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| Sunday, 23 March 2003 |
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Iraq war illegal - Prof. C. G. Weeramantry Professor C.G. Weeramantry is a world acclaimed authority on international law and a leading advocate of world peace and disarmament. He served as a Judge of the International Court of Justice in the Hague from 1991 -2000 and as Vice-President of the Court from 1997-2000, besides serving as Acting President of the Court on many an occasion. Prof.Weeramantry was recently invited by a representative group of members of the House of Lords to advise them on the legality of the US hostilities against Iraq. Here, the Sunday Observer speaks to him on the case he made against war and other issues of international relevance. Q: You were recently invited by some members of the House of Lords to advice them on the legality of the proposed US-led hostilities against Iraq. Could you tell us about the case you made before them? A: My position on the matter which I have expressed in many assemblies is that the current hostilities are illegal under international law and my presentation at the House of Lords was no different. The very day I was making my case to the members of the House drawn from across party lines and who were sympathetic to my point of view which was on the 17th of March, the Attorney General Lord Goldsmith's opinion on the legality of the war was released and this decided the subsequent vote authorizing war. I expressed the view that the AG's opinion was based on a very narrow literal construction of certain Security Council Resolutions, namely Resolutions 678, 687 and 1441. Resolution 678 was the basis on which force was employed to enable the expulsion of Iraqi forces from Kuwait, while Resolution 687 was that which was passed after this had been accomplished and which kept alive the question of Iraq dismantling its stock of weapons of mass destruction. Resolution 1441 passed by the Security Council in 2002 spoke of 'serious consequences' if Iraq did not comply in ridding its weapons of mass destruction. More, recently, there was an attempt by the US and Britain to move a successor resolution to 1441, enabling hostilities to be commenced, although they did not succeed in this attempt. When the parties found that it was impossible to get the resolution passed in the face of much opposition from Security Council members like France and Russia, they put forward the argument that such a resolution was not necessary, as they could resort to force on the basis of Resolution 678 passed 13 years ago, which had authorized force for the express purpose of expelling Iraq from Kuwait. There however exist a number of arguments that could be brought against the validity of this position. For one thing, a resolution which is 13 years old and which has been succeeded by a series of other resolutions dealing specifically with specific situations that have arisen from time to time in-between cannot suddenly be revived, as it would require some special attention to the current situation for it to be valid in relation to the use of force today. The purpose of Resolution 678 which was passed to give authority for the expulsion of Iraq from Kuwait was successfully achieved and according to normal principles of interpretation once the purpose of that document had been achieved, the special powers given by it would lapse. They simply cannot be revived 13 years later merely because the powers concerned are unable to get a further resolution passed. Indeed, if Resolution 678 was valid and alive, there would have been no need for the intense diplomatic activity that preceded the failure of the US and UK to obtain the necessary approval of the Security Council. They expended enormous effort on this task which they would not have done if that had been their understanding of the legal position. Although 1441 warns of 'serious consequences' if Iraq does not rid its weapons of mass destruction, a phrase like it has been deliberately introduced in that vague form where a further resolution would be required to clarify what that particular consequence would be. For instance, if it were to involve military action, then that should be the subject of a specific resolution to that effect. Secondly, the whole structure of the UN Charter is based upon the illegality of the resort to war except in the very limited circumstance of self-defence under immediate armed attack. If there is to be a departure from this bedrock principle, it requires to be precisely and categorically so stated without the necessity to arrive at that conclusion inferentially from a reading of documents which are very old by UN standards. None of the resolutions ever passed by the UN apart from 678 has authorized the use of force. In fact, Article 33 of the UN Charter requires every possible peaceful means of resolving a dispute to be explored before resorting to hostilities, and here was an instance where one of the means for the resolution of the dispute was in the process of active implementation, namely the presence of weapons inspectors on the site who were achieving results and hopeful of bringing their activities to a successful termination. It was a totally illegitimate action to suspend the inspections on the basis that force could be resorted to. This again is non-compliance with the UN Charter. A distinction needs also to be drawn in international law between the violent overthrow of a sovereign state and the use of force for other purposes. In other words, regime change is not a legitimate objective of actions under the UN Charter. Other basic international judicial principles also need to be seriously considered, namely, the principle of equality of states, the principle against selective application of international law for some states and not for others, the principle of prohibition of weapons of mass destruction and the principle against armed attacks in major population centres. Finally, I would say that even if the Security Council were to sanction the use of force, it would be contrary to the UN Charter, having due regard to the terrible humanitarian catastrophe which could ensue as a result. The entire UN Charter, we should bear in mind, is based upon the philosophy of saving succeeding generations from the scourge of war. Q: Do you think that the US action poses a very real threat to the future of the UN as a conflict resolution and peace-keeping body? A: The US action is no doubt a very dangerous step in international affairs since it overrides a principle built up with much sacrifice over millennia. War was clearly outlawed by the UN Charter save in the case of self-defence in very special circumstances. If such a principle is jettisoned, then that would be a terribly backward step in the entire history of international relations. However, I do not think that this would mean the end of the UN since the forces advocating international cooperation such as France and Germany are very strong. I am confident that the UN has still a big role to play. The pity of the matter however is that the world's sole superpower which should be giving an example to the rest of the world and leading it towards a reign of justice and international law is in fact doing the very reverse. Q: Many are those who are faced with the prospect of losing life, limb and employment as a result of the war. Since the US is the aggressor in this case, could those affected claim compensation from the US? A: Yes, if the war is illegal as I have sought to show, then those who use force illegally are naturally responsible in law for the consequences. Individual citizens however do not have recourse to the ICJ as it only settles disputes between sovereign states. However, the states concerned could espouse the causes of its subjects and take necessary action against the infringing party. However, we must also bear in mind that the US has not accepted the jurisdiction of the ICJ and is not under its writ. Nevertheless, there is an increasing trend in the west, especially Europe, for domestic courts to exercise extra-territorial jurisdiction in relation to offences under international law and these could perhaps be resorted to for compensation claims. A Compensation Tribunal could also be established by the UN for the purpose of meeting compensation claims such as was set up following the Gulf War when claims were made on Iraq. Q: In the wake of increasingly aggressive US foreign policy, especially after the downfall of the Soviet Union, what is the stand that the international community could take against it? A: Despite the fact that the US is not under the jurisdiction of the ICJ, there is the possibility of what is known as the Advisory Jurisdiction of the Court where it could give an opinion on questions of law at the request of bodies like the Security Council or the General Assembly of the UN. This could provide the legal basis on which other proceedings could be instituted. However, I believe that it is important that every individual play a role in bringing to the attention of his or her government and the international community at large the futility of war. This could be achieved in many ways such as mass displays of protests against the war as was recently seen in the large turnout of anti-war protestors across the globe and the signing of petitions such as for instance the recent petition by the World Assembly of Youth Leaders at the Hague where thousands of youth signed a strongly worded document protesting the war. |
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