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AUSTRALIAN
MARXIST
REVIEW

Journal of the Communist Party of Australia

ISSUE 66December 2017

On the illegality of war

Part 3

Editorial Note: This article appears in four parts with the first part published in issue 64 of this journal.

We also regret to inform readers that the footnotes of Part 2 were incorrect.

B. The war against Iraq

The contestable nature of international law and its volatile dynamic was again demonstrated in relation to the 2003 Iraq War. The argumentation surrounding the question of that war’s legality under international law also reveals there are sound bases to assert that the war was illegal.

1. UN Charter: The starting point

While Article 2(4) of the UN Charter prohibits the use of force against states, the degree to which the goal of world peace informs the founding rationale of the UN may also be gauged from other elements of the Charter. For instance, the opening lines of the Charter’s preamble refer to the determination of the peoples of the United Nations “to save succeeding generations from the scourge of war” and to reaffirm, among other things, “the equal rights ... of nations large and small”. The preamble goes on to refer to the aims of the UN as including “to maintain international peace and security” and ensuring “that armed force shall not be used”.

The first articles of the UN Charter setting out the purposes and principles of the UN, continue this theme, for example: “maintain international peace and security” (Art 1(1)); “take ... appropriate measures to strengthen universal peace” (Art 1(2)); and, “[the UN] is based on the principle of the sovereign equality of all [states]” (Art 2(1)). The UN Charter then, formulated in the closing days of the most destructive war in history and given profound weight by that context and encapsulating/codifying international law, is a clear statement that the waging of aggressive war is illegal under international law.

Against this background, Bothe is right when he says that the “point of departure” for the legal debate about the legality of the Iraq War is the prohibition on the use of force under both customary international law and the UN Charter. Any specific use of force can only be lawful if it is based on an exception to the prohibition rule. There are two exceptions: self-defence and Security Council authorisation.[1]

The relevant Articles of the UN Charter are: Article 51 which refers to states having an “inherent right” to self-defence if they are attacked;[2] and, Article 42 which provides for the Security Council authorising military operations to maintain or restore international peace and security.[3]

2. The authorisation question

Did the war against Iraq fall within the exception in Article 42 (Security Council authorisation), to the United Nations Charter prohibition on the use of force against states? The war was launched without specific Security Council authorisation, however, one set of justifications put forward by the imperialist powers was that pre-existing Security Council resolutions stemming from the Gulf War of the early 1990s operated in conjunction with Security Council Resolution 1441 (2002) (sponsored by the US and Britain) to provide effective authorisation for the invasion.

The pre-existing Security Council resolutions in question were: Resolution 678 (1990), which had authorised the use of force against Iraq over its invasion of Kuwait; and Resolution 687 (1991), which had set out the basis for the ceasefire in the Gulf War, including establishing a disarmament process for Iraq.

Before the Security Council in March 2003, the US and Britain argued a case that the combined effect of Resolutions 678 (1990) and 687 (1991), was to provide Security Council authorisation for the invasion of Iraq. Their argument was that Iraq had not complied with Security Council Resolution 1441 of 2002, which provided it with “a final opportunity to comply with its disarmament obligations” and established an “enhanced inspections” regime with respect to Iraq’s disarmament, and Iraq was therefore in “material breach” of Resolution 687 (the Gulf War ceasefire resolution), which had the effect of reviving Resolution 678 (authorising the use of force against Iraq).[4] With regards to 678, the argument ran that it had merely been suspended but not terminated in 1991.[5]

This argument relying on the continuing force of the earlier Gulf War resolutions, together with Resolution 1441 as the trigger for their reactivation, was the subject of debate within legal circles at the time of the outbreak of the Iraq War. Some legal experts saw the argument as tenuous. In one article it was said that the proponents of the war had stitched “together a cloak of authorisation from stray threads in earlier [Security Council] resolutions, stretching back as far as 1990 and 1991.”[6] Others in the legal field who supported the war, variously argued that: Resolution 678 had not been specific to the Gulf War; Resolution 1441 explicitly recalled resolution 678; Resolution 1441 considered the use of force against Iraq not in isolation but as a continuation of the measures taken against Iraq following the Gulf War; etc.[7] Again from the side critical of the war, it was argued that Resolution 678 had been specific to the Gulf War and could not be revived, and that with respect to Resolution 1441, it was up to the Security Council to decide whether Iraq had complied with its disarmament obligations, and, it may therefore be inferred, for the Security Council to decide on its response.[8]

One thing that can be said with certainty is that given the fundamental prohibition against aggressive war contained in the UN Charter, any purported legal argument in support of such a war must necessarily meet a very high standard to succeed. For those seeking to legally justify the war on the basis of “an intricate contextual reading, or interpretation” of the Gulf War Security Council resolutions,[9] Kritsiotis has demonstrated the kind of detailed forensic questions they must address to establish the necessary continuity of combined effect of the earlier Gulf War Security Council resolutions (678 and 687) and Resolution 1441:

  • In 1990, did the Security Council authorise the use of force against Iraq for purposes other than the restoration of Kuwait’s sovereignty?
  • What were the intended limits of Resolution 678?
  • Did the Security Council suspend or terminate Resolution 678 when it adopted Resolution 687?
  • If Resolution 678 was merely suspended, how and when would a material breach result in its reactivation? When the Security Council in Resolution 1441 declared that Iraq was in “material breach” of Resolution 687?
  • What about the “final opportunity” provided to Iraq in Resolution 1441?
  • Which material breaches – any one, or a sum total of breaches (whatever they might be)?
  • Material breaches determined and decided by whom – the Security Council, any member state of the UN, just the US, or the US in conjunction with Britain, etc?
  • What role was there for the reports of the UN inspectors as provided for in Resolution 1441?[10]

With respect to the purported trigger effect of Resolution 1441, Kritsiotis argued that the US and Britain overstepped the mark in 2003 in relying on the alleged material breach by Iraq of its disarmament obligations. He pointed out that Resolution 1441 provided that in the event of the Security Council receiving reports of material breach by Iraq of its obligations, that the Council would convene to consider the situation and determine its response.[11] The relevant part of the Resolution said:

[The Security Council] Decides to convene immediately upon receipt of a report … in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.[12]

Kritsiotis said that:

Determinations of ‘material breach’ would therefore set in train a certain procedural consequence for the Security Council, at least as far as the Council was concerned from a reading of Resolution 1441 (2002).[13]

Despite this, the US and Britain contended that any determinations of material breach by Iraq “would have substantive consequences in terms of the reactivation of the Security Council authorization.”[14] Nonetheless, the interpretations of Kritsiotis and other legal authorities/scholars claiming limited effect/operation of Resolution 1441 and the earlier Gulf War resolutions, are compelling.[15]

Underlining the interpretation of Resolution 1441 – that at most it would start a procedural process in the event of a report to the Council of a material breach by Iraq of its disarmament obligations – was the stance of the US and Britain in having initially agreed that 1441 would not be “self-executing”.[16] At the time of Resolution 1441’s adoption by the Security Council in November 2002, the US and British ambassadors to the UN had been emphatic in stating to the Security Council that the Resolution did not contain “hidden triggers” or “automaticity” for resort to war.[17]

Reinforcing that it can reasonably be argued that there was not implicit Security Council authorisation for the war, is other evidence of how the major powers and other Security Council members interpreted the effect of Resolution 1441 in the period leading up to the war. Speeches made to the Security Council at the time by the other representatives of member states of the Council,[18] show that the Security Council’s unanimous adoption of Resolution 1441 was premised on the understanding that the Resolution did not provide for the automatic use of force against Iraq in the event of Iraq not complying with the Resolution’s requirements, but rather that the Security Council would evaluate the situation and retain decision-making power as to how to respond to it.[19]

In March 2003, the other permanent members of the Security Council – Russia, China, and France – remained adamant that Resolution 1441 excluded “any automaticity in the use of force”,[20] and, together with Germany, these powers in February-March 2003 argued for a continuation and strengthening of the weapons inspection regime for Iraq, and publicly opposed the drive to war.[21]

That it cannot convincingly be said that Resolution 1441 was the trigger in a scheme of purported implicit Security Council authorisation for the war, may also be inferred from the fact that the US had withdrawn an initial draft version of Resolution 1441 authorising the use of force against Iraq if it failed to sufficiently comply with the terms of the resolution, when it became apparent that the Security Council would not support the resolution in those terms.[22]

Other evidence is also telling that the supposed implicit Security Council authorisation was not sufficient to provide a legal basis for the war. In the weeks leading up to it in the face of considerable international opposition, there was frenetic activity by the main imperialist powers to shore-up support for an attack on Iraq. This took the form of offering economic inducements to, or threatening economic penalties against, non-permanent member states of the Security Council to get them to agree to another resolution authorising war (eg a US supported International Monetary Fund loan to Pakistan and a threat by the US to reduce its annual humanitarian aid to Angola).[23] This drive to obtain another resolution from the UN Security Council that would expressly authorise the war, compellingly demonstrates that Resolution 1441 was not sufficient for affording legality on the basis of continuing implicit Security Council authorisation.

Britain and the US ultimately revealed their intention to go to war regardless of such action being authorised by a UN Security Council resolution. British Prime Minister Blair said that Britain would support war even without a second UN resolution. In the face of Russian, Chinese, and French insistence that the UN weapons inspectors be given more time, Blair indicated that Britain would not be deterred from going to war because of an “unreasonable, capricious use of the veto” by the permanent members of the Security Council.[24]

Even though their disdain for international law and legal procedure was becoming increasingly evident in relation to the imminent war against Iraq, the imperialist powers still felt obliged to attempt to provide a legitimate legal basis for the war, vindicating Chimni’s point that the rule of law in the international sphere is not “vacuous” and that even powerful states feel compelled to justify their actions by reference to it.

For example, when in the face of resistance and reluctance from other members of the Security Council, the US, Britain, and Spain withdrew their last-ditch resolution to the Security Council seeking its agreement to giving an ultimatum to Iraq to disarm or face war within days, the US suggested the war would be legally justified under the right of states to self-defence.[25] For some time already, the imperialist powers had been attempting to secure an expanded meaning for the international law principle of pre-emptive self-defence, with the formulation of a doctrine of anticipatory self-defence.[26] This was another example of the drive by the imperialist powers in the years since the end of the Cold War, to break with the Charter order and develop a new type of international law on the use of force for their own ends.

It can be said, therefore, that those who saw the war as legally justified in terms of the Art 42 exception (Security Council authorisation), via an implicit Security Council authorisation rationale, had not met the high standard demanded by the UN Charter’s fundamental prohibition on the use of force by states, to bring their case for war within that exception.

3. The self-defence question

The other exception to the Article 2(4) prohibition on the use of force against states that was possibly available to the prosecutors of the war against Iraq, was that provided by Article 51 of the UN Charter (the inherent right of states to self-defence).

Given the tenuous nature of the argument for implicit Security Council authorisation, and in light of the international opposition to the threatened war, the imperialist powers – relying on principles evolved in customary international law[27] – pushed to develop a new doctrine of anticipatory self-defence to justify their position. Their efforts, and the debate among legal scholars over the question of the validity of that doctrine in international law, demonstrates how international law develops in a context of disputative ideological interpretations of legal meanings. The imperialist powers ultimately abandoned the anticipatory self-defence doctrine as a possible formal legal justification for their aggression against Iraq, arguably attesting to its indeterminate status in international law – particularly when measured against the fundamental prohibition on the use of force by states in the UN Charter.

An analysis of the purposes and objectives of the UN Charter demonstrates that the Article 51 exception, which provides for states having an “inherent right of individual or collective self-defence if an armed attack occurs”, is clear in its meaning: namely, that for the right to be triggered, an armed attack must actually happen, not merely be threatened.[28] However, in customary international law a principle of pre-emptive self-defence had developed which remained valid under the UN Charter order. This principle, formulated in the Caroline case of 1841, was constrained by the requirement that self-defence by a state must be necessary because the nature of the threat to the state was imminent: “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”[29] One strategy the imperialist powers pursued in the earlier lead-up period to the war to secure a legal justification for their aggression against Iraq, was to argue for an expanded meaning of the pre-emptive self-defence principle.

In September 2002, President Bush submitted to the US Congress a National Security Strategy which argued that in a world of “rogue states and terrorists”, with consideration of the inability of deterrence, the immediacy of threats, and the magnitude of possible harm that could result from the weapons used by the US’s opponents, that “a reactive posture” was not sufficient: “We cannot let our enemies strike first.”[30] The US National Security Strategy sought to “adapt” the imminent threat formula of the Caroline case to broaden the scope of the self-defence principle, on the basis of an argument that the US was facing an increased gravity of threat. Central to the Strategy was the claim that the enemies of the US might potentially, and “without warning”, use weapons of mass destruction against it and its allies, a threat which provided a:

compelling ... case for taking anticipatory action to defend ourselves, even if uncertainty exists as to the time and place of the enemy’s attack. (emphases added)[31]

On the eve of the outbreak of the Iraq War, Bush justified the actions of the US and its allies on the basis of this argument. Asserting that the UN Security Council had failed in its responsibilities to authorise military action against Iraq, he said the US was acting now because the power of Iraq to cause harm to other nations would increase in the coming years, and he alluded to “evil men” plotting to use “chemical, biological and nuclear terror”.[32]

While the Caroline formula allowed, obviously, for some flexibility and adaptation to particular circumstances, it could not cover a situation in which there was “time for many months of debate in national and international fora, including serious negotiations on ways of handling a dispute other than by the use of military force.”[33] Such was the situation preceding the war against Iraq, and so the efforts by the imperialist powers to pursue their argument for an expanded right of pre-emptive self-defence in international law – anticipatory self-defence.

The claims of the US and British governments in 2002 and early 2003 about the supposed threat from Iraq’s alleged weapons of mass destruction capability are understandable as attempts to suggest the existence of a factual justification for anticipatory self-defence action. In its 2002 dossier, Iraq’s Weapons of Mass Destruction: The Assessment of the British Government, the British government asserted that Iraq had the capacity to undertake long-range missile attacks using chemical or biological warheads and was on the way to acquiring nuclear weapons. At this time Prime Minister Blair famously declared that Iraq was in a position to launch some of its weapons of mass destruction “within 45 minutes of an order to use them”.[34] In February 2003 US Secretary of State Powell addressed the UN Security Council and among the claims he made was that Iraq had mobile biological weapons laboratories and had dispersal techniques for the release of prohibited substances. To underline how Iraq’s alleged weapons of mass destruction capability posed a grave threat to the world, Powell also suggested Iraq had connections with terrorist organisations (including al-Qaeda) who were prepared to use the weapons.[35]

Notwithstanding these efforts by the leading imperialist powers, international law had not thus far adopted an expanded version of the pre-emptive self-defence principle in the form of a doctrine of anticipatory self-defence. For example, the UN Security Council had previously rejected the argument when used by Israel to justify its incursions into neighbouring territories.[36] Further, Bothe suggested there could not be a rule of anticipatory self-defence in international law as its limits and application were uncertain with there being questions relating to: the required level of seriousness of the threat; the types of weapons that need to be involved; how to respond to states that possess nuclear arms; the efforts a state needs to make not to be labelled as harbouring terrorists; etc.[37]

For other legal commentators, however, there was a place for a doctrine of anticipatory self-defence in international law. Sofaer suggested it was demanded by the times, with globalisation having made it much easier for terrorists to travel and communicate, and technology having “enhanced their ability to inflict damage with powerful explosives, modern weapons, and potentially through the use of weapons of mass destruction.”[38]

Reading the Caroline case formula of pre-emptive self-defence, with its requirement of imminence of attack, as having only a limited application to certain situations,[39] Sofaer argued that the standard generally applicable for pre-emptive self-defence (even at the time of the Caroline case) was that the use of force be necessary in the circumstances and proportionate to the threat to be addressed.[40]

Sofaer outlined the criteria for establishing the existence of the required necessity, which included “the nature and magnitude of the threat” and “the likelihood … the threat will be realised unless pre-emptive action is taken.”[41] Applying these criteria to Iraq, he suggested there was a strong case for the use of force against that country. He argued that Iraq posed a threat of potentially “very great” magnitude given its development of chemical and biological weapons and possibly weapons of mass destruction, and that Iraqi aggression was likely given its history of having attacked Iran and Kuwait.[42]

While Sofaer gave an expansive interpretation of the pre-emptive self-defence principle, his argument for its applicability to Iraq demonstrates the highly uncertain status the anticipatory self-defence doctrine had in relation to international law. One of the other criteria enumerated by Sofaer for establishing the required necessity for the application of pre-emptive self-defence was the exhaustion of alternatives to the use of force. From this perspective, for Sofaer the application of the anticipatory self-defence doctrine to Iraq was also determined by what he implies was the failure of multiple UN Security Council resolutions imposing economic and other penalties on Iraq to secure that country’s disarmament and thereby peace, with Resolution 1441 having given Iraq a final opportunity to comply. This amounted to the exhaustion of “all reasonable, alternative means for securing compliance short of force”,[43] thereby necessitating the use of force by the US and its allies against Iraq.

Sofaer’s reasoning is premised on the assumption that there was, in the purported continuing force of the earlier Security Council Gulf War-related resolutions, implicit Security Council authorisation for the invasion, in the event of the ultimate failure of the alternatives short of armed force to securing Iraq’s disarmament. As we have seen, the implicit authorisation argument is a highly problematic position.

In the absence of explicit Security Council authorisation for the use of force against Iraq, Sofaer concluded that:

the findings, conclusions, and other actions of the Council should ... be given proper weight ... Arguably, the breach by Iraq of [the Gulf War/disarmament] resolutions restores in full force the original authorization by the Council for the use of force in 1990.[44]

This encapsulates the approach taken by the imperialist powers to justifying their war against Iraq in legal terms: the 1990-1991 Security Council resolutions related to the Gulf War[45] effectively provided authority for the invasion of Iraq; with the failure to achieve the disarmament of Iraq being the trigger, via Resolution 1441, for the 2003 invasion. Sofaer added a gloss to this rationale by suggesting that the Security Council resolutions also went to demonstrate the requisite exhaustion of alternatives to force that necessitated invocation of the anticipatory self-defence justification for the invasion. Here, two dubious legal arguments – implicit Security Council authorisation and anticipatory self-defence – are, by circular reference to each other, presented as valid in the whole.

This approach really underlines the flimsy quality of the anticipatory self-defence doctrine as a legal argument justifying the Iraq war – remembering also the UN Security Council’s previous rejection of it in relation to Israel.

That the imperialist powers themselves were not convinced of the doctrine’s soundness as a legal justification, was confirmed by their effective abandonment of the doctrine in their final legal argument for war before the Security Council.

In considering the question of the legality of the Iraq war, it has been stressed that it is necessary to distinguish between the legal and political justifications put forward for the invasion of Iraq. With reference to the jurisprudence that had evolved in the International Court of Justice (ICJ) in the 1986 Nicaragua case,[46] Kritsiotis explained that in examining the legality of the US intervention in Nicaragua, the ICJ had focussed on the legal justification put forward by the US for its action, not on the political justification it provided.[47] Kritsiotis suggested the ICJ, conscious of its role as arbiter of the legal not the political, did this because of its “wholehearted respect” for the opinio juris of the US. The legal concept of the opinio juris of a state refers to the belief a state has as to what it is obliged to do under international law. The ICJ also wanted to ensure the US was able to avail itself of the “essential tests and benefits” accorded by the Court to an assessment of legal “argumentation and evidence”.[48]

Applying this approach to Iraq, Kritsiotis argued that the main legal argument put forward by the US and Britain (and Australia for that matter) to justify their invasion was the alleged “material breach” by Iraq of its obligations under the historic Security Council resolutions, not that the invasion was justified pursuant to an expanded notion of pre-emptive self-defence. Kritsiotis maintained that the formal communications presented by the US and Britain to the Security Council in March 2003 were legal in character.[49] He noted that, among other things, their premise relied:

on an intricate contextual reading, or interpretation, of Security Council Resolutions 678 (1990), 687 (1991) and 1441(2002); on the use of legal concepts and terminologies such as ‘authorisation’ and ‘material breach’ and ‘ceasefire’ – and upon the notion of precedent.[50]

We have seen previously that the implicit Security Council authorisation argument was an insufficient basis on which to claim that the invasion of Iraq was legal. The imperialist powers’ reliance on it before the Security Council at the moment the war began, now suggests their deep uncertainty as to the place of anticipatory self-defence in international law. This tentativeness may be inferred also from the very limited reference made to the notion of self-defence in the above-mentioned US communication to the Security Council. Kritsiotis says there was one “fleeting mention” in the communication to self-defence or pre-emptive self-defence, when the US spoke of the need to take steps “ ‘to defend the United States and the international community from the threat posed by Iraq ...’”.[51] The British Government (which, as will be seen, had also been working towards having an expanded notion of pre-emptive self-defence incorporated into international law) was even more circumspect in its communication to the Security Council on the outbreak of the war, not making any reference at all to a right of pre-emptive self-defence in the communication.[52]

This pulling back by the US and British Governments from the use of a legally dubious anticipatory self-defence argument to justify their war against Iraq, was undoubtedly partly due to the isolation they felt in the face of the widespread international opposition to the war coming from other states and their own peoples. Perhaps the material breach argument was a last-minute contrivance to suggest that they were acting consistently with the UN Charter. In any event, the retreat from the anticipatory self-defence doctrine, despite the imperialists’ assertion that the world faced a dire threat from Iraq’s supposed possession of weapons of mass destruction, highlights its indeterminate status in international law. Kritsiotis asserted that even if the US had invoked a pre-emptive self-defence argument in its legal justification for the invasion “there is no question that this would not have helped its legal case by edging the intervention across the wire, into the desired heartland of lawfulness ...”, because Britain had backed down on this issue.[53]

Recognising the need to provide some sort of legal justification to the world for their actions, in the contestable terrain of international law in which the meanings of legal forms are inherently indeterminate, the imperialist powers had waged an ideological struggle in the earlier lead-up period to the war to secure the anticipatory self-defence doctrine as that legal justification. The imperialists’ final retreat from the anticipatory self-defence argument at the outbreak of the war definitively represented the defeat of the argument as bringing the war against Iraq within the scope of legality.

The self-defence exception to the fundamental prohibition on the use of force in international law had set a high standard for states to meet to bring their use of force within its operation. The essence of that standard was the profound repudiation of the use of force by states that had become entrenched in international law. Bothe explained what was at stake if the accepted restrictive understanding of self-defence was broadened by the incorporation of an anticipatory self-defence doctrine. He noted that in the twentieth century there had developed an opinio juris “that war was unlawful” resulting from an underlying change in “social value judgments” in reaction to the immense human suffering caused by the First World War.[54] The 1928 General Treaty for the Renunciation of War exemplified the new international law norm. Bothe warned that a reversion to broad concepts to justify the use of military force, such as anticipatory self-defence, would be:

stepping on a slippery slope, one which would make us slide back into the nineteenth century when war was not illegal.[55]

The imperialist powers’ earlier reliance on the anticipatory self-defence doctrine in relation to Iraq was an attempt to craft a putative legal basis for their military aggression, and despite their late abandonment of it in the case of Iraq they were not done with it. Kritisotis suggested that the invasion of Iraq would be used by them as “the test-drive” for the doctrine.[56] If the anticipatory self-defence doctrine had not achieved the critical mass of international acceptance necessary to secure its incorporation in international law at the time of Iraq, the imperialist powers were determined to achieve this outcome in due course by waging an ideological campaign designed to provide the necessary subjective foundation.


[1] Bothe M, “Terrorism and the Legality of Pre-emptive Force” (2003) 14 European Journal of International Law 227 at p 228.

[2] Though this does not abrogate the role of the UN Security Council. Article 51 provides that the exercise of self-defence is unimpaired “until the Security Council has taken measures necessary to maintain international peace and security” (emphasis added). The Article also requires states taking measures in self-defence to immediately report these to the Security Council. Finally, Art 51 provides that such measures “shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” See also Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 228 – 229.

[3] Under Art 39 of the UN Charter it is up to the Security Council to determine whether the peace etc is threatened, and, on that basis, to decide what action shall be taken under Art 42 to maintain or restore international peace and security. To this end, the Security Council may also decide to authorise measures “not involving the use of armed force” (eg interrupting economic relations) under Art 41. See also Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 228 – 229.

[4] See: Charlesworth H and Maxwell C in The Australian, 24 March 2003; Bartram D and others in The Australian, 18 March 2003; Kelly P in The Australian, 12 March 2003; Harris T, “Lawyers in bid to hold Diggers back”, The Australian, 20 March 2003, p 4; Kritsiotis D, “Arguments of Mass Confusion” (2004) 15 European Journal of International Law 233 at pp 241 – 242, 252 – 254, 265 – 267; Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’”, pp 144 – 145.

[5] Carty, “The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’”, p 144; Kritsiotis, “Arguments of Mass Confusion”, pp 253, 265.

[6] Charlesworth and Maxwell, The Australian, 24 March 2003.

[7] Harris, “Lawyers in bid to hold Diggers back”; Bartram and others, The Australian, 18 March 2003.

[8] Harris, “Lawyers in bid to hold Diggers back”.

[9] And “... on the use of legal concepts and terminologies such as ‘authorization’ and ‘material breach’ and ‘ceasefire’ – and upon the notion of precedent”: Kritsiotis, “Arguments of Mass Confusion”, p 244.

[10] Kritsiotis, “Arguments of Mass Confusion”, pp 267 – 269.

[11] Kritsiotis, “Arguments of Mass Confusion”, pp 265 – 267.

[12] UN Security Council Resolution 1441 (2002) para 12.

[13] Kritsiotis, “Arguments of Mass Confusion”, p 267.

[14] Kritsiotis, “Arguments of Mass Confusion”, p 267.

[15] They also echo the arguments of other legal commentators who challenged the rationale of implicit UN Security Council authorisation, argued by the imperialist powers to justify their bombing of Kosovo and Iraq in the late 1990s.

[16] Shearer I, 2003 – The Year of International Law: The Legality of the Iraqi & US War (NSW Young Lawyers, 2003).

[17] See the report of the Security Council meeting at which Resolution 1441 was adopted (at UN document S/PV.4644): the US representative said at p 3 – “As we have said on numerous occasions to Council members, this resolution contains no ‘hidden triggers’ and no ‘automaticity’ with respect to the use of force. If there is a further Iraqi breach, reported to the Council … the matter will return to the Council for discussions as required in paragraph 12.”; and the British representative said at p 5 – “Let me be equally clear … as a co-sponsor with the United States of the text we have just adopted. There is no ‘automaticity’ in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12.”

[18] Including the other permanent members: China, France, and the Russian Federation.

[19] For example, the representative of China said: “The text no longer includes automaticity for authorizing the use of force. According to the resolution that has just been adopted, only upon receipt of a report … on Iraq’s non-compliance and failure to cooperate fully in the implementation of the resolution, will the Security Council consider the situation and take a position.” (at UN document S/PV.4644, p 13).

[20] Kelly, The Australian, 12 March 2003.

[21] See: Overington C, “Reality bites for headstrong superpower”, The Sydney Morning Herald, 17 February 2003; The Australian, 12 February 2003 and 7 March 2003; The Weekend Australian, 15 – 16 February 2003.

[22] Charlesworth and Maxwell, The Australian, 24 March 2003.

[23] See: The Weekend Australian, 8 – 9 March 2003; The Australian, 13 March 2003; The Weekend Australian, 15 – 16 March 2003. Chile was warned by the US that a pending free-trade deal with it could be delayed, and Guinea and Cameroon were threatened by the US that it might not support loans both countries needed. Aside from the issue of securing another Security Council resolution authorising war, Turkey was subjected by the US to both threats and inducements in respect of billions of dollars in aid/loans to secure its agreement to allowing US troops on its soil for the invasion of Iraq.

[24] The Sydney Morning Herald, 8 – 9 February 2003.

[25] The Australian, 18 March 2003; The Guardian Weekly, 20 – 26 March 2003. “The US has the sovereign authority to use force in assuring its own national security,” said President Bush (The Australian, 19 March 2003).

[26] This will be discussed in the next section.

[27] This is a body of international law conceptually distinct from treaty-made law, and it essentially develops through the practice of states and their perceptions of their legal obligations.

[28] Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 228 – 230.

[29] Bothe, “Terrorism and the Legality of Pre-emptive Force”, p 231. See also Harris, Cases and Materials on International Law, p 896.

[30] Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 227, 236.

[31] Quoted in Sofaer AD, “On the Necessity of Pre-emption” (2003) 14 European Journal of International Law 209 at p 211.

[32] “Every measure will be taken to defeat Saddam”, The Australian, 19 March 2003, p 4.

[33] Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 232 – 233.

[34] Kritsiotis, “Arguments of Mass Confusion”, p 255.

[35] Kritsiotis, “Arguments of Mass Confusion”, pp 255 – 256.

[36] Bothe, “Terrorism and the Legality of Pre-emptive Force”, pp 236 – 237. Also, when Israel attacked and destroyed a nearly completed nuclear reactor in Iraq in 1981 using an anticipatory self-defence justification, Israel’s action was unanimously condemned by the UN Security Council as a “clear violation” of Art 2(4) of the UN Charter: Harris, Cases and Materials on International Law, p 898.

[37] Bothe, “Terrorism and the Legality of Pre-emptive Force”, p 237.

[38] Sofaer, “On the Necessity of Pre-emption”, p 209.

[39] Such as when state A has the ability to prevent attacks, emanating from within its own territory, against state B, but fails to do so, and an attack against B from the territory of A is imminent. In such a situation, B may take pre-emptive action against A in accordance with the Caroline formula: see Sofaer, “On the Necessity of Pre-emption”, pp 219 – 220.

[40] Sofaer, “On the Necessity of Pre-emption”, p 220.

[41] Sofaer, “On the Necessity of Pre-emption”, p 220.

[42] Sofaer, “On the Necessity of Pre-emption”, pp 221 – 222.

[43] Sofaer, “On the Necessity of Pre-emption”, p 223.

[44] Sofaer, “On the Necessity of Pre-emption”, p 224.

[45] Resolution 678 (1990) authorising the use of force against Iraq for its invasion of Kuwait; Resolution 687 (1991) providing the basis for the Gulf War ceasefire, including establishing a disarmament process for Iraq.

[46] Nicaragua v United States of America, ICJ Reports (1986) 14. The background to this case was the US military and paramilitary campaign waged against Nicaragua following the 1979 Sandinista revolution in that country. Nicaragua claimed the US had used direct armed force against it in the form of laying mines in Nicaraguan waters and attacking and damaging Nicaraguan ports, oil installations and a naval base, and that the US had also assisted the contras fighting to overthrow the Sandinista Government. See: Kritsiotis, “Arguments of Mass Confusion”, p 236 and Harris, Cases and Materials on International Law, p 866.

[47] Kritsiotis, “Arguments of Mass Confusion”, pp 235 – 238: the legal justification put forward by the US for its intervention in Nicaragua was that it was exercising “ ‘its right of collective self-defence’”, while its political justification was on grounds of supporting “a particular system of ‘political and moral values’” (pp 236 – 237).

[48] Kritsiotis, “Arguments of Mass Confusion”, pp 240 – 241. See also the section of this paper entitled: “The creation of an opinio juris for anticipatory self-defence”.

[49] Kritsiotis, “Arguments of Mass Confusion”, pp 241 – 242, 252 – 254.

[50] Kritsiotis, “Arguments of Mass Confusion”, p 244.

[51] Kritsiotis, “Arguments of Mass Confusion”, p 248. Kritsiotis also spoke of “the shallowness of the reference to self-defence in the communication made to the Security Council on 20 March 2003 – offered almost by way of a casual afterthought in the closing sentences of a document otherwise given to an impressive display of legal detail ...” (pp 250 – 251).

[52] Kritsiotis, “Arguments of Mass Confusion”, p 253.

[53] Kritsiotis, “Arguments of Mass Confusion”, p 253.

[54] Bothe, “Terrorism and the Legality of Pre-emptive Force”, p 238.

[55] Bothe, “Terrorism and the Legality of Pre-emptive Force”, p 238.

[56] Kritsiotis, “Arguments of Mass Confusion”, p 246.

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