A little something about Iraq: Is it legal?

(Although this post has nothing to do with Pakistan I thought it might be a good idea to diversify the subjects while keeping the focus on Pakistan. International law is becoming an important part of the world around us.)

It has been almost four years since the ‘coalition of the willing’ commenced attacks against Iraq and there has been much debate about the technical aspects of the war on things such as the strength of forces, the weapons employed, the strategies devised and the managing of Iraq’s economy. Also, at times the discussion is enamelled with sprinkles of some ethical and humanitarian considerations.

By contrast, the law, in particular, international law, has been almost totally absent from the debate. It is a shame that international law, which is a fundamental aspect of international relations, has been left out. Most people, not just in Pakistan, but across the globe accept it as a matter of fact that the war is illegal since no weapons of mass destruction (WMD) have been discovered in the past four years, along with the idea of ‘regime change’, carrying no international legitimacy.

Those people will probably be surprised to find out that the statement by the Attorney-General of the UK, Lord Goldsmith to a parliamentary question regarding the legal basis of the war and a similar statement by the Attorney-General of the United States, John Ashcroft to the US Congress made no mention of the weapons of mass destruction, or humanitarian intervention, or preemptive self-defence. However, the surprises don’t end there and they would be puzzled if they were told that this war drew legality from UN Security Council resolutions.

In today’s world morality and ethics definitely play a big part in shaping the law, but are not the only factors and as long as something cannot be proven by law there is no recourse. Before proclaiming this war to be illegal, the explanation given by the ‘coalition’ needs to be understood. It is a separate matter whether the justification is acceptable or not.

As a customary rule of international law that applies to all states Article 2(4) of the United Nations Charter asserts that threat or use of force by one state against another is inconsistent with the charter and therefore illegal. So the only ways that states, as in the Iraq case, can use force against other states is either on the basis of individual or collective self-defence, through a Security Council resolution authorizing it or on the basis of humanitarian intervention. Just in case you’re wondering, they did not use the humanitarian intervention reasoning and for very good reasons. In 1988 the Saddam regime was committing grave crimes against human rights and the brutalities cost immeasurable loss of lives. At that time the US and the UK looked on. At a time when there was no evidence to show any such humanitarian crisis i.e. 2003, it would make no sense. Also, there is no doctrine of preemptive self-defence in international law which would resemble something along the plot of the movie ‘Minority Report’. The US and the UK composed an explanation that played with earlier Security Council resolutions 678 and 687 and the more recent one of 1441.

Resolution 678 authorized the use of force which led to the 1991 Gulf War. It stated that if Iraq did not comply with earlier Security Council resolutions then the member states co-operating with the Government of Kuwait were to “use all necessary means to uphold and implement” all relevant Security Council resolutions and to restore international peace and security in the area. This resolution authorizing the use of force was adopted under Chapter VII of the UN Charter which permits it for the express purpose of restoring international peace and security.

On April 3rd 1991 the UN passed resolution 687 which led to a formal cease-fire between Iraq and Kuwait and the member states co-operating with Kuwait. It is argued by the ‘coalition of the willing’ that resolution 687 did not terminate the authorization under resolution 678, in effect only suspending it indefinitely and that the more recent resolution 1441 led to its revival. Hence, they declare they are only doing what the Security Council wished and authorized them to do.

Now, there is a certain order in which this argument flows and if you read it in that exact order it makes for a healthy argument. Resolution 687 that led to the cease-fire set out certain conditions that imposed obligations on Iraq to eliminate its weapons of mass destruction in order to restore peace in the area. A material breach of the resolution revives the authority to use force under 678. In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of resolution 687 because it has not fully complied with its obligations to disarm under the resolution. It is an accepted fact that Iraq did not comply with the weapons inspection teams the way it was supposed to. The Security Council then went on to give Iraq a final opportunity to comply and warned it of ‘serious consequences’ if it did not. It also added that if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution 1441, that would constitute a further material breach. Hence, this material breach revived the authorization to use force. If the Security Council would not have intended the sanctioning of use of force, it would have expressly stated in 1441 that a further resolution was required to validate any use of force. This is what the legal departments of the coalition say. However, almost all of the rest of the legal minds think otherwise. To understand why most international lawyers do not buy this argument we must break it up into little bits and analyze each one carefully.

Firstly, many argue that since resolution 678 and 687 came more than a decade before 1441 they could not be revived and used in this particular case. However, the only way a Security Council resolution becomes invalid is if it has a time clause, after which is expires or if it is repealed by the Security Council. Neither was done in this case and the resolutions stand strong. Secondly, resolution 678 authorizes Kuwait and the member states cooperating with it to use force. The war against Iraq in 2003 did not involve Kuwait. Christopher Greenwood QC, the adviser to the British Government on this matter, says that the war was endorsed by Kuwait and that fulfills the requirement. That is a highly superficial argument since the only reason the use of force was allowed in the earlier case was because Kuwait needed protection. In this case it needed none. Thirdly, they argue that the use of the term ‘serious consequences’ meant use of force. The expression “serious consequences” is not synonymous with, nor a warrant for the use of, armed force. The recognized UN euphemism for the latter is taking “all necessary means” to secure compliance with the obligation in question. Resolution 678 used the same euphemism to authorize the first Gulf War. It was also used to validate the use of force in Somalia, Haiti, Rwanda and Bosnia in the 1990’s and more recently when it authorized the deployment of French forces in Côte d’Ivoire (Ivory Coast) in 2004. Fourthly, the Security Council decided in resolution 1441, ‘to remain seized of the matter’. It is plainly not delegating it. Yet, the ‘coalition’ took matters into their own hands and decided that the material breach would bring into play all previous resolutions concerning Iraq and the use of force. It was a matter of two governments, combining to give effect to the strongest armed force in the world, saying to each other, ‘Carpe diem, baby!’ And they did.

Having said all this I appreciate the fact that the recent elections in Iraq and the coming of a new government may lead to prosperity, security, peace and growth in the region. But that does not take anything away from the fact that the war was illegal and in clear contravention of the wishes of the Security Council. Also, that in the future some of those faces that are wreaking havoc in Iraq sitting in Washington and London, and not to forget Canberra, may be tried for war crimes and crimes against humanity, especially after the pictures from Abu Ghraib and reports of treatment of prisoners in Guantanamo came out.

So why does international law matter? It matters for a number of reasons. It matters because Tony Blair said it mattered and because the Bush Administration says it matters, otherwise they would not bother justifying the war legally. It matters because under the terms of various Security Council Resolutions the new International Criminal Court will not have jurisdiction over forces deployed on UN authorised missions. But it will have jurisdiction over forces engaged in illegal wars. It matters because the British, the Americans and the Australians are, largely, a law abiding people and their governments have gone on an illegal war. Where the great democracies have overlooked domestic public opinion, it sets a precedent for the so called rogue states to start illegal wars. Finally, international law matters because people languish in jail in Bagram, at Baghdad Airport, at Abu Ghraib and in detention facilities in Cuba often without recourse to any other legal order. Were it not for the protections offered by international law, they would be in what the UK Court of Appeals in the Abbasi case, brought by the Mother of one of the British detainees held at Guantanamo Bay, called a “legal black hole”.

In a country where many people are not aware of its national laws, their knowledge of the intricacies of international law is bound to be limited. In a country where human rights are a major issue, yet the codification into statute of those rights not considered an important matter for the government it is imperative for us to educate ourselves about the law. When we have lost faith in our own legal system, it is difficult for us to see light in a tunnel blown apart by the American and British bombs. Our national law protects and regulates Pakistani society, but international law is meant to protect all of humanity. Both the US and UK have passed anti-terrorism laws, which may well victimize many Pakistanis and Muslims in general and subject them to unfair trials or rather no trials at all. In the spirit of the greater good, we must educate ourselves about international law and give it its due importance as millions of Pakistanis roaming the globe are protected under its provisions each day.

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