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[casi] Australian Experts: Iraq justified in launching pre-emptive attack against the United States and its coalition partners

Wednesday February 26, 16:19 PM

Australian experts warn attack on Iraq could end in international court

An attack on Iraq by a "coalition of the willing" would be a violation
of international law that could end in the world court, 43 Australian
legal experts warned here.

In an article published by the Sydney Morning Herald, the group of
leading barristers and academic lawyers argued that coalition members
including Australia had not yet presented any persuasive arguments that
an invasion of Iraq could be justified at international law.

But the group says Iraq would now be justified in launching a
pre-emptive attack against the United States and its coalition partners
because it is Iraq that is now facing a direct threat.

The group, which includes a former High Court judge, senior counsel and
international law professors from Australia's top universities says
international law recognises two bases for the use of force.

The first, enshrined in Article 51 of the United Nations Charter, allows
force to be used in self-defence only if the attack was actual or

"The second basis is when the UN Security Council authorises the use of
force as a collective response to the use or threat of force."

But the group says the Security Council is bound by the terms of the UN
Charter and can authorise the use of force under charter seven only if
there is evidence of an actual threat which could not be averted by
other means such as negotiation and further weapons inspection.

"Ironically, the same principle would justify Iraq now launching
pre-emptive attacks on members of the coalition because it could validly
argue that it feared attack."

Publication of the article follows Prime Minister John Howard's strong
support Tuesday for the US-British draft resolution that could provide a
trigger for war on Iraq within two weeks.

Australia and Britain are the only two countries to have committed
forces to a possible war against Iraq, although Howard maintains no
decision has yet been made to commit Australian troops to fighting.

The group said even if the use of force against Iraq could be justified,
the Geneva Convention significantly limits the means and method.

These include prohibitions on targeting civilian populations or civilian
infrastructure and causing extensive destruction of property not
justified by military objectives.

Intentionally launching an attack knowing it would cause "incidental"
civilian casualties and which would be clearly excessive in relation to
the expected military outcome "constitutes a war crime."

"The military objective of disarming Iraq could not justify widespread
harm to the Iraqi population, over half of whom are under the age of

The group said the creation of the International Criminal Court last
year had provided a stronger system of scrutiny and adjudication of
violations of humanitarian law.

The court now has jurisdiction over war crimes and attributes criminal
responsibility to individuals responsible for planning military action
that violates international humanitarian law and those who carry it out.

"It specifically extends criminal law to heads of state, leaders of
government, parliamentarians, government officials and military
personnel," the group said.

"Respect for international law must be the first concern of the
Australian government if it seeks to punish the Iraqi government for not
respecting international law."


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