The following is an archived copy of a message sent to a Discussion List run by the Campaign Against Sanctions on Iraq.

Views expressed in this archived message are those of the author, not of the Campaign Against Sanctions on Iraq.

[Main archive index/search] [List information] [Campaign Against Sanctions on Iraq Homepage]

[Date Prev][Date Next][Thread Prev][Thread Next][Date Index][Thread Index]

Illegality of US planned attack on Iraq

More detailed info about legal aspects of US (and presumably UK) attack. 
Although as I understand things the UK is still hoping to get more
explicit UN Sec. Council authorisation for use of force, failing that they
would use Resolution 687 as an (invalid?) justification. See below.

---------- Forwarded message ----------

From: Elias Davidsson <>

The illegality of the US planned aggression against Iraq
                         Elias Davidsson, 14. Febr. 1998

The illegality under the UN Charter and UN resolutions

The United States is openly preparing unilateral military measures against
the Republic of Iraq.  The US government claims that it is entitled to
resort to such measures on the base of Security Council resolution 687
(1991).  This resolution makes a series of drastic unconditional demands
from Iraq regarding the borders of Kuwait, disarmament, etc.  The US
government maintains that Iraq did not totally fulfill these demands and
that accordingly, no alternative exists to the use of military force
against Iraq in order to force compliance.  However Resolution 687 (1991) 
does not include any provisions permitting the use of force in order to
enforce the terms of the resolution.  Only the Security Council can, on
the base of its own formal finding, determine that Iraq's refusal to
fulfill in their entirety the terms of the resolution constitutes by
itself a threat to the peace requiring the use of military force. Such
determination was not done nor is there any likelihood in the present that
the Security Council will make such a determination in view of the
opposition of three permanent members of the council to the use of force
against Iraq (Russia, China, France) and most probably other council
members. For the Council to determine Iraqi lukewarm cooperation with the
Council with regards to the elimination of banned weapons as a threat to
the peace would create a precedent which most Council members would not be
willing to create. 

The threat by the United States to resort to force against the Republic of
Iraq without the explicit authorization of the Security Council
constitutes therefore a threat to the peace, that is a breach of Article
2(4) of the Charter. If the United States will attack Iraq, without
explicit S.C.  endorsement, it will commit the "aggression", a crime under
international law.  Under normal circumstances, it is the prerogative of
the Security Council to determine, in accordance with Article 39 of the
Charter, the "existence of any threat to the peace, breach of the peace,
or act of aggression and shall make recommandations, or decide what
measures shall be taken in accordance with Articles 41 (sanctions) and 42
(military action), to maintain or restore international peace and
security."  In this case the Security Council could not make such a
determination as the United States is a veto-wielding permanent member of
the Council and would block any such resolution.  In such a case the
General Assembly of the United Nations can under a United for Peace
resolution, decide upon measures against the offending member, in this
case the United States, including its expulsion >from the United Nations
(under Article 6 of the Charter), as a member which has "persistently
violated the Principles" of the Charter [A list of US violations of the
Charter can be obtained from me upon request]. 

The illegality under the Draft Code of Crimes and the Peace and Security
of Mankind (International Law Commission established under General
Assembly resolution 174 (II) of 21 November 1947) 

In its 1988 annual report, the International Law Commission (ILC)
considers the definition of a set of international crimes including
'aggression' and the 'threat of aggression'. The following definition of
these crimes was provided by the Commission under the heading: Crimes
against Peace

                Article 12: Aggression

"1. Any individual to whom responsibility for acts constituting aggression
is attributed under this Code shall be liable to be tried and punished for
a crime against peace.

2. Aggression is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another
State, or in any other manner inconsistent with the Charter of the United


4. Any of the following acts, regardles of a declaration of war,
constitutes an act of aggression, due regard being paid to paragraphs 2
and 3 of this article: 

(a) the invasion or attack by the armed forces of a state of the territory
of another state, or any military occupation, however temporary, resulting
from such invasion or attack, or any annexation by the use of force of
the territory of another State or part thereof; 

(b) bombardment by the armed forces of a State against the territory of
another State or the use of any weapons by a State against the territory
of another State; 

(c) the blockade of the ports or coasts of a State by ther armed forces of
another State; 

(d) an attack by the armed forces of a State on the land, sea or air
forces or marine and air fleets of another State; 


(f)  the action of a State in allowing its territory, which it has placed
at the disposal of another State, to be used by that other State for
perpetrating an act of aggression against a third State; 


(h) any other acts determined by the Security Council as constituting acts
of aggression under the provisions of the Charter. 


6.  Nothing in this article shall be interpreted as in any way enlarging
or diminishing the score of the Charter of the United Nations, including
its provisions concerning cases in which the use of force is lawful. 

7. Nothing in this article could in any way prejudice the right to
self-determination, freedom and independence, as derived from the Charter,
of peoples forcibly deprived of that right and referred to in the
Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of
the United Nations, particularly peoples under colonial and racist régimes
or other forms of alien domination; nor the right of these peoples to
struggle to that end and to seek and receive support, in accordance with
the principles of the Charter and in conformity with the above-mentioned

                Threat of aggression
"In draft article 11, paragraph 2, the Special Rapporteur [of the ILC]
included a separate provision on the threat of aggression as a crime
against peace. 

Some members of the Commission expressed doubts about the threat of
aggression as a crime against the peace. They asked how individuals could
be punished for having committed a threat of aggression and what would
happen if the threat was not carried out. In their view, a threat which
was not followed by some specific action should not be regarded as a
criminal act. 

Many members nevertheless stated that they were in favour of including the
threat of aggression as a separate crime. It was pointed out in that
regard that the threat of aggression, which had been covered by the 1954
draft code (art. 2, para. (2)), was referred to in Article 2, paragr. 4,
of the Charter of the United Nations, on the prohibition of the use of
force, and that the General Assembly, in the Declaration on the
Enhancement of the Effectiveness of the Principle of Refraining from the
Threat or Use of Force in International Relations [G.A. resolution 42/22
of 18 November 1987], referred to it seven times as an act constituting a
violation of international law and of the Charter and entailing State

As to its concrete manifestations, the threat of aggression could take the
form of intimidation, troop concentrations, or military manoeuvres near
another State's borders, or mobilization for the purpose of exerting
pressure on a State to make it yield to demands. In some circumstances,
the result of the threat of aggression was the same as that of aggression.
Its inclusion as a separate crime against peace in the draft code was thus
fully justified and would, at the same time, help to deter would-be
aggressors from perparing aggression. 

As to the wording of the provision on the threat of aggression, some
members indicated that it was important not to allow any confusion between
an actual threat of aggression and mere verbal excesses. There was also
the delicate problem of proof, as in the case of preparation of
aggression. It was essential to avoid a loosely drafted definition that
would enable a State to use the pretext of an alleged threat in order to
justify aggression.  In that connection, one member pointed out that
useful guidance could be derived from the judgment of the ICJ in the
Nicarague case [Military and Paramilitary Activities in and against
Nicaragua (Nicarague v. United States of America), Merits, Judgment of 27
June 1986, ICJ Reports 1986, p.14], in which the Court had dwelt on the
distinction between aggression and the threat of aggression and between
the latter and intervention." 

                Preparation of aggression

"The Special Rapporteur [ of the International Law Commission] did not
include in the 1988 draft article 11a a provision on the preparation or
planning of aggression. In his sixth report (A/CN.4/411,para 7), he
pointed out that the preparation of aggression had been covered by the
Charter of the Nurnberg International Military Tribunal (art. 6(a)) and
the Charter of the International Military Tribunal for the Far East (Tokyo
Tribunal) (art 5(a)), as well as by the Commission in the Nurnberg
Principles (Principle VI (a) (i))). He nevertheless questioned whether
preparation of aggression should be retained as an offense separate from
aggression, since it was very difficult to make a clear-cut distinction
between preparation and aggression and preparation for defence.  He also
questioned how criminal intent could be established if aggression had not
occurred and whether a perpetrator who had deliberately decided not to
carry out his plans of preparations - which remained unexecuted - should
be prosecuted. 

Many members of the Commission were of the opinion that preparation of
aggression should be dealt with a crime distinct from aggression itself. 
The concept would nevertheless have to be precisely defined. The fact that
the concept was elusive was not a valid argument for not including it in
the code. It was pointed out that a distinction could be drawn between
preparation of aggression and defensive measures on the basis of existing
military, technical, legal and political criteria. It was noted that the
inclusion of preparation of aggression would be of vital importance for
deterrence and prevention, particularly of nuclear war. Nowadays,
aggression involved far more complicated techniques than formerly, and
hence more sophisticated planning, which would be carried out by the
entire State apparatus.(...) " 

Conclusions by Elias Davidsson (Reykjavik, ICELAND):

1. The US is both planning and threatening to commit aggression against
Iraq (as of 14. Febr. 1998)
2. Should aggression against Iraq be committed, US leaders would be
individually liable to prosecution under the terms of the Draft Code above
as well as under the terms of the Nurnberg Charter of 1945.
3. States which allow their territory to be used in furthering or
facilitating US aggression are participating in the crime of aggression
(Draft Code Art. 4(f). Although the Draft Code has not yet been ratified in
the form of a binding International Convention, it is indicative of the
current position of the international community of  States on matters of
international law.  It represents an important legal document regarding the
subject matter.

I therefore urge all those who oppose the planned US aggression against
Iraq and who wish to uphold the Purposes and Principles of the United
Nations Charter, to avail themselves of the above information and
conclusions in order to warn all those public leaders and opinion makers
of the gravity of the crimes they are preparing.  Public opinion makers,
such as editors and journalists, should be warned that their endorsement
of or incitement to aggression is a criminal offense for which they may be
liable to prosecution. 

Further clarifications may be obtained from me.  Any critical comments are
welcome. The above text may be freely distributed and quoted.

Elias Davidsson, email:

Elias Davidsson - Post Box 1760 - 121 Reykjavik - Iceland
Tel. (354)-552-6444     Fax: (354)-552-6579
Email:     URL:

This is a discussion list run by Campaign Against Sanctions on Iraq.
To be removed/added, email, NOT the
whole list. Archived at

[Campaign Against Sanctions on Iraq Homepage]