Why?
Isn’t Iraq getting better? That was a question, asked by one of my e-correspondents. Of course it’s a trap. Say yes- and there you are justifying the invasion. Say no- and you are a supporter of Saddam. But the starting point for me, and it’s perhaps the thirty years of lawyering that I blame, is whether the action we took in invading Iraq was legal. Did it conform to International Law? To answer that question you don’t have to drag a dozen tomes from the shelf and blow the accreted dust from them. All you need to do is visit the United Nations website or Google “United Nations Charter” and look at the results. It is clear that a Security Council Resolution, specifically authorising any military action not in self-defence, must support any armed intervention in a sovereign state. There was never any serious attempt, either in the UK or the USA, to defend the invasion of Iraq as an act of self-defence, even though the September 2002 dossier may have been intended to approach such a position. And the attempt of the UK Attorney-General to squeeze authority for the invasion of a sovereign country within a list of UN Resolutions, going back the cease-fire resolution passed at the conclusion of the first Gulf War has persuaded few, if any, independent international lawyers of his case. For me that ends the argument. But sure, I hear you say, Saddam was such and evil tyrant these legal niceties can be ignored. A few years ago, the criminal justice system was involved in debate about what was called “Noble Cause Corruption”. “I am sorry to say that in some police forces, especially in elite detective squads, . . . a culture of perjury grew up over the years. One senior officer referred to it as noble cause corruption. He meant that if the goal was thought to be worthy, the means did not matter very much” (Chris Mullin (Sunderland, South), House of Commons Hansard Debates for 6 March 1995, col. 47) As you can see from Chris Mullin’s quote it’s basically a recycling of the “ends justifying means proposition. The argument goes that the police were well aware of those criminals who were involved in serious offending. They could therefore break the law, committing perjury by fitting up, firming up, tidying up, massaging, embroidering or tailoring their testimony. I found such a line of reasoning morally repugnant. And I suspect most people feel the same. And if you are pretty neutral as to whether your actions are lawful, then it’s only a small step to justifying torture or actions adjacent to torture.
posted by Tony @ Thursday, July 15, 2004
2 Comments:
I absolutely agree with you about the role of law, but what do you say to this?
Here in Spain the illegality of the Iraq war has been at the heart of the debate about it. It is taken for granted that it was illegal and that the former government broke international law in its suport for it. There have been any number of top lawyers opposing it in public and an academic who wrote a lone newspaper article putting the defence that it was at least getting rid of a dictatorship was told in no uncertain terms that that did not justify breaking the law.
The point of all this is that while the UK is a country is a country where the law is *enforced* to prevent anti-social behaviour, Spain is a country where it is *defended* because it is what stands between civilisation and chaos. And Spaniards know what happens when the system of law breaks down. Spaniards thus see international law as a necessary means of keeping the world at relative peace, while Brits see it as a meddlesome imnposition that lessens their freedom of action.
What do you say to that as a British lawyer?
Peter
Peter,
Thanks for your contribution.
Of course the Iraqi invasion was a no-brainer. There was no imminent threat to any of those states that comprised the “ Coalition of the willing”. And there was no Security Council Resolution specifically authorising military action. End of story.
However international law is not always so clear-cut. Take the bombing of Serbia. I concede this was, like the Iraq invasion, neither in self-defence nor with the support of a specific Security Council Resolution authorising NATO to take such action. Although Geoffrey Robertson in the New Statesman some time ago argued that the Genocide Convention covered the action, powerful counter-arguments have been deployed. See Mark Littman Q.C. “Was the 1999 NATO action over Kosovo legal, successful or necessary? No. Kosovo 1999: an alternative view”. There’s a link from Brian Barder’s website.
International law is developing a new right of humanitarian intervention. Prof. Greenwood (LSE), for example, argues that states’ rights do not take priority over human rights; but that armed intervention is only justifiable when there is the existence or threat of ‘the most serious humanitarian emergency involving large scale loss of life. This, I think, fits Nato’s action against Serbia. Other factors distinguish the Kosovo action. There was significant public support in the UK for it. There would probably have been a majority in the UN Security Council to authorise the action. Though, of course, both the Russian and Chinese veto would have been exercised. Those who proposed “Second Resolution” never managed to obtain the necessary majority in the Council.
I’m sure you’ll correct me, but didn’t the Spanish government support the NATO action in Kosovo?
Cheers
t
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