Australian legal experts declare an invasion of Iraq a war crime
 By James Conachy
27 February 2003

 Forty-three Australian experts in international law and human rights
legislation have issued a declaration that an invasion of Iraq will be an
open breach of international law and a crime against humanity, even if it
takes place with the authorisation of the UN Security Council. The statement
concisely argues that any Australian participation in a war on Iraq—as
part
of the Bush administration’s “coalition of the willing”—will make
the
government of Prime Minister John Howard and Australian military personnel
liable for prosecution in the International Criminal Court.

 Submitted as an open letter to Australian newspapers and published
yesterday
by the Sydney Morning Herald, the signatories include Professor Chris Sidoti
of the Human Rights Council of Australia; Sir Ronald Wilson, a former High
Court judge and the President of the Human Rights Commission; Simon Rice,
the
president of Australian Lawyers for Human Rights; the directors of several
university centres for human rights law; prominent barristers; and lecturers
at Australia’s most prestigious law schools.

 The legal experts reject outright the justifications for war being made by
the American, British and Australian governments as a violation of the UN
Charter, under which there are only two grounds for the use of force in
international conflicts. As they explained: “The first, enshrined in
Article
51 of the United Nations Charter, allows force to be used in self-defence.
The attack must be actual or imminent.

 “The second basis is when the UN Security Council authorises the use of
force as a collective response to the use or threat of force. However, the
Security Council is bound by the terms of the UN Charter and can authorise
the use of force only if there is evidence that there is an actual threat to
the peace (in this case, by Iraq) and that this threat cannot be averted by
any means short of force (such as negotiation and further weapons
inspections).”

 Having outlined the legal basis for war, the declaration concluded:
“Members
of the ‘coalition of the willing’, including Australia, have not yet
presented any persuasive arguments that an invasion of Iraq can be justified
at international law.” Moreover, as the authors pointed out, the doctrine
of “
pre-emptive strike” elaborated by the Bush administration represents a
fundamental repudiation of the UN Charter.

 “This doctrine contradicts the cardinal principle of the modern
international legal order and the primary rationale for the founding of the
UN after World War II—the prohibition of the unilateral use of force to
settle disputes.

 “The weak and ambiguous evidence presented to the international community
by
the US Secretary of State Colin Powell to justify a pre-emptive strike
underlines the danger of a doctrine of pre-emption. A principle of
pre-emption would allow particular national agendas to completely destroy
the
system of collective security contained in Chapter 7 of the UN Charter and
return us to the pre-1945 era, where might equaled right.”

 In fact, although the lawyers chose not to raise the issue, the indictment
of the German Nazi leaders at the 1945-1949 Nuremberg War Crimes Trials was
precisely for carrying out preemptive military strikes against neighbouring
countries. They were tried and convicted of “planning, preparation,
initiation or waging of a war of aggression, or a war in violation of
international treaties, agreements or assurances”.

 The letter goes on to note that there is a “further legal dimension”
that
would form the basis for a war crimes indictment of those responsible for
any
invasion of Iraq—the likely extent of Iraqi civilian casualties: “Even
if
the use of force can be justified, international humanitarian law places
significant limits on the means and methods of warfare.

 “The Geneva Conventions of 1949 and their 1977 protocols set out some of
these limits: for example, the prohibitions on targeting civilian
populations
and civilian infrastructure and causing extensive destruction of property
not
justified by military objectives. Intentionally launching an attack knowing
that it will cause ‘incidental’ loss of life or injury to civilians
‘which
would be clearly excessive in relation to the concrete and direct military
advantage anticipated’ constitutes a war crime at international law.”

 The international media has already carried a number of reports of the “
shock and awe” tactics that the US military intends to use to intimidate
and
terrorise the Iraqi military and population into submission. These include
the destruction of power plants, electricity grids, sewerage treatment
facilities, water reservoirs, bridges and roads. Washington has specifically
warned that it has not ruled out the use of nuclear weapons.

 The letter concluded: “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 use of nuclear weapons in a preemptive attack would seem
to fall squarely within the definition of a war crime...

 “Estimates of civilian deaths in Iraq suggest that up to quarter of a
million people may die as a result of an attack using conventional weapons
and many more will suffer homelessness, malnutrition and other serious
health
and environmental consequences in its aftermath. From what we know of the
likely civilian devastation caused by the coalition’s war strategies,
there
are strong arguments that attacking Iraq may involve committing both war
crimes and crimes against humanity.”

 The fact that 43 eminent members of Australia’s legal establishment felt
the
need to issue such a public statement is a sign of the breadth of the
opposition among many social strata to the Howard government’s support for
the Bush administration and its planned war on Iraq. The letter confines
itself to pointing out that Australian government leaders, officials and
military personnel may find themselves in front of the International
Criminal
Court. But the comments clearly reflect a far broader public outrage at the
criminal character of the war that is about to be launched.

 Despite all the efforts of Canberra and Washington and the media, a
majority
of the population does not accept the government’s claims that war is
necessary to eliminate “weapons of mass destruction” and are profoundly
disturbed about the consequences of invading Iraq. The largest
demonstrations
in the country’s history took place on February 14-16, appealing to the
government to withdraw the 2,000 Australian troops that Howard has deployed
to the Persian Gulf without even a vote in parliament.

 Just as the government dismissed the sentiments of the
demonstrations—with
Howard referring to them as a “mob”—so too it has rejected the
statement by
the legal experts. The office of Attorney General Daryl Williams issued a
perfunctory statement that no Australian could be sent to the International
Criminal Court without its approval, and that the court’s jurisdiction did
not cover “the legal basis for an armed conflict”.

 But neither Williams, nor any other government minister, has attempted to
answer the charge that there is no basis in international law for the
planned
war on Iraq and that those responsible for launching it will be the authors
of war crimes.


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