global texts
Saturday, February 22, 2003
International Appeal by Lawyers and Jurists against the "Preventive" Use of Force
International Association Of Lawyers Against Nuclear Arms
February 2003
We the undersigned lawyers and jurists from legal traditions around the world are extremely concerned about conflicts in the Middle East regarding the suspected proliferation of weapons of mass destruction, and the possibility that force may be used in response to this situation.The development of weapons of mass destruction anywhere in the world is contrary to universal norms against the acquisition, possession and threat or use of such weapons and must be addressed. However, the "preventive" use of force currently being considered against Iraq is both illegal and unnecessary and should not be authorized by the United Nations or undertaken by any State.
General principles of international law hold that:
· peaceful resolution of conflicts between States is required,
· the use of force is only permissible in the case of an armed attack or imminent attack or under UN authorization when a threat to the peace has been declared by the Security Council and non-military measures have been determined to be inadequate,
· enforcement of international law must be consistently applied to all States
In further enunciating and applying these principles, we believe that the use of force against Iraq would be illegal for the following reasons:
Peaceful resolution of conflicts required
i. The United Nations Charter and customary international law require States to seek peaceful resolutions to their disputes. Article 33 of the Charter states that "The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall first of all seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements or other peaceful means of their own choice."
ii. Under Article 51 of the Charter, States are only permitted to threaten or use force "if an armed attack occurs" and only "until the Security Council has taken measures necessary to maintain international peace and security."
iii. In the case of an act of aggression or a threat to the peace, the United Nations Security Council is also required under the Charter (Article 41) to firstly employ "measures not involving the use of armed force." Only when such measures "would be inadequate or have proved to be inadequate" (Article 42) can the Security Council authorize the use of force.
No act of aggression or evidence of imminent threat of such act
iv. In 1991 the Security Council responded to an actual invasion of Kuwait by Iraq by authorizing all means necessary to restore the peace. In the current case, however, there has been no indication by Iraq that it intends to attack another country and no evidence of military preparations for any such attack. In addition, it is generally recognized that Iraq does not have the military capability to attack the key countries in dispute, i.e. the United States and the United Kingdom.
No precedent for preventive use of force
v. There is no precedent in international law for use of force as a preventive measure when there has been no actual or imminent attack by the offending State. There is law indicating that preventive use of force is illegal. The International Military Tribunal sitting at Nuremberg rejected Germany’s argument that they were compelled to attack Norway in order to prevent an Allied invasion (6 F.R.D. 69, 100-101, 1946).
vi. The Security Council has never authorized force based on a potential, non-imminent threat of violence. All past authorizations have been in response to actual invasion, large scale violence or humanitarian emergency.
vii. If the Security Council, for the first time, were to authorize preventive war, it would undermine the UN Charter’s restraints on the use of force and provide a dangerous precedent for States to consider the "preventive" use of force in numerous situations making war once again a tool of international politics rather than an anachronistic and prohibited action. If the use of force takes place outside the framework of international law and the UN Charter, the structure and authority of international law and the UN Charter which have taken generations and immense human sacrifice to establish, would be severely undermined into the foreseeable future.
Consistency under international law must be maintained
viii. International law must be consistently applied in order to maintain the respect of the international community as law and not the rejection of it as a tool of the powerful to subjugate the weak.
ix. Security Council Resolution 687, setting forth the terms of the ceasefire that ended the Gulf War, acknowledges that the elimination of Iraq’s weapons of mass destruction is not an end in itself but "represents steps towards the goal of establishing in the Middle East a zone free from weapons of mass destruction."
x. The International Court of Justice has unanimously determined that there is an obligation on all States to "pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control." (Legality of the Threat or Use of Nuclear Weapons, ICJ 1996). Meaningful steps need to be taken by all States to this end, and States wishing to enforce compliance with international law must themselves comply with this requirement.
xi. Action to ensure the elimination of Iraq’s weapons of mass destruction should be done in conjunction with similar actions to ensure elimination of other weapons of mass destruction in the region - including Israel’s nuclear arsenal - and in the world – including the nuclear weapons of China, France, India, Pakistan, Russia, United Kingdom and the United States.
Alternative mechanisms are available to address concerns
xii. The UN Security Council has established a number of mechanisms to address the concerns regarding Iraqi weapons of mass destruction. These include diplomatic pressure, negotiations, sanctions on certain goods with military application, destruction of stockpiles of weapons of mass destruction and inspections of facilities with capabilities to assist in production of weapons of mass destruction. Evidence to date is that these mechanisms are not perfect, but are working effectively enough to have led to the destruction and curtailment of most of the Iraqi weapons of mass destruction capability.
xiii. Mechanisms are available to address charges against Iraq and the Iraqi leadership of serious human rights violations, war crimes, crimes against peace and crimes against humanity. These include domestic courts utilizing universal jurisdiction, the establishment by the Security Council of an ad hoc international criminal tribunal, use of the International Criminal Court for any crimes committed after July 2002, and the International Court of Justice.
The use of force by powerful nations in disregard of the principles of international law would threaten the fabric of international law giving rise to the potential for further violations and an increasing cycle of violence and anarchy.
We call on the United Nations and all States to continue to pursue a path of adherence to international law and in pursuit of a peaceful resolution to the threats arising from weapons of mass destruction and other threats to the peace.
THE UNITED NATIONS CHARTER AND THE USE OF FORCE AGAINST IRAQ
John Burroughs, Executive Director
Peter Weiss, President
Lawyers' Committee on Nuclear Policy
Andrew Lichterman, Program Director
Jacqueline Cabasso, Executive Director
Western States Legal Foundation
Michael Ratner, President, Center on Constitutional Rights, New York
Jules Lobel, Professor of Law, University of Pittsburgh School of Law
October 2, 2002
The United Nations Charter is a treaty of the United States, and as such forms part of the "supreme law of the land" under the Constitution, Article VI, Clause 2. The UN Charter is the highest treaty in the world, superseding states’ conflicting obligations under any other international agreement. (Art. 103, UN Charter)
Under the UN Charter, there are only two circumstances in which the use of force is permissible: in collective or individual self-defense against an actual or imminent armed attack; and when the Security Council has directed or authorized use of force to maintain or restore international peace and security. Neither of those circumstances now exist. Absent one of them, U.S. use of force against Iraq is unlawful.
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Following the formal cease-fire recorded by Resolution 687 in 1991, there has been no Security Council resolution that has clearly and specifically authorized the use of force to enforce the terms of the cease-fire, including ending Iraq’s missile and chemical, biological, and nuclear weapons programs.
Such a resolution is required for renewed use of force. It is the Security Council that has assumed responsibility regarding Iraq, and it must be the Security Council that decides, unambiguously and specifically, that force is required for enforcement of its requirements...Any claim that "material breach" of cease fire obligations by Iraq justifies use of force by the United States is unavailing. The Gulf War was a Security Council authorized action, not a state versus state conflict; accordingly, it is for the Security Council to determine whether there has been a material breach and whether such breach requires renewed use of force.
It is fundamental that the UN Charter, Article 2(3) and (4), gives priority to the peaceful settlement of disputes and the non-use of force. Article 2(4) barring the threat or use of force has been described by the International Court of Justice as a peremptory norm of international law, from which states cannot derogate. [citation omitted] Strained interpretations of Security Council resolutions, especially when opposed, as in the case of Iraq, by a majority of other Security Council members, cannot overcome those fundamental principles. Rather, given the values embedded in the Charter, the burden is on those who claim use of force has been authorized.
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Conclusion
Under the UN Charter, there are only two circumstances in which the use of force is permissible: in collective or individual self-defense against an actual or imminent armed attack; and when the Security Council has directed or authorized use of force to maintain or restore international peace and security. Neither of those circumstances now exist. Absent one of them, U.S. use of force against Iraq is unlawful.
The Bush Administration's Assault on International LawBy David Krieger, September 29, 2002
A war initiated by the United States to oust Saddam Hussein from power in Iraq under the present circumstances, and without U.N. Security Council authorization, would be tantamount to a “war of aggression,” an international crime for which high-ranking leaders of the Axis countries during World War II were held to account at the International Military Tribunals at Nuremberg and Tokyo.
The chief U.S. prosecutor at the Nuremberg trials, U.S. Supreme Court Justice, Robert Jackson, described such war as “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.” Thus, the seriousness of the international law violation that such a war would entail would exceed the seriousness of the Iraqi violations that the Bush administration has cited to justify it. Such a war would also symbolize the complete reversal of official U.S. policy toward international law since World War II.
In the immediate aftermath of the allied war against Nazi and Japanese aggression, the United States led other nations in establishing the United Nations Charter “to save succeeding generations from the scourge of war,” and in founding the United Nations “to maintain international peace and security,” “to take effective collective measures for the prevention and removal of threats to the peace,” and “to bring about by peaceful means” settlements of international disputes.
A war against Iraq at this time, whether initiated by the United States alone or with authorization from the U.N. Security Council, would violate these founding U.N. principles by permitting an unprovoked major war to occur, most likely with massive loss of life and the threat of wider conflict and conflagration.
Furthermore, because the law of the U.N. Charter is less than ideal—reserving permanent Security Council membership to the great powers, including the United States, with veto authority over the council’s resolutions—a U.S.-imposed Security Council resolution authorizing the use of force against Iraq would highlight and exacerbate the U.N.’s weaknesses, and would constitute a major setback to its fundamental goals and aspirations.
If noncompliance with U.N. resolutions and secret weapons programs were legitimate grounds for the Security Council to authorize force, then the United States, if it were consistent, would be preparing a force-authorizing resolution for its own invasion, as well as for invasions of other permanent members of the council, and of Israel, India, Pakistan, and others.
If the Security Council, however, manages to withstand U.S. pressure to authorize an invasion, and if, as it has threatened, the Bush administration invades Iraq without such authorization, the damage to international law would be equally great, given that the United States would be demonstrating its contempt for the U.N. Charter and the United Nations in the clearest possible terms.
As the chief architect of the U.N. Charter, and as the world’s most powerful nation—militarily, economically, and politically—the United States has a special responsibility to uphold the founding principles of the United Nations, and to lead the world, not repeatedly to war, but in setting international precedents and developing global models for the peaceful resolution of conflict consistent with the rules, principles, and procedures of the U.N. Charter.
With such leadership, the world could then turn its attention to broader applications of international law to other areas of profound concern, including global warming, preserving the oceans, protecting human rights, raising standards of living for the world’s poor, ending global starvation, ending the global arms bazaar, ending the Israeli-Palestinian conflict with a just solution, and ending the threat of nuclear war—issues for which the Bush administration has shown only hostility. The alternative is international anarchy, irreversible environmental degradation and destruction, the proliferation of weapons of mass destruction, and perhaps also a proliferation of wars unconstrained by the principles of a peaceful world order that the United States helped establish a half-century ago. Even the Bush administration’s efforts to reduce the terrorist threat to the United States would likely be damaged by an unprovoked war against an Arab state in the Middle East.
International law is essential in the twenty-first century because powerful technologies and integrated economies cannot be constrained by national boundaries. The adverse effects of pollution, disease, and weapons of war are uncontrollable without standards contained in law. The sanctity of the earth’s biosphere, including human survival, has become dependent upon the strengthening of these standards. Sadly, however, the United States under the Bush administration has initiated an intense assault on international law in order to pursue short-term and short-sighted interests that avoid, evade, ignore, or violate the standards painstakingly developed by the international community, including the United States, over many decades.
If the United States continues to shirk, even denounce, its responsibilities to uphold international law across a range of global problems and concerns, it will tear open the fabric of world security and international cooperation, and leave the future of the human race, including the United States, in extreme peril.
