By the Japan Observer staff
There is no denying the emotions of those Iraqis who greeted the American forces to Baghdad as liberators, on the one hand, and as murderers, on the other. This article about international law will not pass judgment on whether either or both of these groups of people are right, but it does argue that there is a need for the international community to make just such a judgment. This seems to be especially true for those of us in Northeast Asia, who are now living under the danger posed by the current face-off between North Korea and the U.S.
Just before this war started, Kofi Annan was asked whether he thought that a U.S. attack on Iraq without a second U.N. Resolution explicitly endorsing the use of force would be illegal.
As usual the Secretary General's answer was carefully phrased. He replied, "If the US and others were to go outside the Council and take military action it would not be in conformity with the Charter."
Annan may have been thinking of Article 2 of the U.N. Charter which states that "All members shall refrain in their international relations from 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 United Nations." Doubtless he was well aware that, according to the U.N. Charter, countries can only employ force in two cases: one, individual or collective self-defence if an armed attack occurs; and two, as "action authorised by the security council as a collective response to a threat to the peace, breach of the peace or act of aggression." (1)
Self-Defence and Preemptive Strikes
As we know, Annan's position did not deter Washington or London from going to war. However, both Bush and Blair were careful in their public statements arguing for the war to mention the motive of self-defence.
Bush in his short television message to the American people on the first day of the war, started by saying, "My fellow citizens, at this hour, American and coalition forces are in the early stages of military operations to disarm Iraq, to free its people and to defend the world from grave danger."
Later in the same speech he declared, "The People of the United States and our friends and allies will not live at the mercy of an outlaw regime that threatens the peace with weapons of mass destruction. ...
“My fellow citizens, the dangers to our country and the world will be overcome. We will pass through this time of peril and carry on the work of peace. We will defend our freedom."
Blair, in the major parliamentary debate which had taken place just two days earlier, stated, "The possibility of the two coming together—of terrorist groups in possession of weapons of mass destruction or even of a so-called dirty radiological bomb—is now, in my judgment a real and present danger to Britain and its national security."
Washington's foreign policy on defence, as is well-known, changed last year. In the State Department's 'The National Security Strategy of the United States of America' published in September, 2002, it was stated that "While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary to exercise our right to self-defence by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country ...
To forestall or prevent hostile acts by our adversaries, the United States will, if necessary, act preemptively."
The White House now thinks that America's self-defence requires and justifies pre-emptive strikes against presumed foes. Thus it asserts that it is within the United State's right as a sovereign nation to make a preemptive strike against any nation which it regards as a threat to its security, and furthermore that this right is enshrined in Article 51 of the United Nations Charter, which says that states have “an inherent right of individual or collective self-defence if an armed attack occurs.”
Historically, the law of self-defence only applies if that armed attack occurs. Pearl Harbor might present the classic case. The United States was attacked, therefore it was legally justified in going to war in order to defend itself from aggression by a foreign power.
Clearly, this is not so in the case of Iraq, and even though in a speech to the United Nations Colin Powell did float some information that the U.S. had obtained of contacts between al-Qaeda sympathisers and the Iraqi government, arguing that on this basis the United Nations should support the United States in a war against Iraq just as it had done in Afghanistan, this 'information' failed to convince anyone outside the already convinced.
The next argument the U.S. government used was that the technology Iraq had developed for its supposed 'weapons of mass destruction' could be sold to al-Qaeda or to similar groups. This argument was difficult for Washington, because there was much more evidence of North Korea doing this, and no one in the U.S. administration at that time wanted to take on the North Koreans.
Washington then proceeded to focus on the regime itself. Al-Qaeda was forgotten. 'Weapons of Mass Destruction' were in Iraq. Hussein's regime was an 'evil' one, like Iran and North Korea, and the United States needed to defend itself from the possibility that such weapons might be used against it. Defence, therefore, had to take the form of a rapid preemptive attack on Iraq.
This argument did not require any proof that there were indeed weapons of mass destruction in Iraq. Nor did there have to be any proof that Iraq intended to attack the United States. The possibility (in the minds of the US government) justified all.
It was also convenient that such a doctrine is eminently transferable. What can be used in Iraq, can be applied to any other country, North Korea, Syria, Iran ... the list is endless.
All of these arguments were used in the midst of contentious discussions at the U.N., an arena George Bush was very quickly to wish he had never become involved with.
The UN Resolutions
There have been a large number of UN resolutions on Iraq. Perhaps the most pertinent ones to our discussion are Resolutions 660, 678, 687 and 1441, which have to be read together.
The relevant articles in these resolutions are as follows.
Paragraph 2 of Resolution 660 (1990) "demands that Iraq withdraw immediately and unconditionally all its forces to the positions in which they were located on 1 August, 1990."
Paragraphs 1 and 2 of Resolution 678 (1991) state:
"(The Security Council) demands that Iraq comply fully with resolution 660 (1990) and all subsequent relevant resolutions" and "authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the foregoing resolutions, to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area."
Note the phrase, "and all subsequent relevant resolutions."
Paragraph 34 of Resolution 687 (1991) (which deals with, among other things, Iraq's nuclear, biological, chemical and missile capabilities) in paragraph 1 “affirms all thirteen resolutions noted above, except as expressly changed below to achieve the goals of this resolution,” and in paragraphs 33 and 34, "declares that upon official notification by Iraq to the Secretary-General and to the Security Council of its acceptance of the provisions above, a formal cease-fire is effective between Iraq and Kuwait and the member states co-operating with Kuwait in accordance with resolution 678," and states that the Security Council "decides ... to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area."
Note here that Iraq only needs to accept the terms of the resolution for a ceasefire to come into effect. Non-implementation by Iraq of those terms does not affect the status of that ceasefire, nor does the resolution state that such non-implementation would revive the authority to use force under resolution 678, but it does state such non-implementation would be met with a decision by the Security Council to "take such further steps as may be required for the implementation of the ... resolution." (Paragraph 34)
Resolution 1441 refers to the fact that Resolution 687 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) and to restore international peace and security in the area. It decides in paragraph 2 to give Iraq "a final opportunity to comply with its disarmament obligations", and states in paragraph 13 that it "has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations", but goes on to say in paragraph 12 that the Security Council has determined that if there is any breach it will meet again "in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security."
Here the Security Council seems to have reserved to itself the right to make any decisions regarding Iraq's behaviour and its compliance or non-compliance with past resolutions, and, in spite of Resolution 678, felt that member nations did not at the time of Resolution 1441 have the right to unilaterally attempt to "restore international security and peace in the area" in any way that they saw fit.
Vaughan Lowe, Chichele Professor of Public International Law at Oxford University, in an interview with the the American NGO ‘Crimes of War Project,’ raises other questions.
To quote the article, "There is nothing in the resolution that gives anyone apart from the Security Council itself the right to decide when the final chance has been exhausted.
“Moreover, Lowe argued, even if the Security Council were to agree that Iraq remained in material breach, there would still need to be a clear statement that the use of force was now authorized. The phrase in the resolution, ‘serious consequences’ falls short of a clear and unambiguous statement that force may be used. ...
“In other words, Lowe said, ‘It needs a Security Council resolution to authorize force, that is to say, it has to be plain from the next resolution that the Security Council itself is giving that authorization to use force. ...’
“Lowe also argued that there remained another question — what objective the use of force was directed toward. Even an authorization to use military action to enforce previous U.N. resolutions might not give the United States and Britain the authority to depose Saddam Hussein." (2)
Moreover, at the time of the passage of resolution 1441, none of the parties involved considered that the resolutions justified the use of military force, and passage did not give the United Nations or the United States the right to wage war on Iraq; for that a further resolution would be required.
This reading of resolution 1441 was not only that of France and Germany. When the resolution was passed, the US Permanent Representative to the United Nations, John Negroponte said in the Explanation of Vote on the same day, "The resolution (1441) contains no 'hidden trigger' and no 'automaticity' with the use of force." Also, Sir Jeremy Greenstock, the UK.'s representative said in the U.K.'s Explanation of Vote, 'There is no 'automaticity' in the Resolution. If there is a further Iraqi breach of the disarmament obligations, the matter will return to the Council for discussion as required in Operational Paragraph 12.'
Resolution 1441 in its preamble cites ways in which Iraq has contravened previous resolutions. However, in the case of the resolution 1441, there has been no Security Council vote as to whether Iraq has complied with the resolution or not.
Power Writes Its Own Rules
The original intention and understanding of those who passed the first resolution is not so important now, though. What remains pertinent is that the American and British interpretations of the situation changed when they saw that they could not get passage of a so-called second resolution.
They focussed on the authority given in Resolution 678 to Member States to 'restore international peace and security in the area' and gave that more weight than the determination in Resolution 1441 that if there is any material breach of the resolution, the Security Council is to meet again 'in order to consider the situation.'
Thus the UK Attorney General argued that “Resolution 687 suspended but did not terminate the authority to use force under resolution 678.
“3. A material breach of resolution 687 revives the authority to use force under resolution 678.
“4. In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations under that resolution.
“... Thus, the authority to use force under resolution 678 has revived and so continues today.” (3)
With this change came the argument that Resolution 678 entitled the US and the UK to use military force, and that such force had been authorised by the UN.
Opponents to this interpretation argue that Resolution 1441 contradicts this line of reasoning in its passage on material breach, and that the earlier resolution was clearly covered in the later one. Moreover, to agree with the Attorney General's reading would be to say, as Lowe argues, 'that any state that happened to be a member of that coalition ten years ago has ... the right to use force to restore peace in the Middle East," (2) has had that right for most of these past ten years, and still has that right. This, to put it mildly, would seem to be slightly problematic for the region. Nevertheless, the U.S. the UK and Japan maintained that the decision made by the UN Security Council in 2002 did not alter what had been decided in a 1990 resolution.
What is obvious to everybody is that there has been no clear authorisation by the UN for the use of force, since there are public and substantial disagreements within the UN membership and among members of the United Nations Security Council as to the true meanings both of the resolutions on their own and of the relationships between the resolutions.
The legal question is therefore whether, given this disagreement, the US and the UK are legally justified in writing their own interpretation by waging war in Iraq without the explicit backing of the United Nations but with the claim that they are authorised to do so by UN Resolutions.
In other words, can two states write their own rules as to what UN Resolutions mean and get away with it?
This would seem to be a case for the UN Court, that is to say, for the International Court of Justice but that court can only hear cases brought to it by UN member states or by certain UN bodies, and it is highly unlikely that any state or UN organization will have the temerity to take the United States to court on this point.
Problems with Lawlessness
We do not know then whether such a case will ever be heard, but only if it is will we know whether or not the U.S. and U.K. interpretations of these resolutions are so wrong as to constitute a criminal breach of international law.
The implications of the present situation are serious, though.
Two key notions in the philosophy of law are parity and precedent. A necessary but not sufficient condition of any just law is the requirement that it should apply to everyone subject to that law equitably, if not equally. If one legally responsible person under the law is allowed to act in a certain way, this means that all legally responsible agents should be allowed to act in the same way.
With this in mind, let us see how the current actions of the U.S. and the U.K., if applied to international law, might affect the world.
First, the unilateral interpretation by any UN member state of any resolution to justify the use of force to achieve its ends would have to be allowed. It would not matter what the majority of UN member states thought a resolution was intended to mean. Until the UN passed a resolution disagreeing with the single member's interpretation that interpretation would have to be allowed to stand. The single member could quite happily claim, as in the present case, that it was acting in the interests of world justice and waltz into any other country with tanks, bombs and its own citizens for cannon fodder.
Two, if the United Nations notion of self-defence were to include the right to use pre-emptive force on one's enemy, then any Iraqi attack on the U.S. this past winter would have been legally justified. In fact, if the Taliban, and not al-Qaeda, as the government of Afghanistan, had decided to use a missile and not a civilian airliner to attack the Pentagon, they could have argued along with the State department's neo-conservative hawks that such a pre-emptive strike on a military target in a country inimical to it would be legally justified under the United Nations Charter.
What is to be done?
There is clearly no such thing as international law per se. All we have are charters, treaties, conventions and the like, to which countries may or may not be signatories, and which they can withdraw from if they want. They can even stay and break these pacts. More often than not such contraventions are not met with any punishment.
Nonetheless, the legal situation now is different from what it was ten years ago. At that time, there were basically only the UN, the Geneva Convention and the International Court of Justice. Now there is the International Criminal Court. We will look at this additional legal instrument in a moment.
The Geneva Convention
Article 3 of the Geneva Convention states:
'Persons taking no part in the hostilities ... shall in all circumstances be treated humanely ...
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above mentioned persons:
(a) violence to life and person, in particular murder of all kinds ...'
Article 146 says
'Each High Contracting party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed such grave breaches (of the convention. Authors' addition) and shall bring such persons regardless of their nationality, before its own courts.'
Given the U.S. record in similar cases, for example, Vietnam, the United States is unlikely to meet its obligations under the Geneva Convention this time, although an American lawyers' group, led by the New York-based Center for Constitutional Rights, is planning to take Bush to court on exactly these grounds.
Equally, if Japan, because of the actions of its government in support of the U.S./U.K. coalition can be construed as being what the Convention terms 'a party to the conflict', the members of that government may be able to be held liable for any breaches of the Convention, if the case were ever to be brought before a Japanese court.
The International Criminal Court
The International Criminal Court, has recently been established under the Statute of Rome which states:
'The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) the crime of genocide, (b) crimes against humanity, (c) war crimes; (d) the crime of aggression.'
On the face of it, the most likely charge in the present case would be aggression. However, the drafters of the statute could not agree on a definition for aggression, so the Court will not be able to exercise its jurisdiction over the crime of aggression for at least until July 2009.
Nevertheless, the Statute does say in Article 8:
'1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, "war crimes" (include) (iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment ...'
According to Iraq Body Count, there have been a minimum of 1,367 civilian deaths in this conflict.
The unique nature of this court lies in the following provisions.
'Article 13. The court may exercise jurisdiction with respect to a crime referred to in article 5 with the provision of this Statute if ... (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15. ...
Article 15. 1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.
2. The prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate, and may receive written or oral testimony at the seat of the Court.
3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected. ...
4. If the Pre-Trial Chamber, upon examination of the request and the supporting material considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction and admissibility of a case. ...
Article 25. ... 3. In accordance with this Statute, a person shall be criminally responsible and liable to punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another person or through another person, regardless of whether that person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime. ...
Article 27. 1. This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it in, and of itself, constitute a ground for reduction of sentence. '
Such persons may therefore be arrested and tried under this statute, providing that their States are signatories to the Statute, convicted and imprisoned, and this seems to be exactly what a group of British NGO's led by the CND and represented by the legal practice Public Interest Lawyers may try and do. The same may also be true for the Australian Prime Minister, John Howard, as his country too is a signatory.
Unfortunately, neither the U.S. nor Japan have as yet signed the statute, so none of their citizens, including Bush and Koizumi, can be touched.
For them, other methods are required.
The Case Against Koizumi
One legal avenue concerning the Japanese Prime Minister has already ben alluded to in the section where we talked about the Geneva Convention. A more promising and somewhat less tortuous approach however might be the following.
We have already mentioned the fact that the draftees of the Rome Statute were unable to reach an agreement on a definition of aggression. This does not mean that the UN does not have any definitions of aggression on its books.
One such, and a candidate for the Rome Statute, is contained in Resolution 3314 of the United Nations General Assembly.
Article 1 states:
'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 Nations, as set out in this Definition.'
Article 3 then lists acts which are to be taken to 'qualify as an act of aggression.'
Among them is the following:
'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.'
Obviously, there would thus seem to be a case for arguing that Japan's allowing the U.S. to use its bases in its invasion of Iraq constitutes an act of aggression on Japan's part against Iraq.
Now, Article 9 or Japan's constitution begins by stating:
"Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes."
Again it would seem that a case could be made for regarding the act of aggression just mentioned as an example of the "use of force as means of settling international disputes". If this is accepted, then the Japanese government will have acted unconstitutionally in allowing U.S. bases to be used in the invasion of Iraq, and, as this is an issue of constitutionality, a case against Koizumi's government could be tried in Japanese courts.
This article has not argued that Bush, Blair and Koizumi are guilty of war crimes. That argument, we think, needs to take place in a court of law, as well as in other public spaces. Only then can we, as an international community, reach a judgment both about the validity of Bush's case for war and about the legality of coalition actions in Iraq.
There are, as we have described at some length, institutions which exist to adjudicate such crimes. One concern of ours is their inability so far to carry out the mandates under which they were established.
It is this gap between the current practice of these institutions and what would actually be necessary for them to meet the demands of their charters that must be addressed if we are to be more successful in preventing wars from taking place or, if wars do occur, in bringing our representatives to court whenever we have grounds for suspecting that they have committed crimes of war.
1. 'War Would Be Illegal' by Professor Vaughan et al., Letter to the Guardian, March 7, 2003.
2. 'Would War Be Lawful Without Another U.N. Resolution' Crimes of War Project , see below for address.
3. 10, Downing Street. 'Legal Basis for Use of Force Against Iraq' <http://www.pmo.gov.uk/outputPage3287.asp>
Campaign Against Sanctions on Iraq <www.casi.org.uk>
Crimes of War Project <www.crimesofwar.org/>
The debate in the House of Lords on 'Iraq: Legality of Armed Force' which can be found on the official United Kingdom Parliament website
Iraq Body Count <http://www.iraqbodycount/bodycount.htm>