Chris Maxwell and Hilary Charlesworth: War may be a crime
March 24, 2003
THE start of hostilities against Iraq must not be allowed to distract
attention from the illegality of the war.
This action, which is sought to be justified as enforcement of Iraq's
international obligations, is itself a fundamental violation of
international law.
To the question "Has the Security Council authorised this war?", there can
be only one answer: of course not. The coalition of the willing refrained
from seeking the Security Council's specific authorisation in the past few
weeks precisely because they knew it would be refused. Their decision not
to put a further resolution after 1441 was candidly explained to the world:
a resolution authorising war would not have commanded even a majority of
votes on the council.
No question of a veto by France or Russia would have arisen, so clear was
the lack of council support. And the ground of opposition � which was a
matter of public record, in the deliberations of the council and beyond �
was simple and readily comprehensible: the inspections process appeared to
be working and, accordingly, the last resort precondition for war was not met.
Faced with these unpalatable truths, the proponents of the war have tried
to stitch together a cloak of authorisation from stray threads in earlier
council resolutions, stretching back as far as 1990 and 1991. They claim
that implicit approval of the war is to be found in a combination of
resolution 678 (1990), which sanctioned the use of force after Iraq's
invasion of Kuwait, resolution 687 (1991), which set out the ceasefire
terms, and resolution 1441 (2002), which dealt with strengthening the
procedures to monitor Iraq's disposal of its weapons of mass destruction.
This attempt to invent a "continuing authorisation" for war against Iraq is
unconvincing. It is also disingenuous. For example, the coalition's
interpretation of resolution 1441 conveniently ignores the fact � once
again a matter of public record � that the US put up an initial version of
that resolution, authorising the use of force if Iraq did not adequately
comply with its terms, but withdrew the draft when it became clear that the
proposal did not command the council's support.
Likewise, the US and UK ambassadors to the UN said to the Security Council
on November 8, 2002 that resolution 1441 contained "no hidden trigger for
war". How it could now be seriously suggested that resolution 1441
implicitly authorises force is beyond comprehension.
As for the 1990 and 1991 resolutions, the coalition is effectively saying:
"We much prefer what the Security Council said about the first Gulf War and
we'll pretend that it applies to unforeseen events 13 years later." This is
as ludicrous as if the US President had learnt that the necessary
resolution authorising this war was not going to pass both houses of
Congress, but had pressed ahead undaunted, calling on congressional
resolutions endorsing the 1991 war.
So we must be more vigilant than ever, lest the members of the coalition be
as careless with international law in their conduct of the war as they have
shown themselves to be in launching it.
International humanitarian law places important limits on the means and
methods of warfare. The Geneva Conventions of 1949 (to which Iraq and all
members of the coalition are parties) and their 1977 protocols set out some
of these limits: for example, the prohibitions on targeting civilian
populations and civilian infrastructure and causing extensive destruction
of property not justified by military objectives.
Intentionally launching an attack knowing that it will cause "incidental"
loss of life or injury to civilians "which would be clearly excessive in
relation to the concrete and direct overall military advantage anticipated"
constitutes a war crime at international law. The military objective of
disarming Iraq could not justify widespread harm to the Iraqi population.
The public statements of General Peter Cosgrove at the weekend suggest that
the military commanders responsible for the deployment of Australian troops
are paying careful attention to these legal constraints. But what
confidence can we have that the same will be true of the onslaught on
Baghdad, which is not under Australian control but in which Australia is
complicit?
Prime Minister John Howard has referred repeatedly to his "passionate
commitment" to the war against Iraq. Passion seems a curious driver for a
war that undermines the system of collective security established by the UN
charter, itself the product of lengthy negotiations.
The opening words of the charter serve as a sober reminder of what is at
stake: "We the peoples of the UN determined to save succeeding generations
from the scourge of war." Those who would invoke the authority of
international law should never forget that it is founded on a passion for
peace.
Chris Maxwell is a barrister in Melbourne. Hilary Charlesworth is professor
and director at the Centre for International and Public Law at the
Australian National University in Canberra.
http://www.theaustralian.news.com.au/common/story_page/0,5744,6175804%255E7583,00.html
