Tuesday, August 29, 2006
LEGAL ISSUES ON INVADING IRAQ
I will flesh this out properly one day but given some discussions I have been party to recently I though I might as well make my key points again:
There are differing views by legal experts. I have no legal training so I am not qualified to examine all relevant documents in the correct manner.
It is true that the accusation is often raised that those who support the legality of the invasion are or have been in the employ of Government. However, this does not refute any of their arguments, and it is only logical that experts who share the Government’s view would also work for and support the Government.
In an equal manner, those legal scholars who claim the action was illegal are -just like anyone else- not some completely neutral opinion-free minds; they have their own personal political views and agendae too. In part this is due to professional reasons. Lawyers like to change the world by laws, so when laws fail and military force takes over they are understandably disappointed. Psychologically it is of course far more pleasing to blame Governments’ behaviour than accepting that one own profession has only limted abilities.
The other factor to be considered in international law experts is their basic motivation. How many of them became international legal scholars because they see themselves as internationalists trying to make a better world by making rules that instinctively favour the weak? And how many of them turned to this field because they wanted to serve Queen and Country and give international power politics a more sensible framework? Given that many of these experts tend to be involved in left-wing political activism, such as CND, their political biases must also be factored into the evaluation of their judgements.
So far to the experts’ background. There are two points to be made about the actual issue as far as I can see it.
Firstly, before turning to the real meat, there is the unaddressed issue of the Genocide Convention. This convention requires all signatory states, practically the whole globe, to take all measures necesary to put an end to genocide. These measures include war, and thus the convention puts the protection of human beings above state sovereignty. It also demands that all countries seek to bring the perpetrators to justice, and this requirement does not cease once the genocide is over. The Saddam regime’s war against the northern Kurds in 1988 is generally accepted by virtually all experts as being genocidal. Indeed Saddam is currently being tried for this in court. So the situation in 2003 was that Saddam Hussein was a perpetrator of genocide, and it was a legal requirement upon all signatories to the Genocide Convention, including of course the US and the UK, to bring Saddam to justice. The only way this was feasible was by invading Iraq and toppling his regime. So, whilst this is not generally used as an argument because it is only incidental to the question of the invasion in 2003, this could nonetheless be used an argument that shift the balance of doubt towards the coalition.
Secondly, and this is the real argument is the question of legitimacy. This is a more political and moral category than legality but it is an easier way to approach the issue for non-experts. First of all it is important when the Iraq war started, namely in 1990 when Iraq occupied Kuwait. So the war that we are to some extent still stuck in was initiated by Iraqi aggression. This aggression means that responsibility for the war lies with the regime of Saddam Hussein. After the coalition’s first round of operations a ceasefire was put into place. Iraq then spent the next 11 years violating the conditions of the ceasefire. As it is up to the aggressor to step down for peace to ensue, the coalition was entirely in its right to resume military operations against the aggressor.
Some of these circumstances were codified by UN-resolutions, which lead to the argument that an explicit UN-Security Council agreement had to be reached on going back to war. There are differing interpretations as to whether this was necessary, or whether the fact of Iraqi aggression and previous UN-resolutions were sufficient (the US administration’s view). There was an argument that a more up-to-date UN edict was necessary and an explicit choice for offensive military force desireable (the UK Government’s view). This is in turn in doubt as it would make the UN Security Council the highest legal authority in Britain, thus overriding the sovereignty of Parliament; a position hardly tenable for a mere diplomatic forum. However the sceptics’ view says that existing British legal frameworks, by being member of the UN, incorporate the need for giving precedence to the UN. Additionally there is the argument that because the legalitity/legitimacy of the war was, at least in part, in the hands of the UN, it could not be taken out of the UN process.
On a specifically British point one could also point out that in granting independence the UK guaranteed to Kuwait its existence and was thus bound by treaty to regard Iraqi aggression against the emirate as aggression against Britain.
To summarise, it could be said that the legal onus lay on Iraq as the aggressor, but it could also be argued that the switch from defensive to offensive military operations could only be authorised by Security Council mandate, thus rendering the coalition’s action legally dubious. I suppose, being of a somewhat conservative bent, I don’t have much time for transnationalism to begin with and am so inclined to share the Bush Administration’s view. Indeed I would say that this is a case were classical arguments on resisting aggression apply, which are unwritten laws of international order and are universally accepted. Thus there would be no further need for any other treaties or conventions to come into play. But, as I said, that a somewhat right-wing view and is certainly not widely shared (ahem).
I will flesh this out properly one day but given some discussions I have been party to recently I though I might as well make my key points again:
There are differing views by legal experts. I have no legal training so I am not qualified to examine all relevant documents in the correct manner.
It is true that the accusation is often raised that those who support the legality of the invasion are or have been in the employ of Government. However, this does not refute any of their arguments, and it is only logical that experts who share the Government’s view would also work for and support the Government.
In an equal manner, those legal scholars who claim the action was illegal are -just like anyone else- not some completely neutral opinion-free minds; they have their own personal political views and agendae too. In part this is due to professional reasons. Lawyers like to change the world by laws, so when laws fail and military force takes over they are understandably disappointed. Psychologically it is of course far more pleasing to blame Governments’ behaviour than accepting that one own profession has only limted abilities.
The other factor to be considered in international law experts is their basic motivation. How many of them became international legal scholars because they see themselves as internationalists trying to make a better world by making rules that instinctively favour the weak? And how many of them turned to this field because they wanted to serve Queen and Country and give international power politics a more sensible framework? Given that many of these experts tend to be involved in left-wing political activism, such as CND, their political biases must also be factored into the evaluation of their judgements.
So far to the experts’ background. There are two points to be made about the actual issue as far as I can see it.
Firstly, before turning to the real meat, there is the unaddressed issue of the Genocide Convention. This convention requires all signatory states, practically the whole globe, to take all measures necesary to put an end to genocide. These measures include war, and thus the convention puts the protection of human beings above state sovereignty. It also demands that all countries seek to bring the perpetrators to justice, and this requirement does not cease once the genocide is over. The Saddam regime’s war against the northern Kurds in 1988 is generally accepted by virtually all experts as being genocidal. Indeed Saddam is currently being tried for this in court. So the situation in 2003 was that Saddam Hussein was a perpetrator of genocide, and it was a legal requirement upon all signatories to the Genocide Convention, including of course the US and the UK, to bring Saddam to justice. The only way this was feasible was by invading Iraq and toppling his regime. So, whilst this is not generally used as an argument because it is only incidental to the question of the invasion in 2003, this could nonetheless be used an argument that shift the balance of doubt towards the coalition.
Secondly, and this is the real argument is the question of legitimacy. This is a more political and moral category than legality but it is an easier way to approach the issue for non-experts. First of all it is important when the Iraq war started, namely in 1990 when Iraq occupied Kuwait. So the war that we are to some extent still stuck in was initiated by Iraqi aggression. This aggression means that responsibility for the war lies with the regime of Saddam Hussein. After the coalition’s first round of operations a ceasefire was put into place. Iraq then spent the next 11 years violating the conditions of the ceasefire. As it is up to the aggressor to step down for peace to ensue, the coalition was entirely in its right to resume military operations against the aggressor.
Some of these circumstances were codified by UN-resolutions, which lead to the argument that an explicit UN-Security Council agreement had to be reached on going back to war. There are differing interpretations as to whether this was necessary, or whether the fact of Iraqi aggression and previous UN-resolutions were sufficient (the US administration’s view). There was an argument that a more up-to-date UN edict was necessary and an explicit choice for offensive military force desireable (the UK Government’s view). This is in turn in doubt as it would make the UN Security Council the highest legal authority in Britain, thus overriding the sovereignty of Parliament; a position hardly tenable for a mere diplomatic forum. However the sceptics’ view says that existing British legal frameworks, by being member of the UN, incorporate the need for giving precedence to the UN. Additionally there is the argument that because the legalitity/legitimacy of the war was, at least in part, in the hands of the UN, it could not be taken out of the UN process.
On a specifically British point one could also point out that in granting independence the UK guaranteed to Kuwait its existence and was thus bound by treaty to regard Iraqi aggression against the emirate as aggression against Britain.
To summarise, it could be said that the legal onus lay on Iraq as the aggressor, but it could also be argued that the switch from defensive to offensive military operations could only be authorised by Security Council mandate, thus rendering the coalition’s action legally dubious. I suppose, being of a somewhat conservative bent, I don’t have much time for transnationalism to begin with and am so inclined to share the Bush Administration’s view. Indeed I would say that this is a case were classical arguments on resisting aggression apply, which are unwritten laws of international order and are universally accepted. Thus there would be no further need for any other treaties or conventions to come into play. But, as I said, that a somewhat right-wing view and is certainly not widely shared (ahem).
Labels: global affairs, Iraq
