read&id=8418>:

If the use of force by pre-emptive strike were permissible to deal with perceived or even actual threats of armed attack by states or terrorists groups acting within states, military conflict could escalate dramatically. Pakistan and India, China and Taiwan, North and South Korea, Iran and Israel would all have legitimate grounds to attack each other.

The concept of 'preventative war' was condemned by the Nuremberg Tribunal in 1946 and abolished by the UN Charter. In 1978, the US mobilised the Security Council to condemn Vietnam’s invasion of Cambodia and overthrow of the violently repressive Khmer Rouge regime, terming it a breach of the Charter and an act of aggression in violation of international law. In 1981 the Security Council unanimously condemned Israel’s preventive attack against an Iraqi nuclear plant as a ‘clear violation of the Charter of the UN and the norms of international conduct’((resolution 487/1991)): See Tearing up the Rules, above n 2, 7-8.

[48] See Tearing up the Rules, above n 2.

[49] See Weeramantry, above n 1, Chapters 5 and 6.

[50] See for example, Shaw, above n 8, 10-12.

[51] See James McConvill and Darryl Smith, 'Of War Crimes and Humanitarian Intervention' (2000) 25 Alternative Law Journal 177; Laura W Reed and Carl Kaysan (eds), Emerging Norms of Justified Intervention (1993); Stanley Hoffman, The Ethics and Politics of Humanitarian Intervention (1996).

[52] See 'The Responsibility to Protect', Report of the International Commission on Intervention and State Sovereignty (2001) ch 2.14. See also Posteraro, above n 36, [*199] who explains how recent events has seen humanitarian intervention be transformed 'from illegal violation of state sovereignty to a developing customary norm of international law'.

[53] For an overview of the debate in this regard, see Andrew Field, `The Legality of Humanitarian Intervention and the Use of Force in the Absence of United Nations Authority' [2000] MonashULawRw 14; (2000) 26 Monash University Law Review 339; also N J Wheeler, 'Legitimating Humanitarian Intervention: Principles and Procedures' [2001] MelbJlIntLaw 21; (2001) 2 Melbourne Journal of International Law 550.

[54] See, however, Jean Pierre Fonteyne, 'The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the UN Charter' (1974) 4 California Western International Law Journal 203.

[55] See Tearing up the Rules, above n 21 8.

[56] The Security Council did consider military intervention in Rwanda but was blocked repeatedly by its permanent members, including the US, the UK, and France. See Field, above n 53, 355-6.

[57] Anthony D'Amato, `Trashing Customary International Law' (1987) 81 American Journal of International Law 101, 104.

[58] See generally Posteraro, above n 36.

[59] For an overview of these events, see Field, above n 53, 356.

[60] The reports were published on 31 March 2003.

[61] US Department of State, Country Report on Iraq on Human Practices for the year 2002 (published 2003).

[62] For an interesting discussion of the plight of the Iraqi people and the nature of Iraqi society, see also Joseph Braude, The New Iraq (2003).

[63] US Department of State, Country Report on Burma on Human Practices for the year 2002 (published 2003).

[64] US Department of State, Country Report on Eritrea on Human Practices for the year 2002 (published 2003).

[65] US Department of State, Country Report on Saudi Arabia Human Practices for the year 2002 (published 2003).

[66] US Department of State, Country Report on Pakistan on Human Practices for the year 2002 (published 2003).

[67] See note Weeramantry, above n 1, 30 discussing how on 9 April 2003 the US warned other countries which it accused of pursuing a weapons of mass destruction program (namely Iran, Syria and North Korea) to 'draw the appropriate lesson from Iraq'.

[68] Henkin, above n 40, 145.

[69] Mirko Bagaric, `In Defence of a Utilitarian Theory of Punishment: Punishing the Innocent the Compatibility of Utilitarianism and Rights' (1999) 24 Australian Journal of Legal Philosophy 95; Mirko Bagaric, Sentencing and Punishment: A Rational Approach (2001) Ch 4.

[70] See generally Weeramantry, above n 1, in the context of discussing the recent hostilities in Iraq.

[71] World Bank, Development Indicators, as cited in Tim Colebatch, `We're a reluctant combatant in the war against world poverty', The Age (Melbourne), 22 April 2003, 15. One of the clearest cases of human rights hypocrisy stems from the fact that US was aware of, but ignored, the human rights abuses perpetrated by Saddam Hussein during the 1980s when the maintenance of his regime suited US interests.

[72] See further Michael J Bazyler, `Re-examining the Doctrine of Humanitarian Intervention in Light of the Atrocities in Kampuchea and Ethiopia (1987) 23 Stanford Journal of International Law 547, who develops five criteria for humanitarian intervention.

[73] See further, Manfred Nowak, `UN Covenant on Civil and Political Rights: CCPR Commentary' (1993) 104; Sarah Joseph, ‘The Right to Life’ in (eds) David Harris and Sarah Joseph, The International Covenant on Civil and Political Rights and United Kingdom Law, (1995) 155.

[74] Peter Singer, Practical Ethics (1993) 85.

[75] The House of Lords, Report of the Select Committee on Medical Ethics (1994) vol. 1, 13.

[76] See Bazyler, above n 72, 590-92; Field, above n 53, 351.

[77] See Kumar Amarasakera and Mirko Bagaric, Euthanasia, Morality and the Law (2002) Ch 8.

[78] See <http://lists.sn.apc.org/pipermail/pol.ethiopia/2002-December/002685.html>

[79] For a discussion of the present humanitarian obligations of an occupying force, see : Human Rights Watch, International Humanitarian Law Issues in a Potential War in Iraq (2003) 9-10; Weeramantry, above n 1, Ch 9.

[80] Where more than one state is the occupying force then the citizens of the occupied country would obtain citizenship rights against all the states which occupy it.

[81] See, for example, the 'Iraq Body Count' website ( <http://www.iraqbodycount.net/bodycount> ) for updated statistics on civilian deaths.

[82] See CARE's Iraq humanitarian update. Available on-line at: <http://www.careinternational.org.uk/cgi-bin/display_mediarelease.cgi?mr_id=222>

[83] See also, Barbara Stocking, `Iraqis' Suffering can be Made Worse', International Herald Tribune,. 27 December 2002.

[84] See Tearing up the Rules, above n 2.

[85] Professor Greg Craven, Dean of University of Notre Dame Law School, in the context of the Iraq war recently described international law as being a 'vague and malleable' system that lacks 'clear commands and penalties': see Clarke, above n 47. See also Oscar Scachter, 'The UN Legal Order: An Overview' in Joyner, above n 36, 13-19.

[86] See Weeramantry, above n 1, 6.

[87] See Tearing up the Rules, above n 2.

[88] See Weeramantry, above n 1, 2.

[89] See, for example, Samantha Hepburn, Principles of Equity and Trusts (1st ed, 1997) Ch 3.

[90] See Weeramantry, above n 1, 27:

[Another] principle strongly violated by current action [that is, use of force in Iraq] is the principle of consistency. If international law is to have any credibility the principle it applies to country A, must also apply to country B. International action to enforce the law against weapons of mass destruction should be applied equally and consistently to every State which possesses or is suspected of possessing such weapons. One principle cannot be applied to Iraq, another to North Korea and Israel and another principle to itself.

[91] See Shaw, above n 8, 841-844 for a discussion of the role and composition of the Security Council.

[92] See Mirko Bagaric, `A Utilitarian Argument: laying the foundation for a coherent system of law' (2002) 10 Otago Law Review (NZ) 163.

[93] However, there are certainly some signs that states are now more than ever willing to ignore the `mandates' of the UN. The action in Iraq is obviously one example of this. Perhaps what is more even more illuminating is the preparedness of some world leaders to publicly trumpet the virtues of unilateralism or `coalitions of the willing' as an alternative to UN action. The Foreign Minister, Alexander Downer, has stated that multilateralism is `a synonym for an ineffective and unfocused policy involving internationalism of the lowest common denominator' and labeled multilateral organisations `behemoths': Michelle Grattan, `The World According to Howard', 2 July 2003, The Age, 11. This has led some to speculate that that two international security systems may soon operate - the `embattled UN' and 'task focused coalitions of the willing': ibid. Downer has expressly noted that `the notion of sovereignty is no longer an inviolable principle in international affairs' and that Australia would continue to join coalitions of the willing, with or without authority of the UN. This has prompted commentators to seriously question the relevance of the UN, thereby necessarily inviting speculation about alternative international institutions: Tony Parkinson, `Urge to Intervene puts UN on Notice over Critical Reform' The Age, 28 June 2003, 15.

[94] See Weeramantry, above n 1, 145-6.

[95] Mirko Bagaric, Punishment and Sentencing: A Rational Approach, above n 59, Ch 6.

[96] See generally Tom Tyler, Why People Obey the Law (1990).

[97] Presently, while the International Court of Justice has jurisdiction to provide advisory opinions, in all cases the jurisdiction of the Court can only be invoked by consent of the parties to the dispute: see Article 36 of the Statute of the International Court of Justice.

[98] See Andrew Coleman, 'The International Court of Justice and Highly Political Matters' [2003] MelbJlIntLaw 14; (2003) 4 Melbourne Journal of International Law 29, who observes that the concern about the Court's ability to valid contribution to the resolution of 'political' matters (where the national interests of nation states are threatened) is due to an obvious problem- its basis of consensual jurisdiction and the reluctance (and at times recalcitrance) of states to comply with the Court's decisions. At 36, Coleman notes that '[the] phenomenon of consensual jurisdiction is a direct result of national sovereignty'. For a discussion of the relationship between consensual jurisdiction and state sovereignty, see Renata Szafarz, The Compulsory Jurisdiction of the International Court of Justice (1993).

[99] A useful analogy is the operation of the takeover laws in Australia (under Ch 6 of the Corporations Act 2001 (Cth)) which provides (in summary) that the particular rules and procedures relating to takeover offers apply as soon as any form of proposal for a takeover is announced- even if a company director is simply discussing a potential takeover with the press.

[100] Tearing up the Rules, above n 2.

[101] Kuzminski, above n 20.

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