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[casi] Canadian law professors declare US-led war illegal

1) Canadian law professors declare US-led war illegal - 22 March 2003
2) Australian legal experts declare an invasion of Iraq a war crime - 27
February 2003

Canadian law professors declare US-led war illegal

By Henry Michaels

22 March 2003

The US-led coalition’s war against Iraq is illegal, declared 31 Canadian
professors of international law at 15 law faculties in an open letter
issued Wednesday, just before US President Bush announced that the war had

A US attack “would be a fundamental breach of international law and would
seriously threaten the integrity of the international legal order that has
been in place since the end of the Second World War,” the letter stated.

The attack would violate the UN Charter, which forbids countries to wage
war except in self-defense or when authorized by the UN Security Council to
preserve or restore international peace.

The professors condemned the war “in the strongest terms” and pointed to
its militarist and colonial character: “Illegal action by the US and its
allies would simply return us to an international order based on imperial
ambition and coercive force.”

The US and British governments have claimed that their invasion is
justified by UN Security Council Resolution 1441 and two old Security
Council resolutions authorizing force to end the Iraqi occupation of Kuwait
and setting out the terms of the cease-fire after the Persian Gulf War of
1991. The 1991 resolution required Iraq to rid itself of weapons of mass

John Currie, a University of Ottawa law school professor and one of the
drafters of the letter, described these arguments as fatally flawed. The
1991 resolution stated that the Security Council “decides to remain seized
of the matter and to take such further steps as may be required for the
implementation of the present resolution.” The Security Council—not the
United States, Britain or other council members acting on their own—must
decide on further use of force, Professor Currie said.

The Bush and Blair governments abandoned their efforts to secure a new UN
resolution on Monday, after failing to win any more than four out of
fifteen votes. They also faced vetoes by France and Russia and public
opposition by Germany and several other members of the council.

This opposition has legal implications because Security Council members
“have the legal right to ensure that force is not used unless all other
avenues of peaceful resolution have been tried and failed,” the professors
said in their letter.

The signatories included Liberal Party MP Irwin Cotler, a McGill University
law school professor and one of Canada’s best-known experts on
international law. Cotler told the media that the US could not claim to act
in self-defense unless it was clear it was about to be attacked by Iraq.
Cotler represents the same party as Canadian Prime Minister Jean Chrétien,
but Chrétien and other cabinet ministers have refused to condemn the war as

The International Commission of Jurists (ICJ), based in Geneva, has
likewise charged the US and Britain with planning “an illegal invasion” of
Iraq, amounting to a war of aggression. The ICJ comprises 60 of the world’s
top jurists on international law and humans rights. Louise Doswald-Beck,
the commission’s secretary-general, said the UN prohibition against the use
of force, other than in self-defense, had been enshrined in the UN charter
“for a good reason: to prevent states from using force as they felt so

Legal experts in the United States and Britain have also declared the war
illegal. In January, 315 teachers of law from 87 law schools across the US
stated that a US war, unleashed without the approval of the UN Security
Council against a country that has not attacked the United States, would
itself be an unlawful act, in defiance of America’s treaty obligations and
a violation of US and international law.

The statement declared: “Our Constitution provides that treaties signed by
the President and ratified by the Senate are part of the ‘supreme Law of
the Land’. The United Nations Charter, which our nation wrote in large
part, and signed and ratified as a treaty in 1945, provides that—except in
response to an armed attack—nations may neither threaten nor engage in
warfare without the authorization of the UN Security Council. President
Bush swore to uphold and defend the Constitution. Yet he advocates a right
to ignore our treaty obligations and to visit the scourge of war upon Iraq,
with or without the approval of the United Nations.”

In Britain, a large majority of international lawyers last week rejected
the Blair government’s claim that UN Resolution 1441 provided legal
authority for an attack on Iraq

Resolution 1441 warns of “serious consequences” of an Iraqi failure to
disarm, a formulation that falls far short of allowing UN member states to
use “all necessary means”—the traditional UN euphemism for armed force.
“The phrase ‘all necessary means’ was unacceptable; France and Russia would
have vetoed it,” noted Professor Nicholas Grief, barrister and head of the
school of finance and law at Bournemouth.

In a legal opinion for the Campaign for Nuclear Disarmament, Rabinder Singh
QC and Charlotte Kilroy said Resolution 1441 did not authorize the war for
two other main reasons. First, as a matter of principle international law
precludes UN member states from relying on any implied authorization to use
force. Second, the use of force without “clear collective authorization”
would be in conflict with the fundamental principles of the UN charter and
in violation of international law.

Articles 41 and 42 of the UN Charter make clear that war is a matter of
last resort. International law traditionally allows for preemptive strikes,
but only in the event of an imminent threat. Legal scholars said Iraq posed
no such a threat, particularly with the presence of UN weapons inspectors
in the country.

Vaughan Lowe, professor of public international law at Oxford University,
commented on the two other UN resolutions cited by Bush in his Monday night
speech issuing a 48-hour ultimatum to Iraq. Lowe said UN Resolution 687,
agreed at the end of the 1991 Gulf War, overrode 678—the Kuwait war
resolution—and was effectively part of cease-fire negotiations involving a
coalition that no longer existed. In any event, Resolution 687 did not
authorize the use of force.

Professor Lowe added that Bush and Blair had further “muddied the waters”
legally by speaking of toppling Saddam Hussein. There was no precedent in
international law for using force to change a regime, a proposition that
Lowe labeled “dangerous.”


Australian legal experts declare an invasion of Iraq a war crime

By James Conachy

27 February 2003

Forty-three Australian experts in international law and human rights
legislation have issued a declaration that an invasion of Iraq will be an
open breach of international law and a crime against humanity, even if it
takes place with the authorisation of the UN Security Council. The
statement concisely argues that any Australian participation in a war on
Iraq—as part of the Bush administration’s “coalition of the willing”—will
make the government of Prime Minister John Howard and Australian military
personnel liable for prosecution in the International Criminal Court.

Submitted as an open letter to Australian newspapers and published
yesterday by the Sydney Morning Herald, the signatories include Professor
Chris Sidoti of the Human Rights Council of Australia; Sir Ronald Wilson, a
former High Court judge and the President of the Human Rights Commission;
Simon Rice, the president of Australian Lawyers for Human Rights; the
directors of several university centres for human rights law; prominent
barristers; and lecturers at Australia’s most prestigious law schools.

The legal experts reject outright the justifications for war being made by
the American, British and Australian governments as a violation of the UN
Charter, under which there are only two grounds for the use of force in
international conflicts. As they explained: “The first, enshrined in
Article 51 of the United Nations Charter, allows force to be used in
self-defence. The attack must be actual or imminent.

“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. However, the
Security Council is bound by the terms of the UN Charter and can authorise
the use of force only if there is evidence that there is an actual threat
to the peace (in this case, by Iraq) and that this threat cannot be averted
by any means short of force (such as negotiation and further weapons

Having outlined the legal basis for war, the declaration concluded:
“Members of the ‘coalition of the willing’, including Australia, have not
yet presented any persuasive arguments that an invasion of Iraq can be
justified at international law.” Moreover, as the authors pointed out, the
doctrine of “pre-emptive strike” elaborated by the Bush administration
represents a fundamental repudiation of the UN Charter.

“This doctrine contradicts the cardinal principle of the modern
international legal order and the primary rationale for the founding of the
UN after World War II—the prohibition of the unilateral use of force to
settle disputes.

“The weak and ambiguous evidence presented to the international community
by the US Secretary of State Colin Powell to justify a pre-emptive strike
underlines the danger of a doctrine of pre-emption. A principle of
pre-emption would allow particular national agendas to completely destroy
the system of collective security contained in Chapter 7 of the UN Charter
and return us to the pre-1945 era, where might equaled right.”

In fact, although the lawyers chose not to raise the issue, the indictment
of the German Nazi leaders at the 1945-1949 Nuremberg War Crimes Trials was
precisely for carrying out preemptive military strikes against neighbouring
countries. They were tried and convicted of “planning, preparation,
initiation or waging of a war of aggression, or a war in violation of
international treaties, agreements or assurances”.

The letter goes on to note that there is a “further legal dimension” that
would form the basis for a war crimes indictment of those responsible for
any invasion of Iraq—the likely extent of Iraqi civilian casualties: “Even
if the use of force can be justified, international humanitarian law places
significant limits on the means and methods of warfare.

“The Geneva Conventions of 1949 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 military advantage anticipated’ constitutes a war crime at
international law.”

The international media has already carried a number of reports of the
“shock and awe” tactics that the US military intends to use to intimidate
and terrorise the Iraqi military and population into submission. These
include the destruction of power plants, electricity grids, sewerage
treatment facilities, water reservoirs, bridges and roads. Washington has
specifically warned that it has not ruled out the use of nuclear weapons.

The letter concluded: “The military objective of disarming Iraq could not
justify widespread harm to the Iraqi population, over half of whom are
under the age of 15. The use of nuclear weapons in a preemptive attack
would seem to fall squarely within the definition of a war crime...

“Estimates of civilian deaths in Iraq suggest that up to quarter of a
million people may die as a result of an attack using conventional weapons
and many more will suffer homelessness, malnutrition and other serious
health and environmental consequences in its aftermath. From what we know
of the likely civilian devastation caused by the coalition’s war
strategies, there are strong arguments that attacking Iraq may involve
committing both war crimes and crimes against humanity.”

The fact that 43 eminent members of Australia’s legal establishment felt
the need to issue such a public statement is a sign of the breadth of the
opposition among many social strata to the Howard government’s support for
the Bush administration and its planned war on Iraq. The letter confines
itself to pointing out that Australian government leaders, officials and
military personnel may find themselves in front of the International
Criminal Court. But the comments clearly reflect a far broader public
outrage at the criminal character of the war that is about to be launched.

Despite all the efforts of Canberra and Washington and the media, a
majority of the population does not accept the government’s claims that war
is necessary to eliminate “weapons of mass destruction” and are profoundly
disturbed about the consequences of invading Iraq. The largest
demonstrations in the country’s history took place on February 14-16,
appealing to the government to withdraw the 2,000 Australian troops that
Howard has deployed to the Persian Gulf without even a vote in parliament.

Just as the government dismissed the sentiments of the demonstrations—with
Howard referring to them as a “mob”—so too it has rejected the statement by
the legal experts. The office of Attorney General Daryl Williams issued a
perfunctory statement that no Australian could be sent to the International
Criminal Court without its approval, and that the court’s jurisdiction did
not cover “the legal basis for an armed conflict”.

But neither Williams, nor any other government minister, has attempted to
answer the charge that there is no basis in international law for the
planned war on Iraq and that those responsible for launching it will be the
authors of war crimes.

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