The Charter of the United Nations makes it quite clear that under Article 51 the right of a state to use force is limited to situations where it is itself the victim of an armed attack, or where another member of the United Nations is the victim of an armed attack and it has been asked by that victim state to assist it in the exercise of its self-defence. That's the essence of the text of Article 51 and when coupled with Article 2(4) of the Charter, which prohibits states from using force unilaterally, it states the parameters as conceived in 1945.

There are two other things that are relevant to what would be otherwise a totally clear situation. One of them is that it was decided at the same time that the Charter was adopted, that its interpretation while it could occasionally be the subject of a decision by the international court when requested by the UN to render an advisory opinion, that normally the Charter would be interpreted by the principal organs of the UN system, each interpreting its own part of the Charter and that that would become the definitive interpretation of the text.

And the other thing to keep in mind was that there was some concern voiced by a number of countries, particularly Belgium and France and some of the smaller countries in Latin America, that the prohibition on the use of force - Czechoslovakia was another country with a strong concern - that the prohibition on the use of force might prove to be too strong and that therefore too much of the justice value was being sacrificed for the peace value because there were likely to be situations in which the purchase of peace at the price of justice would be intolerable as it had been for the Czechs for example at Munich.

So the subject was not uncanvassed at that time but the decision was to try to make the text as clear as possible and let experience modify the text through practice.

So the norms on the use of force have to be read in the light of the interpretive structure established by those who drafted them, and the interpretive structure allows for some degree of flexibility in accordance with what in 1945 were unanticipatable future events, and from there you have to go to see what actually has happened in the way of interpretation of Article 51 to see the extent to which that flexibility has been developed in practice.

And as it has evolved, that practice has allowed for some leeway where there is very clear evidence that an armed attack, having not yet occurred is nevertheless imminent and would be overwhelming, and would make the awaiting of the armed attack disastrous for the attacked country.

That's a very narrowly construed definition of the concept of anticipatory self-defence and I think that the experience of the UN has pretty much validated an interpretation of Article 51 that includes a right of anticipatory self-defence but very narrowly defined. Without going all the way back to the Caroline case there's quite a bit of international law on anticipatory self-defence. It isn't just some sort of rubbery soft law concept and in practice the principal organs have tended to go along with that.

For instance, the way the Security Council responded to the Israeli strike against Egypt in 1967 was not to say that Israel was guilty of aggression, because it was quite clear that Egypt was about to attack Israel. The pretty clear implication was that the role of the United Nations would be to stop the fighting without attributing blame to either side and to position forces between the adversaries but on terms quite disadvantageous to Egypt. That is, on Egyptian territory, not on Israeli territory.

And then there's a pretty steady line of cases: for example, the UN didn't censure Tanzania in any way when Tanzania invaded Uganda. It didn't censure NATO when NATO attacked Yugoslavia. It didn't censure, rather it approved ECOWAS, when ECOWAS used force in the Liberia and in the Sierra Leone civil wars. All those are cases that don't fit neatly into a literal interpretation of Article 51. There are quite a few others - the French invasion of Central African Empire and so on. There's been a fair amount of picking and choosing. They don't all fit into the category of anticipatory self-defence – some fit into humanitarian categories – so there are situations where either a nation's citizens have been under egregious threat abroad, as in the case of the Jews and Israelis at Entebbe. Then there are cases where there are massive threats to human rights and humanitarian law: the civil wars in Liberia and in Sierra Leone, and I suppose Kosovo might be another example of that.

One way to look at the justification for any action against Iraq would be to say, would the Security Council today condemn Israel for bombing the Osirak nuclear power plant in Iraq, as they did in 1981? The issue isn't quite as straightforward as it looks on the surface because Iraq is still technically at war with Israel. I mean they've never ended their state of war with Israel so it isn't strictly speaking a situation of a first strike by Israel in a situation of mutual peace. But leaving that aside, I think that if Israel today were able to produce clear evidence that this particular plant was a place where nuclear weapons were being produced, the criticism today of Israel would not get a majority in the Security Council. An awful lot of people during the 1990/1 war said, "Thank god the Israelis bombed that plant," and I think that at that point there was a probably lot of re-thinking about the decision to flat-out condemn Israel. But then Israel didn't produce particularly good evidence either to support its reasons for bombing the plant.

Also of course you have to keep in mind that Israel is itself a nuclear power, so you know if Israel has the right to have nuclear power, is it reasonable to allow it to use force to stop another country from developing nuclear power?

What we're talking about here, since the rule seems fairly clearly to prohibit anything except response to an actual armed attack, is a degree of softening of the rule in response to a series of developments, none of which could have been anticipated in 1945, and where these organs are performing a sort of jurying function in trying to apply the law in a reasonable fashion without completely dismantling the law. In other words, there's a danger of reductio ad absurdum of the law at both ends of the spectrum.

That is, if for example you insisted that a small country wait for a neighbour to attack it with nuclear weapons before responding, and say that that's what the law requires, everybody would just say well the law is an ass. On the other hand if you have a law which says that any time a country feels that it's threatened, it's free to attack any country from which it feels the threat is emanating, then you don't have a law at all and the law is an ass again. So the object is trying to manoeuvre somewhere in between.

What I try to do in fact in my forthcoming book is to draw analogies from the experience of those cases which are fairly common to the criminal law of most countries in which you have, for instance, a domestic law prohibition on murder. But then you have these extraordinary situations which the law may not have contemplated where, you know, people are thirty days out in a lifeboat and eventually they end up eating the cabin boy, to take the British case. And the court then has to decide what to do about that. If you say well any time people in a lifeboat feel hungry, they can go ahead and execute one of the people in the boat and eat them, then you don't have a law at all. If on the other hand you say that the law absolutely requires that all thirty of you die, rather than do what you did, the public will say the law is an ass.

So the law has to try to find very narrow exceptions to itself that can be applied in a sensible way on the basis of rigorously demonstrated evidence that meets a reasonable test, and getting to that point is not easy.

What does that mean for the possibility of any US action now against Iraq? It would seem to me very important that there be made accessible, first to the Security Council and then to NATO and finally to all governments, all the evidence that is available demonstrating that Iraq has or is about to directly support the use of force by terrorist organisations against a member of the United Nations or several members of the United Nations. If that showing can be made, then it ought to be possible to get the support of the Security Council or, failing that, at least of a large grouping of states (NATO being the most obvious one) to attest to the fact that they've looked at this evidence and that the evidence makes it clear that an attack against Iraq is absolutely essential.

Also, the attack planned must be agreed to be the minimal response and must be taken with due regard for collateral damage and loss of human life, and be of the shortest possible duration and not involve any change in territorial sovereignty for Iraq. If such evidence either does not exist or cannot for one reason or another be made public, and it is not possible to get preferably the Security Council or if failing that at least NATO to consider the evidence and certify as NATO did after September 11th that the evidence was valid - if you can't get at least that much, you probably shouldn't do it, because everybody is going to assume that you're acting for other motives.

Other countries would be likely then to see it as a danger to themselves, because if the rules are bent to the extent that any country with the might to enforce its will on other countries is pretty much free to do it, then others - whether Bangladesh, China, Pakistan, Canada or whoever - are going to feel very uneasy about the destruction of a rule which they consider to be important to their own national security.

Of course the law on self-defence has to be interpreted reasonably, and the law in fact has been interpreted reasonably in these cases that we've been referring to, but that's not the same as saying the law can be interpreted unilaterally by a party at interest. It’s much more important to see a process at work here than to see a rule. The rule of course is important but the rule is going to have to be interpreted flexibly – and the key question is not, what are the terms of the rule now that it's being interpreted flexibly? The really important question is, what is the process by which the rule is interpreted? And if the process is an entirely unilateral one, in which the strong do as they will and the weak have to accept it, then we're right back to the Peloponnesian wars and I think most countries would resist that and therefore if the United States were to move in that Peloponnesian kind of fashion, it seems to me highly likely that everybody else will line up in opposition. And quite aside from the interests of lawyers in the matter, the United States couldn't win a war in Iraq except with a very high body count if it has no support at all from the rest of the world.

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