Experts divided over war legality
PAUL GALLAGHER
WOULD a US-led invasion of Iraq be illegal under international law? The United States has indicated it is willing to wage war on Saddam Hussein without the authorisation of the United Nations Security Council, and Tony Blair seems prepared to commit British troops to action on the same basis.
With the prospect of a second resolution authorising force fading fast, diplomats in London and Washington have claimed a military strike is already justified under the terms of UN resolution 1441.
There has also been suggestions that the Security Council can be bypassed if a permanent member casts an "unreasonable veto" blocking military action.
The Scotsman asked four experts on law and international relations for their assessment of the legal position. This is what they said:
Akos Toth, Emeritus Professor of European Law, University of Strathclyde, Glasgow: "Military action by Britain and the US is legal under the terms of Article 42, which defines what action the Security Council can take. But if they press for a second resolution and it is vetoed then military action may no longer be legal.
"My position is really very simple. The main dispute centres on the use of the words in resolution 1441 which uses the term, ‘serious consequences’ which follow if Iraq does not comply with the resolution. The argument is that ‘serious consequences’ does not imply the use of armed force.
"I contend that the UN charter does not use the term ‘serious consequences’ but it defines in precise terms what measures the Security Council can take in Article 42. This talks about: ‘enforcement action by air, sea, or land forces, including demonstrations, blockade and other operations by air, sea or land forces of the members of the United Nations’.
"I contend military action is legal and there is no need for a second resolution.
"The Prime Minister, Tony Blair, is only pressing for a second resolution for political reasons."
David Armstrong , a professor of international relations at Exeter University: "It is not as clear as many people may think and it could be argued both ways. The strongest case is probably against the legality of any invasion, but if it came to court - which it won’t - it is not a case that would be easily decided.
"There are only two ways that war can be justified legally - one is self-defence, the other is through a Security Council resolution. But there have actually been quite a lot of Security Council resolutions on Iraq and if you add them together, or even if you only look at 1441, you could assume legitimacy because Iraq is still in non-compliance with the various objections placed on it.
"You really could argue it both ways. You need a majority including all the five permanent members of the Security Council, but there are legitimate questions marks over the operation of international law.
"The Security Council gives an action of force legitimacy, but there are a number of questions you could ask about the Security Council, such as the gaining of votes from members who are paid in a certain way. That is a form of justice which we have not tolerated in this country for more than 150 years.
"The broader issue is whether the US is prepared to act within an international framework. There are all kinds of previous resolutions that have been set with regard to Iraq and even 1441 says that Iraq has been repeatedly warned and will face serious consequences.
"A series of moral issues must be resolved, but the legal situation is more ambiguous."
Alan Boyle, a professor of public international law at the University of Edinburgh: "It is as plain as a pikestaff that any invasion of Iraq without a further Security Council resolution would be illegal. The UN charter is quite clear that states should settle their differences peacefully, and the use of force is prohibited except in two circumstances.
"They are in cases of self defence and in cases where authority has been granted by the UN Security Council.
"There is no evidence Iraq is proposing to attack anyone at the moment, so self-defence can be ruled out. And it is perfectly obvious to me that the UN Security Council does not authorise the use of force. Resolution 1441 does not authorise force - the term ‘serious consequences’ is not a euphemism for war and it does not authorise individual states to invade Iraq.
"The usual terminology for military action is ‘using all necessary means’ and when 1441 was being debated, it was made clear that many nations voted for it on the basis it did not include those words.
"If the US and Britain attack Iraq, it could amount to a crime of waging aggressive war under the Nuremberg principles and in theory, Tony Blair could face charges at the International Criminal Court, although George Bush could not because the US is not party to the statutes of the ICC. No international lawyer of any competence at all could possibly give the government advice that invading Iraq without a further resolution would be lawful."
William Wallace, a Lib Dem peer and professor of international relations at the London School of Economics: "International law is quite a fuzzy subject and a skilled lawyer can often argue both sides of any case. If an action is blocked by the UN but still has support among the majority of people in democratic countries, then it might have an ‘observed legitimacy’, even if it does not have legality.
The Kosovo intervention went ahead without Security Council approval, but it made sense to most of the US’s key allies. It is less clear this time. The problem with the Bush administration is their failure to justify what they are doing outside the US, and that is damaging their case.
"Bush has failed to persuade the doubters. His officials are making fewer trips abroad to explain their case than at any time since the Roosevelt era. A veto in the UN would not matter too much, but the key point of this situation is that the way in which the US has approached the Iraq problem has lost the sympathy of most of its allies. It is too late now for the US to secure observed legitimacy."
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