Why a War Against Iraq Would be Illegal Under International Law

10 September 2002

"[T]o initiate a war of aggression… is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole". (Robert Jackson, U.S. representative at the Nuremberg trials)

New Zealand must urge General Assembly and Security Council members and all Heads of State to denounce US unilateral action of planning and preparation for warfare against Iraq as contrary to its Charter and Customary International Law. As the judgment of the International Military Tribunal at Nuremberg noted, "resort to a war of aggression is not merely illegal, but is criminal".

The principle of renunciation of the use or threat of force is now one of the fundamental principles of International law and, as such, is stated with the utmost clarity in Article 2(4) of the UN Charter, which imposes definite obligations on states participating in international affairs. Sates are bound in their international relations to renounce "the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN". Thus, any use of force by a state must be regarded as unlawful if it is not subject to an armed attack.

The US seeks to justify a pre-emptive strike on Iraq on the basis of self-defence. Self-defence presupposes an attack in which the permissible force must be "be immediately subsequent to and proportional to the armed attack to which it was an answer". The legality of pre-emptive self-defence has been rejected on the basis that use of force used to deter future use of force constitutes punitive rather than defensive action.

The UK seeks to justify a war with Iraq based on Iraq's failure to comply with weapons inspectors and thus breaching Security Council Resolution 678 (1990). The Security Council has not identified Iraq as in material breach of the ceasefire resolution for its current failure to comply with the weapons inspectorate; therefore the Security Council cannot condone a pre-emptive military strike as a proportional response to non-compliance with weapons inspectors.

The US and UK claim they are motivated by a concern over Iraq's potential possession of non-conventional weapons. However, Scott Ritter, who personally led the inspections, investigations and destruction of Iraq's chemical and biological weapons programmes said on July 23 2002: "There is no case for war. The UN weapons inspectors enjoyed tremendous success in Iraq. By the end of our job, we ascertained a 90-95 per cent level of disarmament. Not because we took at face value what the Iraqis said. We went to Europe and scoured the countries that sold technology to Iraq until we found the company that had an invoice signed by an Iraqi official. We cross-checked every piece of equipment with serial numbers. That's why I can say that Iraq was 90-95 per cent disarmed. We confirmed that 96 per cent of Iraq's 98 missiles were destroyed". The international Atomic Energy Agency reported that it had eliminated Iraq's nuclear weapons programme "efficiently and effectively".

The Security Council's significant power to act in international affairs must be delimited by accepted principles of international law. It is precisely the aim of an international rule of law to restrain the arbitrary use of power in international society. Equally, the legitimization of power via dubious legal processes must not be permitted.

New Zealand should also be concerned about the humanitarian implications of any further military action against Iraq. Article 24 of the Charter directs the Security Council "to act in accordance with the Purposes and Principles of the United Nations" when acting to maintain peace and security. The promotion of human rights is one of these fundamental "Purposes and Principles." The Security Council remains always obligated by the UN Charter to "promote and encourage respect for human rights". Thus, the Security Council may not violate human rights, even when acting to maintain peace and security. Iraq has been subject to numerous violations since January 16, 1991.

The Gulf War

The basic principles of the laws of war are those of distinction and proportionality. Under the principle of distinction, belligerents are required to distinguish between civilians and combatants at all times and to direct attacks only against military targets. This is the fundamental principle of the laws of war. The corollary principle of proportionality is designed to ensure that attacks against military targets do not cause excessive civilian damage. The Geneva Conventions define the principle of proportionality as prohibiting any "attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects ... which would be excessive in relation to the concrete and direct military advantage anticipated." Indiscriminate weapons, which cannot be directed solely against military targets, by their very nature, violate the principle of distinction.

The 1991Gulf War subjected Iraq to the most concentrated bombing campaign in history, the Pentagon announcing it conducted 110,000 aerial sorties dropping 88,500 tons of bombs. The war resulted in 67 000 Iraqi deaths as well as grave damage to Iraq's infrastructure with losses estimated at $170 billion. Deliberate bombing of water treatment facilities during the Gulf War originally degraded the water quality leading to the outbreak of diseases such as cholera and typhoid. The Security Council is under a legal obligation to prevent such flagrant violations.

Sanctions

According to the report, Iraq Sanctions: Humanitarian Implications and Options for the Future, sanctions-based "holds" have blocked the rebuilding of much of Iraq's water treatment infrastructure.

Additionally, sanctions have blocked the rebuilding of the electricity sector that powers pumps and other vital water treatment equipment. This has resulted in 800,000 Iraqi children "chronically malnourished." Even with conservative assumptions, the total of all excess deaths of the under five population exceeds 400,000. Combined with the deaths of older children and adults, this adds up to a great and unjustifiable humanitarian tragedy.

Continuing Military Strikes

Since the 1991 Gulf War, further military operations have been launched against Iraq, by aircraft and cruise missiles at a rate of one strike per week. Some of these attacks targeted sites in Baghdad or other populated areas and resulted in civilian casualties.

The Security Council's failure to address the human rights and humanitarian impact of the war and subsequent sanctions has prompted regular expressions of concern from UN agencies, commissions, panels and other bodies. The Security Council is bound to respect the full range of human rights standards in the major international legal instruments as an extension of its underlying obligations under the UN Charter. It must ensure that its actions comply with these standards.

New Zealand must urge the Security Council to resist recent trends in becoming an important political aid in constituting an integrated strategy designed to overthrow the government in Iraq in order to dominate this strategic and oil-rich region by justifying the use of force.

Moana Cole © 2002 Moana Cole
Moana Cole is currently completing a Masters of Law research paper on the legality of the war against Afghanistan at Canterbury University.

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