War crimes questions

For whatever little it’s worth, I at least find a tiny bit of comfort simply in the idea that these bastards may have to be a bit careful about their foreign travel plans after leaving office.

It is surely for the people of the USA and the UK to prosecute their leaders in this situation. But it seems there is little appetite for this: indeed Blair and Bush were both re-elected even after their pre-emptive war was found to be baseless, even on the terms chosen by the leaders themselves.

So nationalist sentiment, misguided, trumps notions of international legality. But more and more people see that if we go on like this apocalypse is inevitable.

The International Criminal Court at the Hague makes clear that they are a court of last resort when national processes have failed.

The calls for an enquiry in the UK are muted precisely because the British establishment know that if all the law and all the circumstances surrounding the decision to invade Iraq in March 2003 were examined fully, it would be more than just Tony Blair in the dock. Most obviously the attorney general of the day, but also the 414 MPs who followed them into the lobby, including the so-called “opposition.”

And if Gordon Brown had resigned along with Robin Cook it would have made a huge difference politically. Instead, he stayed on to write all the cheques.

Then there’s the British electorate (well, 22% of them) handing them back power in May 2005, confirming the received wisdom that foreign policy does not swing elections, and the futility of our two party system which offered no meaningful choice in any case.

This is just too big a target for the legal profession in the UK to handle, though doubtless many lawyers within it are as livid as I am at the failure of the British political system to avoid this wicked tragedy.

There is this.
International calls for those responsible to face justice are entirely proper. The UN security council should be reformed. And Britain needs a republic and a constitution, because handing anyone a Royal Perogative in these days is just a nonsense. Collective intelligence is what we want.

O, and I don’t think anyone, anywhere in the world, should face the death penalty, not even Saddam Hussein. We’re supposed to be better than them, right?

“My big idea is one must forgive the pope. Firstly, he has more need of it than anyone. And secondly it’s the only way we can set ourselves above him.” (Camus, The Fall)

Vengeance is not justice. But there is no peace without justice.

Henry Kissinger has been dodging legal actions in various countries for a long time. I suppose Bush, Cheney, etc. could wind up in the same boat once they leave office.

1. Where, if at all, might charges be brought against Bush and others?
2. How would the hearing of these charges be prevented?

to which I would add:
3. How might such charges be facilitated?? It’s about time to get this ball rolling.
Of course I don’t harbor any reasonable dreams that W and Cheney and gang will be hanged one day for their offenses, alas, but I would be happy to see credible charges lodged in the proper forum.

There were earlier efforts in 2005 in Britain to indict Blair for war crimes but those seem to have got nowhere:
http://www.independent.co.uk/news/world/politics/campaigners-accuse-leaders-of-war-crimes-518581.html

Among those involved was a leading criminal lawyer, Michael Mansfield QC.

There is a continuing unresolved dispute in Britain on whether engagement in the Iraq war was “lawful” – this was an issue on which Elizabeth Wilmhurst, deputy head of the legal dept in the Foreign Office, resigned:
http://www.guardian.co.uk/politics/2003/mar/22/uk.iraq

An outstanding academic text on the issues is: Professor Philippe Sands QC: Lawless World (Allen Lane, new ed. Feb 2005)

Professor Sands is a member of Matrix Chambers, to which Cherie Booth QC also belongs.

I believe that Steve Labonne largely gets it right: the greatest impact will be on travel plans more than anything else.

reigning, darn it. Got horses on the brain.

“it would be more than just Tony Blair in the dock. Most obviously the attorney general of the day, but also the 414 MPs who followed them into the lobby, including the so-called “opposition.”

And everyone else who spoke for the war as well I assume?

The interesting insight is that at least three senior Conservatives, each with long ministerial experience – Malcolm Rifkind, Douglas Hurd and Kenneth Clarke – opposed Britain’s engagement in the invasion of Iraq. For whatever reasons, they were sufficiently sceptical of the claims made about Iraq’s supposed possession of WMD in this dossier published by the Blair government on 24 September 2002:
http://news.bbc.co.uk/nol/shared/spl/hi/middle_east/02/uk_dossier_on_iraq/pdf/iraqdossier.pdf

The dossier claims no less than four times that Iraq’s WMDs can be used within 45 miniutes of a command being issued. After the invasion, Blair admitted that he knew this claim related only to battlefield weapons and so did not constitute a direct threat either to Britain or to Britain’s sovereign base in Cyprus. In the event, of course, no WMD have been found in Iraq and a later inquiry established that the 45-minute claim was based on intelligence coming from one previously untried source.

Readers may find it illuminating to read this retrospective account in the press, published in May 2005, of the internal arguments in the government about the legalities of the proposed war:
http://www.timesonline.co.uk/tol/news/uk/article387237.ece

These eminent academic teachers of international law don’t seem to have had reservations about whether the Iraq war was legal or not in a letter for the Guardian on 7 March 2003:
http://www.guardian.co.uk/letters/story/0,3604,909275,00.html

abb1: I’m confused. Contempt for the non-voters failure to exercise their franchise to vote; or for their failure to vote the “correct” way?

Yep, if it takes three seconds to sign a pardon, with breaks for wrist strain, time on the exercise bike and playing with Barney, we’ll not see Bush for three days before the next inauguration.

The OLC opinions on torture, plus the Military Commissions Act, already come close to the point at which international jurisdiction is considered to kick in. The test for an incoming Democrat facing a pile of pardons would be how he or she responds to such efforts.

Would you try harder to indict Bush than you have tried to indict Saddam, or the invaders of Tibet, or any other non-Western war criminal or murderous dictator like Mugabe?

There are two points on the ICC:

1. The crime of aggression is not in its statute
2. The US has not ratified it.

The statute is up for renewal next year and so its current state parties could amend it to include aggression – but it would not have retroactive effect. This is an issue that people should be discussing though:

http://www.liberalconspiracy.org/2008/03/01/defining-the-crime-of-aggression/

The ICC prosecutor has also issued a detailed reasoning as to why he will not pursue a case against the US.

http://commentisfree.guardian.co.uk/conor_foley/2007/02/testing_times_for_internationa.html

The US govt has ratified the UN Convention against Torture, though, and this is a crime of universal jurisdiction so there is a prime facie case against Rumsfeld Bush and Cheney for personally authorising treatment of detainess in Gitmo and elsewhere that is classified under international law as torture:

http://commentisfree.guardian.co.uk/conor_foley/2007/10/in_the_dock.html

“it would be more than just Tony Blair in the dock. Most obviously the attorney general of the day, but also the 414 MPs who followed them into the lobby, including the so-called “opposition.”

And everyone else who spoke for the war as well I assume?

I don’t know. I’m not a lawyer, merely a former subject of her majesty. I decided I really couldn’t square my conscience with any sort of collaboration with the government after the news (Jan 2006) that British troops were involved in torture of Iraqi civilians. Even if you refuse your income tax, you’re still paying the f*@#$rs every time you walk in a shop. Plus I was a doctor so I had to put up with all the NuLab bullsh*t at work. So I thought I’d give the nearest republic a try and have moved to France to take up horticulture.

It’s been hard. I can understand why people exile themselves only under the greatest duress. My seething anger at my fellow countrymen has calmed a bit, but from where I’m sat they’re still a bunch of craven collaborators with a criminal regime.

The futility of the “peace” movement angers me more in a way. It’s like we were pathetic sops for anyone left who had a conscience and some sort of belief in politics to point at, so they can say “I live in a democracy” while filling up on petrol with the other hand, and moaning about the price.

Yes I do think my former countrymen are guilty, because they demand oil, and when push comes to shove, don’t care how it’s got: that’s why we pay politicians, right?

But a minimum requirement for democracy is a sentient electorate, which Britain and America have proved they don’t have. So what is it? Some sort of horrid, spectacular, celebritised, nausea-inducing neocapitalistfascist thang, which cares not if a million Arabs die as long as everyone can drive to the supermarket.

Politicians are the biggest victims really. It’s an unpleasant job guarding all those lies, and come the crunch, there’s going to be a lot of very angry people at home, never mind along their travel itineraries. They’ll be just as stuffed as everyone else: and hated and useless.

I suppose it’s just as bad in France, but the move has brought me some relief from a sense of responsibility for it: my French is less than rhetoric quality.

Le paix est notre pays. J’espere.

My seething anger at my fellow countrymen has calmed a bit, but from where I’m sat they’re still a bunch of craven collaborators with a criminal regime.

That’s no way to talk about your newly-adopted country, Donald.

Well fair enough Brownie but then why launch a manifesto calling for the reform of international law?

Um, because as it’s currently constituted it’s something of a sick joke? That’s my guess.

I’m sure you think you’re making a devastatingly incisive point, Conor, but I’m afraid it’s wasted on me.

As regards the lack of cover it provides for humanitarian intervention, yes it’s a sick joke. That said, I’m not for throwing the baby out with the bathwater, although I don’t understand what is contradictory about believing that international law as it is currently constituted leaves a lot to be desired, and simultaneously wanting to see it reformed. I would say one flows from the other, but then you come along citing the Euston Manifesto as if the call for legal reform represents an intellectual own-goal.

A “fairly simple point” is about right, but not in the way you intended.

Brownie: it is a matter of serious debate about whether or not the Kosovo intervention was illegal!

There are a huge number of scholarly articles on the subject. Many argue that there is an “extreme circumstance threshold” which might justify an “unauthorised humanitarian intervention”. My personal view is that this was not reached in the Kosovo case, but you do not seem even to understand that their is an argument going on about the subject.

Your “well we did it in Kosovo so let’s do it in Iraq” is facile and ignorant.

Russia threatened to veto a UN Security Council resolution supporting the Kosovo intervention. However a Russian resolution condemning the action was defeated by the majority. You think that it is entirely irrelevant that there was indeed a “broad consensus” for intervention in this case?

The majority of the Security Council opposed the invasion of Iraq because they were not convinced that Saddam had WMD and was a serious threat to peace in the region. They were right about this and supporters of the invasion were wrong.

You say “legal schmeagle” and yet you support the EM’s call for a “reform of international law”. I have yet to hear a single supporter of the manifesto explain what they actually mean by this because it is painfully apparent that none of you have a clue what you are talking about on the subject.

brownie,

I don’t regard the innate legality or otherwise as a defining factor.

I’m sure the people who brought down the World Trade Center thought much the same way.

Here’s a quote from “A Man For All Seasons”:

And when the last law was cut down and the devil turned around on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast – man’s laws, not God’s – and if you cut them down, and you’re just the man to do it, do you really think that you could stand upright in the winds that would blow then?

This letter of 8 July 2003 from Dr Jones to the Deputy Chief of Defence Intelligence was submitted to the Hutton inquiry:
http://www.the-hutton-inquiry.org.uk/content/mod/mod_4_0011.pdf

The letter includes this passage:

“Your records will show that as [blanked out] and probably the most senior and experienced intelligence community official working on ‘WMD,’ I was so concerned about the manner in which intelligence assessment for which I had some responsibility were being presented in the dossier of 24 September 2002, that I was moved to write formally to your predecessor, Tony Crag, recording and explaining my reservations.”

#41: “the charge that intelligence was doctored has been shown to be without merit, no matter often anti-war dupes like to repeat it.”

Well, Brownie, our readers, if any, will need to make their own assessments based on the documentary evidence:

For a start, I suggest paras 577 and following in the Butler review:

“577. It was understandable that SIS should have wanted to give greater than normal protection to the human intelligence source on this occasion. But a problem arose because it was kept from the relevant DIS analysts who had a wider perspective. It would have been more appropriate for senior managers in the DIS and SIS to have made arrangements for the intelligence to be shown to DIS experts rather than making their own judgements on its significance. The fact that it was not shown to them resulted in a stronger assessment in the dossier in relation to Iraqi chemical weapons production than was justified by the available intelligence. It also deprived SIS of key expertise that would have helped them to assess the reliability of their new source. We have not been presented with any evidence that persuades us that there was an insuperable obstacle to allowing expert-level DIS access to the intelligence.”
http://image.guardian.co.uk/sys-files/Politics/documents/2004/07/14/butler.pdf

Try also this “Secret minute” of 23 July 2003, leaked to The London Times and published on 1 May 2005:
http://www.timesonline.co.uk/tol/news/uk/article387374.ece

Note the passage in this Secret Minute:

“C [‘C’ is the traditional title of the head of MI6, or Britain’s Secret Intelligence Service – at the time, it was Sir Richard Dearlove] reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime’s record. There was little discussion in Washington of the aftermath after military action.”

So much for the “evidence” of WMD in Iraq. The intelligence and fact were to be “fixed round the policy” – according to Sir Richard Dearlove, head of MI6 at the time of the Iraq war. But what would he know?

QED

Seriously, Brownie, I do not mean to sound patronising but the following paragraph is moronic:

“You’re in a quandry because you believe legal legitimacy is mandatory, but you’re still willing to try to square the circle as regards Kosovo as, whatever your ultimate conclusion about the justification for intervention, you know it wasn’t Iraq. Hence the guff about WMD and the wrongness of pro-war types over Iraq, as if the failure to find WMD has any bearing whatsoever on legality. Kosovo, on the other hand, has at least a credible pro-war rationale, so you’ll play down the illegality for all it’s worth. Intellectually honest it ‘aint.”

Seriously, you have absolutely no idea about the debates about international legality and legitimacy have you? Have you even read the Attorney General’s leaked memo on the legal basis for the Iraq invasion, or the Richard Goldstone’s Kosovo Commission report?

It is not my opinion that the debate about “unauthorised interventions” is not completely fixed; there are hundreds of books, articles and legal opinions on the subject. In one sentence you dismiss the varied opinions of Antonio Cassese, Christopher Greenwood, Tony Aust, Francoise Hampson, Ian Brownlie, Nigel Rodley, Phillipe Sands, Michael Mansfeld, Geoffrey Robertson and Michael Byers to name just a few at random.

When I first read the Euston Manifesto I thought that its authors and principal supporters might have at least a passing familiarity with this topic. The reason why the project flopped so badly was not just because of your political opinions, but because you so obviously did not understand the basic arguments.

It is like listening to someone in a lecture on physics shouting out “well how come if the world is round, like you say, we don’t all fall off then, eh, eh, eh?”

I don’t regard the innate legality or otherwise as a defining factor. I’ll come to my conclusion about the morality of a given intervention first, and if it’s also deemed legal, so much the better. If it’s not, I’ll live with myself so long as I’m convicned by argument that there is a moral imperative to take military action.

I imagine there’s a hell of a lot of Iraqis who would have preferred to “live with themselves” in the very real sense, rather than getting blown to bits as a direct result of your “moral imperative.”

Sucks to be them.

‘It is like listening to someone in a lecture on physics shouting out “well how come if the world is round, like you say, we don’t all fall off then, eh, eh, eh?”’

To be honest, most arguments by the Decents don’t even attain this level of intellectual rigour.

Brownie: You are going around in circles!

You start off by saying certain tests about when a humanitarian intervention might be justified without UNSC approval “play no role in any test of legal authority” and then you say “Who is claiming the debate about “unauthorized interventions is fixed”? Not I.”

Well which is it to be? You cannot logically mean both things.

Either you can debate about how international law is actually treating the emerging doctrine of humanitarian intervention or you you can just cry “Legal, schmeagle”. Please do one or the other.

The starting point of the ICISS was exactly the dilemma about what to do in the case of “another Rwanda or Srebrenica” when there is an ongoing act of genocide or mass murder but not a consenus on the UNSC for action. That is why legal scholars have been grappling with the issues of “extreme circumstance”, “right authority”, etc. and yet you say that “Not one of these is germane to issue of legality”. Look at Article 38 of the ICJ statue again.

As I said before, I don’t want to patronise you, but it is difficult to know how to debate this with someone who just dips in and out like you are doing. At least read the Attorney General’s memo on the legal advice that the British govt actually received about Iraq, along with their legal advice about Kosovo and the Kurdish safe haven.

You start off by saying certain tests about when a humanitarian intervention might be justified without UNSC approval “play no role in any test of legal authority” and then you say “Who is claiming the debate about “unauthorized interventions is fixed”? Not I.”

Well which is it to be? You cannot logically mean both things.

Wanna bet? There is no contradiction whatsoever. In your first citation, I’m making a clear statement of fact that interntional law does not currently provide any cover for humanitarian intervention except in cases of genocide or where the UNSC underwrites military action. (As before, please point out the clause, or article, or paragraph or convetion that does provide this cover if I’m wrong. You haven’t so far, and I suggest there’s a good reason why not.) Your second citation is a simple recognition that the debate about what cover should be provided for intervention in cases of humanitarian emergency is ongoing and, thankfully, picking up some steam. Blair’s Chicago speech in 1999 championed this cause and albeit the ICISS report is still, for money at least, too hung up on UNSC consensus, it at least recognises the current provisions for intevention are inadequate.

So, please explain how an acknowledgement of the extant legal position and recognition that there is ongoing debate about the same equates to my “going around in circles”? For “going around in circles”, read: “holding two non-mutually-exclusive viewpoints simultaneously”.

Either you can debate about how international law is actually treating the emerging doctrine of humanitarian intervention or you you can just cry “Legal, schmeagle”. Please do one or the other.

Once again, I can do both, given “legal schmeagle” is simply a reflection of my frustration with the current legal formulation. As things stand, I won’t be persuaded that a war which I think is otherwise moral and justified should be opposed simply becuase it fails an existing legal test. I think there are others that made a similar judgment over Kosovo. Now, just because you supported Kosovo it certainly does not mean that you ought to support the war in Iraq, but I think there is an obvious lack of intellectual rigour on the part of those who take these views and invoke the issue of illegality as it pertains to Iraq as an reason to oppose that intervention. That is caleld having your cake and eating it.

Now, you shouldn’t interpret this as complete contempt for all international law. I’m just making the point that I find other arguments against intervention more persuasive and compelling than the issue of legality, specifically because the existing legal framework is wholly inadequate.

If you continue to misrepresent my views after this thorough explanation, it will only be becasue you want to.

That is why legal scholars have been grappling with the issues of “extreme circumstance”, “right authority”, etc. and yet you say that “Not one of these is germane to issue of legality”.

As regards the existing legal tests, this is emphatically true. There is currently no legal provision that gives cover to unauthorised intervention in cases of “extreme circumstance”. If you’re trying to reinterpret my words as meaning there is no discussion of these topics, then agian, you are being wilfully obtuse.

As I said before, I don’t want to patronise you, but it is difficult to know how to debate this with someone who just dips in and out like you are doing. At least read the Attorney General’s memo on the legal advice that the British govt actually received about Iraq, along with their legal advice about Kosovo and the Kurdish safe haven.

You’re doing *that thing* again. I don’t think for one minute that you honestly believe I haven’t read these things. They are intersting and relevant in terms of the wider discussion about possible legal reform, but your implied suggestion that there is information contained therein that contradicts anything I’ve said is wholly inaccurate.

OK Brownie. I am sorry that this will sound a bit like a lecture, but let’s start from first principles.

Article 38 of the ICJ statute lists the means for determining the rules of international law as: international conventions establishing rules, international custom as evidence of practice accepted as law, the general principles of law recognised by civilised nations and judicial decisions and the teaching of eminent publicists.

General international law, or customary international law as it is sometimes known, consists of norms that emanate from various combinations of these sources. In other words international law is what it says, what States think it means and how they act accordingly. Some more detailed guidance can be provided by the decisions of bodies, such as the ICJ, and the works of eminent legal scholars.

You have obviously just looked at the UN Charter and thought that was it, which is what is confusing you (and the drafters of the EM).

You say that the Kosovo intervention was “de facto illegal” (I am not quite sure why are using the phrase de facto in this context, but let’s let it go). However, the ICJ did have an opportunity to rule on this issue but failed to do so. Since you asked me for a reference let me give it to you “International Court of Justice, Legality of Use of Force (Serbia and Montenegro v. United Kingdom).” The court rejected the case on the procedural grounds that Serbia was not a party to the statute, but also rejected its attempt to gain jurisdiction by invoking the Genocide Convention. So there is no legal source for your assertion that the intervention was illegal.

The UN security council could have also labelled the intervention an act of aggression, but also failed to do so. In fact the majority of the council voted in favour of the intervention.

Your assertion that Kosovo was illegal (which makes you sound a bit like Neil Clark) is just that – an assertion. The UK government’s Attorney General has, conversely, asserted that it was lawful, because it was covered by the “humanitarian intervention doctrine”. Some legal scholars agree, some disagree. If you have read these various opinions it is not apparent from your comments.

There are many instances of States taking military action against one another on what they claim to be “humanitarian grounds”. India’s invasion of Bangladesh in 1971, Tanzania’s invasion of Uganda in 1978 and the Vietnamese invasion of Cambodia in 1979 were all justified with reference to humanitarian principles, among other things. Richard Lillich even argues that the doctrine of humanitarian intervention has long formed a part of customary international law (which pre-dates the UN Charter). Since one of the sources of international law is State practice, you would have to look at the opinio juris in each of these cases to decide whether or not it was sufficient.

Taking the Kosovo case, you would have to look at issues such as the motivation of the intervening forces, the scale of violations taking place beforehand, the effect of the intervention itself, its outcome against its professed goals and issues such proportionality. No court has ever done this and so it is impossible to say wheter or not the intervention was or was not lawful. Personally, I think that it probably would not pass the test of legality and I also happen to think it was a mistake – but that is just my opinion.

I could also point out that you have misread the meaning of the Genocide Convention and you might want to read some of the recent speeches by Gareth Evans about the R2P doctrine before you call Blair a “champion of the cause” (he uses the phrase false friend).

If you want another couple of references look for Nigel Rodley’s “To loose the bands of wickedness”, Helena Cook’s “The safe haven in Northern Iraq” and Helen Duffy’s “The war on terror and international law”.

Finally, for all the bluster, it is pretty obvious that you are out of your depth on this subject. I do not mean any disrespect on this point (as there are lots of topics about which I am sure that you know far more than me) but you might like to think about this in terms of your debating style. It was a characteristic of many supporters of the late and unlamented Euston Manifesto and it basically just made people think that you were a bunch of pricks.

No, the religiously-inspired head-choppers, bombers of funerals, market squares and murderers of Iraqi trade unionists are not my responsibility, uncle, although it’s important we remind ourselves of the nature of the forces trying to forestall nascent Iraqi democracy, so thanks anyway for bringing that up.

Yes, of course. If I’m elected Mayor and my first act in office is to fire 90% of the police corps, and a crime wave ensues, it’s not my responsibility: I’m not the one committing the crimes, after all!

Anyway, brownie, you know as well as I do that there a non-negligible number of Iraqi civilian casualties have resulted directly the actions of coalition forces. Thousands of deaths. And even by your own excruciatingly blinkered reckoning, those deaths are your “responsibility.” Though obviously not your problem.

You say that the Kosovo intervention was “de facto illegal” (I am not quite sure why are using the phrase de facto in this context, but let’s let it go). However, the ICJ did have an opportunity to rule on this issue but failed to do so. Since you asked me for a reference let me give it to you “International Court of Justice, Legality of Use of Force (Serbia and Montenegro v. United Kingdom).” The court rejected the case on the procedural grounds that Serbia was not a party to the statute, but also rejected its attempt to gain jurisdiction by invoking the Genocide Convention. So there is no legal source for your assertion that the intervention was illegal.

This is absurd. It’s like saying the burglary at number 33 wasn’t a crime because no case was ever brought and therefore no-one was convicted. The ICJ hasn’t ruled on Iraq either. So all bets are off, right?

General international law, or customary international law as it is sometimes known, consists of norms that emanate from various combinations of these sources. In other words international law is what it says, what States think it means and how they act accordingly.

If your debating partner doesn’t mention something in their responses to you, there is an automatic assumption on your part that this thing is not known to him/her. What you say to me always does read like a lecture, Conor, because this is precisely how you like to discuss topics. You assume pig ignorance and patronize from there. I have taken part in and read these discussions about legality and what constitutes international law for the past 5 years. We have a hnadful of barristers and one human rights lawyer who are regular(ish) commenters at HP and as smug as you may feel, you’re not telling me a single thing I don’t already know (as it happens, my daughter has just submitted her dissertation tht argues for a codified right of human intervention, so right now our house if full of relevant books, many of which I’ve read, at least partially. Of course, if I don’t name them that means I’m clueless, right?).

I may not know at the same level of detail that you do – which would be wholly unsurprising given what each of us does for a living – but I’m certainly not making the category errors you’re accusing me of. Not that this will stop you.

The House of Commons FAC report in 1999 declared the war a “prima facie breach of Artilce 2(4) of the UNC. You know, don’t you, that I could fill this screen with links that support this conclusion?

The (Kosovo) The Commission, initiated by the Prime Minister of Sweden, Goran Persson, handed its report to UN Secretary-General Kofi Annan on October 23, 2000. It was headed by Judge Richard Goldstone (South Africa), presenting at the conference, and included two other presenters: Martha Minow (US) and Michael Ignatieff (Canada). Other members not present at the Brandeis conference were: Grace d’Almeida (Benin), Carl Tham (Sweden), Akiko Domoto (Japan), Richard Falk (US), Mary Kaldor (UK), Jacques Rupnik (France), Theo Sommer (Germany), and Jan Urban (Czech Republic). The commentators at the Brandeis conference included professors of international law and politics, conflict resolution specialists, officers of human rights organizations, officials of the UN and European Union, and a Serbian journalist.

Its conclusion:

“The Commission concludes that the NATO military intervention was illegal but legitimate. It was illegal because it did not receive prior approval from the United Nations Security Council. However the Commission considers that the intervention was justified because all diplomatic avenues had been exhausted and because the intervention had the effect of liberating the majority population of Kosovo from a long period of oppression under Serbian rule”

So a UN International Commission concludes: illegal but legitimate. Pretty much where I stand.

Just as with Iraq, there are legal scholars who make a case for Kosovo intervention legality, but unlike Iraq, these cases do not (almost universally) invoke prior UNSC resolutions as justification (UNSC Resolutions 1160/1199/1203 did not mandate military action). Most such arguments as they pertain to Kosovo contend that intervention was necessary to uphold the UN’s commitment to humanitarian principles (Charter preamble, etc.). Yes, I accept the UNSC never ruled on legality, but for this see my opening comment about the burglary at number 33. So “de facto” illegal may be wrong in this sense, but I am absolutely right to say there is no codified legal basis for intervention. It requires reinterpretation of precedent and wholly subjective interpretation of customary law.

you might want to read some of the recent speeches by Gareth Evans about the R2P doctrine before you call Blair a “champion of the cause” (he uses the phrase false friend).

You’re doing it again. My comment made it clear Blair was championing the cause of humanitarian intervention. I’m well aware there is clear water between Blair and the conclusions of the ICISS report. What do you think I meant when I referred to the latter being hung up on UNSC consensus? My problem with the R2P doctrine is that whilst it recognises the inadequacies of current provisions, its belief that UNSC authority is still required leaves us pretty much where we are today. Paralysed.

This discussion began with my dismissal of legality as a defining factor so far as any decision I might make about supporting or opposing a war. Even if I conceded every single point you’ve made since then – which I don’t – your own argument is an acknowledgement that there is no final arbiter which, if you think about it for a nano-second, ought to lead you to the same conclusion.

What Kosovo did more than any other war in modern times is shine a light on the gap between legality and morality. It couldn’t have done that and helped kickstart the discussions that scholars are now having if had been recognised as legal to begin with.

It was a characteristic of many supporters of the late and unlamented Euston Manifesto and it basically just made people think that you were a bunch of pricks.

The people who consider us pricks are precsiely the people whom we depend on to think us pricks. We wouldn’t have it any other way.

I wonder if you are as condescending and arrogant in real life? Probably not, however, unless and until you are capable of beginning an online discussion which doesn’t start with an assumption from you that your interlocutor has never read a book, people will think you are.

It is like listening to someone in a lecture on physics shouting out “well how come if the world is round, like you say, we don’t all fall off then, eh, eh, eh?”

I have a different perspective on this. Having a discussion with you is like a layman and expert in meteorological sciences arguing about which way the wind is blowing. The expert cites all manner of irrelevant research and academic material in an attempt to aseert authority, but as Bob Dylan once wrote: you don’t need a weatherman to know which way the wind blows.

conor foley : “But this debate (regime change on human rights grounds) is quite different to the debate about humanitarian interventions (emergency intervention to prevent an ongoing humanitarian crisis). The attempt by Blair et al to appropriate the former doctrine to justify the latter act is what has caused so much irritation, particularly when it is done by so much blatant disregard of inconvenient facts. ”

This is an interesting point but there does seem to be quite an obvious connection between the two doctrines you seem to miss : when a government itself is engaged in the mass murder of its own citizens then what you call ‘humanitarian intervention’ to stop the mass murder ( ie. emergency ) becomes a ‘regime change’ effort because the intervening force will have to replace the government in question. Quite easy to see :suppose that there had been an intervention in Rwanda in 1994. The initial purpose of the effort obviously would have been to stop the massacre of Tutsi women and men but in order to do that and to protect survivors it would have been necessary to dismantle the Hutu power regime.

In other words the debate re regime change is not really different ( depends on what you mean by ‘different’ I suppose ) from humanitarian intervention debate as you wish to argue because regime change may be one of the means for implementing meaningful humanitarian intervention.

One other point on Rwanda, which is often used in this debate. Just assume that another country (eg South Africa) had intervened during the genocide in order to try and stop it. If it had acted without UNSC authorisation, then this would obviously violate Article 2, but would this be an unlawful crime of aggression? Most legal scholars would say no and justify it under the humanitarian intervention/exceptional circumstances doctrine. I very much doubt if any court would ever rule against the intervening country in such circumstances.

The Australians almost went into East Timor on that basis and if the UN had not come up with a Chapter VII resolution then I think that this could have been justified, legally as well as morally. I think that Brownie’s “legal schmeagle” comment is because he just hasn’t followed this debate as closely as he seems to think.

Why Kosovo is such a bad example is because the scale of the violations before the intervention was probably too low (legally speaking, I was there and I know how much many people suffered) while the intervention itself undoubtedly increased the humanitarian crisis.

But if you support the concept of “humanitarian intervention” then you must also recognise that this is distinct from “the crime of aggression” and you have to have some type of check-list to distinguish one from the other. That is where supporters of the invasion of Iraq who want to appropriate the humanitarian argument for their own case tie themselves up in such knots.

Blair has always hedged on JWD, which is why he latched onto the R2P doctrine. But the two concepts are based on a very different principle about when the use of force is permissible. The damage that Blair has done is to confuse the two debates (and to confuse the Eustonauts as well).

Blair has always hedged on JWD, which is why he latched onto the R2P doctrine. But the two concepts are based on a very different principle about when the use of force is permissible. The damage that Blair has done is to confuse the two debates (and to confuse the Eustonauts as well).

Nope, it’s no confusion, it’s disagreement. R2P doctrine still places huge emphasis on UNSC unanimity, or at least permanent member support. This was my criticism of the 2000 ICISS report above. Blair and Eustonauts (I like that) believe that leaves us pretty much where we are – effectively paralysed in the face of most humanitarian emergencies. I don’t think anyone is confusing debates apart from you.

If Darfur does not demand implementation of the R2P doctrine, then what will? What is the point of such a doctrine if the legal framework suffocates it?

conorfoley : “Blair has always hedged on JWD, which is why he latched onto the R2P doctrine. But the two concepts are based on a very different principle about when the use of force is permissible. The damage that Blair has done is to confuse the two debates (and to confuse the Eustonauts as well).”

I am afraid this needs to be defended because there is plenty of academic work that disagrees with your claims here and above . See for instance “Humanitarian Intervention” by Terry Nardin and S.Williams ; NYUP 2005. Especially the papers by Anthony Coates and Joseph Boyle in this collection defend broadly the sort of position you claim involves confusion. Perhaps you are correct but you need to defend your claim above. This should not be difficult since you claim you are an expert on this area. Why not comment say on Anthony Coates view ?

That was the first time I had come up against your particular, rather hectoring, debating style. I had simply pointed out a factual error when you said that the safe haven had been created “without any authority from the UNSC whatsoever”. You refused to retract this, but the more that you subsequently wrote, the clearer it became that you did not know very much about the safe haven’s history. You are again dismissing here the presence of 20,000 ground troops in Northern Iraq as an issue of “pedantry”.

My emphasis added. Conor, look at why you claim I said and compare it to what I actaully said in the extract you post. I didn’t claim the safe haven was illegal; I claimed it was made safe by a no-fly-zone that was illegal. Res. 688 may well have given cover to Operation Provide Comfort, but in the view of all permanent members of the UNSC apart from the US and UK, and the majority of the rest of UN member states, and the UNSG himself, the no-fly zone was a step too far and was an abuse of 688. Now, you may disagree with how they interpret 688, but what you cannot do is claim I am guilty of a factual error. The vast majority of informed opinion agrees that the no-fly zone was illegal. With respect, Conor, you’re in no position to ask me to retract anything.

Let’s face it, you convinced yourself I was saying that the creatoin of a safe haven was illegal rather than the no-fly zone. Maybe you didn’t notice your error then, but you ought to notice it now.

I think this episode is symptomatic of your presumption of pig ignorance on the part of any commenter who dares to take an opposite view to you. You give our comments the most ungenerous reading possible and proceed from there. It’s hardly surprising that you occasionally make mistakes in your rush to correct non-existent factual errors.

Okay, Conor, I accept there was almost certainly a degree of arguing at cross-purposes and I’m well preparesd to accept my fair share of the blame for that. It is, as you say, wrong to equate the safe haven and NFZs, but equally I don’t think my comment about the NFZs making the safe haven ‘safe’ justified a reading that I was totally ignorant as to the presence of some ground toops (although I confess I didn’t know how many). I do think it’s fair to say that the NFZs were considered by many to be a crucial element in keeping the safe haven ‘safe’, especially given what happened at Halabja. I also think I’m on sure ground when I say the NFZs were considered by many to be a step too far and the majority did not accept they were sanctioned by 688. After the French stopped policing the NFZs, it was only the RAF and USAF who enforced them. There was regular criticism of the NFZs at the UN and Boutros-Ghali is on record as saying they were illegal.

In the context of the wider discussion about international law, humanitarian intervention, morality versus legality, etc., I was drawing attention to a specific policy that, whilst not enjoying multilateral support nor UNSC authorization, is widely considered to have been morally justified. It passes all the tests so far as I and many others are concerned.

Now, policing the skies as part of wider operation to provide safe havens is not the same as going to war, but once it is acknowledged that legality does not trump all, we no longer have a difference of principle. I absolutely agree that we should, as much as possible, try to act within the commonly understood parameters of international law, but not if this means sacrificing our humanity.

I can assure you that I am not one of these people who thinks the UN should be dismantled and all international law should be cast to the wind. Like my daughter, I would greatly prefer, for example, that any rights of humanitarian intervention are codified rather than interpreted subjectively. Equally, however, I don’t struggle to envisage situations where legal constraints might clash with a moral imperative. And I think you know the rest.

Conor, I greatly respect your work and I’ve learned much from reading your articles, however, I do honestly believe that your assessment of what makes me and those like me tick, is off-beam.