International Appeal by Lawyers and Jurists
against the "Preventive" Use of Force
We the undersigned lawyers and jurists from legal traditions around the
world are extremely concerned about conflicts in the Middle East regarding the suspected
proliferation of weapons of mass destruction, and the possibility that force may be used
in response to this situation.
The development of weapons of mass destruction anywhere in the world is contrary to
universal norms against the acquisition, possession and threat or use of such weapons and
must be addressed. However, the "preventive" use of force currently being
considered against Iraq is both illegal and unnecessary and should not be authorized by
the United Nations or undertaken by any State.
General principles of international law hold that:
- peaceful resolution of conflicts between States is required,
- the use of force is only permissible in the case of an armed attack or imminent attack
or under UN authorization when a threat to the peace has been declared by the Security
Council and non-military measures have been determined to be inadequate,
- enforcement of international law must be consistently applied to all States
In further enunciating and applying these principles, we believe that the use of force
against Iraq would be illegal for the following reasons:
Peaceful resolution of conflicts required
- The United Nations Charter and customary international law require States to seek
peaceful resolutions to their disputes. Article 33 of the Charter states that "The
parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall first of all seek a solution by negotiation,
enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements or other peaceful means of their own choice."
- Under Article 51 of the Charter, States are only permitted to threaten or use force
"if an armed attack occurs" and only "until the Security Council has taken
measures necessary to maintain international peace and security."
- In the case of an act of aggression or a threat to the peace, the United Nations
Security Council is also required under the Charter (Article 41) to firstly employ
"measures not involving the use of armed force." Only when such measures
"would be inadequate or have proved to be inadequate" (Article 42) can the
Security Council authorize the use of force.
No act of aggression or evidence of imminent threat of such act
- In 1991 the Security Council responded to an actual invasion of Kuwait by Iraq by
authorizing all means necessary to restore the peace. In the current case, however, there
has been no indication by Iraq that it intends to attack another country and no evidence
of military preparations for any such attack. In addition, it is generally recognized that
Iraq does not have the military capability to attack the key countries in dispute, i.e.
the United States and the United Kingdom.
No precedent for preventive use of force
- There is no precedent in international law for use of force as a preventive measure when
there has been no actual or imminent attack by the offending State. There is law
indicating that preventive use of force is illegal. The International Military Tribunal
sitting at Nuremberg rejected Germanys argument that they were compelled to attack
Norway in order to prevent an Allied invasion (6 F.R.D. 69, 100-101, 1946).
- The Security Council has never authorized force based on a potential, non-imminent
threat of violence. All past authorizations have been in response to actual invasion,
large scale violence or humanitarian emergency.
- If the Security Council, for the first time, were to authorize preventive war, it would
undermine the UN Charters restraints on the use of force and provide a dangerous
precedent for States to consider the "preventive" use of force in numerous
situations making war once again a tool of international politics rather than an
anachronistic and prohibited action. If the use of force takes place outside the framework
of international law and the UN Charter, the structure and authority of international law
and the UN Charter which have taken generations and immense human sacrifice to establish,
would be severely undermined into the foreseeable future.
Consistency under international law must be maintained
- International law must be consistently applied in order to maintain the respect of the
international community as law and not the rejection of it as a tool of the powerful to
subjugate the weak.
- Security Council Resolution 687, setting forth the terms of the ceasefire that ended the
Gulf War, acknowledges that the elimination of Iraqs weapons of mass destruction is
not an end in itself but "represents steps towards the goal of establishing in the
Middle East a zone free from weapons of mass destruction."
- The International Court of Justice has unanimously determined that there is an
obligation on all States to "pursue in good faith and bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects under strict and effective
international control." (Legality of the Threat or Use of Nuclear Weapons, ICJ
1996). Meaningful steps need to be taken by all States to this end, and States wishing
to enforce compliance with international law must themselves comply with this requirement.
- Action to ensure the elimination of Iraqs weapons of mass destruction should be
done in conjunction with similar actions to ensure elimination of other weapons of mass
destruction in the region - including Israels nuclear arsenal - and in the world
including the nuclear weapons of China, France, India, Pakistan, Russia, United
Kingdom and the United States.
Alternative mechanisms are available to address concerns
- The UN Security Council has established a number of mechanisms to address the concerns
regarding Iraqi weapons of mass destruction. These include diplomatic pressure,
negotiations, sanctions on certain goods with military application, destruction of
stockpiles of weapons of mass destruction and inspections of facilities with capabilities
to assist in production of weapons of mass destruction. Evidence to date is that these
mechanisms are not perfect, but are working effectively enough to have led to the
destruction and curtailment of most of the Iraqi weapons of mass destruction capability.
- Mechanisms are available to address charges against Iraq and the Iraqi leadership of
serious human rights violations, war crimes, crimes against peace and crimes against
humanity. These include domestic courts utilizing universal jurisdiction, the
establishment by the Security Council of an ad hoc international criminal tribunal, use of
the International Criminal Court for any crimes committed after July 2002, and the
International Court of Justice.
The use of force by powerful nations in disregard of the principles of international
law would threaten the fabric of international law giving rise to the potential for
further violations and an increasing cycle of violence and anarchy.
We call on the United Nations and all States to continue to pursue a path of adherence
to international law and in pursuit of a peaceful resolution to the threats arising from
weapons of mass destruction and other threats to the peace.