The Crime of Aggression
International Law is surprisingly clear and easy to understand on whether the Iraq war was lawful. First, war was abolished by the adoption of the UN Charter in 1947. Thereafter, contracting states entered into a compact. In return for giving up their right to wage war each vested the right to use force in the collective security provisions of chapter VII of the UN Charter. Second, Article 2 (4) of the UN Charter provides that:
"All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or any other manner inconsistent with the Purposes of the United Nations".
This has been described by the International Court of Justice as a peremptory norm of International Law, from which states cannot derogate. Thus, the effect of articles 2 (3) and (4) is that the use of force can only be justified as expressly provided under the Charter, and only in situations where it is consistent with the UN's purposes. Third, there are two limited exceptions to the requirement not to use force. The first enshrined in Article 51, preserves states' rights to self-defense. As this was not an exception relied upon by the US or UK I need not dwell on it. The second is where the Security Council have authorized the use of force under Article 42 of the Charter. That is the only relevant debate here.
I can remind the Panel that a consensus of international lawyers did not accept that such an authorization existed here, or that the UK and US were entitled to revive Resolution 678 (November 1990) from the start of the first Gulf War. The UK and US argued that the wording of Resolution 1441 (8 November 2002) allowed them to rely on Security Council Resolution 678 as they were entitled to interpret Iraq's behavior post 1441 as constituting a further "material breach" of Resolution 678 (Article 1) in circumstances where Iraq had been given its "final opportunity" to disarm (Article 2) and was warned of the "serious consequences" of non-compliance (Article 13). This is referred to as the revival doctrine. Not surprisingly, that is not the way international law works post the UN Charter. If the Security Council wish to authorize force, they do so in clear terms, latterly using the phrase "all necessary means" or "all measures necessary"
One example of that consensus is a letter from 16 international law professors and teachers from the UK, which made headline news on March 7 2003. It warned that:
"Before military action can lawfully be undertaken against Iraq, the Security Council must have indicated its clearly expressed accent. It has not yet done so... A decision to undertake military action in Iraq without proper Security Council authorization will seriously undermine the international rule of law."
What I have done is to footnote to this paper all the relevant legal material so that you, the jury, may be satisfied that this war did not have legal authorization from the Security Council. The jury need to address the consequences of that? If there was no Security Council authorization does it necessarily mean that the war was illegal? If it was illegal, was it automatically a "crime of aggression" and thus a "crime against peace?"
Professor Philippe Sands tackled this question head on during an interview last Thursday for the Australian Broadcasting Corporation. He said:
"...Most people now realize that the war on Iraq was illegal and under international law, an illegal war amounts to a crime of aggression"
