Published on Wednesday, February 26, 2003 by Agence France Presse
Australian Experts Warn Attack on Iraq Could End in International Court
SYDNEY, Feb 26 - An attack on Iraq by a "coalition of the willing" would be a violation of international law that could end in the world court, 43 Australian legal experts warned here Wednesday.
In an article published by the Sydney Morning Herald, the group of leading barristers and academic lawyers argued that coalition members including Australia had not yet presented any persuasive arguments that an invasion of Iraq could be justified at international law.
But the group says Iraq would now be justified in launching a pre-emptive attack against the United States and its coalition partners because it is Iraq that is now facing a direct threat.
The group, which includes a former High Court judge, senior counsel and international law professors from Australia's top universities says international law recognizes two bases for the use of force.
The first, enshrined in Article 51 of the United Nations Charter, allows force to be used in self-defense only if the attack was actual or imminent.
"The second basis is when the UN Security Council authorizes the use of force as a collective response to the use or threat of force."
But the group says the Security Council is bound by the terms of the UN Charter and can authorize the use of force under charter seven only if there is evidence of an actual threat which could not be averted by other means such as negotiation and further weapons inspection.
"Ironically, the same principle would justify Iraq now launching pre-emptive attacks on members of the coalition because it could validly argue that it feared attack."
Publication of the article follows Prime Minister John Howard's strong support Tuesday for the US-British draft resolution that could provide a trigger for war on Iraq within two weeks.
Australia and Britain are the only two countries to have committed forces to a possible war against Iraq, although Howard maintains no decision has yet been made to commit Australian troops to fighting.
The group said even if the use of force against Iraq could be justified, the Geneva Convention significantly limits the means and method.
These include prohibitions on targeting civilian populations or civilian infrastructure and causing extensive destruction of property not justified by military objectives.
Intentionally launching an attack knowing it would cause "incidental" civilian casualties and which would be clearly excessive in relation to the expected military outcome "constitutes a war crime."
"The military objective of disarming Iraq could not justify widespread harm to the Iraqi population, over half of whom are under the age of 15."
The group said the creation of the International Criminal Court last year had provided a stronger system of scrutiny and adjudication of violations of humanitarian law.
The court now has jurisdiction over war crimes and attributes criminal responsibility to individuals responsible for planning military action that violates international humanitarian law and those who carry it out.
"It specifically extends criminal law to heads of state, leaders of government, parliamentarians, government officials and military personnel," the group said.
"Respect for international law must be the first concern of the Australian government if it seeks to punish the Iraqi government for not respecting international law."
Copyright 2003 by Agence France-Presse