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
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
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
Copyright 2003 by Agence France-Presse