Waging war crimes?

The initiation of a war against Iraq by the self-styled ‘coalition of the willing’ would be a fundamental violation of international law. International law recognises two bases for the use of force. The first, enshrined in article 51 of the United Nations Charter, allows force to be used in self-defence. The attack must be actual or imminent. The second basis is when the UN Security Council itself authorises the use of force as a collective response to the use or threat of force. However, the UNSC is itself bound by the terms of the UN Charter and can only authorise the use of force if there is evidence that there is an actual threat to the peace (in this case, by Iraq) and that this threat cannot be averted by any means short of force (such as negotiation, further weapons inspections etc).

Members of the ‘coalition of the willing’, including Australia, have not yet presented any persuasive arguments that an invasion of Iraq can be justified at international law. The United States has proposed a doctrine of ‘pre-emptive self-defence’ that would allow a country to use force against another country it suspects may attack it at some stage. This doctrine contradicts the cardinal principle of the modern international legal order and the primary rationale for the founding of the UN after the second world war – the prohibition on the unilateral use of force to settle disputes.

The weak and ambiguous evidence thus far presented to the international community by US Secretary of State Colin Powell to justify a pre-emptive strike underlines the practical danger of a doctrine of pre-emption. A principle of pre-emption would allow particular national agendas to completely destroy the system of collective security contained in Chapter VII of the UN Charter and return us to the pre-1945 era where might equalled right. Ironically, the same principle would justify Iraq now launching pre-emptive attacks on members of the coalition because it could validly argue that it feared an attack.

But there is a further legal dimension for both Saddam Hussein on the one hand and Messrs Bush, Blair and Howard and their potential coalition partners on the other to consider. Even if the use of force can be justified, international humanitarian law places significant limits on the means and methods of warfare. The Geneva Conventions of 1949 and their 1977 Protocols set out some of these limits: for example, the prohibitions on targeting civilian populations and civilian infrastructure and causing extensive destruction of property not justified by military objectives. Intentionally launching an attack knowing that it will cause 'incidental' loss of life or injury to civilians ‘which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’ constitutes a war crime at international law. The military objective of disarming Iraq could not justify widespread harm to the Iraqi population, over half of whom are under the age of 15. The use of nuclear weapons in a pre-emptive attack would seem to fall squarely within the definition of a war crime.

Until recently, the enforcement of international humanitarian law largely depended on the willingness of countries to try those responsible for grave breaches of the law. The creation of the International Criminal Court last year has however provided a stronger system of scrutiny and adjudication of violations of humanitarian law. The International Criminal Court now has jurisdiction over war crimes and crimes against humanity when national legal systems have not dealt with these crimes adequately. It attributes criminal responsibility to individuals responsible for planning military action that violates international humanitarian law and those who carry it out. It specifically extends criminal liability to Heads of State, leaders of governments, parliamentarians, government officials and military personnel.

Estimates of civilian deaths in Iraq suggest that up to quarter of a million people may die as a result of an attack using conventional weapons and many more will suffer homelessness, malnutrition and other serious health and environmental consequences in its aftermath. From what we know of the likely civilian devastation of the coalition’s war strategies, there are strong arguments that an attack on Iraq may involve the commission of both war crimes and crimes against humanity.

Respect for international law must be the first concern of the Australian government if it seeks to punish the Iraqi government for not respecting international law. It is clearly in our national interest to strengthen, rather than thwart, the global rule of law. Humanitarian considerations should also play a major role in shaping government policy. But, if all else fails, it is to be hoped that the fact that there is now an international system to bring even the highest officials to justice for war crimes will temper the enthusiasm of our politicians for this war.

Signatories:

Don Anton
Senior Lecturer, Australian National University

Peter Bailey
Professor, Australian National University

Andrew Byrnes
Professor, Australian National University

Greg Carne
Senior Lecturer, University of Tasmania

Anthony Cassimatis
Lecturer, University of Queensland

Hilary Charlesworth
Professor and Director, Centre for International and Public Law, Australian National University

Madelaine Chiam
Lecturer, Australian National University

Julie Debeljak
Associate Director, Castan Centre for Human Rights Law, Monash University

Kate Eastman
Wentworth Chambers, Sydney

Carolyn Evans
Senior Lecturer, University of Melbourne

Devika Hovell
Lecturer, University of New South Wales

Fleur Johns
Lecturer, University of Sydney

Sarah Joseph
Associate Director, Castan Centre for Human Rights Law, Monash University

Ann Kent
Research Fellow, Centre for International and Public Law, Australian National University

David Kinley
Professor and Director, Castan Centre for Human Rights Law, Monash University

Wendy Lacey
Lecturer, University of Adelaide

Garth Nettheim AO
Emeritus Professor, University of New South Wales

Penelope Mathew
Senior Lecturer, Australian National University

Ian Malkin
Associate Professor, University of Melbourne

Chris Maxwell QC
Melbourne Bar

Tim McCormack
Red Cross Professor and Director, Centre for Military Law, University of Melbourne

Sophie McMurray
Lecturer, University of New South Wales

Anne McNaughton
Lecturer, Australian National University

Kwame Mfodwo
Lecturer, Monash Law School

Wayne Morgan
Senior Lecturer, Australian National University

Anne Orford
Associate Professor, University of Melbourne
Emile Noel Senior Fellow, New York University Law School

Dianne Otto
Associate Professor, University of Melbourne

Peter Radan
Senior Lecturer, Macquarie Law School

Rosemary Rayfuse
Senior Lecturer, University of New South Wales

Simon Rice OAM
President, Australian Lawyers for Human Rights

Donald Rothwell
Associate Professor, University of Sydney

Michael Salvaris
Institute for Social Research, Swinburne University of Technology

John Squires
Director, Australian Human Rights Centre, University of New South Wales

James Stellios
Lecturer, Australian National University

Tim Stephens
Lecturer, University of Sydney

Julie Taylor
University of Western Australia

Gillian Triggs
Professor and Co-Director, Institute for International and Comparative Law, University of Melbourne

John Wade
Professor and Director of the Dispute Resolution Centre, Bond University

Kristen Walker
Senior Lecturer, University of Melbourne

Brett Williams
Lecturer, University of Sydney


Media contacts for further comment:

Canberra

Professor Andrew Byrnes (ANU)
Mobile: 0418 611 846

Professor Hilary Charlesworth (ANU)
Law School: 02 6125 0455/54
Ah: 02 6239 4721

Sydney and Canberra

Associate Professor Don Rothwell (Sydney University)
0414 546 830

Melbourne

Professor David Kinley (Monash)
03 9905 3366
mobile 0407 516 194

Professor Gillian Triggs (Melbourne University)
Law School: 03 8344 6173
Mobile 0413806950

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This page last updated 4th May 2004