The legality of the Iraq war: time to move on
Yesterday, two British newspapers and the Mail on Sunday led with the leaked details of a memo from the Attorney General to the Prime Minister, sent before the war on Iraq, which apparently argued that any invasion might be illegal. The is the latest episode in a long and torturous saga, set out in mindnumbing detail over acres of newsprint, covering the questions of whether Britain knew Iraq did not possess Weapons of Mass Destruction, whether the Prime Minister knew that a war might be illegal, etcetera, etcetera. One might be forgiven for thinking that these questions are particularly complicated. Happily they are not, and we can satisfy ourselves of the answers in pretty short order.
Fortunately for the unenlightened layperson, international law is crystal clear on where the use of armed force is legitimate. The UN Charter permits it in two instances: either in self-defence, or when authorised by the security council. The latter requires no discussion – at least not unless the other members of the council somehow authorised the war without realising it - so lets proceed straight to the former: self defence.
Did the US and the UK invade Iraq in self defence? The fact that the question is even asked, much less that the great and the good have agonised over it for more than two years, gives the measure of our political culture in stark and depressing terms. Consider the very idea that America, the greatest military power in all history, needed to defend itself from the tin-pot dictator of a crippled third world country. A country that did not control its own airspace, that had been bombarded at will by America for over a decade, whose infrastructure had been smashed, whose people were starving, was about to rise up and….and do what exactly? Send its armies to march on Washington? The notion was palpably absurd from the start. And whether or not the claims on Iraq’s WMD were true was an utter irrelevance. If Iraq had possessed WMD it would have joined a group of nations, like North Korea and Iran, which have a degree of military power and poor relations with the west, but know full well that to instigate a war with such an enemy is to commit instant suicide.
The Iraq war was illegal. Moreover, since it was patently not fought in self defence, it follows that the war was a crime of aggression. “Aggression”, according the UN General Assembly Resolution 3314, passed in the wake of Vietnam, “is the use of armed force…in any matter inconsistent with the Charter of the United Nations”. After World War Two the court at Nuremberg described the war of aggression as “essentially an evil thing…to initiate a war of aggression…is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole”. Associate US Supreme Court Justice Robert Jackson, chief prosecutor at the trial said that “no political or economic situation can justify” the crime of aggression, which was “the greatest menace of our times”.
Elizabeth Wilmshurst, deputy legal adviser to the Foreign Office, viewed the coming invasion in precisely these terms when she resigned her post in March 2003. In her resignation memo, Wilmshurst was unequivocal: “an unlawful use of force on such a scale amounts to the crime of aggression”. Mindful of the wide and serious consequences that would follow, she went on to say that she could not, in good conscience, “agree with such action in circumstances which are so detrimental to the international order and the rule of law”. Wilmshurst’s stand was praiseworthy and her opinion an educated one; but her’s, as we have seen, was nevertheless a statement of the obvious.
Tony Blair sounds today like a man tired of the seemingly endless speculation regarding the war’s legality. I sympathise. There is no requirement for further disclosures, nor further judicial enquiries on the subject. Both our government and the American government are guilty of committing “the supreme international crime”; initiating a war of aggression. The electorate, on May 5, can now move to sentencing.
Fortunately for the unenlightened layperson, international law is crystal clear on where the use of armed force is legitimate. The UN Charter permits it in two instances: either in self-defence, or when authorised by the security council. The latter requires no discussion – at least not unless the other members of the council somehow authorised the war without realising it - so lets proceed straight to the former: self defence.
Did the US and the UK invade Iraq in self defence? The fact that the question is even asked, much less that the great and the good have agonised over it for more than two years, gives the measure of our political culture in stark and depressing terms. Consider the very idea that America, the greatest military power in all history, needed to defend itself from the tin-pot dictator of a crippled third world country. A country that did not control its own airspace, that had been bombarded at will by America for over a decade, whose infrastructure had been smashed, whose people were starving, was about to rise up and….and do what exactly? Send its armies to march on Washington? The notion was palpably absurd from the start. And whether or not the claims on Iraq’s WMD were true was an utter irrelevance. If Iraq had possessed WMD it would have joined a group of nations, like North Korea and Iran, which have a degree of military power and poor relations with the west, but know full well that to instigate a war with such an enemy is to commit instant suicide.
The Iraq war was illegal. Moreover, since it was patently not fought in self defence, it follows that the war was a crime of aggression. “Aggression”, according the UN General Assembly Resolution 3314, passed in the wake of Vietnam, “is the use of armed force…in any matter inconsistent with the Charter of the United Nations”. After World War Two the court at Nuremberg described the war of aggression as “essentially an evil thing…to initiate a war of aggression…is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole”. Associate US Supreme Court Justice Robert Jackson, chief prosecutor at the trial said that “no political or economic situation can justify” the crime of aggression, which was “the greatest menace of our times”.
Elizabeth Wilmshurst, deputy legal adviser to the Foreign Office, viewed the coming invasion in precisely these terms when she resigned her post in March 2003. In her resignation memo, Wilmshurst was unequivocal: “an unlawful use of force on such a scale amounts to the crime of aggression”. Mindful of the wide and serious consequences that would follow, she went on to say that she could not, in good conscience, “agree with such action in circumstances which are so detrimental to the international order and the rule of law”. Wilmshurst’s stand was praiseworthy and her opinion an educated one; but her’s, as we have seen, was nevertheless a statement of the obvious.
Tony Blair sounds today like a man tired of the seemingly endless speculation regarding the war’s legality. I sympathise. There is no requirement for further disclosures, nor further judicial enquiries on the subject. Both our government and the American government are guilty of committing “the supreme international crime”; initiating a war of aggression. The electorate, on May 5, can now move to sentencing.
posted by David Wearing at 11:08 PM
10 Comments:
I marched against the war in Iraq but I do not agree with the argument that is was not legal.
1. No Saddam did not pose a risk of toppling Washington and invading the "Homeland". What he did represnt was a man trying to gain weapons of mass destruction (that is not in doubt), who had used them on enemies and his own people in the past and who sponsorred terrorist groups like Hamas. So he did represent a threat to US civillians even if not to the country as a whole.
2. International law allows a war to stop genocide and other such crimes with out UN SC backing. The war in Kosovo only gained UN backing after the event and was initially just the act of several concerned countries with no international backing. Saddam was continuing his genocide of the Kurds in the North and the Marsh Arabs in the South right up to the war. Again these facts are not disputed.
3. International law allows us to act to defend ourselves but also our allies even if we are ourselves are not threatened directly. This is what allowed the UK to join the second world war when Hitler invaded Poland. Saddam funded organisations like Hamas (not up for debate) which attack our ally Isreal. Sponsoring terrorist attacks on civillians in another country is an act of aggression that can justify war. Therefore we had a right to act to stop this funding stream and protect our ally.
4. As part of the peace treaty that Saddam signed after losing the first Gulf war he promised lots of things so that we would stop attacking him. He consistently failed to live up to this. Sanction busting, shooting at no-fly-zone patrol aircraft, continuing genocidal activities, sponsorring terror and continuing contraban weapons programs (such as the long range missle program) were all undoubtably carried out by Saddam and were contry to that deal. As such no security council resolution would have been needed to for the US to act. Saddam had clearly broken the terms of peace with the US and the US had to act to defend the validity of the post war settlement.
Sorry to keep playing devils advocate. I agree with your over all message in all posts but I think it is important that we get our attacks right and do not allow the opposition off with the easy arguements. Still very much enjoying your page.
NYE
Hi - in answer to your points:
1. Trying to gain WMD hardly constitutes a threat by itself. The firm belief that they are about to be used against you justifies self defence. Saddam crushed the Kurds and used chemical weapons on Iran in the 80s with US/UK support. When he attacked Kuwait without that support his dreams of being a regional superpower were ended forever. His past behaviour in no way indicated an ongoing threat - unless you completely ignore the relevant history. Any imagined future aggression would occur in utterly different circumstances, which is what makes the idea so ludicrous.
2. Its true that If the term "genocide" is invoked UN members are obliged to act. The term was invoked by resigning UN officials against the sanctions regime.The US/UK backed Saddam while he committed his worst atrocities and instigated a sanctions regime that (according to the UN officials responsible) killed over a million Iraqis, half of them children under five, fitted the description of genocide and strengthened the position of Saddam internally. I would therefore gently suggest that claims of humanitarian intervention, born of concern for the plight of Iraqis, are worthy of at least some scepticism. I'd also refer you to the Lancet report detailing 100,000 "excess deaths" in Iraq as a result of this humanitarian intervention.
3. Actually, Saddam's significant operational links to terrorism are most certainly up for debate - hence the US/UK's failure to present a coherent case. But let's say that the allegation on Hamas is 100% true. This then raises the simple question of proportionality. Is a massive aerial bombardment and ground war necessary to sever the financial flows from a crippled third world dictatorship to a terrorist organisation? Was there any prospect of Hamas killing 100,000 Israelis, flattening Israeli cities and smashing the country? Similarly, when Irish Americans were funding the IRA in the 70s and 80s, did the RAF have the right to devastate Boston and New York?
4. It is for the UN Security Council to decide on matters of compliance, not individual states. The post war settlement you described was brokered under UNSC auspices, not by Tony Blair and George Bush. Their unilateral agression was no more justified than it is for you or I to interfere in law enforcement and indulge in vigilante activities. The principles here are elementary and widely accepted. Again, there was no security council endorsement – at least not unless the other members of the council somehow authorised the war without realising it.
The fundamental point remains: Iraq was plainly not a threat to the US/UK. The war was not in self defence. The war was therefore illegal; a crime of aggression.
In further response to Anonymous, what you say may (but I doubt it) have made it legal for the US to attack Iraq, it didn't make it legal for the UK to join in.
We are not (publicly, at any rate) pledged to defend the US's Nazi colony in Palestine.
Iraq did not threaten the UK or any of its allies, and the UN did not authorise the occupation of Iraq. End of story.
systemaddict - I find your offhand use of the adjective "Nazi" thoroughly disgusting. I've no problems with discussing the crimes committed by the state of Israel, here for example http://www.democratsdiary.co.uk/2005/03/war-crimes-and-ethnic-cleansing.html But if you think that even the worst of these crimes, like the ethnic cleansing of 1948, in any way mean that you can equate Israel to Nazi Germany then I strongly suggest you review your ideas. Your flippant use of the term demeans the millions who died in the holocaust, the 20 million russians who died defending their country and every single other victim of Nazism. The word should be used seriously, or not at all.
I havent time to respond to all of your points diarist. Which is a same as there are all very good and worth response. All I wanted to point out to Systemaddict is that Isreal is a close Ally of both the UK and the US. It was ofcourse us who played a large part in the creatation of the state of Isreal.
NYE
...which makes us the ally of a country that has been in breach of international law for the better part of four decades, that has attacked its neighbours and stolen their territory, that has a horrendous human rights record, that is guilty of ethnic cleansing and arms proliferation.
Yes it does. But if we are to believe your postings then all of our allies are allies war criminal (namely us). Let me just say I am no fan of Isreal but lets keep that debate to another posting.
If I may I would like to respond to your 4 reponses from earlier. I still maintain that the war while legal was not just. I therefore am only focussing on your and my arguments over the legality. This is in keeping with your initial post and is the point we fundamentally disagree on so I think such a focus is justified.
1. On the threat Saddam posed. First let me remind you that no one thought he did not have these weapons. French intel agreed with us, they only disagreed with our response. Also it seems very short sited to me to suggest that a man trying to get these weapons is not a treat. Remember that everyone agrees he was trying to get them he had simply failed up until the point of the war.
2. On genocide. You admitt he carried this out, yes? Your argument against this as a justification for war is that in the past we condoned such acts. True, but this is very strange logic. Are we to believe that if in the past we have acted wrongly we should continue to do so in the future? Surely our past compicity in the genocide made the imperative to act now all the stronger?
3. On terrorist links. There is no debate that Saddam directly funded these organisations. He was quite open about this. The next question is then does this justify a costly war. If we were to defend our ally from this act of aggression then we had no choice but a war. Saddam would not have given up such funding otherwise. As for terrorists not killing 100,000 people that is true but we have many times had wars that cost more than simply allowing the acts of aggresion to continue. It is justified because we have a right and duty to defend our citizens and those our allies from aggressors. Proportionality merely requires us to do so in the least costly way in terms of lives. I maintain that war was the only option in this case if we wanted to stop Saddam's continuing acts of aggression on Isreal.
4. Finally on Saddam's repeated breachs of the Peace treaty. You are right that it was not up for the US or UK to decide whether Saddam was in breach it was up to the Security Council (SC). The problem with your argument was that they did. Having determined that Saddam was in breach (just one example of many of such breachs was the continuing development of the Al Samud missle who's range was double the maxium range allowed) it was up for countries to determin what "serious consequences" should follow. As with Kosovo the US and UK acted with out SC backing deciding that these serious consequences should be war.
Again let me repeat that the war was unjust is not to say it was illegal. The war was legal if any one of the above 4 arguments is valid. I maintain they all are valid. Your last responses were new to me and very interesting. I genuinely look forward to your replies to these points.
NYE
1. As I've said, his past behaviour in no way indicated an ongoing threat - unless you completely ignore the relevant history.
2. No, that's not true and that's not what I argue. I think my argument is sufficiently clear already so I can only ask that you read it again. Suffice to say that the idea this was a humanitarian intervention is patently ludicrous, given the record of the aggressor nations. In 2003 there was an easy way for us to stop genocide in Iraq - stop committing it. http://www.guardian.co.uk/weekend/story/0,3605,232986,00.html
3. Again, I have to point out that there is an ongoing debate. Sorry you've missed it. But again, let's say its true that Iraq had substantial operational links to terrorism. There is no treaty between the US and Israel or between the UK and Israel that obliges us to defend that country - if we're sticking to the legal question. Certainly there is neither a moral nor a legal obligation to take hundreds of thousands of Iraqi lives in response to attacks costing some hundreds of Israeli lives (if we are to accept that there were substantial operational links to Hamas). Alliances are not of themselves a moral justification for anything, especially not for mass murder. And no treaty makes the lives of Iraqis worth less than the lives of Israelis. If that's your view of proportionality then I'm happy to stick with mine.
4. "serious consequences" has never meant that military action is justified. the terminology for that is "all necessary means". The other council members only signed up to 1441 because the wording did not automatically justify war. That was their expressed intention - unless you're saying they authorised the war by accident.
Just wanted to chip in regards the "millions" that suffered in the holocaust, lets be serious I doubt any more than a couple of hundred thousand were actually exterminated - it's without doubt the biggest lie of the 20th century. A terrible crime but nothing like has been portrayed actually happened. If it had I hardly think Israel would continue using Nazi policies on the Palestinian population. If 6-million really had died why would Israel take the same actions the Nazi's took with the Palestinians? This proves beyond any doubt that the holocaust never happened - Israel's policies prove this catagorically.
In respect of the above comment at 2:53pm - personally, I'd prefer input from people who can string two thoughts together coherently but I'm loathe to delete comments altogether, however stupid and obnoxious.
To the Anonymous poster - if you really think that Israeli treatment of the Palestinians "proves beyond any doubt that the holocaust never happened" then I'm afraid you're very much out of your depth. There is no serious doubt surrounding the number of Jews murdered by the Nazis, and to pretend otherwise is just beneath contempt.
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