Attack not yet legal, says expert

By Cynthia Banham (Sydney Morning Herald, February 27 2003)


The latest United Nations Security Council draft resolution would not be sufficient to authorise a United States-led attack on Iraq under international law, an expert from one of the world's most prestigious international relations schools, Nicholas Wheeler, said yesterday.

Dr Wheeler's comments came as lawyers and academics around Australia called on the Howard Government to "observe the rule of law" in international law, and to publicly reveal any advice it had suggesting a pre-emptive strike against Iraq could be justified.

The call to reveal the legal advice came from the NSW Bar Association, and followed the publication of a letter from eminent legal experts in the Herald who claimed an invasion of Iraq could constitute a war crime.

The experts also warned that Australian military personnel and government officials faced the threat of being hauled before the newly established International Criminal Court if they took part in a conflict in Iraq. The US, unlike Australia, refused to ratify the ICC statute last year.

Dr Wheeler, a senior lecturer from the University of Wales in Aberystwyth - the site of the world's first department of international relations - said at a talk in Canberra that the draft resolution submitted by the US, Britain and Spain this week merely restated resolution 1441 from November, but what was required was a resolution stating Iraq was in material breach and authorising the "use of all necessary means".

"The language of 'all necessary means' is all you need to say because we've used through the 1990s the language of 'all necessary means' as a euphemism for the use of force - as long as you've got that you have a very clear mandate for war," Dr Wheeler said.

His view was supported by Professor Hilary Charlesworth of the Australian National University - one of the signatories to the Herald letter - who said the latest draft resolution depended "so much" on resolution 1441, about which all the Security Council members had different views, and "just continues the ambiguity".

Professor Charlesworth also said Australians involved in any war in Iraq - including politicians - could find themselves complicit in the committing of war crimes, and so liable to prosecution in the ICC, particularly because Iraq was a highly urbanised country.

She said the definition of war crimes in international law included causing "excessive civilian damage that's disproportionate to the military objective".

"What's excessive? What's disproportionate? These are matters for judgement, but it would seem to me that [with] estimates of a quarter of a million dead ... it's not difficult to say that is excessive civilian damage in light of the military objective of disarming Iraq."

Dr Wheeler also warned that the Bush Administration's request for a legal basis to launch a "preventive war, where there is no imminent danger but where you believe that danger will materialise", was extremely dangerous.

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