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It is perfectly legal for the US-led coalition to enforce resolution 1441.

By Darin Bartram et al - posted Friday, 21 March 2003

In their 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 conducted.

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 adopted.

Resolution 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 recalls Resolution 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 interpreted.

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" are interpreted.


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 intervention.

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 limits.

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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).

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