Juan Cole, "Humanitarian Grounds for Iraq War?"

I disagree in serious respects with some of Juan Cole's judgments about the Iraq war--though our disagreements are not fundamental, since he welcomed the overthrow of Saddam Hussein & his regime, while objecting in various ways to how it was brought about, and he didn't oppose the war. However, what he has to say here about the Ba'ath regime's repeated and blatant violations of the Genocide Convention, and the responsibility of the outside world to do something about them (a responsibility which, alas, there was never any serious prospect would be met), is absolutely on target.

As I have made clear, I think that the Iraq war was definitely justified as a humanitarian intervention (as well as on other grounds). But I think it's also worth pointing out that, under the Genocide Convention, the "world community" (including the US, by the way) actually had a "legal" obligation to take serious steps a long time ago (quite aside from the question of Saddam Hussein's NBC weapons programs).

--Jeff Weintraub

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(From the website of Juan Cole, Informed Comment)
January 28, 2004

Humanitarian Grounds for Iraq War?

Re: Human Rights Watch Executive Director Ken Roth, "War in Iraq: Not a Humanitarian Intervention", 26 January 2004, Keynote essay to Human Rights Watch, "World Report 2004."

My reply, from a discussion list:

I deeply disagree with the way the Bush administration pursued the war against Iraq. The hyping of unfounded 'intelligence,' the backroom deals with corrupt or authoritarian expatriates, the spying on the UNSC ambassadors and then the discarding of them, the disregard for the United Nations Charter, the undermining of international law and the law of occupation--all of these steps and policies made our world so much more shoddy and dangerous and mistrustful.

That said, I simply must disagree with HRW and Mr. Roth that there were no humanitarian grounds for such a war. I believe that what Saddam was doing to the Marsh Arabs from the mid-1990s could legitimately qualify as a genocide. Likewise, the Anfal campaign against the Kurds. Although the latter was carried out some years ago the former had been recent and ongoing. Moreover, there is not in most legal systems any statute of limitations on murder, so I am not sure why there should be one on genocide or mass murder.

In short, I believe that the United Nations Security Council was obliged to remove Saddam Hussein from power on the basis of egregious violations of the UN Convention on Genocide

http://www.hrweb.org/legal/undocs.html#CAG.

The proper way for the Bush administration to have proceeded was to apply to the UNSC under Article 8 of the convention.

"Article 8
Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article 3."

In so saying, I do not mean to give the Bush administration a pass on its behavior, since vigilanteism is not the same as lawful prosecution. Bush lynched Saddam, when in fact his regime should have been put on trial and removed by the Security Council.

I do not believe most Iraqis would agree with HRW on this one, and they are the ones who had to live with that regime.

posted by Juan Cole at 1/28/2004 08:53:10 AM

Juan Cole on the Iraq war (restated)

Juan Cole, "Informed Comment" - January 8, 2004

Pigeonholing Cole

I've been concentrating in this Web Log in recent months on Iraq, though I continue to follow al-Qaeda, Pakistan, Iran and other big Middle East developments. I've noticed that others in Blogistan are sometimes puzzled at where exactly I stand on matters. This puzzlement derives in part, I think, from the analytical nature of my enterprise here. I am not a politician. I am not running for office. Good analysis is not black and white. In politics, you are inconsistent if you say you are anti-Bush and then you praise him for something. But in a more dispassionate kind of analysis, it would be foolish to put forward the proposition that W. has done nothing right. Actually I thought many of his initial reactions to 9/11 were well considered, including the Afghanistan War and his determination not to allow Islam per se to be demonized (something he has been criticized for by the Neocons and the Christian Right). Politically, I am probably opposed to 90% of what he has done, including further skewing the tax structure toward the super-rich, gutting political rights with the Patriot Act, etc., etc.. But unlike a politician running against him, I am willing to admit the 10%.

1) I hate Saddam Hussein, the Baath Party, and everything they did to Iraq, including invading Iran, gassing the Kurds, invading Kuwait, and putting tens of thousands of Shiites in mass graves. Because of my friendships with Iraqi Shiites, I lived through the pogroms as they happened, and they got me in the gut. I also have Iranian friends who suffered from the Iran-Iraq War. One puzzled observer said I sounded like a war blogger when I started celebrating the US defeat of the Fedayee Saddam. Probably I did. I hate them. They were the SS of Iraq. Our brave men and women who are out there risking their lives to make sure the fascists can't harm anyone else deserve our praise and support.

2) Because of 1), I declined to come out in opposition to the war. As late as February, 2003, I thought it was still possible that the UN Security Council would authorize the war, which would have made it legitimate in my view. I now think that the terms of the Genocide Convention could have been effectively evoked to justify the war at the UN.

3) When the Bush administration dumped the UNSC and acted unilaterally, it put me in a difficult position. I felt the war lacked legitimacy in international law, thenceforth. Then when Rumsfeld, Wolfowitz and Feith grossly mismanaged the aftermath of the war (I have never, ever, seen such an amateurish, ineffective and frankly screwed up effort in a major foreign policy arena), I grew increasingly disgusted.

4) I think there is a 60% chance that the whole situation in Iraq will go south, and am therefore worried about the consequences.

5) I think the US owes the Iraqis. The US overthrew the Iraqi government and disbanded the Iraqi army, and therefore is responsible for putting the country on a sound footing before just walking away.

So, my position is that getting rid of Saddam was a good thing; and that US troops deserve credit for the efforts they are making to restore security and root out Baath remnants in Iraq; but at the same time, I believe the war was illegitimate in international law and contravened the UN Charter, and that many of the actions of the US in Iraq contravene the international law of occupation. In the end, I think the war was unwise and not justified by the arguments that Bush put forward. But now that it has been fought I want to hold the administration's feet to the fire about not creating a mess and just walking away from it. (That was tried in Afghanistan by Bush senior and it gave us the Taliban and al-Qaeda).

I was struck, when I spoke at MIT, by how one speaker stood up and made the CIA the fount of all evil. Well, I don't think there is any doubt that the CIA has done some bad things from time to time, from the 1953 Iranian coup to the overthrow of Allende, to the sorts of rogue operations that the Church Commission exposed in the 1970s. But the CIA was acting as an arm of the executive for the most part, so one might as well say that the elected presidents were responsible for a lot of bad things. After September 11, I can't tell you how glad I am we have a CIA, and how much I hope the field officers and analysts get up to speed on Arabic and radical Islamism, and are able to prevent further major acts of terrorism against innocent US citizens.

I'd never get elected to anything, even if I wanted to, because I dislike the kind of "consistency" that is based on a black and white view of the world. I think ethics and reasoned analysis require us to have a complex view of the world, not a simplistic one. And, I think ethics always requires us to balance competing and contradictory values (I agree in this with Isaiah Berlin).

posted by Juan Cole at 1/8/2004 08:13:02 AM

International law & the 2003 Iraq war (contd.)

Here is a message I just sent to one of the many people with whom I have argued about the wisdom, morality, and legality of the 2003 Iraq war--before it happened (during 2002-2003) and in its aftermath.

The subject here is specifically whether or not the war was "illegal" under international law. Many people seem to believe that it was, but as I have indicated in the past, I think this claim is incorrect--or, to put it as generously as I can, that the arguments offered in support of this conclusion strike me as unconvincing. To avoid any possible misunderstanding, even at the risk of being boringly repetitive, let me emphasize a logical point that I also make in the message below: The fact that the 2003 Iraq war was "legally" justified leaves open the question of whether or not the war was a good idea on substantive moral, political, and/or prudential grounds.

--Jeff Weintraub
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Hi X,

I just ran across an item (see below) that follows up some exchanges that you and I had last year. As you know, I was and remain convinced that the "legal" justification for military action against Saddam Hussein & his regime was an open-and-shut case (which meant that the crucial questions turned on whether war was necessary and justified on moral, political, and prudential grounds--which I thought it was, but that's distinct from the "legal" question). I realize that a lot of people claim otherwise, but I have not found their arguments at all convincing, for reasons I spelled out to you at the time.

By chance, I just happened to run across a discussion that restates the core of the "legal" argument I laid out to you (also made by others at the time, including Philip Bobbitt). This person gets to the heart of the matter quite compactly, while also adding a little more detail about the precise wording of UNSC Resolution 687. I thought you might find it of interest.

Here's the heart of the matter, legalistically speaking:

All right, let's go over this again. UNSC resolution 678 (1990) authorised armed force against Iraq. UNSC resolution 687 (1991) set the terms of a cease-fire between the members of the 1991 Coalition and Iraq. UNSC resolution 1441 (2002) affirmed that Iraq was in "material breach" of its obligations under resolution 687 and gave it one last chance to comply, which Iraq failed to do. Since Iraq had violated the terms of the cease-fire, the other parties to the cease-fire were therefore justified in resuming hostilities. The weak link here is arguably 687, since the UN Security Council declared the cease-fire between the members of the Coalition and Iraq and therefore, or so the argument goes, it is up to the UNSC to authorise resumption of hostilities. But is that really the case? The sneaky bit about the wording of 687 is that the cease-fire is not between the UNSC and Iraq, but between the members of the Coalition and Iraq; the cease-fire is merely brokered by the UNSC (and its agent, the Secretary-General of the UN). Now, I believe you're going to be very hard-pressed indeed to find a legal precedent of a cease-fire agreement entered into by two parties where a resumption of hostilities by one party in response to a violation by the other first had to be approved by whoever brokered the agreement. [....]

This was, in broad terms, the argument wielded by the government of the United Kingdom (and declared valid by its Attorney-General), and also that of the United States, though in the latter case it got drowned amid a clutter of less-than-coherent utterings about "grave" and "growing" threats, "pre-emptive" action and whatnot.

The rest of his discussion touches on another theme that I had also emphasized in our previous exchanges--people who try to pretend that there was no "legal" basis for war against Saddam Hussein are not strengthening the role of international law but in fact undermining it. This applies both to opponents of the war and to ultra-realpolitik supporters of the war like Richard Perle. In this and other respects, Tony Blair's position was the most principled and generally admirable ... and it's a pity that his approach got squeezed out to such an extent between Bush/Cheney/Rumsfeld "unilateralism" on the one side and Franco-German-Russian irresponsible obstructionism on the other.

Yours in struggle,
Jeff Weintraub

P.S. The discussion below leaves out UNSC Resolution 688, which basically called on Saddam Hussein's regime to stop murdering and otherwise oppressing the Iraqi population, and which--as many Iraqis pointed out--was also violated blatantly and continuously from 1991 through 2003. However, from the point of view of strict legalism, it probably makes some sense to focus exclusively here on UNSC Resolution 687, which, unlike any other such Resolution I am aware of, codifies the terms of a conditional cease-fire, agreed to by Saddam Hussein himself, suspending a war that had been explicitly authorized by the UN, that Saddam Hussein had lost. As I have said before, this is one of the many factors that added up to making Saddam Hussein's Iraq a very special case, legally and otherwise.)

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(From the weblog of Jurjen Smies, a Dutchman living in Seattle, "No Cameras")
( http://www.blarg.net/~minsq/NCArchive/00000217.htm)

07 January 2004: "Is there something in the water at the Pentagon?"

Admittedly, I'm a little bit late with this, but had I mentioned before that in my not so humble opinion, Richard Perle is a fucking moron? Evidently I hadn't. So I'll say it now:

Richard Perle is a fucking moron.

I would have been happy to base that opinion on everything I read about him before this week, but a Grauniad article I came across recently—"War critics astonished as US hawk admits invasion was illegal," 20-Nov-2003—serves to confirm my earlier held suspicions.

The opening paragraphs of the article read as follows:

International lawyers and anti-war campaigners reacted with astonishment yesterday after the influential Pentagon hawk Richard Perle conceded that the invasion of Iraq had been illegal.

In a startling break with the official White House and Downing Street lines, Mr Perle told an audience in London: "I think in this case international law stood in the way of doing the right thing."

Fucking moron. I'm sorry, I just can't emphasise that enough.

All right, let's go over this again. UNSC resolution 678 (1990) authorised armed force against Iraq. UNSC resolution 687 (1991) set the terms of a cease-fire between the members of the 1991 Coalition and Iraq. UNSC resolution 1441 (2002) affirmed that Iraq was in "material breach" of its obligations under resolution 687 and gave it one last chance to comply, which Iraq failed to do. Since Iraq had violated the terms of the cease-fire, the other parties to the cease-fire were therefore justified in resuming hostilities. The weak link here is arguably 687, since the UN Security Council declared the cease-fire between the members of the Coalition and Iraq and therefore, or so the argument goes, it is up to the UNSC to authorise resumption of hostilities. But is that really the case? The sneaky bit about the wording of 687 is that the cease-fire is not between the UNSC and Iraq, but between the members of the Coalition and Iraq; the cease-fire is merely brokered by the UNSC (and its agent, the Secretary-General of the UN). Now, I believe you're going to be very hard-pressed indeed to find a legal precedent of a cease-fire agreement entered into by two parties where a resumption of hostilities by one party in response to a violation by the other first had to be approved by whoever brokered the agreement.

Aside: I believe the wording of 687 was produced by someone with amazing foresight (and a very devious mind) in the first Bush administration (and/or the Major government). Recognising that the need might arise to clobber Iraq again, he wrote para. 33 of 687 in terms which would allow the US to bypass any and all members of the Security Council who were not part of the Coalition, including the veto-wielding then-Soviet Union and China. But in the interest of ass-covering, affirimation form an independent source was sought that Iraq was in violation of the cease-fire declared in 687, and that's where 1441 came in...

This was, in broad terms, the argument wielded by the government of the United Kingdom (and declared valid by its Attorney-General), and also that of the United States, though in the latter case it got drowned amid a clutter of less-than-coherent utterings about "grave" and "growing" threats, "pre-emptive" action and whatnot.

So why has Perle not only chosen not to avail himself of this argument, but indeed to blithely ignore it while making his claim? Quite simply, Perle's record of having little else than contempt for international law — like many other neoconservatives — is a matter of public record. Note how, in this context, he accuses international law of having "stood in the way of doing the right thing." In March of last year, he wrote a column in the Spectator (reprinted in edited version in the Guardian) in which he predicted and hailed the imminent collapse of the UN's role in world affairs, predicting:

What will die is the fantasy of the UN as the foundation of a new world order. As we sift the debris, it will be important to preserve, the better to understand, the intellectual wreckage of the liberal conceit of safety through international law administered by international institutions.

(Emphasis in italics mine.)

Need I say more? He's not arguing against the invasion of Iraq because it was (purportedly) illegal, he's arguing against international law because, to his mind, it formed an obstacle.

Now, when people possessed of a working intellect have a problem with the law, they argue an interpretation which is to their advantage, or they hire a lawyer to do it for them. In the case of international law, this is sufficient in and of itself, since there is no currently no court with the remit to handle such a case. But not Richard Perle; unable to deal with the notion that his vision of "moral clarity" might not meet with universal agreement (since not everyone is a fucking moron), indeed, even with challenges, his response is simply to dismiss the results of several hundred years of international relations as an obstacle to doing "the right thing." It's all rather reminiscent of a petulant and badly brought-up six year-old.

I suppose I shouldn't be surprised that the anti-war crowd has seized on Perle's moronic statement as the vindication of their opinion. If they consider Perle's opinion on this matter to be valid, however (and I note that Perle is not a lawyer), I assume they also agree that invading Iraq was the "right thing," and that the concept of "safety through international law administered by international institutions" is merely "the intellectual wreckage of [a] liberal conceit." One way or the other, guys.