joint article published in The
Age and The
Sydney Morning Herald on February
26, a group of lawyers espoused the thesis
that a US-led invasion of Iraq would violate
international legal norms proscribing
the use of force and international humanitarian
law regulating the way in which war is
We believe that their views are based
on legal and factual premises of doubtful
validity, which could undermine rather
than enhance the relevance and importance
of international law in world politics.
Much of the present debate on Iraq is
premised on the assumption, shared by
the authors of the joint letter, that
the Security Council has not already endorsed
the use of force. An opposite and plausible
case can and has been made on the basis
of the wording of resolutions already
1441 was carefully and deliberately
framed in terms that could be read to
permit the use of force. It was adopted
under Chapter VII which allows the council
to adopt mandatory action to deal with
threats to the peace, breaches of the
peace and acts of aggression.
The resolution says that Iraq remains
"in breach of its material obligations"
under previous Chapter VII resolutions,
has a "final opportunity to comply"
and failing compliance will "face
serious consequences". It explicitly
678 (1990), which authorised "all
necessary means" to restore peace
and security in the region and Resolution
687 (1991) which established the conditions
for the cease-fire after the Gulf War.
By its terms, Resolution 1441 clearly
viewed the use of force against Iraq not
in isolation but rather as a continuation
of measures taken in the wake of Saddam
Hussein's illegal invasion of Kuwait.
Following his defeat in 1991, his regime
was saved by a cease-fire granted on the
strict condition that Hussein would account
for and destroy every one of Iraq's weapons
of mass destruction, that he would cease
repressing his people and that he would
discontinue his support for international
terrorism. Economic sanctions have already
been in place for 12 years, but Iraq's
"breach of its material obligations"
continues despite "the final opportunity"
provided by Resolution 1441. The "serious
consequences" which he must thus
face were understood to include the possibility
of military force.
Furthermore, even if Resolution 1441
were not read to authorise military action,
the use of force against Hussein's regime
at this time would be legally justified
on the basis of the UN
Charter and the right of individual
and collective self-defence, realistically
In categorically rejecting the right
of the coalition to resort to force against
Iraq, the authors adhere to an overly
static view of the UN Charter provisions
on armed force.
The charter contemplated that the Security
Council would have "primary responsibility"
for maintaining international peace and
security. But it did not, nor could it
reasonably, expect the council to trump
forever a state's inherent right to defend
itself, either alone or with allies, against
actual or imminent attacks. Nor could
it freeze forever the manner in which
such concepts as "necessity",
"proportionality" or "imminence"
It is both reasonable and necessary,
in the wake of September 11, to interpret
these terms in the light of changing conditions
and dangers, and especially the vastly
increased threat of terrorist violence
and its support by rogue states.
States cannot be required to wait for
a devastating terrorist attack to actually
occur before taking measures of self-defence
against states. Nor should the prohibition
on the use of force be interpreted to
bar such use for purposes of humanitarian
The authors of the joint letter are
understandably concerned that any attack
on Iraq will inevitably entail the loss
of innocent life. War is certainly detestable.
But to argue that the use of force against
Iraq must necessarily violate international
humanitarian law is a major expansion
of international law beyond its current
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About the Author
Darin Bartram (partner Baker & Hostetler LLP, Washington); Joe Berinson (former attorney-general WA); Anthony Bergin (associate professor of law UNSW); Neil Brown QC (former attorney-general of Australia); Lee Casey (partner Baker & Hostetler LLP, Washington, former legal adviser to US Department of Justice); David Flint AM (professor emeritus of law, University of Technology, Sydney); Stephen Hall (associate professor of law, City University of Hong Kong); Gary Herz, solicitor; Stan Kalinko (managing partner, Deacons Lawyers); Ian Lacey, solicitor; Mark Leibler, AO (senior partner Arnold Bloch Leibler); Judith Levitan, lawyer; Michael Odes, QC; Michla Pomerance, (Emilio Von Hofmannsthal professor of international law, Hebrew University); David Rivkin, junior partner Baker & Hostetler LLP, Washington, former legal adviser to US Department of Justice); Greg Rose (associate professor of law, University of Wollongong); Norman Rosenbaum, barrister; Jeffrey Sher, QC; Marcus Solomon, managing partner, Gadens Lawyers Perth; Thomas Sterling, lawyer; Louis Waller (emeritus professor of law, Monash University).