So, President Bush has slammed the window of diplomacy by giving Saddam Hussein and his two sons 48 hours to leave the country. "Proclaim this among the nations: prepare for war!" (Joel, 3:9) It is already a controversial war. Some claim it seeks to seize oil wells, others say it paves the way for regime changes in Iran and Syria, there are even those who call it a US-led shake-up of the entire Greater East. In any case, the first to fall victim to US laser bombs and British special purpose troops will be international law.
Above all, the UN Charter outlaws the use of force with only two exceptions. Article 51 gives all the member countries the right to individual or collective self-defence. Article 42 authorises the UN Security Council to use military force "as may be necessary to maintain or restore international peace and security." But in this case a clear-cut UN resolution is needed: the peace is broken, the security is in ruins, therefore war is unavoidable.
Neither of the articles can be applied to the Iraqi crisis.
Let's start by saying that Article 51 does not authorise a preventive strike against a country attacked by someone exercising the right of individual or collective self-defence. It would not do to hurt the innocent.
However, the UN Charter fails to live up to the present-day nuclear reality where a preventive strike is part of self-defence. Let's suppose, for the sake of argument, that Article 51 does imply the right to launch a pre-emptive strike. Even then, under the UN Charter the United States and Britain must face an "imminent" threat and retaliation must be "proportional." Allegations that Iraq possesses some yet undiscovered deadly weapons, which can at some hypothetical future time be used to attack the civilised world are not enough to justify the use of military force in self-defence.
Besides, no one in the world believes that being constantly monitored from space the sanctions-torn Iraq, with most of its airspace being a non-fly zone, is capable of attacking the United States, Britain, or else such a plum as Bulgaria who is also seeking to exercise its right to self-defence.
Nonsense. Especially if we recall that the United States has repeatedly provoked war to oust Saddam Hussein.
The Azores summit revealed that the anti-Iraqi trilateral alliance had turned to Article 42 of the UN Charter in search of a new legal justification for war on Iraq. This time attempts are made to prove that UN Security Council Resolution 1441 provides sufficient authority for military action.
The message of the Azores summit is clear: " If Saddam refuses even now to co-operate fully with the United Nations, he brings on himself the serious consequences foreseen in UNSCR 1441 and previous resolutions." However, "serious consequences" is not the UNSC's euphemistic substitution for "war." Usually, it is read behind the words "all the necessary measures" which appeared in the 1991 UN Security Council resolution to authorise military intervention in the Persian Gulf, and later in Rwanda, Bosnia, Somali and Haiti.
In his Monday night televised ultimatum, George Bush invoked Resolutions 678 and 687, which read that "the United States and our allies are authorised to use force in ridding Iraq of weapons of mass destruction." Bush's legal advisers have failed him. Resolution 678 /November 1990/ does authorise an attack against Iraq, though for the purpose of restoring Kuwait's sovereignty. Thirteen years passed making today's case look quite different. Kuwait's sovereignty had been restored to such an extent that it turned into a huge US military base. It would not do to invoke Resolution 678.
This also applies to Resolution 687. Neither of the documents entitles the former anti-Iraq coalition to snatch initiative from the UN Security Council, Professor of International Law at Oxford University Vaughan Lowe believes. These resolutions tackle specific problems in specific situations and cannot be regarded as a permanent mandate authorising any kind of Middle East invasion, the scholar says.
Washington looks ridiculous clinging to a previous resolution neglecting the acting one.
Let's call a spade a spade. An unauthorised war launched by the pathetic US-led anti-Iraq coalition is contemptuous of international law.
That is where the International Human Rights Court in the Hague comes in with its never-ending trial against Slobodan Milosevic and a rich collection of other suspected criminals against humanity. How will the supreme legal body rate air strikes against Iraq possibly claiming up to 500,000 Iraqi civilians, as suggested by UN figures, or even more if the Pentagon drops down its pride - the so-called "mother of all bombs." Colin Warbrick, Professor of Law and expert in international law at the University of Durham, Britain believes that Iraq's bombings can well be regarded as crimes against humanity. According to him, the International Human Rights Court could bring the United States and Britain to court for starting an illegal war in Iraq.
But who will dare to come up with such criminal charges? Colin Warbrick finds it highly unlikely that any EU country would dare to risk its political survival by launching the case.
This is particularly so if we recall that the International Human Rights Court is nothing but a puppet in Washington's hands. In 1999 Yugoslavia tried to stop Nato's bombings by asking the International Human Rights Court to regard the alliance's air strikes as genocide. But the obedient judges ruled out by a 12-to-4 margin that the matter was out of their jurisdiction.
However, on March 1 the world saw a new legal body to appear: the International Criminal Tribunal with a whole new scope of activity in store for it after UN Secretary General Kofi Annan said that an unauthorised war on Iraq was illegal.
The far-sighted Washington managed to avoid signing the Rome Agreement setting up the tribunal. But London's signature is still there. That is why British lawyers are concerned that a British soldier responsible for the death of at least one Iraqi civilian will have to face criminal charges.
In fact, British Prime Minister Tony Blair ordered 40,000 soldiers to go to war, which they risk to end in prison. This is a striking example of the legality of a coming war in Iraq, isn't it?