Howard Is Acting Illegally, Our Troops Are Not Simon Crean - Leader of the Opposition

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Media Statement - 20 March 2003

Legal advice received by the ALP shows John Howard's decision to go to war is not in accordance with international law – but this decision does not expose Australian troops to legal action, either at home or abroad.

The legal advice has been received by the Federal Parliamentary Labor Party from Mr Grant Niemann, Ms Devika Hovell and Professor George Williams.

Mr Grant Niemann is presently a Lecturer in Law at Flinders University, specialising in International Criminal Law, and a Barrister and Solicitor. He was previously First Senior Trial Attorney of the International Criminal Tribunal for the former Yugoslavia, and responsible for the prosecution of numerous cases before the Tribunal including Tadic. Prior to this appointment, he was Commonwealth Deputy Director of Public Prosecutions and a prosecuting Counsel in the 1989 Australian war crimes cases of Polyukhovic and Wagner.

Ms Devika Hovell is Director of the International Law Project at the University of New South Wales and has recently returned from working at the International Court of Justice.

George Williams is the Sir Anthony Mason Professor at the Centre for Public Law at the University of New South Wales and practises as a Barrister.

Their advice concludes that Australia's involvement in military action against Iraq, without specific authorisation by the UN Security Council, is contrary to the charter of the United Nations, and international law.

This advice is consistent with the weight of domestic and international legal opinion.

Importantly, the advice makes it clear that the unlawful actions of the Howard Government will not in any way leave Australians serving men and women at risk of any legal action.

Mr Niemann has advised, "I am firmly of the view that the taking of such military action by Australia against Iraq would not render Australian military service personnel liable to international criminal sanction".

The advice concludes that contrary to John Howard's position, Resolution 1441 does not authorise the use of military force.

The advice finds Resolution 1441 gave Iraq a final opportunity to comply with its disarmament obligations and failing this, the Security Council, and not individual nation states, was to decide what needed to be done in order to achieve compliance.

The advice notes that members of the Security Council relied on specific reassurances provided by the United States and the United Kingdom, in the course of extensive negotiations, that Resolution 1441 would not provide an automatic trigger for war without a further decision of the Security Council.

Further, the advice argues that it is fallacious to rely on resolutions of the Security Council going back some 12 years, to the 1990-91 Iraq-Kuwait conflict. In short, it states: "There is nothing in resolution 678 which would justify the conclusion that when the Security Council made resolution 678 that it had in mind authorising military action some 12 years later in respect to an entirely different issue."

The advice clearly challenges the view that individual nations are free to go off and decide when, where and why they will use military force just because the Security Council has at one time in the past authorised specific military action in relation to a specific conflict under specific circumstances.

The advice also points to the fact that in so far as the Government has relied on both resolution 678 and 687 of the Security Council, their advice has failed to recognise the significance of the Security Council resolving to "remain seized of the matter", which expression specifically informs nations such as Australia not to take matters into their own hands.

The advice notes that by Article 25 of the UN Charter all nation states have agreed "to accept and carry out decisions of the Security Council" and by taking military action against Iraq in the present circumstances, Australia has neither "accepted" nor "agreed to carry out the decisions of the Security Council" and by this act stands in breach of international law.

Attached: Legal advice from Niemann and Hovell-Williams on Iraq war (pdf format, size - 3.03MB)