Unilateral action in Iraq ’would violate international law’

By Cynthia Banham, Sydney Morning Herald, 29 January 2003

Australia would unquestionably be breaching international law if it followed the United States into a war in Iraq without United Nations backing, and could be sued in the International Court of Justice (ICJ), a leading constitutional expert has warned.

Professor George Williams, of the University of NSW, said yesterday it was very concerning that there had been so little debate on the legality of Australia’s potential involvement in Iraq without the sanction of the UN Security Council.

He said the position under international law was clear.

If you ask is Australia justified as a matter of law in joining unilateral action in Iraq, the answer is clearly and unequivocally no.

It’s no because there has not been a Security Council resolution that could justify such a conflict, and clearly self-defence of Australia is not at stake.

Unlike the US, which has never submitted itself to the jurisdiction of the ICJ, Australia could potentially be sued by Iraq or some other country that’s been affected, he said.

And that could be a messy, long-running battle. . .

However, such a scenario was unlikely because of the difficulties in bringing a case to the ICJ and the possibility that Iraq might not, after any US-led war, want to take such a matter to the world court.

Professor Williams also warned that in engaging in unilateral action in Iraq, Australia would be participating in an erosion of the values the United Nations stands for, with its basic mandate to end war.

We run the risk of damaging our reputation as an international good citizen that upholds the rules of international law.

Professor Williams also told the National Press Club that, in introducing its ASIO legislation, the Howard Government had exceeded the mistakes made by Robert Menzies in the 1950s when he tried to outlaw the Communist Party.

Those laws would allow innocent Australians, not accused of any crime, to be detained for up to seven days without access to lawyers for the first two days. In their original form those laws went beyond the detention of terrorist suspects at Guantanamo Bay in Cuba. The legislation was set aside after Labor refused to support it.