Iraq and the Law of Armed Conflict

• Author: Thomas M. Franck
• Position: Professor Emeritus at New York University School of Law
• Pages: 15-20

II

Iraq and the Law of Armed Conflict

Thomas M. Franck1

Thelaw of armed conflict is generally understood to pertain to the rules gov-

erning the conduct of war, the jus in hello. Superior, and antecedent to it,

however, is the jus ad bellum, the law pertaining to the initiation ofwar. Awar, even

when fought in accordance with the letter ofthe jus in bello, will in no way be legiti-

mate if the conflict was initiated in violation of the jus ad bellum. So, first things

first. Was the war in Iraq undertaken in compliance with the law governing re-

course to force? If, as Ibelieve, the answer to that question is "probably not," then

the war could not have been fought in accordance with the law of armed conflict

because the lawfulness of the conduct of hostilities is determined not only by the

way, but also by why, awar is fought.

The United Nations Charter, atreaty consented to by the US Senate and ratified

by the president and to which more than 190 States are parties, purports as its cen-

tral undertaking to limit the grounds upon which States may lawfully have re-

course to force. Article 2(4) stipulates that parties shall "refrain in their

international relations from the threat or use of force against the territorial integ-

rity or political independence of any state."2With this provision, the world, as it

emerged in 1945 from history's bloodiest war of aggression, sought forever to re-

pudiate the principle attributed by Thucydides to the Athenians in their conduct

towards the island-State of Melos during the Peloponnesian War that: "the strong

do what they can and the weak suffer what they must."3