Legality of War Questioned

"A supreme international crime: Any member of a government backing an aggressive war will be open to prosecution."
Mark Littman
Monday March 10, 2003
The Guardian

The threatened war against Iraq will be a breach of the United Nations Charter and hence of international law unless it is authorised by a new and unambiguous resolution of the security council. The Charter is clear. No such war is permitted unless it is in self-defence or authorised by the security council. Self-defence has no application here. Neither the United States nor the UK, nor any of their allies, is under attack or any threat of immediate attack by Iraq.

Nor is there any authority from the security council. Resolution 1441 does not constitute any such authority as the reference to "serious consequences" is not sufficiently precise to justify war. Whatever the US may have wanted, the resolution was deliberately vague because the council had not agreed on the use of force. A new resolution would therefore be required. It would have to be in unambiguous terms authorising the use of force.

In the absence of such a resolution, the attack would, be unlawful. On this point I agree completely with the terms of the letter from 16 eminent international lawyers to 10 Downing Street published in last Friday's Guardian. What would be the consequences of such illegality? Most obvious would be the human, economic and environmental costs, including any further violence that a war against Iraq might trigger. An illustration of how unpredictable and incalculable such costs might be is furnished by a recollection of the events of 1914. When the Hapsburg empire attacked the Serbs, the campaign was expected to be short because of the immense military superiority of Austria/Hungary over the Kingdom of Serbia. Four years later, the Hapsburg empire, together with those of Germanyand Russia, lay in ruins. A residue of bitterness and hatred was left that bred an even worse war 20 years later in which there were more than 50 million fatalities. Who can say with certainty where today's threatened war might lead?

A second consequence would be of immense world significance, for it would mean the end of the United Nations and with it the final collapse of the efforts of the past century to create effective international institutions that would replace perpetual war with perpetual peace.

If attempts to create such international institutions were abandoned, the clock would be turned back to a time when nations had to depend for their security on the uncertain and shifting patterns of alliances and their own military defences. This would inevitably lead to more being spent on swords and less on ploughshares. A third consequence might be grave for members of the governments that brought about this unlawful war. The United Nations Charter is a treaty, one to which 192 out of a total of 196 sovereign states in the world are parties. It takes precedence over all other treaties.

At the Nuremberg trials, the principles of international law identified by the tribunal and subsequently accepted unanimously by the General Assembly of the United Nations included that the planning, preparation or initiation of a war contrary to the terms of an international treaty was "a crime against peace". The tribunal further stated "that to initiate a war of aggression... is not only an international crime, it is the supreme international crime."

It was for this crime that the German foreign minister Von Ribbentrop was tried, convicted and hanged. This case and the subsequent case of former Chilean president Pinochet show that it is not only governments but also individuals who can be held responsible for such a crime. Jurisdiction to try such a crime is not, for the foreseeable future, within the scope of the new International Criminal Court. It is, however, open to any country in the world to accept such jurisdiction. Some are already moving in that
direction. Instances are the proceedings in the Belgian courts against Ariel Sharon in relation to alleged crimes in the Lebanon, and the active involvement of the courts of Spain in relation to alleged crimes against humanity said to have been committed by Pinochet. Members of any governments actively involved in bringing about an unlawful war against Iraq would be well advised to be cautious as to the countries they visit during the remainder of their lives.

In a remarkable statement to the US Senate on February 12, Senator Robert Byrd (West Virginia) described the US position. He referred to it as the "extremely destabilising and dangerous foreign policy debacle that the world is currently witnessing" and said: "Our challenge is to now find a graceful way out of a box of our own making." A refusal by the security council to authorise hostilities should provide a graceful way out of the box. Our government could lead the way.

Mark Littman QC is author of Kosovo: War and Diplomacy (Centre for Policy Studies). He has written and lectured extensively on international law.

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