Why a War Against Iraq is Illegal Under Int. Law
“[T]O Initiate A War Of Aggression… Is Not Only An International Crime; It Is The Supreme International Crime Differing
Only From Other War Crimes In That It Contains Within Itself The Accumulated Evil Of The Whole”.
(Robert Jackson, U.S. Representative At The Nuremberg Trials)
New Zealand must urge General Assembly and Security Council members and all Heads of State to denounce US unilateral
action of planning and preparation for warfare against Iraq as contrary to its Charter and Customary International Law.
As the judgment of the International Military Tribunal at Nuremberg noted, “resort to a war of aggression is not merely
illegal, but is criminal”.
The principle of renunciation of the use or threat of force is now one of the fundamental principles of International
law and, as such, is stated with the utmost clarity in Article 2(4) of the UN Charter, which imposes definite
obligations on states participating in international affairs. Sates are bound in their international relations to
renounce “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 UN”. Thus, any use of force by a state must be regarded as unlawful
if it is not subject to an armed attack.
The US seeks to justify a pre-emptive strike on Iraq on the basis of self-defence. Self-defence presupposes an attack in
which the permissible force must be “be immediately subsequent to and proportional to the armed attack to which it was
an answer”. The legality of pre-emptive self-defence has been rejected on the basis that use of force used to deter
future use of force constitutes punitive rather than defensive action.
The UK seeks to justify a war with Iraq based on Iraq’s failure to comply with weapons inspectors and thus breaching
Security Council Resolution 678 (1990). The Security Council has not identified Iraq as in material breach of the
ceasefire resolution for its current failure to comply with the weapons inspectorate; therefore the Security Council
cannot condone a pre-emptive military strike as a proportional response to non-compliance with weapons inspectors.
The US and UK claim they are motivated by a concern over Iraq's potential possession of non-conventional weapons.
However, Scott Ritter, who personally led the inspections, investigations and destruction of Iraq's chemical and
biological weapons programmes said on July 23 2002: "There is no case for war. The UN weapons inspectors enjoyed
tremendous success in Iraq. By the end of our job, we ascertained a 90-95 per cent level of disarmament. Not because we
took at face value what the Iraqis said. We went to Europe and scoured the countries that sold technology to Iraq until
we found the company that had an invoice signed by an Iraqi official. We cross-checked every piece of equipment with
serial numbers. That's why I can say that Iraq was 90-95 per cent disarmed. We confirmed that 96 per cent of Iraq's 98
missiles were destroyed”. The international Atomic Energy Agency reported that it had eliminated Iraq's nuclear weapons
programme "efficiently and effectively". The Security Council’s significant power to act in international affairs must
be delimited by accepted principles of international law. It is precisely the aim of an international rule of law to
restrain the arbitrary use of power in international society. Equally, the legitimization of power via dubious legal
processes must not be permitted. New Zealand should also be concerned about the humanitarian implications of any further
military action against Iraq. Article 24 of the Charter directs the Security Council “to act in accordance with the
Purposes and Principles of the United Nations” when acting to maintain peace and security. The promotion of human rights
is one of these fundamental “Purposes and Principles.” The Security Council remains always obligated by the UN Charter
to “promote and encourage respect for human rights”. Thus, the Security Council may not violate human rights, even when
acting to maintain peace and security. Iraq has been subject to numerous violations since January 16, 1991.
The Gulf War The basic principles of the laws of war are those of distinction and proportionality. Under the principle
of distinction, belligerents are required to distinguish between civilians and combatants at all times and to direct
attacks only against military targets. This is the fundamental principle of the laws of war. The corollary principle of
proportionality is designed to ensure that attacks against military targets do not cause excessive civilian damage. The
Geneva Conventions define the principle of proportionality as prohibiting any “attack which may be expected to cause
incidental loss of civilian life, injury to civilians, damage to civilian objects ... which would be excessive in
relation to the concrete and direct military advantage anticipated.” Indiscriminate weapons, which cannot be directed
solely against military targets, by their very nature, violate the principle of distinction.
The 1991Gulf War subjected Iraq to the most concentrated bombing campaign in history, the Pentagon announcing it
conducted 110,000 aerial sorties dropping 88,500 tons of bombs. The war resulted in 67 000 Iraqi deaths as well as grave
damage to Iraq’s infrastructure with losses estimated at $170 billion. Deliberate bombing of water treatment facilities
during the Gulf War originally degraded the water quality leading to the outbreak of diseases such as cholera and
typhoid. The Security Council is under a legal obligation to prevent such flagrant violations.
Sanctions According to the report, Iraq Sanctions: Humanitarian Implications and Options for the Future, sanctions-based
“holds” have blocked the rebuilding of much of Iraq’s water treatment infrastructure. Additionally, sanctions have
blocked the rebuilding of the electricity sector that powers pumps and other vital water treatment equipment. This has
resulted in 800,000 Iraqi children “chronically malnourished.” Even with conservative assumptions, the total of all
excess deaths of the under five population exceeds 400,000. Combined with the deaths of older children and adults, this
adds up to a great and unjustifiable humanitarian tragedy.
Continuing Military Strikes Since the 1991 Gulf War, further military operations have been launched against Iraq, by
aircraft and cruise missiles at a rate of one strike per week. Some of these attacks targeted sites in Baghdad or other
populated areas and resulted in civilian casualties. The Security Council’s failure to address the human rights and
humanitarian impact of the war and subsequent sanctions has prompted regular expressions of concern from UN agencies,
commissions, panels and other bodies. The Security Council is bound to respect the full range of human rights standards
in the major international legal instruments as an extension of its underlying obligations under the UN Charter. It must
ensure that its actions comply with these standards. New Zealand must urge the Security Council to resist recent trends
in becoming an important political aid in constituting an integrated strategy designed to overthrow the government in
Iraq in order to dominate this strategic and oil-rich region by justifying the use of force.
Moana Cole mailto: mmc62@student.canterbury.ac.nz Moana Cole is currently completing a Masters of Law research paper on the legality of the war against Afghanistan at
Canterbury University.