Legal Opinions

Yesterday, Janet Albrechtsen of The Australian has followed the example of some "international lawyers" and tried to claim this war is legal. Tosh, apparently, if today's letters are any guide:

WHAT a desperate search it must have been to put together the ragbag collection of signatories to make a "legal" case for the aggression against Iraq (Opinion, 18/3). Washington fee-on-brief Republicans, superannuated politicians of a certain view, eminent professors mostly not specialised in international law, apologists for Israel, associate professors from far-flung provincial universities. Scarcely an eminent international law specialist among them.

A ragbag as threadbare as its argument. Progressive and creative development of charter-based law of armed conflict is permissible and desirable but the quantum leap argued for from self-defence against actual or imminent attack to pre-emptive attack because of an inchoate and insufficiently evidenced threat in a country a hemisphere away, is taking the world order into long-term dangerous arbitrariness.

UN Resolution 1441 itself was negotiated and approved on the expressed basis that it carried no automaticity of subsequent use of force; it was supported as a political deal that a further resolution to authorise use of armed force should follow. Grasping at 12-year-old resolutions, specific to past self-defence of Kuwait, attempting to give some colour of legitimacy to the current circumstances, is really scraping the barrel.
Lawry Herron
(Former legal adviser, Foreign Affairs Dept; legal adviser, International Atomic Energy Agency, Vienna)
O'Connor ACT

THE legal case for war as expressed in these pages by a group of international lawyers is deeply flawed in a number of respects.

Contrary to the lawyers' argument, Resolution 1441 was quite clearly not drafted in such a way as to legitimise the use of force, a fact admitted to the council by the US and British ambassadors to the UN and publicly endorsed by 11 of the 13 other Security Council members.

US Ambassador to the UN, John Negroponte, told the council, at the time 1441 was passed, that "this resolution contains no hidden triggers or automaticity with respect to the use of force".

It is misleading, therefore, to claim that the resolution was "framed in terms that could be read to permit the use of force".

On November 8, the council was united in saying the resolution did not permit the use of force. This leaves us with resolutions 678 and 687. The lawyers were right to point out that 678 permitted states to use force to restore regional peace and security. Their interpretation of 687 is half-baked, however.

First, the resolution only demanded that Hussein formally accept the terms, which he did. Second, it explicitly stated that it is for the Security Council alone to decide whether Iraq was in breach and, crucially, what action should be taken if it was.

It is for the council to decide, not the US, British and Australian governments; 687 is perfectly clear on that point.

I agree with the lawyers that Security Council resolutions are carefully crafted. That is why it is important to look behind the headlines to the text of the resolution and the way that text was interpreted by the states that passed it. On November 8, the members of the council agreed that nothing in Resolution 1441 authorised force; 13 of the 15 members (including all five permanent members) stated as much in the council.

When 687 was passed, the council agreed that upon acceptance it would constitute a "definitive end to hostilities" (the words of Britain's then ambassador to the UN) and pointedly included a paragraph that insisted unambiguously that the Security Council alone had the right to decide on any measures necessary to implement 687. There is no resolution that permits the use of force to implement 687.
Dr Alex Bellamy
Political Science & International Studies,
University of Qld

A GROUP of lawyers writes that UN Security Council Resolution 1441 threatens Iraq with "serious consequences" if it fails to comply. May I humbly suggest they have misread the text.

Resolution 1441 recalls that the council has previously threatened Iraq with "serious consequences". In other words, Resolution 1441 threatens nothing new. So how does 1441 deal with non-compliance by Iraq? It is quite clear. In the event of non-compliance, "[the Security Council will] convene . . . in order to consider the situation and the need for full compliance . . . in order to secure international peace and security". It is in this context that it then recalls the previous threats of "serious consequences".

In other words, in Resolution 1441, the Security Council threatens to reconvene and declare war on Iraq. Which the council has not done. Draw your own conclusions.
Peter Ballard
South Plympton, SA

ALTHOUGH there has been much discussion on the legality of military action by the "coalition of the willing", and the extent to which it is justified by previous UN Security Council resolutions, there has been no attempt to link those resolutions and George Bush's ultimatum. The reason is clear: there is no relationship.

The resolutions require Iraq to rid itself of WMD. The ultimatum requires Iraq to rid itself of Hussein.

The US-led coalition agenda can only be identified as regime change rather than compliance with disarmament conditions. Military action in such circumstances cannot be justified under international law.

There is no correspondence between the international wrong identified in the Security Council resolutions and the remedy sought by the ultimatum.
Clifton Baker
Senior Lecturer in Law
University of Ballarat

I HAVE read a copy of the legal advice to the PM from public servants in the Attorney-General's Department and the Department of Foreign Affairs.

It does not read like any legal advice I have ever written - which clearly articulates the material on which it is based, the assumed facts upon which it has proceeded and then weighs up the legal arguments for and against, before giving a considered view.

This advice reads like one side of the argument, the argument in favour of the legality of war. The arguments against have been canvassed elsewhere, and I won't repeat them here. I find them compelling.

I ask the PM, has he obtained legal advice from any member of the independent Bar? If he hasn't, why not? If he has, why has he not released it?
Cameron Jackson
Kirribilli, NSW

Nevertheless, Murdoch's myrmidons will do what they can.