was it legal?
Submitted by antarchi on April 30, 2011 - 11:55
INTERNATIONAL BODIES
International Commission of Jurists
The denounced the attack as an illegal invasion of Iraq which amounts to a war of aggression. Sixteen senior teachers of international law from the United Kingdom and France wrote a statement stating that “[o]n the basis of the information publicly available, there is no justification under international law for the use of military force against Iraq…. Before military action can lawfully be undertaken against Iraq, the security council must have indicated its clearly expressed assent. It has not yet done so. A decision to undertake military action in Iraq without proper security council authorisation will seriously undermine the international rule of law.” 31 Canadian law professors said that US attack “would be a fundamental breach of international law and would seriously threaten the integrity of the international legal order that has been in place since the end of the Second World War,” and 43 Australian legal experts said that the initiation of a war against Iraq by the self-styled ‘coalition of the willing’ would be a fundamental violation of international law and said that the United States doctrine or pre-emptive self defence contradicts the cardinal principle of the modern international legal order and the primary rationale for the founding of the UN after World War II - the prohibition of the unilateral use of force to settle disputes.
International Court of Justice
"The United States, the United Kingdom and Spain have signalled their intent to use force in Iraq in spite of the absence of a Security Council Resolution. There is no other plausible legal basis for this attack. In the absence of such Security Council authorisation, no country may use force against another country, except in self-defence against an armed attack... A war waged without a clear mandate by the Security Council would constitute a flagrant violation of the prohibition of the use of force. Security Council Resolution 1441 does not authorise the use of force. Upon its adoption, France, Russia and China, three permanent members of the Security Council, issued a declaration indicating that the Resolution excludes such authority. The bottom line is that nine members of the Security Council, including the five permanent members, need to actively approve the use of force - such support is blatantly lacking."
The International Commission of Jurists (ICJ) in Geneva expressed its “deep dismay that a small number of states are poised to launch an outright illegal invasion of Iraq, which amounts to a war of aggression.”
According to the ICJ, such “a war waged without a clear mandate from the United Nations Security Council would constitute a flagrant violation of the prohibition of the use of force.” The commission emphasises that Security Council Resolution 1441 does not authorise the use of force.
The war in Iraq had "no basis in international law", a Dutch inquiry found today, in the first ever independent legal assessment of the decision to invade.
In a series of damning findings, a seven-member panel in the Netherlands concluded that the war, which was supported by the Dutch government following intelligence from Britain and the US, had not been justified in law.
UK lawyers
Chairman of the legal organisation Justice and a past chairman of the Bar
Was the war in Iraq legal?
"No. The attorney general based his argument on UN resolution 678 which was designed to enable George Bush senior to expel the Iraqis from Kuwait... Both George Bush and John Major took the view that it did not give them any authority to go to Baghdad or invade Iraq. For our government to pin their argument for the use of force on it 12 years later, in a quite different situation, seems quite contrary to the wording and spirit of that resolution.
It has always seemed a desperate attempt [to justify the war] and that without a second resolution in February-March last year, the US-British case did not have the legal basis for going to war."
Professor of International Relations at Oxford University, and co-editor of Documents on the Laws of War
"The governments have to be judged by the information available to them at the time. However, even by that standard the case for the lawfulness of war looked, and looks, thin. The failure to plan properly for occupation makes it thinner still."
Professor of law at Bournemouth University and a specialist in international law
"I never thought the war was justified. I always thought a second resolution expressly authorising the use of force was necessary. I have never been persuaded by the argument that somehow Iraq's material breach of the ceasefire resolution revived the authorisation in UN resolution 678 [passed in 1990]".
Sir Michael Wood, Wilmshurst, Goldsmith
In January, the panel heard top foreign office lawyer Sir Michael Wood considered the use of force against Iraq without a second UN resolution "was contrary to international law".
His deputy Elizabeth Wilmshurst resigned on principle over the matter on the eve of the war.
The former attorney general, Lord Goldsmith, told the inquiry he believed war would be unlawful without a second UN resolution as late as February 2003. Goldsmith said he had changed his mind on 12 February, following a visit to Washington at which he learnt the US would not have approved resolution 1441 had it ruled out military action in Iraq.
Top Foreign Office lawyer at the time of the war
"I considered that the use of force against Iraq in March 2003 was contrary to international law... In my opinion, that use of force had not been authorised by the security council, and had no other basis in international law."
Lord Bingham [formerly the UK's senior lawlord] said Lord Goldsmith had given Mr Blair "no hard evidence" that Iraq had defied UN resolutions "in a manner justifying resort to force".
Therefore, the action by the UK and US was "a serious violation of international law," Lord Bingham added.
"the war was illegal because it was not authorised by the UN Security Council, and was not justified as self-defence in the sense envisaged by Articles 2:4 and 51 of the UN Charter.
There is a third emerging possible justification for the use of force, but it was not invoked by Britain or the US - the argument of humanitarian intervention, using force to protect fundamental human rights from an immediate and massive threat. Since that was not the situation in Iraq in March 2003, it could not be argued, and it wasn't argued.
So, what remains is the argument put forward by Britain, the US and Australia that the Security Council had authorised the use of force by a combination of Resolutions 678, 687, and 1441. The heart of the argument is that Iraq was subject to a ceasefire after the first Gulf War of February 1991, and that that ceasefire obligation was dependent on Iraq's compliance with an obligation to disarm and eliminate its weapons of mass destruction. The proponents of legality claim that Iraq did not disarm, and hence was in material breach of the earlier obligations. According to that claim, being in material breach, the ceasefire fell away, and the original right to use force was revived. That is therefore known as the 'revival argument'.
The problem with this argument is that it depends upon the determination by those countries that they can unilaterally decide that Iraq is in material breach - that view is not shared by the vast majority of international lawyers or states or the UN secretary general. The overwhelming majority consider that the critical determination of whether or not there was a material breach is for the Security Council to decide. That is the importance of a second Security Council resolution, which was sought by prime minister Blair in March 2003, but which was not achieved. In those circumstances, in my view, the war was patently illegal."
Professor of International Law at LSE
"There is no justification under international law for the use of military force against Iraq. The UN charter outlaws the use of force with only two exceptions: individual or collective self-defence in response to an armed attack and action authorised by the security council as a collective response to a threat to the peace, breach of the peace or act of aggression. There are currently no grounds for a claim to use such force in self-defence. The doctrine of pre-emptive self-defence against an attack that might arise at some hypothetical future time has no basis in international law. Neither security council resolution 1441 nor any prior resolution authorises the proposed use of force in the present circumstances...
Rabinder Singh QC, Charlotte Kilroy Public Interest Lawyers
In summary our opinion is that:
(1)Security Council Resolution 1441 does not authorise the use of force by member states of the UN.
(2)The UK would be in breach of international law if it were to use force against Iraq in reliance on Resolution 1441 without a further Security Council Resolution.
INTERNATIONAL
Spain's leading judges on war crimes and terrorism-related cases
"Breaking every international law, and under the pretext of the war against terror, there has taken place since 2003 a devastating attack on the rule of law and against the very essence of the international community. In its path, institutions such as the United Nations were left in tatters, from which it has not yet recovered." "Instead of commemorating the war," Garzón continues, "we should be horrified, screaming and demonstrating against the present massacre created as a consequence of that war."
A prominent German professor of state and international law, Dietrich Murswiek, wrote in the Süddeutsche Zeitung: “The standpoint put forward in the press that by giving orders for an attack without a mandate from the Security Council Bush is operating in a ‘grey area’ is false. Without express allowance through a new resolution, the war against Iraq is a banned war of aggression—a crime from the standpoint of international law.”
When pressed on whether he viewed the invasion of Iraq as illegal, he said: "Yes, if you wish. I have indicated it was not in conformity with the UN charter from our point of view, from the charter point of view, it was illegal."
French President Jacques Chirac said Friday that the United States and Britain had breached international law by declaring war on Iraq without a UN mandate.
The two countries had "breached international legality", Chirac said at the end of an EU summit overshadowed by the Iraq crisis, which has sparked unprecedented rifts in the 15-member bloc.
317 teachers of law from 87 [US] law schools around the country have denounced the Bush administration’s plans for war with Iraq, explaining that a US war against a country that has not attacked the United States would itself be an unlawful act, in defiance of America’s treaty obligations, and in violation of US and international law.
The US-led coalition’s war against Iraq is illegal, declared 31 Canadian professors of international law at 15 law faculties in an open letter issued Wednesday, just before US President Bush announced that the war had commenced.
A US attack “would be a fundamental breach of international law and would seriously threaten the integrity of the international legal order that has been in place since the end of the Second World War,” the letter stated.
A chief prosecutor of Nazi war crimes at Nuremberg has said George W. Bush should be tried for war crimes along with Saddam Hussein. Benjamin Ferenccz, who secured convictions for 22 Nazi officers for their work in orchestrating the death squads that killed more than 1 million people, told OneWorld both Bush and Saddam should be tried for starting "aggressive" wars - Saddam for his 1990 attack on Kuwait and Bush for his 2003 invasion of Iraq.
Devika Hovell and Professor George Williams
International Law Project
John Howard has committed Australian troops to a war in Iraq on the basis that this can be justified under international law. However, the legal case for unilateral pre-emptive action against Iraq is weak. The failure, despite several attempts, to gain a further Security Council resolution authorising the use of force means that an attack will breach international law.
Hilary Charlesworth and Andrew Byrnes
Professors at the Centre for International and Public Law at the ANU
The Prime Minister [of Australia]has assured the public that Australia will act consistently with international law in relation to Iraq. But the arguments he has identified to support his claim that a war on Iraq would be legal do not stand up to analysis.
Former Commonwealth Solicitor General
The Australian and United Kingdom legal advices are entirely untenable. They are arrant nonsense. They furnish no threads for military clothes. It is difficult to comprehend that the fanciful assertions (they are not arguments) of the two advices have been invoked by Australia and the United Kingdom to support an invasion of another state.
Comment by Gavan Griffith:
"the Memorandum of Advice [issued by the First Assistant Secretary, Office of International Law, Attorney-General's Department and the Senior Legal Adviser (Australia)] is not subscribed by Henry Burmester QC, former head of the Office of International Law and now Chief General Counsel of the Attorney-General's Department and the most senior and experienced international lawyer in Commonwealth service. Nor by Professor James Crawford SC, Professor of International Law at Cambridge, who commonly advises and appears for the Government in International law matters. I could suggest none available to the Commonwealth better qualified to give disinterested and expert advice.
Without knowing their views, I would be inclined to defer to their expert opinion. I am at a loss that this important matter of legal support has not been supported at this highest expert level readily available to the Government. Instead, the Government has been content to table a mere "memorandum" of assertion, signed of at the departmental level of First Assistant Secretaries.
I comment further that the authority of the opinion by 43 Australian international lawyers as to the plain breach of international obligations by Australia absent a further Security Council in no way answered by the loose references to emerging new principles by Professor Ivan Shearer or the American and Australian signatories to the letter curiously published as an op-ed. piece in The Australian on 18 March.
Like-minded lawyers of ambition in America scramble to justify, in arrears, the evolving unilateralism of the USA's foreign policy. I know few of the American signatories. The Australian signatories have, with but slight exception, common interests more in areas of taxation, defamation and commercial law and none is known in the field of public international law (excepting Professor Waller who has a reputation in the specialised area humanitarian law). The reputations of the Australian and United Kingdom Attorneys-General on the issues of use of force also are elsewhere than in public international law."
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