Global Policy Forum

By Danny Lee

Tony Blair and George W. Bush could be guilty of war crimes in preparing for an attack on Iraq, Professor Nicholas Grief, a barrister and head of the School of Finance & Law at Bournemouth University, says. He is part of a coalition of global lawyers and jurists who presented an appeal to the UN on February 13 calling for force to be used against Iraq only as a last resort.

"Even if the Security Council authorises the use of force, it will still be illegal. In addition there is a body of opinion that not only would Blair and Bush be violating the UN charter by going to war but they may already be violating the Nuremberg charter of 1945 in their preparations for war."

Article 6 of the latter describes a crime against peace as including planning, preparation or initiation of war, Grief says. It also includes the "participation in a common plan or conspiracy for any of the foregoing. Crimes against peace carry individual responsibility, therefore Blair and Bush could be personally responsible."

In theory our Prime Minister and the US President could be charged for these crimes in one of their national courts. Even though such a scenario is unlikely, the idea that the two men could be entering the same legal territory as the Nazis does focus the mind.

Article 2(4) of the UN charter stipulates 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 in any other manner inconsistent with the purposes of the United Nations". At what point, if ever, will the UK and the US be justified in using force without breaching this provision?

If the UK were about to attack Iraq in self-defence, it may avoid breaching Article 2(4), even if there were no more UN resolutions. And there is some argument that the terrorist threat, made chillingly apparent by the tanks at Heathrow, could be akin to a threat giving rise to the right to self-defence.

Professor Anthony Aust was until last year the deputy legal adviser at the Foreign and Commonwealth Office, where his advice covered counter-terrorism and defence. He is now a consultant to the public international law department of D J Freeman, the commercial law firm. "International terrorism is totally different in nature to usual warfare," he says. "Previously, self-defence generally related to protecting yourself against attack or imminent attack from an army massing on your border. But with terrorism, clearly that doesn't apply. Attackers don't wear uniforms, there are no warnings, attacks can come at any time, anywhere, and in that situation one could justify the use of force against the terrorists."

Article 51 of the UN charter, relating to self-defence, does not talk about defence from attacks by states, it talks about attacks by anyone. In addition, international law covers selfdefence against attacks on nationals, aircraft or boats, but the crucial factor is going to be the evidence. Aust says that "the imminent-threat case has not been made out against Iraq and no firm connection has been made between it and al-Qaeda". At the moment there would seem to be no situation justifying an attack on Iraq on the ground of self-defence.

A similar exception to the prohibition on using unilateral force set out in Article 2(4) is the right to use force to prevent an overwhelming humanitarian catastrophe. This was invoked in the former Yugoslavia. However, there is scant evidence of such a catastrophe in Iraq, even thought there are clearly human rights violations.

Nevertheless one needs to look no further than Iraq's violation of UN resolutions, Aust says. This presents grounds for the US and the UK to attack. He disagrees with Grief's assessment of the legality of any action. He looks to the string of UN resolutions dating from before the last Gulf War. "Resolution 678 authorised the coalition of forces to liberate Kuwait and also to restore international peace and security in the area. "There is an argument that the authority in 678 remains. Under 678, dubbed the Mother of All Resolutions, Iraq formally accepted the terms of the formal ceasefire and the inspection regime was set up in 1991."

The lack of co-operation by the Iraqis with the inspectors constitutes material breach of the law of treaties and substantial violation of the terms of the resolutions, Aust argues.

Resolution 1441 recalls 678 and refers to restoring international peace and security in the area. "It decided that Iraq continued to be in material breach and failure by it to comply with 1441 would constitute further material breach," he says. The resolutions provide for serious consequences to follow such a breach. "No second resolution is needed for legal purposes to go to war but some people argue that because there is a certain amount of uncertainty another resolution is needed to clarify the situation."

Another more fundamental point needs to be clarified, says Professor Vaughan Lowe, the Chichele Professor of Public International Law, Fellow of All Souls College and a barrister. "People are finally realising that there is the question of what force is used to achieve. There is a world of difference between using force to compel compliance with inspectors' wishes and going in to replace the regime. There is no precedent in international law for aiming to go in to change a regime.

"If Blair and Bush override the veto of the states on the Security Council, people will ask why they shouldn't do the same in other circumstances," Lowe says. "For Britain and the US to say that they will pay regard to the substantive provisions of the UN charter and not the procedural provisions has no more merit than the converse. If an attack proceeds without a UN mandate, it would be hard to argue that regional superpowers, such as Nigeria and India, should not do the same in their areas."

President Bush believes that without an attack on Iraq the UN is doomed, but who would be correct in law and just how far should such an attack go? More to the point, legal or not, would a war against Iraq be right? History will be the judge.

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