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

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.

Whether force has been used contrary to international humanitarian law can only be evaluated after the event and in light of all the evidence, weighing the military advantage anticipated against the foreseeable harm to civilians, according to the established principles of reasonableness and proportionality. There is no reason to presume that a breach by coalition forces of the humanitarian laws of armed conflict will occur.

Perhaps the most disturbing part of the joint letter is the warning that if Australia dares join the attack on Iraq, it may face a spate of future "war crimes" trials before the International Criminal Court.
The alarm thus sounded appears consistent with the worst fears of critics of the ICC, who argued that such a tribunal would more likely deter democracies acting in defence of international legal standards and human rights than it would a Saddam Hussein.

Finally, we believe that morally it is necessary to consider the costs to be borne in ruling out the use of force. Hussein continues to torment his people, foster international terrorism and develop an illegal arsenal of chemical, biological and nuclear weapons. In addition, the authority of the Security Council under Chapter VII is being damaged.

Twelve years of resolutions and sanctions, and promising dire consequences, have not brought Iraq into compliance. When a policeman refuses to enforce the law, and gives a series of hollow "last chances", there comes a point when citizens and criminals alike lose respect for both him and the law.