“We can go anywhere, anytime;
change government; and do whatever we want because we are the super-power.”
- Pres. George W. Bush.
Today, the US launched its war of aggression upon the Iraqi people. As
lawyers, it is timely that we in the Public Interest Law Center (PILC) most
empathically state our legal position on this invasion.
The invasion of Iraq by the US armed forces is a war for the domination of
the world, for the subjection of the national sovereignty, political
independence, territorial integrity, and economic resources of states to the
imperial prerogatives of the lone superpower.
Contrary to what the war-mongers would like people to believe, the invasion
of Iraq today is a naked display of power, flaunting all the principles and
norms of international law which regulate the use of force, illustrating
that the US places itself above the law. There is absolutely no
justification under international law for the US invasion of Iraq.
Under Article 2, paragraph 4 of the UN Charter, all states are under
obligation not to use force or to threaten another state with force. The
“use and threat of force” and “acts of aggression” are considered not only
illegal, but a negation of the very rationale of the UN system. Under
Article 1 of the UN Charter, the very first enumerated purpose of the UN is
precisely to “suppress[] acts of aggression or other breaches of the peace
and to bring about by peaceful means…adjustment and settlement of
international disputes.” As a corollary, under Article 2, paragraph 3,
states are obliged to settle their disputes through peaceful means.
The only situations when resort to force is allowed under the UN Charter
are: (1) in case of self-defense, which may be exercised individually or
collectively by states under armed attack, and (2) when force is resorted to
by the UN itself acting through the Security Council in the form of
so-called “enforcement measures” under Chapter VII (Articles 39 to 50) of
the UN Charter. In the latter case, use of force is always an option of last
resort, requiring that all peaceful means not involving the use of force
have been exhausted. Moreover, the letter and spirit of the Charter require
that all UN-sanctioned armed operations be under multilateral control and
direction, giving substance to the injuction that “armed force shall not be
used, save in the common interest”.
In
addition, under customary international law, all coercive actions must stand
the test of necessity and proportionality, which implies, among others, that
only such force as is necessary and commensurate with the nature of the
breach may be employed, i.e., the remedy must fit the wrong. War's weapons,
in particular, must discriminate between combanants and non-combatants.
The US is in no way under armed attack nor has an imminent attack by Iraq
been credibly argued, much less, established, as to justify the US' resort
to force in its self-defense. The unnecessary and disproportionate toll in
terms of death and suffering of Iraqi civilians brought by massive aerial
bombing in the first hours of the invasion cannot be justified by imagined
threats from a spent and defeated Iraqi military force which is, according
to the UN, only one fifth of what it was during the Gulf War of 1990-91.
While the chief
winners of a regime change, viz., the American and British petroleum
companies (including those owned and managed by the Bush family, US Vice
President Dick Cheney and other cabinet members of the Bush administration)
who stand to replace competing French and German monopolies, salivate over
their spoils, i.e., the second largest proven oil reserves in the world, the
dead and the dying among the Iraqi people are being written off as so much
“collateral damage”. Today, the US has launched its attack by
indiscriminately bombarding the populated city of Baghdad with scores of
monstrous missiles under the dubious pretext of “decapitating” its leaders.
The US does not have any mandate from the Security Council when it started
this war. No pretense (as previously maintained in the Gulf War of 1990) is
put up that this war is a UN-sanctioned war. Rather, it is a war to flaunt
to all the world that the lone superpower acts and decides to obtain
whatever goal it chooses whether or not the UN approves.
The announced goals which the US has chosen for its invasion of Iraq,
namely, regime change and the “liberation” of Iraq, and its most likely
consequence, the “occupation of this ethnically divided country for as long
as a decade” (Jimmy Carter), are alien to the purpose of Resolution 1441
(“first resolution”) which concerns the disarmament of Iraq principally
through peaceful means, and do not find support therein. While Resolution
1441 obliges the government of Saddam Hussein to accomplish a sequence of
tasks towards complete disarmament and warns of “serious consequences” for
non-cooperation or breach of its obligations, the Security Council
explicitly provided that the task of reporting non-cooperation or breach
lies with the weapons inspectors, not the US, and the power to prescribe the
“serious consequences” for such non-cooperation or breach rests in the
Security Council, not the US. The US may not enforce Resolution 1441 through
war especially in the absence of a credible finding by the weapons inspector
of breach by Iraq and an authoritative decision of the Security Council on
the basis thereof.
The arrogance by which the US President ignores the resounding opinion of
the peoples of the world as well as the UN organization and the Security
Council, promotes hatred among those who are helpless and frustrated, and
foments destructive violence and terrorism. Thus, ironically, the war that
masquerades as nipping terrorism in the bud will spawn more terrorists who
will endanger Americans even more.
There is no shortage of condemnation in international law of the use of
force against the sovereignty, territorial integrity or political
independence of another State such as we are witnessing in the US invasion
of Iraq.
“To initiate a war of aggression,” says the Nuremberg Tribunal, “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.” (Judgment of the International Military Tribunal, Nuremberg,
September 30, 1946)
The UN General Assembly in Resolution 3314 (1974) declares unequivocally
that: “No consideration of whatever nature, whether political, economic,
military or otherwise, may serve as a justification for aggression. (Art. 5,
par.1) A war of aggression is a crime against international peace.
Aggression gives rise to international responsibility. (Art. 5, par. 2)”
The straightforward denunciation of the US invasion of Iraq is the single
most compelling task of the international community now that respect for
international law by the US, the state with the greatest proven potential to
wreak havoc upon the world, has sunk to its lowest level. To denounce the US
invasion of Iraq as an international crime of aggression is a duty that
under Article 39 of the UN Charter the Security Council must discharge and
from which it cannot escape.
All governments which support the US invasion of Iraq, including the
government of Pres. Gloria Macapagal-Arroyo, under Article 5 in relation to
Article 3 (f) of the G.A. Resolution 3314, incur international
responsibility, and are equally criminals under international law.
All individuals, including leaders who participate in the conception and
planning, and troops who are involved in the execution of the invasion incur
individual criminal liability. Conversely, members of the invading armed
forces are obliged not to execute the orders of their superiors which are
clearly criminal in nature. Leaders and followers alike, from states-parties
to the Statutes of the International Criminal Court, including the United
Kingdom, Spain, Bulgaria and Australia, are directly inviting indictments
before the International Criminal Tribunal whose jurisdiction extends to the
overlapping crimes of genocide, crimes against humanity, war crimes and
aggression.
We
call upon all people's lawyers all over the world to expose the arrogance
and duplicity of the US and denounce its invasion of Iraq as an
international crime of aggression and put President George W. Bush and all
war criminals to justice!
