The illegality under the UN Charter and UN resolutions Elias Davidsson The United States is openly preparing unilateral military measures against the Republic of Iraq. The US government claims that it is entitled to resort to such measures on the base of Security Council resolution 687 (1991). This resolution makes a series of drastic unconditional demands from Iraq regarding the borders of Kuwait, disarmament, etc. The US government maintains that Iraq did not totally fulfill these demands and that accordingly, no alternative exists to the use of military force against Iraq in order to force compliance. However, Resolution 687 (1991) does not include any provisions permitting the use of force in order to enforce the terms of the resolution. Only the Security Council can, on the base of its own formal finding, determine that Iraq's refusal to fulfill in their entirety the terms of the resolution constitutes by itself a threat to the peace requiring the use of military force. Such determination was not done nor is there any likelihood in the present that the Security Council will make such a determination in view of the opposition of three permanent members of the council to the use of force against Iraq (Russia, China, France) and most probably other council members. For the Council to determine Iraqi lukewarm cooperation with the Council with regards to the elimination of banned weapons as a threat to the peace would create a precedent which most Council members would not be willing to create. The threat by the United States to resort to force against the Republic of Iraq without the explicit authorization of the Security Council constitutes therefore a threat to the peace, that is a breach of Article 2(4) of the Charter. If the United States will attack Iraq, without explicit S.C. endorsement, it will commit the "aggression", a crime under international law. Under normal circumstances, it is the prerogative of the Security Council to determine, in accordance with Article 39 of the Charter, the "existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 (sanctions) and 42 (military action), to maintain or restore international peace and security." In this case the Security Council could not make such a determination as the United States is a veto-wielding permanent member of the Council and would block any such resolution. In such a case the General Assembly of the United Nations can under a United for Peace resolution, decide upon measures against the offending member, in this case the United States, including its expulsion from the United Nations (under Article 6 of the Charter), as a member which has "persistently violated the Principles" of the Charter [A list of US violations of the Charter can be obtained from me upon request]. The illegality under the Draft Code of Crimes and the Peace and Security of Mankind (International Law Commission established under General Assembly resolution 174 (II) of 21 November 1947). In its 1988 annual report, the International Law Commission (ILC) considers the definition of a set of international crimes including 'aggression' and the 'threat of aggression'. The following definition of these crimes was provided by the Commission under the heading: Crimes against Peace. Article 12: Aggression "1. Any individual to whom responsibility for acts constituting aggression is attributed under this Code shall be liable to be tried and punished for a crime against peace. 2. Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. (...) 4. Any of the following acts, regardless of a declaration of war, constitutes an act of aggression, due regard being paid to paragraphs 2 and 3 of this article: (a) the invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) the blockade of the ports or coasts of a State by their armed forces of another State; (d) an attack by the armed forces of a State on the land, sea or air forces or marine and air fleets of another State; (...) (f) the action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (...) (h) any other acts determined by the Security Council as constituting acts of aggression under the provisions of the Charter. (...) 6. Nothing in this article shall be interpreted as in any way enlarging or diminishing the score of the Charter of the United Nations, including its provisions concerning cases in which the use of force is lawful. 7. Nothing in this article could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist régimes or other forms of alien domination; nor the right of these peoples to struggle to that end and to seek and receive support, in accordance with the principles of the Charter and in conformity with the above-mentioned Declaration." Threat of aggression "In draft article 11, paragraph 2, the Special Rapporteur [of the ILC] included a separate provision on the threat of aggression as a crime against peace. Some members of the Commission expressed doubts about the threat of aggression as a crime against the peace. They asked how individuals could be punished for having committed a threat of aggression and what would happen if the threat was not carried out. In their view, a threat which was not followed by some specific action should not be regarded as a criminal act. Many members nevertheless stated that they were in favour of including the threat of aggression as a separate crime. It was pointed out in that regard that the threat of aggression, which had been covered by the 1954 draft code (art. 2, para. (2)), was referred to in Article 2, paragr. 4, of the Charter of the United Nations, on the prohibition of the use of force, and that the General Assembly, in the Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations [G.A. resolution 42/22 of 18 November 1987], referred to it seven times as an act constituting a violation of international law and of the Charter and entailing State responsibility. As to its concrete manifestations, the threat of aggression could take the form of intimidation, troop concentrations, or military maneuvers near another State's borders, or mobilization for the purpose of exerting pressure on a State to make it yield to demands. In some circumstances, the result of the threat of aggression was the same as that of aggression. Its inclusion as a separate crime against peace in the draft code was thus fully justified and would, at the same time, help to deter would-be aggressors from preparing aggression. As to the wording of the provision on the threat of aggression, some members indicated that it was important not to allow any confusion between an actual threat of aggression and mere verbal excesses. There was also the delicate problem of proof, as in the case of preparation of aggression. It was essential to avoid a loosely drafted definition that would enable a State to use the pretext of an alleged threat in order to justify aggression. In that connection, one member pointed out that useful guidance could be derived from the judgment of the ICJ in the Nicaragua case [Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, ICJ Reports 1986, p.14], in which the Court had dwelt on the distinction between aggression and the threat of aggression and between the latter and intervention." Preparation of aggression "The Special Rapporteur [ of the International Law Commission] did not include in the 1988 draft article 11a a provision on the preparation or planning of aggression. In his sixth report (A/CN.4/411,para 7), he pointed out that the preparation of aggression had been covered by the Charter of the Nurnberg International Military Tribunal (art. 6(a)) and the Charter of the International Military Tribunal for the Far East (Tokyo Tribunal) (art 5(a)), as well as by the Commission in the Nurnberg Principles (Principle VI (a) (i))). He nevertheless questioned whether preparation of aggression should be retained as an offense separate from aggression, since it was very difficult to make a clear-cut distinction between preparation and aggression and preparation for defense. He also questioned how criminal intent could be established if aggression had not occurred and whether a perpetrator who had deliberately decided not to carry out his plans of preparations - which remained unexecuted - should be prosecuted. Many members of the Commission were of the opinion that preparation of aggression should be dealt with a crime distinct from aggression itself. The concept would nevertheless have to be precisely defined. The fact that the concept was elusive was not a valid argument for not including it in the code. It was pointed out that a distinction could be drawn between preparation of aggression and defensive measures on the basis of existing military, technical, legal and political criteria. It was noted that the inclusion of preparation of aggression would be of vital importance for deterrence and prevention, particularly of nuclear war. Nowadays, aggression involved far more complicated techniques than formerly, and hence more sophisticated planning, which would be carried out by the entire State apparatus.(...) " Conclusions by Elias Davidsson (Reykjavik, ICELAND): 1. The US is both planning and threatening to commit aggression against Iraq (as of 14. Febr. 1998). 2. Should aggression against Iraq be committed, US leaders would be individually liable to prosecution under the terms of the Draft Code above as well as under the terms of the Nurnberg Charter of 1945. 3. States which allow their territory to be used in furthering or facilitating US aggression are participating in the crime of aggression (Draft Code Art. 4(f). Although the Draft Code has not yet been ratified in the form of a binding International Convention, it is indicative of the current position of the international community of States on matters of international law. It represents an important legal document regarding the subject matter. I therefore urge all those who oppose the planned US aggression against Iraq and who wish to uphold the Purposes and Principles of the United Nations Charter, to avail themselves of the above information and conclusions in order to warn all those public leaders and opinion makers of the gravity of the crimes they are preparing. Public opinion makers, such as editors and journalists, should be warned that their endorsement of or incitement to aggression is a criminal offense for which they may be liable to prosecution. Further clarifications may be obtained from me. Any critical comments are welcome. The above text may be freely distributed and quoted. Elias Davidsson, email: [EMAIL PROTECTED] Elias Davidsson - Post Box 1760 - 121 Reykjavik - Iceland Tel. (354)-552-6444 Fax: (354)-552-6579 Email: [EMAIL PROTECTED] URL: http://www.nyherji.is/~edavid
