RELEASE: MARCH 18, 2003
CONTACT: John Burroughs, Lawyers
Committee on Nuclear Policy (212) 818-1861, cell (917) 439-4585
LAWYERS' GROUPS CONDEMN U.S. WAR ON IRAQ
AS CONTRARY TO UN CHARTER AND INTERNATIONAL LAW
The Bush administration plan to invade Iraq is contrary to basic rules of the UN Charter requiring exhaustion of peaceful means of maintaining international security and permitting use of force in self-defense only in response to an actual or imminent attack, according to the Lawyers' Committee on Nuclear Policy (LCNP) and Western States Legal Foundation (WSLF). The two groups are U.S. affiliates of the International Association of Lawyers Against Nuclear Arms (IALANA).
"Article 42 of the UN Charter requires a Security Council determination that measures not involving the use of force would be inadequate or have proved to be inadequate prior to authorizing military action," said Peter Weiss, LCNP president and a prominent international law and human rights lawyer. "The Security Council refusal to approve the proposed U.S./UK resolution was based on the belief that the inspection process should continue. In other words, the Security Council believes that peaceful means have not been exhausted. Consequently, the Bush administration claim that existing resolutions authorize war is groundless. The argument that Iraqi breach of cease-fire terms set by resolution 687 ipso facto creates a condition of war ignores that it is for the Security Council to decide whether a breach warrants the use of force."
Mr. Weiss added, "The suggestion by Anne-Marie Slaughter in today's New York Times that the war may be 'illegal but legitimate' and that 'insisting on formal legality may be counterproductive' is shocking beyond belief, coming from the current president of the American Society of International Law."
According to Andrew Lichterman, WSLF program director, "Article 51 of the UN Charter recognizes the inherent right of self-defense 'if an armed attack occurs'. Under Article 51, a state may not decide for itself alone that a threat that justifies war exists, unless actually attacked, or, in the view of some experts, where there is a threat of attack that is immediate and unavoidable, and where there are no alternatives to the use of force. Because Iraq has not attacked any state, nor is there any showing whatever of an imminent attack by Iraq, self-defense cannot justify U.S. war on Iraq." Mr. Lichterman added, "There is no basis in international law for dramatically expanding the concept of self-defense, as advocated in the Bush administration's September 2002 'National Security Strategy,' to authorize 'preemptive' - really preventive - strikes against states based on potential threats arising from possession or development of chemical, biological, or nuclear weapons and links to terrorism. Such an expansion would destabilize the present system of UN Charter restraints on use of force. Further, there is no publicly disclosed evidence that Iraq is supplying weapons of mass destruction to terrorists. If the Bush administration doctrine is allowed to stand, the next states in line may be Iran and North Korea."
"The Bush administration's reliance on the need for 'regime change' in Iraq as a basis for use of force is barred by Article 2(4) of the UN Charter, which prohibits 'the threat or use of force against the territorial integrity or political independence of any state,'" said John Burroughs, LCNP executive director and an adjunct professor of international law at Rutgers Law School, Newark. "In cases of large-scale internal violence or humanitarian catastrophe, some would argue that human rights trump state sovereignty and justify armed intervention. That has not been a principal rationale of the Bush administration, and while the Iraqi regime's historical record is grisly, large-scale internal violence of the kind experienced in Rwanda and the former Yugoslavia is not presently occurring."
"President Bush argues that the United States is authorized to use force against Iraq as a means to enforce the 1991 cease-fire that requires Iraq to disarm," said Nicole Deller, legal consultant to LCNP and co-author of "Jus ad Bellum: Law Regulating Resort to Force" in the winter 2003 issue of Human Rights, a publication of the American Bar Association. "That argument is flawed. Resolution 687 laid down the terms for ending the Gulf War, which was a Security Council authorized use of force to eject Iraq from Kuwait. In paragraph 34 of the resolution, the Security Council left for itself ('decided to remain seized of the matter') the determination of what steps would be required to implement the cease-fire and 'to secure peace and security in the area'. Currently a majority of the Security Council, including at least one permanent member prepared to wield its veto, opposes invasion of Iraq. The assertion that the United States can act as enforcer of a Security Council edict, without consent of the Security Council, has no merit."
An "International Appeal by Lawyers and Jurists Against the 'Preventive' Use of Force," circulated by IALANA and signed by more than 300 lawyers around the world from 40 countries, is available at www.lcnp.org. It was released on February 13, 2003 at the United Nations. Signatories include Judge Christopher Weeramantry, former International Court of Justice vice-president and current president of IALANA.
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