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]

Re: [casi] UNSC resolutions

Dear Peter & List,

Here is an article that might give some replies to
your question.



US and its allies threaten rule of international law


With the Security Council apparently deadlocked on
whether to adopt a new resolution, there is the real
prospect that the United States may seek to lead the
"coalition of the willing" into Iraq without further
United Nations endorsement.

But would such action to militarily disarm Iraq be
legal under international law?

Given the reliance on UN authorisation for recent
military actions in East Timor and Afghanistan, this
is not just a question of legal legitimacy but also
one which has a significant impact on public opinion.

At present, there are four possible legal arguments
supporting military action in Iraq.

First, intervention could be justified on humanitarian
grounds. This is controversial and has no firm basis
in the UN Charter.

Nevertheless, the 1999 Nato intervention in Kosovo was
justified on this ground. There is clear and
compelling evidence of significant human rights abuses
in Iraq, a point which the Australian Prime Minister,
John Howard, made reference to in a recent Canberra

It is doubtful, however, if the level of human rights
abuses is of a sufficient magnitude and requires the
same urgent intervention as was the case in Kosovo or,
previously, in West Pakistan or Tanzania.

Second, there is the doctrine of anticipatory
self-defence, or, as the US and Australia have
recently tagged it, pre-emption. Again this is a
controversial doctrine and instances where it has been
relied upon, such as Israel's 1981 attack upon Iraq's
nuclear power facilities, were widely condemned by the
international community.

Australia has sought to reinterpret this doctrine and
apply it to states supporting terrorists in the wake
of the Bali bombings but has been sharply criticised
by Asian neighbours.

For any such "anticipatory" attack upon Iraq to have
any possible foundation in law it would be necessary
to demonstrate clearly that the Government of Iraq, or
terrorists within Iraq, were planning to attack
another state.

Notwithstanding the significant evidence being
gathered against Iraq in recent months, to date there
has been no credible suggestion made that it or any
terrorists based within Iraq are planning any such
attack upon neighbouring states, the US or Australia.

Third, and related to the doctrine of pre-emption, is
the argument that because of Iraq's past support for
terrorists and the potential that exists for weapons
of mass destruction to fall into the hands of
terrorists, military intervention is justified to
avert this threat.

However, even following the September 11 terrorist
attacks on the US there have been no Security Council
resolutions adopted authorising the unilateral use of
force against states that are supporting or harbouring

Yes, the UN has certainly called upon all of its
members to take action against terrorist
organisations, including limitations upon the
financing of terrorists, but no authorisation has been
given for the use of military force against countries
which associate with or have links with terrorists.

Even if there were, the evidence of links between Iraq
and organisations such as al Qaeda remain weak.

Finally, it can be argued that Iraq is in material
breach of UN Resolution 1441, thereby authorising the
use of military force to disarm Iraq. This legal basis
for intervention has its roots in Resolution 687,
which contained the terms of the original 1991 Gulf
War ceasefire.

That resolution had two elements. First, it demanded
that Iraq and Kuwait respect the inviolability of the
international boundary between them. Second, Iraq was
required to disarm and unconditionally accept the
destruction, removal or rendering harmless of its
stockpiles of chemical and biological weapons, and
ballistic missiles with a range greater than 150km.

While Iraq has continued to respect the Iraq-Kuwait
border, it has yet to disarm in the manner demanded of
it. However, the key issue is whether Iraq's failure
to disarm consistently with Resolution 687 and, more
recently, Resolution 1441 automatically authorises
military intervention to enforce disarmament.

Here the pivotal question is how vital to the original
ceasefire was Iraq's disarmament? Clearly, it was
central to the process of restoring regional peace and
security and for Iraq to redeem itself in the eyes of
the international community. But only the most serious
breach of the ceasefire terms, such as the violation
of the Iraq-Kuwait border, could possibly
automatically revive the operation of those Security
Council resolutions authorising the use of all
necessary means to expel Iraq from Kuwait and restore
regional peace and security.

The crisis raises not only questions of international
law but also political judgment as to how much of a
threat an armed Iraq poses to the international
community. They are not for unilateral decision by a
single state or even a group of like-minded states.

It is clear the Security Council is actively
exercising control over the question of whether Iraq
has been in material breach of previous and existing
resolutions and has a unique legitimacy to decide any
future course of military action.

Britain, Spain and the US have for two weeks been
seeking support for a new Security Council resolution.
Debate in the UN has bogged down not only on the terms
of that resolution but also over potential use of the
veto by permanent members such as France.

>From both a legal and political perspective, a fresh
Security Council resolution clearly authorising the
use of force is essential. Without it, any country
which seeks to militarily intervene in Iraq will be in
violation of international law.

Australia, Britain and the US should await the call of
the UN before committing themselves to a war in Iraq.
Without UN authorisation, these countries will be in
clear violation of international law should they
intervene, and will not only possibly be brought
before the International Court of Justice but do
irreparable damage to the international legal system.

* Donald Rothwell is an associate professor at the
University of Sydney, where he teaches international
law. He is currently a visiting scholar at the
Australian National University.

Do you Yahoo!?
Yahoo! Web Hosting - establish your business online

Sent via the discussion list of the Campaign Against Sanctions on Iraq.
To unsubscribe, visit
To contact the list manager, email
All postings are archived on CASI's website:

[Campaign Against Sanctions on Iraq Homepage]