Legality of The Iraq War - Principal Legal Rationales - War of Aggression

War of Aggression

The International Military Tribunal at Nuremberg held following World War II that the waging of a war of aggression is:

"essentially an evil thing...to initiate a war of aggression...is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole."

Benjamin B. Ferencz was one of the chief prosecutors for the United States at the military trials of German officials following World War II, and a former law professor. In an interview given on August 25, 2006, Ferencz stated that not only Saddam Hussein should be tried, but also George W. Bush because the Iraq War had been begun by the U.S. without permission by the UN Security Council. Benjamin B. Ferencz wrote the foreword for Michael Haas's book, George W. Bush, War Criminal?: The Bush Administration's Liability for 269 War Crimes. Ferencz elaborated as follows: "a prima facie case can be made that the United States is guilty of the supreme crime against humanity, that being an illegal war of aggression against a sovereign nation." "The United Nations charter has a provision which was agreed to by the United States, formulated by the United States, in fact, after World War II. It says that from now on, no nation can use armed force without the permission of the U.N. Security Council. They can use force in connection with self-defense, but a country can't use force in anticipation of self-defense. Regarding Iraq, the last Security Council resolution essentially said, 'Look, send the weapons inspectors out to Iraq, have them come back and tell us what they've found -- then we'll figure out what we're going to do. The U.S. was impatient, and decided to invade Iraq -- which was all pre-arranged of course. So, the United States went to war, in violation of the charter."

Professor Ferencz quoted the British deputy legal adviser to the Foreign Ministry who resigned suddenly before the Iraq war started, stating in her resignation letter:

"I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution. n unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances that are so detrimental to the international order and the rule of law."

The invasion of Iraq was neither in self-defense against armed attack nor sanctioned by UN Security Council resolution authorizing the use of force by member states and thus constituted the crime of war of aggression, according to the International Commission of Jurists (ICJ) in Geneva. A "war waged without a clear mandate from the United Nations Security Council would constitute a flagrant violation of the prohibition of the use of force.” We note with “deep dismay that a small number of states are poised to launch an outright illegal invasion of Iraq, which amounts to a war of aggression.”

Then Iraq Ambassador to the United Nations Mohammed Aldouri shared the view that the invasion was a violation of international law and constituted a war of aggression, as did a number of American legal experts, including Marjorie Cohn, Professor at Thomas Jefferson School of Law and president of the National Lawyers Guild and former Attorney-General of the United States Ramsey Clark.