[JURIST] The Judicial Conference of the United States voted Tuesday to ask Congress to create 11 new court of appeals judgeships and 46 new district court judgeships. Read a press release [PDF] from the Administrative Conference of the US Courts and review an associated release on rising caseloads in the federal courts [PDF].

[JURIST] The Bush administration plan to invade Iraq is contrary to basic rules of the UN Charter requiring exhaustion of peaceful means of maintaining international security and permitting use of force in self-defense only in response to an actual or imminent attack, according to a statement released Tuesday by the Lawyers' Committee on Nuclear Policy (LCNP) and Western States Legal Foundation (WSLF). LCNP president Peter Weiss said, "The suggestion by Anne-Marie Slaughter in today's New York Times that the war may be 'illegal but legitimate' and that 'insisting on formal legality may be counterproductive' is shocking beyond belief, coming from the current president of the American Society of International Law."

[JURIST] The New-York based Center for Economic and Social Rights released a report Tuesday saying that war against Iraq is "unequivocally illegal under the UN Charter and international law generally."

The U.S. and U.K. now seek to justify war on the grounds that Iraq intends to acquire and use weapons of mass destruction against them at an unspecified point in the future. Yet despite advanced intelligence-gathering capabilities, neither country has presented any credible evidence that Iraq still possesses any proscribed weapons, let alone the intent and capacity to use them in an imminent attack. After conducting more than 550 inspections in almost four months, UNMOVIC teams have not uncovered evidence that Iraq maintains either stocks of such weapons or the operational capacity to deploy and deliver them against the U.S. or U.K. Even Iraq’s neighbors have rejected the argument that military intervention from outside powers is necessary under the right of collective self-defense to protect them from an imminent Iraqi threat.

Under these circumstances, war against Iraq would violate any reasonable interpretation of either the Charter’s limited provision for self-defense exception or the customary law principle of preemptive self-defense. The potential threat Iraq poses to the U.S. and U.K. is not imminent, unavoidable, or even particularly credible. Launching a massive invasion to overthrow its government and occupy its
territory in response to a dubious hypothetical future threat is neither a necessary nor proportionate response. In essence, the U.S. and U.K. argument for preemptive strike closely resembles the longdiscredited doctrine of preventive war, definitively abolished after World War II.

[JURIST] UN chief weapons inspector Dr. Hans Blix spoke to the media at the United Nations Tuesday afternoon. UN News Service reports:

"I don't think it is reasonable to close the door to inspections after three and a half months," Mr. Blix, Executive Chairman of the UN Monitoring, Verification and Inspection Commission (UNMOVIC), said in answer to questions during a briefing of the UN Correspondents Association in New York. He added that he did not think Security Council resolution 1441, adopted in November, foresaw such a short inspection time....

Mr. Blix, who is to discuss a work plan of remaining disarmament issues tomorrow at the Security Council, also said the inspectors had never asserted that Iraq had any remaining weapons of mass destruction, only that there were a lot of things unaccounted for. It would be interesting, he added, to see what would come out when people go in and can go anywhere and examine the sort of intelligence the inspectors never had access to.

He also said he did not think Iraq would use chemical or biological weapons in a war with a US-led coalition, although it had the know-how to produce and deliver chemical weapons. "I think it is unlikely they will do that because I think world public opinion, which they study quite a lot, is in large measure feeling that going to war is too early," he said. "So there is a fair amount of scepticism about armed action. That scepticism would turn immediately around if they used chemical weapons or biological weapons. My guess is they would not."

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[JURIST] After an eight-hour debate, British Prime Minister Tony Blair won a House of Commons vote to support military action in Iraq by a margin of 412-149, with an unfriendly amendment failing by 396-217. The amendment was supported by 139 MPs from Blair's own Labour Party [party website], making it the largest backbench revolt in Labour Party history. Watch a video of comments after the vote by Labour chairman Dr. John Reid [BBC].

[JURIST] Watch recorded video from the UN of comments Tuesday by ambassadors from Security Council members Germany and Angola looking ahead to Wednesday's Security Council session on Iraq, at which the Council will receive the latest reports on weapons inspections. Given developments Monday, the ambassadors were unsure whether all member Foreign Ministers would attend or what progress could be made, especially now that inspectors were no longer on the ground in Iraq. But the German ambassador insisted that the inspection system could be reactivated.

[JURIST] Tuesday's Los Angeles Times notes that American international law scholars are divided on whether military action against Iraq would be legal:

Many experts in international law question the legal basis for war, since the United Nations did not authorize the use of force to oust Saddam Hussein, either in 1990 or last fall. But other legal scholars say they agree with U.S. and British authorities that Hussein's failure to fully comply with the agreements that ended the 1991 Persian Gulf War justifies a new war to remove him from power....

"I think most international lawyers would say the use of force against Iraq is clearly unlawful without a second resolution," said American University law professor Robert K. Goldman. "The original resolution [in 1990] never authorized military action to remove Saddam. Bush's father [President George H.W. Bush] spoke quite clearly on that and said going to Baghdad would exceed the U.N. mandate." Tufts University law professor Michael J. Glennon agreed, saying that "this is the easiest argument to dismiss. The Security Council did not authorize the use of force against Iraq beyond removing it from Kuwait." The recent Resolution 1441 is not clear one way or the other, Glennon added. "That's the only legal leg they have to stand on," he said. "The resolution is vague, and it can be interpreted in different ways." The U.S. and British officials have stressed that the November resolution speaks of Iraq's being in "material breach" of its duties. This implies that Iraqis had a duty to come clean or face "serious consequences."

But the French, Germans and other foes of a war say the resolution set up a process for inspections and disarmament, not a trigger for military action. Had the Iraqis blocked the inspectors, "that would have given the U.S. the trigger" to undertake war without a follow-up resolution, said Duke University law professor Scott Silliman. Though chief weapons inspector Hans Blix criticized the Iraqis, he did not pronounce them in material breach of the resolution, Silliman said. "The whole key to which side you come down on on this issue is who becomes the arbiter of what is a material breach of 1441 and who has the authority to use force," said Silliman, a former Air Force attorney. It "takes us out on thin ice" to say the U.S. or Britain can decide unilaterally who is in violation of U.N. mandates, he said. But supporters of the Bush administration say the U.N. resolutions set out the demands that Iraq had to meet, and thus justify a military response for its failure to comply. "Resolution 687 [calling for Iraq to rid itself of chemical and biological weapons] gives you plenty of legal authority to go into Iraq," said Yale University law professor Ruth Wedgwood. She also said the U.S. had never taken the rigid view that it could not take military action without the approval of the Security Council. In 1999, the U.S. undertook a bombing campaign in Yugoslavia's Kosovo province with NATO, but not U.N., approval, she said.

[JURIST] Eric Muller [Is That Legal? blog] at the University of North Carolina School of Law is concerned about the temporary detention of asylum seekers [Is That Legal? post] from countries with known terrorist ties announced by Homeland Security Secretary Tom Ridge as part of Operation Liberty Shield, the domestic security plan announced Monday evening in connection with a likely war in Iraq:

Details on this plan are quite sketchy right now. I looked but found nothing on the question of how long "temporary" will be, what the conditions of detention will be, and even which countries are affected. (Right now all that is being reported is that the plan will affect asylum seekers from "Iraq and over 30 other countries.")

I reserve judgment on the plan until I can see the details, but I confess that I'm initially a bit wary. The administration has, until now, not been able to draw a persuasive connection between Iraq and terrorist attacks inside the USA by people from other Arab and/or Muslim countries. I can certainly see the sense in temporarily detaining Iraqi asylum seekers. But what, other than ethnicity-based speculation and fear, is behind the notion that, say, an Algerian or Yemeni asylum seeker might in fact be a person intent on committing pro-Iraqi acts of terrorism?

[JURIST] A United Nations spokesman said Tuesday afternoon that the last UN personnel had left Baghdad:

The spokesman said the last plane evacuating the more than 300 international staff in Iraq had already taken off from Baghdad for Larnaca, Cyprus. Secretary-General Kofi Annan yesterday ordered the withdrawal of all UN personnel, including UNMOVIC and IAEA inspectors, the UN Office of the Iraq Programme and UN agencies, programmes and funds implementing the oil-for-food programme, after receiving information from the United Kingdom and United States regarding the continued safety and security of UN personnel.

[JURIST] UK Prime Minister Tony Blair's opening statement in Tuesday's House of Commons debate on military action against Iraq is now online in recorded video from 10 Downing Street. On the legality of military intervention, the Prime Minister said: "I have never put our justification for action as regime change. We have to act within the terms set out in Resolution 1441. That is our legal base." A print transcript of the complete speech is also available.

[JURIST] A third Senate cloture vote to limit debate on the filibustered nomination of Miguel Estrada to the US DC Circuit Court of Appeals failed Tuesday by a margin of 55-45 [roll call vote], according to the Senate website.

UPDATE [7:37 PM ET]: Senate Judiciary Committee Ranking Democrat Senator Patrick Leahy commented today:

I have served in the Senate for 29 years, and until recently I have never seen such stridency on the part of an administration or such willingness on the part of a Senate majority to cast aside tradition and upset the balances embedded in our Constitution, in order to expand presidential power. What I find unprecedented are the excesses that the Republican majority and this White House are willing to indulge to override the constitutional division of power over appointments and longstanding Senate practices and history. It strikes me that some Republicans seem to think that they are writing on a blank slate and that they have been given a blank check to pack the courts.

[JURIST] Speaking Tuesday to the German people in a televised address, Chancellor Gerhardt Schroeder expressed his opposition to President Bush's policy on war against Iraq:

Does the extent of the threat that emanates from the Iraqi dictator justify the use of war, something that will bring certain death to thousands of innocent men, women and children? My answer in this case was and still is: No! Iraq is now a country subject to extensive UN monitoring. What the Security Council has demanded in the way of disarmament steps is being fulfilled more and more. As such, there is no reason to interrupt this disarmament process now.

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[JURIST] The Geneva-based International Commission of Jurists [advocacy website] said Tuesday it was "deeply dismayed" that "a small number of states are poised to launch an outright illegal invasion of Iraq, which amounts to a war of aggression.":

The United States, the United Kingdom and Spain have signalled their intent to use force in Iraq in spite of the absence of a Security Council Resolution. There is no other plausible legal basis for this attack. In the absence of such Security Council authorisation, no country may use force against another country, except in self-defence against an armed attack... A war waged without a clear mandate by the Security Council would constitute a flagrant violation of the prohibition of the use of force. Security Council Resolution 1441 does not authorise the use of force. Upon its adoption, France, Russia and China, three permanent members of the Security Council, issued a declaration indicating that the Resolution excludes such authority. The bottom line is that nine members of the Security Council, including the five permanent members, need to actively approve the use of force - such support is blatantly lacking.

[JURIST] The UN has announced that it has reached a draft agreement with the government of Cambodia under which persons can be prosecuted under Cambodian law for crimes committed during the period of Democratic Kampuchea. Speaking in Phnom Penh, UN Legal Counsel and head of the UN delegation Hans Corell said that the draft was "designed to ensure a fair and public trial by an independent and impartial court." Get more details from the UN, and background documentation from the Khmer Rouge Trials Task Force of the Royal Government of Cambodia. Mr. Corell had previously discussed his goals for negotiations in his JURIST op-ed column Justice for the Killing Fields: Re-negotiating the Khmer Rouge Genocide Court for Cambodia, published on March 11, just prior to his departure for the Cambodian negotiations.

UPDATE [9:02 PM ET]: At a press briefing at UN Headquarters Tuesday, Hans Corell said time was of the essence in setting up the Cambodian tribunal: ""The trials will focus on senior leaders and they are pretty aged, and as you know the person responsible for the government in those days is already dead.... That's why its important that the trials can be held before those who will be the focus of the trial are too old to stand." More details on the press briefing are now available from the UN.

[JURIST] A lawyer in India e-mails JURIST's Paper Chase:

Are we on the eve of a war? Is it too late for taking a chance with peace? America is not wrong. Iraq is not right. But is it something that concerns only these two countries? What can international law and lawyers do to diffuse the situation? Are we only fit to dissect and display the problems after the "battle is lost and won"?.... If there are world citizens anxious to see world peace maintained the best effort is to come from the legal community. I don't think it is an Utopian or a Quixotic idea. We believe in the establishment of the Rule of Law. [What if] the UN General assembly is summoned on an emergency basis[?].

Can international law offer escape from - or a justification of - war against Iraq? E-mail JURIST@law.pitt.edu.

[JURIST] University of Virginia law professor Kim Forde-Mazrui [faculty profile] will speak at Georgetown University Law Center's Colloquium on Constitutional Law and Theory April 14. His paper Taking the Right Seriously: A Conservative Justification for Affirmative Action and Reparations [PDF] is now available online from Georgetown.

[JURIST] US Supreme Court Justice Antonin Scalia spoke Monday at the University of Toledo School of Law [official website]. The Toledo Blade reports... The Tuesday edition of the Harvard Crimson says that with the Harvard Law School [official website] dean search underway, the time is right for the University and Law School administrations to address problems of prevailing student dissatisfaction.

[JURIST] French President Jacques Chirac issued a statement Tuesday in Paris assailing the "unilateral decision to go to war" and saying that President Bush's ultimatum to Iraq is "calling into question our idea of international relations". Chirac concludes:

Iraq does not today present an immediate threat warranting an immediate war. France appeals to everyone to act responsibly to ensure the respect of international legality. It appeals to them to maintain the Security Council's unity by staying within the framework set by UNSCR 1441. To act outside the authority of the United Nations, to prefer the use of force to compliance with the law, would incur a heavy responsibility.

[JURIST] The International Criminal Tribunal for the former Yugoslavia has issued a press release announcing that "the Milosevic trial will not sit today, Tuesday 18 March, 2003 due to the ill health of the accused".

UPDATE [12:40 PM ET]: The ICTY press office now has announced [ICTY press release] that the Milosevic trial is adjourned for tomorrow, Wednesday, as well.

[JURIST] The Australian newspaper Tuesday carries a column by 21 law professors and lawyers asserting the legality of an attack on Iraq:

Much of the present debate on Iraq is premised on the assumption...that the Security Council has not already endorsed the use of force. An opposite and plausible case can and has been made on the basis of the wording of resolutions already adopted.

Resolution 1441 was carefully and deliberately framed in terms that could be read to permit the use of force. It was adopted under Chapter VII which allows the council to adopt mandatory action to deal with threats to the peace, breaches of the peace and acts of aggression.

The resolution says that Iraq remains "in breach of its material obligations" under previous Chapter VII resolutions, has a "final opportunity to comply" and failing compliance will "face serious consequences". It explicitly recalls Resolution 678 (1990), which authorised "all necessary means" to restore peace and security in the region and Resolution 687 (1991) which established the conditions for the cease-fire after the Gulf War.

By its terms, Resolution 1441 clearly viewed the use of force against Iraq not in isolation but rather as a continuation of measures taken in the wake of Saddam Hussein's illegal invasion of Kuwait.

[JURIST] Sanford Levinson [faculty profile] of the University of Texas School of Law will be speaking on law and torture at UT Law's Faculty Colloquium series this Friday. His paper 'Precommitment' and 'Post-Commitment': The Ban on Torture in the Wake of September 11 [DOC] is now available online.

[JURIST] Devika Hovell and George Williams of Australia's University of New South Wales Faculty of Law say that the legal justification for war against Iraq proffered early Tuesday by the government of Australian Prime Minister John Howard is weak. Read their op-ed in Wednesday's Sydney Morning Herald.

[JURIST] Matthew Heppold of the University of Nottingham School of Law says that the UK Attorney General's legal defense of the use of force against Iraq - previously reported in JURIST's Paper Chase - is a "weak case".

According to Lord Goldsmith, authority to use force exists by virtue of the combined effect of security council resolutions 678, 687 and 1441. Resolution 678 (1990) was adopted by the security council in response to the Iraqi invasion and occupation of Kuwait. It authorised the US-led coalition to use "all necessary means" to liberate Kuwait and restore peace and security to the region. Hostilities in the Gulf war were then terminated by resolution 687 (1991), which imposed a long list of obligations on Iraq, including several regarding disarmament. Iraq is in breach of these obligations. Resolution 1441 (2002) found it to be in "material breach". In consequence, according to Lord Goldsmith's argument, the authorisation to use force granted to the US and the UK by resolution 678 has been reactivated.

Resolution 1441 gave Iraq a "final opportunity" to comply with its disarmament obligations and warned of "serious consequences" if it did not. It did not expressly require a new resolution before force can be used. All that is needed is an Iraqi failure to comply with 1441 and the reporting to and discussion of that failure by the security council. Had a further security council decision been required to sanction the use of force, said Lord Goldsmith, resolution 1441 would have said so specifically.

There are, however, a number of problems with Lord Goldsmith's analysis. In the first place, the general view is that security council authorisations of force are only for limited and specific purposes. In the case of resolution 678, the authorisation to use force terminated with the adoption of resolution 687. It cannot be revived in completely different circumstances some 12 years later....

In the second place, Lord Goldsmith's arguments have been used before and have been rejected. Throughout the 1990s, the US and the UK sought to justify the bombing of Iraqi military facilities by arguing that they were responding to breaches of Iraq's obligations under resolution 678. In early 1998, after Iraq's withdrawal of cooperation with the UN weapons inspectors, the US and the UK threatened to use force "to enforce the Security Council's will". The threat was lifted when the UN secretary-general, Kofi Annan, visited Baghdad and secured an agreement permitting the return of the weapons inspectors....

In the third place, resolution 1441 does not do what Lord Goldsmith says it does. It does not authorise the use of force. The term "serious consequences" is not UN code for enforcement action. Once again, the majority of members of the security council rejected automaticity. Even US Ambassador John Negroponte said that the resolution "contained no 'hidden triggers' and no 'automaticity' with the use of force".