Appeal for an Advisory Opinion of the International Court of Justice
IALANA 
The International Association of Lawyers Against Nuclear Arms (IALANA) is appealing to the governments of the UN Members States to ask for decision of the UN General Assembly for an Advisory Opinion of the International Court of Justice (ICJ) on the legality of the use of military force against Iraq.
According to Art. 96 of the UN Charter, the General Assembly can ask for such an Advisory Opinion. IALANA hopes that an advisory decision of the ICJ will describe the use of military force against Iraq as illegal and will thereby increase the pressure to stop the war.
Advisory Opinion of the International Court of Justice
Expected Result of the Advisory Opinion
Of course, it is not for IALANA to anticipate the decision the judges of the ICJ may make, but the illegality of this action seems patently clear for a number of cogent reasons which cannot be brushed aside, not the least of which is the contravention of the basic prohibition against war contained in the UN Charter. It is only in the very limited exceptional case provided in the Charter dealing with self-defence under actual attack and always subject to control of the Security Council that force is permitted. It is also absolutely clear that authority to use force must be explicitly granted by the Security Council, that the Security Council and not individual states would be the master of interpretation of its resolutions, that the clear understanding of parties at the time of Resolution 1441 was that another resolution would be required to authorize military action, and that war cannot be unleashed upon a member state on the basis of speculation and questionable interpretations of uncertain language. This is especially so when it concerns the interpretation of a thirteen year old resolution after which numerous other resolutions have been passed from time to time to deal with particular situations as and when they arise. That resolution, S/RES/678 (1990), the only resolution which authorised the use of force, cannot suddenly be reactivated at this point of time on the basis of interpretations by individual members of the Security Council.
It is our expectation that this reasoning would commend itself to experienced judges of international law.
Whatever rules of interpretation are used, it seems that there is only one possible conclusion, if those rules are reasonably applied. When the awesome question of war and peace depends on an interpretation, it is manifest that this conclusion needs absolute unambiguity of language and is not a conclusion that should leave open the possibility of any reasonable doubt. If there is any possibility of a doubt, that doubt must necessarily be resolved against the interpretation that results in war. A deliberately vague phrase such as "serious consequences" cannot be interpreted to cover resort to war without specific endorsement of this position by the Security Council.
Importance of International Law
International law has evolved over the centuries as a means of curbing the raw forces of realpolitik. It starts off as an ideal, but this ideal gradually translates itself into a rule of law through common acceptance by the community of civilised nations. It then develops a force and validity of its own, and one of the sanctions attached to it is that no nation that values its prestige and authority in the community of nations likes to be seen as a 'law-breaker'. There is an instinctive compliance with it which becomes the norm and will eventually prevail. To treat international law as if it did not exist or as if it was impotent merely because it lacks an enforcement arm is to turn the clock back by centuries.
Even though the ICJ has no enforcement arm yet, its judgments and decrees are respected and complied with in the vast majority of cases. To give one example, in the case of Libya v Chad, decided a few years ago, Libya moved an entire army from disputed territory, purely on the basis of the decision of the ICJ, which did not have one solider to enforce its decree.
That is the level of compliance that international law commands and would command in the community of Nations. Libya respected international law and obeyed this order. Should not the United States and Great Britain comply in the same fashion with international law?
The days when force was the accepted means of settling disputes and when philosophers of war like Clausewitz considered war to be a natural extension of diplomacy, were left behind with the UN Charter, a document achieved after centuries of effort and the sacrifice of millions of lives in two World Wars. That was a watershed in the story of humanity's struggle towards the international rule of law and the whole purpose of that Charter was "To save succeeding generations from the scourge of war which twice in one life time has brought untold sorrow to mankind". The present action is in direct contravention of those central aims and of the spirit of the Charter and could well open the door to a Third World War, for the ramifications of hostilities once commenced are totally unpredictable.
The distinction between law and politics achieved with so much cost and effort is a real value which we must all struggle to preserve.
Chances of Getting a Majority Vote in the General Assembly
The nearly 200 members of the General Assembly need to give their minds to this question and to have a vote upon it. This necessarily takes some time, but as far as our information goes, such delibarations are progressing. While the Security Council is the custodian under the UN Charter of matters dealing with threats to security, the General Assembly is not without power in this regard. The "Uniting for Peace" Resolution passed by the General Assembly under US persuasion at the time of the Korean war, showed that the General Assembly has residuary authority in relation to matters of security and especially so when the Security Council is in deadlock or unable to act. This is eminently an occasion for the General Assembly to assert its authority in a matter concerning the peace and security of the entire world.
However, an advisory opinion may not be sought from the ICJ by a single country. The Statute of the ICJ gives certain bodies the authority to request such an opinion. Among them are the General Assembly, the Security Council, and the World Health Organisation. Individual countries do not have this right.
Time Span for an Advisory Opinion of the ICJ
ICJ procedure can be extremely expeditious when required. The ICJ was once able to turn around a request within 48 hours in a case concerning the execution of a foreign national in the United States. That was of course a much simpler matter than the present situation. But the ICJ could certainly act very expeditiously when required particularly in urgent circumstances such as the present. It is of course necessary that there should be a public court hearing for such a matter. Countries concerned would certainly have an opportunity to state their position. The Court has no procedures to compel state leaders to appear before it.
Consequences of an Advisory Opinion by the ICJ
Once a decision concerning the legality or illegality of an action is determined by the Court, major consequences follow from it, including the legality and validity of all actions pursuant on the original action. If the original action is pronounced illegal so would all the other actions based on it or on authority deriving from it.
The danger in the present case is that the disregard of international law is by the world's pre-eminent superpower and another powerful country. Still, these are only two members of the world community and their disregard of law cannot form the basis of a practice that would be considered as a precedent in the future, particularly because the actions in question are so diametrically at variance with the basic rules of international law and even violate what may be considered as ius cogens (a bedrock principle of international law), which even national parliaments and congresses cannot override. We are at a turning point because there has never before been such a groundswell of international opinion asserting the importance of international law against the will of powerful nations who seek to override and disregard its principles. This may well be the counterpart in international affairs of similar manifestations of groundswell opinions in domestic situations where governments attempting to override democratic principles and the rule of law have been restrained by the collective force of public opinion (sometimes described as 'people power'). International public opinion as well as the collective opinion of the majority of nation states is rallying as never before and countries seeking to ignore this will sooner or later realise that the damage to their own image and authority may well be irreparable. It may well be that we are at a turning point in international law, where international law compels the powerful to retrace their steps.
It is important to take such a positive view rather than the negative view that the powerful can override the law with impunity.
How You Can Support the Appeal
We are asking all organizations which support our appeal to approach the governments in their respective countries and lobby for such a decision. Supporting activities can include the following:
Write letters to the respective foreign ministries and other government entities, asking them to support the appeal in the UN General Assembly, and encourage members of your organization to act likewise;
Approach influential politicians well known to your organizations and make them aware of the appeal;
Publishe the appeal in magazines or websites of your organization;
Write letters to the editor of newspapers in your country that support the appeal.
IALANA Draft Resolution for the UN General Assembly
The General Assembly,
Noting that Article 96, paragraph 1 of the Charter of the United Nations empowers the General Assembly to request the International Court of Justice to give an advisory opinion on any legal subject,
Recalling that in his report entitled "Agenda for Peace" the Secretary-General recommended that United Nations organs competent to seek advisory opinions should turn to the Court more frequently for such opinions,
Observing that certain States members of the United Nations are propounding a novel theory of pre-emptive war which may legally be waged against countries which have neither used nor are threatening to use force against the territorial integrity or political independence of another State,
Noting that certain States members of the United Nations are using force against another member State absent a decision by the Security Council that the measures not involving the use of force previously authorized by the Security Council would be inadequate or have proved inadequate to maintain or restore international peace and security,
Decides, pursuant to Article 96, paragraph 1, of the Charter of the United Nations, to request the International Court of Justice to render, on an extremely urgent basis, its advisory opinion on the following question:
Are individual member States of the United Nations legally entitled to use force against another member State, basing their claim to legality on the fear that such State may, at some undetermined time in the future, use, directly or indirectly, weapons of mass destruction against another State, or on their own determination, unsupported by the Security Council, that measures previously authorized by the Council against the State in question would be inadequate or have proved to be inadequate to maintain or restore international peace and security?
