APPEAL FROM LAWYERS AND ATTORNEYS
OPPOSING WAR AGAINST IRAQ
There is a clear and present danger that the USA and Great Britain will go to war against Iraq, even without the support of a resolution from the UN Security Council.
Worldwide, lawyers and attorneys are deeply concerned over this development. Our position is in principle legally and not politically motivated. We fear the consequences for the compliance with public international law in general and for ensuring human rights in particular. We believe that concerns of principle must be given greater heed than political opportunism, especially in such a serious situation as the world community now faces regarding Iraq.
Public international law is based on the principles of the coexistence of nations in peace and security, sovereignty of states, the right of self-determination and individual human rights for all. Public international law draws a clear distinction between legitimate and illegitimate use of force. Acts of aggression are prohibited. Self-defence is allowed.
We, who have signed this call, are of the opinion that the principle of renunciation of the use or threat of force is now one of the fundamental principles of international law and, as such, is stated with the utmost clarity in Article 2(4) of the United Nations Charter, which imposes definite obligations on states participating in international affairs. States are bound in their international relations to renounce "the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN". Thus, any use of force by a state must be regarded as unlawful if it is not subject to an armed attack.
The USA and Great Britain seek to justify a pre-emptive strike on Iraq on the basis of self-defence. Self-defence presupposes an attack in which the permissible force must be immediately subsequent to and proportional to the armed attack to which it was an answer. The legality of pre-emptive self-defence has been rejected on the basis that use of force used to deter future use of force constitutes punitive rather than defensive action.
The USA and Great Britain seek to justify a war with Iraq based on Iraq’s failure to comply with weapons inspectors and thus breaching Security Council Resolution 1441 (2002). The Security Council has not identified Iraq as in material breach of the resolution for its current failure to comply with the weapons inspectorate; therefore the Security Council cannot condone a pre-emptive military strike as a proportional response to non-compliance with weapons inspectors.
Nearly 30 years ago, the UN resolved that the party first taking up arms is to be deemed the aggressor. Aggressive war is a crime against peace, which the Charter concluded already before the international military court in Nürnberg. "To initiate a war of aggression… is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole" (Robert Jackson, US representative at the Nurnberg trials).
On this background, we cannot accept the grave violation of public international law that an attack on Iraq will imply under the present circumstances.
Even though the UN Security Council would adopt a Chapter VII resolution enabling use of force against Iraq, also this will cause great difficulties from a legal point of view. This is due to the fact that the UN Charter is clear as to when the use of force is legitimate. The Security Council’s significant power to act in international affairs must be delimited by accepted principles of international law. It is precisely the aim of an international rule of law to restrain the arbitrary use of power in international society. Equally, the legitimisation of power via dubious legal processes must not be permitted.
According to Article 42, the Security Council is authorised to use military force when "necessary to maintain or restore international peace and security." Under Article 39, the Security Council is granted powers to "determine the existence of any threat to the peace". However, this procedural rule does not entitle the Security Council to derogate from the prohibition of aggression. The members of the Security Council cannot by a majority decision (and without veto) overturn the provisions of the UN Charter.
Furthermore, the use of force against Iraq will very likely collide with other norms of the UN Charter. Article 24 of the UN Charter directs the Security Council "to act in accordance with the Purpose and Principles of the United Nations" when acting to maintain peace and security. The promotion of human rights is one of these fundamental purposes. The Security Council is at all times obligated to "promote and encourage respect for human rights", cf Article 1 (3) and Article 55 litra c, cf Article 56. Thus, the Security Council must not in any event violate human rights, even when acting to maintain peace and security.
It seems clear that the massive attack now being planned will violate the human rights provisions of the UN Charter. In the event that there is conflict of law between these obligations and any new Chapter VII resolution from the UN Security Council, human rights must prevail. There will under no circumstances be basis for derogating the rules of jus cogens, which give human rights substantial weight in public international law.
According to official American declarations, war is reasoned by stating that this is necessary for the destruction of any chemical and biological weapons Iraq allegedly possesses, for preventing that Iraq develops nuclear weapons and in order to overthrow the regime of Saddam Hussein. The requirement of proportionality under public international law does, however, not justify such use of force and the consequences this will imply, even though Saddam Hussein is a despot and Iraq should possess any weapons of mass destruction.
Important principles are at stake. There is a risk that unfortunate precedent is given. We risk that a laborious work to build an international society of justice is undermined by illegitimate use of force. The resolutions of the Security Council must always be formulated and interpreted in such way that the general prohibition against the use of force will not be undermined.
In the event that the USA and Great Britain - with or without UN approval – should attack Iraq, the parties to the conflict, but also the rest of the international community, have a responsibility to minimise the chance that the civil population will suffer. They must respect and apply international humanitarian law in armed conflict – the Geneva Conventions of 1949 and Additional Protocols of 1977 – protecting civilians and non-combatants against the excesses of war.
The humanitarian situation in Iraq is on beforehand already extremely vulnerable. A decade of heavy sanctions and injustice against the population has stricken the society with poverty. A military action will most likely worsen the situation and have catastrophic humanitarian consequences and imply violation of human rights. As during the Gulf War in 1991, a million people might try to cross the borders to Turkey, Iran, Syria, Jordan, Kuwait and Saudi Arabia. It will, as in 1991, be a humanitarian nightmare should Iran and Turkey decide to close their borders, as they have said they will do. The number of people forced to relocate within Iraq will then increase drastically. To guarantee for the security of these people and for refugees will be a challenge quite impossible to meet. The effects of a military action will by all accounts spread to other countries. All experts predict an escalation of the conflict in the Middle-East. In Islamic countries, but also in Europe and in the USA, violence and terrorism will probably threaten many lives.
On top of this, the USA and Great Britain do not rule out the possibility of employing nuclear weapons in Iraq, the use of which the Court of Hague in a statement of principle in 1996 affirmed to be a crime of war, irrespectively of its purpose, and that threats of such use thus are illicit.
We apprehend that the international community needs to be on guard against regimes setting justice aside. Nonetheless, the same international community must prevent a dilution of the restrictions on use of force set out by public international law.
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Initiative taken by attorneys-at-law Bent Endresen, Nils H. Thommessen, Knut Rognlien, Christopher Hansteen, Janne Kristiansen and Jan Borgen, all members of the Norwegian Bar Association’s Committee on Human Rights, on February 18 2003.