Thursday, January 08, 2004

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
--------------------

Hi X,

I just ran across an item 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.)

=========================
(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.

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