US and its allies threaten rule of international law

By DONALD ROTHWELL*

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 speech.

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 terrorists.

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.

Herald Feature: Iraq