Global Policy Forum

Dr Gerry Simpson of the London School of Economics' Law Department assesses the legality of an attack on Iraq. He asks whether it would be wise, ethical or legal, and argues that if the U.S. government expands the right to attack in self defence, it will be a threat to international order. The law is very likely to emerge from this period of history in an altered form.

The attacks on the United States in September 2001 implicate at least four intertwined areas of primary obligation in international law: international criminal law, the law on the use of force (or Charter law), the law of armed conflict (Hague and Geneva law) and human rights law, as well as more procedural matters related to the relationship between domestic and international law, and the question of state responsibility. There are three modes of analysis that ought to be kept distinct but tend to become jumbled in many evaluations of a proposed attack on Iraq: prudential, ethical and legal.

PRUDENCE Prudence involves a strategic assessment of a particular option. In confronting terrorism or weapons of mass destruction, is this (legal) response to terrorism or weapons of mass destruction politically wise?

Is it strategically advisable? What might be the long-term consequences of such an operation? Is it a good idea politically to invade Iraq? Lawyers at the law reform end of the spectrum will grapple on a daily basis with such questions. In other instances, the best lawyers can do is set a framework in which negotiated solutions can arise.

The Security Council is free to act in any way it wishes within the broad parameters of Chapter VII of the U.N. Charter. There is only a small amount lawyers can do to influence the debates within the Council. Whole attitudes of mind and bodies of thought are dedicated to the view that parts of the international order are anarchic or without law.

This perspective has found widespread support in the media since September 2001. It is a view apparently prevalent within the Bush Administration. The United Kingdom House of Common Select Committee reported on their investigations in the United States in the following terms:

"The impression we obtained from those with whom we discussed the question was that, instead of establishing first whether military action would be legal, the U.S. would act first and then use international law to defend its action retrospectively if it were possible to do so."

This view may be endemic in U.S. policy-making. Michael Glennon reports that Madeline Albright, on being told by then UK foreign minister, Robin Cook, that British lawyers were finding it hard to justify war in Kosovo, replied, "Get new lawyers."

ETHICS

Arguments about the morality of regime change are raging through the British press at the moment. Sometimes, these arguments are about the loss of life that might occur as a result of an armed intervention in Iraq or the more distant losses that might result from a failure to remove Iraqi military capacity.

At other times, specific moral or religious orientations are brought to bear on questions of war and peace. Several leading U.K. Archbishops have spoken out against the proposed war on Christian grounds while other commentators have argued for it on the basis of just war doctrine.

Public international lawyers may feel inclined to remain above the fray on these questions. However, these moral issues are unavoidable. Very often legal positions follow from moral convictions, however much we may wish to deny this.

In order to understand the law on the use of force or human rights law we need to appreciate that they have some basis in religious or ethical doctrine. There are rare occasions when there is a clash between a clear legal prohibition and a moral imperative. For example, although it might have been illegal to intervene in Rwanda to prevent the genocide there, such an action would have been morally desirable.

LAW

Would a war on Iraq be lawful?

The Security Council has special powers under the UN Charter to authorise military action when there is a threat to peace, a breach of peace or a war of aggression. Under this power, the Council has authorised action in Korea (to liberate an invaded country), Somalia (to promote human rights in a failed state), the Balkans (to end civil strife) and Haiti (to promote democracy).

Any use of force authorised or mandated by the Security Council is lawful no matter how imprudent or immoral such an action might seem. So, in the case of Iraq, an explicit resolution authorising force against Iraq would leave little room for any jurisprudential doubt.

The problem posed for lawyers by Security Council resolutions relates to their interpretation rather than their validity. The question is not: can the Council do this? It is, instead, did the Council do this? In the case of the current crisis, one question that emerges is whether the Security Council has already implicitly authorised a use of force against Iraq in cases where Iraq breaches the peace agreement concluded after the Iraq-Kuwait war in 1990.

Some international lawyers argue that no fresh resolutions are necessary because under Security Council Resolution 678, the Council has already permitted force in precisely the circumstances we now find ourselves in. International lawyers, like reasonable people, disagree on the meaning of Resolution 678. States need not rely on the Security Council in every case.

SELF-DEFENCE

A second exception to the general prohibition on the use of force is self-defence. Clearly a state subject to armed attack from another state (or a non-state group) has the right to fight back. This basic right is enshrined in Article 51 of the U.N. Charter. The problem for international lawyers here lies in determining whether there has been an armed attack and whether the response to that armed attack is necessary and proportionate. A further difficulty associated with self-defence concerns the availability of a right to anticipatory self-defence.

This so-called right comes in two versions. In the first, more limited and more plausible, version a state can use force to defend itself from an imminent armed attack by another entity. In other words, there is no need for a state to wait for an attack before attacking its opponent.

The second version, now termed the Bush Doctrine, seems to envisage an expanded version of this right whereby states can use force to prevent future, possible but by no means imminent armed attacks from potential enemies. This is the doctrine that would be used to justify a use of force by the United States against Iraq in the absence of a Security Council Resolution. Such a doctrine would be highly controversial among international lawyers. It would also, if universally available, represent a serious threat to international order.

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