From: Brett Paatsch (paatschb@ocean.com.au)
Date: Sun Mar 16 2003 - 17:12:08 MST
Hi Extropes,
I've been keeping an eye open for a reasonably good description
of the legal ramifications of any "unilateral" decision to take military
action against Iraq. And the following (below) couched in terms of
a PR and open letter to Kofi Annan seems to fit the bill.
It is clear to me (following discussions with several international law
professors and posting reading the American Society of Interantional
Law ASIL list that almost all legal opinion I can find on the matter
where the arguments rather than puffery and qualifications are offered
in lieu) that it would be a breach of the UN Charter for the US and
the UK and other countries to launch a military action against Iraq in
the current circumstances.
President Bush and Prime Ministers Blair and Howard are all on
record as saying that sufficient legal authority exists already to authorise
military action without further UN resolutins but so far as I can tell they
are all wrong in this and none of them are willing to make their legal
advice public. This is politically understandable but democratically
unhealthy. (Justice being seen to be done etc). Politicians may *like*
deniability an reduced accountability but it can hardly be healthy for
their citizens and for open societies to let them have it.
Regards,
Brett Paatsch
---------------------------
World Editorial & International Law
Northampton, Massachusetts USA 01060
The Hon. Kofi A. Annan
Secretary-General of the United Nations
United Nations Headquarters
New York, New York 10017
March 10, 2003
Dear Mr. Secretary-General,
Because the legal authority of the United Nations is being challenged today
by the threat of an illegal war against Iraq, the onset of which arguably
would pose the most serious threat to world legal order since World War II,
and
Considering that,
(a) United Nations Charter Article 99 stipulates "The Secretary-General
may bring to the attention of the Security Council any matter which in his
opinion may threaten the maintenance of international peace and security";
(b) Two permanent members of the Security Council, the United States of
America and the United Kingdom of Great Britain and Northern Ireland, have
repeatedly threatened the use of force against a United Nations member
state, Iraq, without Security Council authorization in violation of United
Nations Charter Article 2, paragraph 4, which stipulates "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";
(c) No Security Council resolution issued since 1991 has authorized the
threat or use of force against Iraq;
(d) The claim that Security Council Resolution 1441 (2002) authorizes the
automatic use of force against Iraq on the basis of its renewed warning that
Iraq "will face serious consequences as a result of its continued violations
of its obligations" is unsupported by the resolution's drafting history
(travaux préparatoires), inconsistent with the plain and natural meaning of
the warning's text (cast in recollective rather than directive terms and
making no mention of the use of armed force per se), and, in any event,
contradicted by the post-adoption interpretative practice of a majority of
the Security Council, including three-fifths of its permanent members;
(e) Iraq has not attacked any state since 1990; it has neither attacked
nor threatened to attack either the United States or the United Kingdom, and
possesses no military capability to engage in an armed attack of either the
United States or the United Kingdom;
(f) Claims that Iraq intends to attack, or is capable of attacking, the
United States or any state with weapons of mass destruction on its own or
indirectly by providing such weapons to an international terrorist network
are speculative, and are not supported by credible evidence;
(g) An American or British resort to a "preventive" use of force,
including an armed attack of Iraq, as a response to a speculative,
prospective terrorist threat from Iraq would violate the United Nations
Charter and fundamental principles of international law with respect to the
prohibition of the use of force;
(h) While state practice may authorize a "preemptive" use of force to
offset an immediate short-term threat, this claim is at best controversial
and, in any event, there is no international law precedent justifying a
"preventive" use of force against a long-term threat, least of all a
speculative one;
(i) United Nations Charter Article 51 stipulates that states are
permitted to threaten or use force only "if an armed attack occurs" and
"only until the Security Council has taken measures necessary to maintain
international peace and security"; in this context, American and British
claims that Iraq's failure to comply with its disarmament obligations as
stipulated in a series of Security Council resolutions constitutes a casus
belli are inconsistent with the United Nations Charter or customary
principles of international law with respect to the use of force;
(j) No Security Council resolution with respect to Iraq identifies Iraq
's failure to comply with its disarmament obligations to the United Nations
as a casus belli;
(k) A resort to force in the absence of Security Council authorization
and any credible evidence of an imminent threat of armed attack would not
only violate the United Nations Charter, it would also constitute a war of
aggression and, thus, a crime against peace under the Nuremberg precedent;
(l) Alternative solutions to achieve the disarmament of weapons of mass
destruction in Iraq are available and have not been exhausted, including
diplomatic pressure, negotiations, sanctions on certain goods with military
applications, destruction of stockpiles of weapons of mass destruction, and
inspections of facilities with capabilities to assist in production of
weapons of mass destruction; and
(m) The United Nations has achieved considerably more disarmament success in
Iraq than the governments of the United States and the United Kingdom have
claimed, as reported by the United Nations Monitoring, Verification and
Inspection Commission, the International Atomic Energy Agency, and the
Amorim Panel report (March 1999), which concluded "The bulk of Iraq's
proscribed weapons programme has been eliminated,"
We urge you,
1. To encourage in your public remarks the Security Council and all
United Nations member states to act toward Iraq in a manner that adheres to
the requirements of the United Nations Charter and international law with
respect to the threat and use of force;
2. To similarly encourage the Security Council to act toward Iraq in a
manner that reflects the overriding and fundamental purposes of the United
Nations, stated in United Nations Charter Article 1, "to maintain
international peace and security," and "to bring about by peaceful means"
the settlement of international disputes;
3. To invite the General Assembly, in the event of an impasse within
the Security Council with respect to its deliberations on Iraq, to act under
Uniting for Peace precedents in response to any ongoing threat or use of
force against Iraq,
Respectfully yours,
Editorial Board, World Editorial & International Law: Richard Falk (Chair),
Albert G. Milbank Professor of International Law and Practice Emeritus,
Princeton University and Chair, Nuclear Age Peace Foundation; Burns H.
Weston (Vice-Chair), Bessie Dutton Murray Distinguished Professor of Law
Emeritus and Director, The University of Iowa Center for Human Rights;
Howard Friel, Editor, World Editorial & International Law; Jean Allain,
Assistant Professor, Public International Law, American University, Cairo,
Egypt; Asli U. Bali, Politics Department, Princeton University; John
Burroughs, Executive Director, Lawyers Committee on Nuclear Policy; Joseph
Camilleri, Professor of International Relations, La Trobe University,
Australia; B.S. Chimni, International Legal Studies Division, Jawaharlal
Nehru University, India; Marcelo G. Kohen, Professor of International Law,
The Graduate Institute of International Studies, Geneva, Switzerland; Smitu
Kothari, Director, Program of Seeds of Hope and Adivasi Self Rule, Delhi,
India; David Krieger, President, Nuclear Age Peace Foundation; Maivan Lam,
Professor of Law, Associate Director, Ralphe Bunche Institute for
International Studies, City University of New York; Chandra Muzaffar,
President, International Movement for a Just World, Malaysia; Andrew
Strauss, Professor of Law, Widener University School of Law; Majid
Tehranian, Director, Toda Institute for Global Peace and Policy Research,
Hawaii; Peter Weiss, President, Lawyers Committee on Nuclear Policy and
Vice-President, Center for Constitutional Rights; Sarah Zaidi, Deputy
Director, Center for Economic and Social Rights. Invited Additional
Signatories: Roger Normand, Executive Director, Center for Economic and
Social Rights; Michael Ratner, President, Center for Constitutional Rights.
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