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- In an article published by the
Sydney Morning Herald, the group of leading barristers and academic
lawyers argued that coalition members including Australia had not yet
presented any persuasive arguments that an invasion of Iraq could be
justified at international law. But the group says Iraq would now
be justified in launching a pre-emptive attack against the United States
and its coalition partners because it is Iraq that is now facing a
direct threat. The group, which includes a former High Court
judge, senior counsel and international law professors from Australia's
top universities says international law recognises two bases for the use
of force. The first, enshrined in Article 51
of the United Nations Charter, allows force to be used in self-defence
only if the attack was actual or imminent. "The second basis is when the
UN Security Council authorises the use of force as a collective response
to the use or threat of force." But the group says the Security
Council is bound by the terms of the UN Charter and can authorise the
use of force under charter seven only if there is evidence of an actual
threat which could not be averted by other means such as negotiation and
further weapons inspection. "Ironically, the same
principle would justify Iraq now launching pre-emptive attacks on
members of the coalition because it could validly argue that it feared
attack." Publication of the article follows
Prime Minister John Howard's strong support Tuesday for the US-British
draft resolution that could provide a trigger for war on Iraq within two
weeks. Australia and Britain are the only two countries to have
committed forces to a possible war against Iraq, although Howard
maintains no decision has yet been made to commit Australian troops to
fighting. The group said even if the use of
force against Iraq could be justified, the Geneva Convention
significantly limits the means and method. These include prohibitions on
targeting civilian populations or civilian infrastructure and causing
extensive destruction of property not justified by military objectives. Intentionally launching an attack
knowing it would cause "incidental" civilian casualties and
which would be clearly excessive in relation to the expected military
outcome "constitutes a war crime." "The military objective of
disarming Iraq could not justify widespread harm to the Iraqi
population, over half of whom are under the age of 15." The group said the creation of the
International Criminal Court last year had provided a stronger system of
scrutiny and adjudication of violations of humanitarian law. The court now has jurisdiction over
war crimes and attributes criminal responsibility to individuals
responsible for planning military action that violates international
humanitarian law and those who carry it out. "It specifically
extends criminal law to heads of state, leaders of government,
parliamentarians, government officials and military personnel," the
group said. "Respect for international law
must be the first concern of the Australian government if it seeks to
punish the Iraqi government for not respecting international law."
Opinions expressed in various sections are the sole responsibility of their authors and they may not represent Al-Jazeerah's.
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