– Iraq: legal challenge to Norwegian Government

Letter from Attorney-at-law Haakon Helle, Stavanger, Norway, to:

Prime Minister Kjell Magne Bondevik
Prime Minister´s Office
Postboks 80001 Dep
0030 Oslo

Telefax nr. +47 22 24 95 00

Stavanger, January 15, 2003

Norwegian participation in war

I have been commissioned to, as attorney for the Norwegian Peace Alliance, address the the Government of Norway on the serious international law situation that arises in the case of an expected military attack by USA and allies against Iraq.

The Norwegian Peace Alliance – which is a co-operation body between 18 Norwegian peace organizations – is seriously concerned that such attack seems to be drawing closer by the day.

There is no need to give a detailed account, neither of the scope of destruction and suffering that a war against Iraq will lead to, nor the danger it will imply for stability of the Mid-East and for world peace. The Norwegian Peace Alliance rests assured that the Government shares our view of this.

The Norwegian Peace Alliance is, however, worried that the Government is not sufficiently clear with regard to the international law aspects of the matter. It appears as if the Government is of the opinion that a military attack may be legally justified, even if it considers an advance clarification by the UN Security Council desirable.

Having consulted international law experts, the Norwegian Peace Alliance, is of the definite opinion that a military attack against Iraq in the situation at hand will undoubtedly be a violation of international law.

All countries involved are bound to respect the UN Charter which prohibits military action except in two well defined circumstances:

a) Military action decided by the Security Council on the strength of Art. 42. Such measures may only be decided in order maintain or restore international peace and security when measures not involving the use of armed force would be inadequate or have proved to be inadequate.

b) Acts of self defense, permitted by Art. 51 of the UN Charter if an armed attack occurs, for a limited period, until the Security Council has taken measures necessary to restore international peace and security.

The present situation is obviously not one of self defense. Under Art. 42 the mere possession of weapons of mass destruction does not in itself constitute a threat against international peace and security. The facts that would warrant the Security Council to pass a resolution under Art. 42 of the UN Charter are not present. Such a resolution would therefore undermine the prohibition against force in the UN Charter.

On the other hand there is a risk that the USA incorrectly will interpret the resolutions already passed regarding Iraq as sufficient basis for attack if certain demands are not fulfilled, or that new resolutions by the Security Council directed against Iraq, incorrectly are equated with an Art. 42 resolution.

American authorities have claimed that the planned attack against Iraq is justified as a “preemptive strike”. The UN Charter does not permit any exception from the prohibition against wars of aggression based on the idea that the attack in question is meant to preempt the main attack. The right to self defense under Art. 51 is an exception from the main rule of the Charter that military measures are only legal when they are authorized by a resolution for the SC. The rule permitting self defense cannot be given an expanded interpretation. There also is no sense in holding that under the prevailing circumstances there is any imminent danger of an armed attack by Iraq.

As prime minister you have on several occasions stated that Norway in this matter will adhere to international law. The Norwegian Peace Alliance places great emphasis on this promise, but is nevertheless of the opinion that the Government of Norway has not with sufficient clarity, distanced itself from US statements that consider a war against Iraq as legitimate even without a clear mandate in a Security Council resolution authorizing use of armed force. The result is uncertainty.

The Norwegian Peace Alliance is worried that the USA seems to be bringing considerable pressure to bear on its NATO allies to have them participate in the war, irrespective of UN approval, whether this will be in the form of participating armed forces, non-combattant units or other forms of assistance.

From the above observations follows that it will be unlawful for Norway to take part in, or in any way assist or contribute to an attack against Iraq.

If an unlawful attack occurs, it will give Iraq and countries aligned with Iraq, just cause for self defense, which may consist in acts of war directed against any country that takes part in or contributes to the attack. Norway´s participation in aggressive war against Iraq may therefore also have adverse consequences for civilian life and property in Norway.

Under such circumstances, armed attacks against Norway may become justified acts of war on the part of Iraq or her allies.

The Norwegian Peace Alliance calls upon the Government to state clearly that Norway will refrain from any complicity in a military attack against Iraq which is not based on an order from the UN Security Council under Art. 42. The Government must use all opportunities to influence our allies to refrain from such an attack and to act in accordance with international law.

We in The Norwegian Peace Alliance will do our utmost to avoid that our country shall be drawn into an aggressive war in violation of international law. The Alliance will carefully scrutinize acts and statements from the Government. If the Government should in any way
act or express itself in a way that violates international law, the Norwegian Peace Alliance will initiate proceedings before the Norwegian courts against Norway, represented by the Prime Minister.

In such a case the Norwegian Peace Alliance would seek a judicial order that Norwegian participation in a military attack against Iraq is unlawful. Awaiting the full and final decision of the courts, we will also seek an injunction barring the Government from taking steps that prepare or constitute acts of war or assistance to such.

In a state where law rules, the authorities are obliged to act within the law. The assumption is that Norwegian law conforms with international law. The obligation of Norwegian courts to enforce the law is just as valid for the Government as for citizens. The Norwegian Peace Alliance expects legal remedies to effectively protect against unlawful acts by Norwegian authorities that may jeopardize international peace and security.

Sincerely,

Håkon Helle
attorney-at-law

(Translation from Norwegian by Fredrik S. Heffermehl.
President of the Norwegian Peace Alliance – office@nowar.no)