War crimes questions

by John Quiggin on April 28, 2008

It’s not that surprising to read that former Malaysian PM Mahathir Mohamad has called for an international tribunal to try Western leaders with war crimes over the war in Iraq, nominating Bush, Blair and Howard in particular. Mahathir is well-known as a provocateur, with a fondness for extreme statements, which have included anti-Semitic attacks on George Soros and others. So it’s unlikely that anyone will pay much attention to him.

Still, his views on Iraq as a war crime are widely shared. It scarcely seems beyond the bounds of possibility that someone like Baltasar Garzon might find a legal way to file criminal charges (Wikipedia says he’s already threatened a civil suit).

Such charges would have enough factual and legal support to make the outcome unpredictable if they ever came before a tribunal. Apart from the general question of the legality of the war itself, the US in particular has openly denied the applicability of the Geneva Conventions and has engaged in many actions (torture of prisoners, bombing of occupied civilian areas, reprisal attacks of various kinds) that at least arguably violate the Conventions.

On the other hand, the prospect of Bush, or any US official, for that matter, actually standing trial, let alone being convicted or punished, seems unthinkable. The only consistent inference that I can draw from this is that, if charges are ever laid in any jurisdiction, the governments concerned will find a way to abort the process without allowing the substantive issues to come before a court. Since most of the doctrines that might be used to achieve such an outcome (sovereign immunity, non-interference in internal affairs and so on) have already been repudiated, it seems as if such an outcome could only be justified in terms of a bald claim of “reasons of state”.

Are there any legal experts who can help me out here? I have two main questions:

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

{ 72 comments }

1

derrida derider 04.28.08 at 12:33 pm

I dunno about (1), but I reckon (2) would involve threats of armored divisions and aerial bombardment from the US.

Not that those responsible for making aggressive war on Iraq shouldn’t be facing Saddam’s fate, of course.

2

Steve LaBonne 04.28.08 at 12:57 pm

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.

3

Glen Tomkins 04.28.08 at 1:11 pm

Belling the cat

As derrida derider points out, one set of difficulties arises if the US govt is still controlled by the perpetrators.

But even if the US govt is controlled by other than the criminals, and there is little risk of prosecutions starting a war with the US, prosecution of these former officials would require the active cooperation of the US govt. Not only would the govt have to agree to extradition, but, more importantly, it would have to cooperate with the gathering of evidence. While mountains of evidence of wrong-doing may exist outside the US, any fair trial would have to afford the defendants the opportunity to produce exculpatory evidence, which they, of course, would claim exists in abundance in official US records. I can’t see a US administration willing to let even the most discrete and trusted foreign court imagineable rifle through Pentagon andf CIA records for evidence, that would not be infinitely more inclined to do what is the right thing anyway, and prosecute these war criminals ourselves, in US courts. Only the US itself can bell this cat.

After WWII, the vast majority of the Nazi criminals were prosecuted in German courts for crimes against Germany. The international conventions governing the conduct of war carry the force of US law, and BushCo committed crimes against our own country first and foremost when they violated those conventions. It is both the right thing, and the most practical, for us to dispose of our own trash.

4

douglas carnall 04.28.08 at 2:01 pm

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.

5

Stuart 04.28.08 at 2:04 pm

One interesting scenario would be if Bush were to be brought before the ICC, would his successor activate the relevant provisions of ASPA 2002?

6

mikesdak 04.28.08 at 2:36 pm

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.

7

abb1 04.28.08 at 2:38 pm

Whoa, Stuart, the “Hague Invasion Act”! I did not know that. They actually do threaten to invade Holland if one of them is put on trial at the ICC.

Amazing. Trying to be as cynical as I can, but the reality is always a step ahead.

8

Giotto 04.28.08 at 2:41 pm

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.

9

Dave 04.28.08 at 2:53 pm

Abb1, did you really not know? Tut, tut, it is a must-read for all students of American exceptionalism, right up there on the so-ironic-it-makes-your-teeth-ache scale with the fact that the USA hosts the HQ of the UN, while simultaneously deriding the very concept of international law…

10

Bob B 04.28.08 at 3:04 pm

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.

11

Bob B 04.28.08 at 3:17 pm

Correction: the latest edition of: Philippe Sands: Lawless World, was published in 2006 (ISBN-13: 978-0141017990). According to amazon.co.uk, this is still in print and available.

12

Randy Paul 04.28.08 at 5:41 pm

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

13

Ketzl Brame 04.28.08 at 5:54 pm

Wow I missed the Hague Invasion Act too. Thanks for the link! Simply amazing.

Agreed with Glen Tomkins and Douglas Carnall, we should clean up our own messes. The odds against that seem astronomical but perhaps when gas is $20/gallon the reining administration will need to put on a sideshow to redirect the anger of the masses.

14

Ketzl Brame 04.28.08 at 5:55 pm

reigning, darn it. Got horses on the brain.

15

richard 04.28.08 at 6:14 pm

the reining administration will need to put on a sideshow to redirect the anger of the masses

This sentence is perfect as is – cowboys, Barnum, bridling lusts and all. It may even be how W likes to think of himself.

My understanding of the American Servicemembers Protection Act of 2002 was that, although prompted by the forming of the ICC, it was supposed to apply to any foreign court hoping to try Americans for war crimes, no?

16

James 04.28.08 at 7:53 pm

“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?

17

virgil xenophon 04.28.08 at 8:57 pm

Following #16: And by logical extension EVERYONE
who VOTED for Blair and Bush whether they spoke
out publicly in favor or no, n’cest pas? And does not the phrase “silence is consent” have a long pedigree? So what about all the non-voters? Into the dock as well eh?

18

Bob B 04.28.08 at 9:00 pm

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

19

abb1 04.28.08 at 9:06 pm

Into the dock as well eh?

Why, no, not into the dock – just a whole lot of contempt.

20

Bob B 04.28.08 at 9:34 pm

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

21

rdb 04.28.08 at 11:30 pm

22

virgil xenophon 04.29.08 at 12:55 am

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?

23

Former Republican 04.29.08 at 1:31 am

I expect that in January, 2009, Bush will issue blanket pardons that will make it impossible to prosecute anybody in US Federal courts for Iraq war crimes. So the only hope is the ICC (or conceivably state courts).

24

nick s 04.29.08 at 4:56 am

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.

25

abb1 04.29.08 at 6:46 am

Virgil, in the case of 2004 election I think both groups deserve a fair amount of contempt. Though the latter group more than the former, obviously.

26

Pete 04.29.08 at 10:37 am

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?

27

Markup 04.29.08 at 12:28 pm

“The test for an incoming Democrat facing a pile of pardons would be how he or she responds to such efforts.”

Seems if a ‘memo’ and/or a signing statement can be used to bypass the constitution to do real or perceived wrongs, then well they too can be used to bypass the constitution to correct them. Of course it is unlikely to occur since it would be an ugliness placed upon US that we are not able to handle, unlike impeachment for sex. We will just move on so the healing can begin. Thoroughly addressing the problem will not happen as far too large a majority of us, as part owners in the ownership society inc., have our hands in the cookie jar. How many were cursing in the Enron times the run up of energy costs while willfully ignorant [as long as it went up] that as a CalPERS [or any other number of funds/plans] team member they were happily “profiting” from it?

“Would you try harder to indict Bush …”

Only if we’re willing to switch from Ownership to Leadership society, sadly though when attempted some will remind us that “society” is a damned French word. So with a bit of hocus pocus with the socus locus we’ll go back to wonder why Mille Cyrus ………

28

Conor Foley 04.29.08 at 2:06 pm

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

29

Brownie 04.29.08 at 4:23 pm

Legal, schmeagle.

Whatever the arguments about Iraq war legality, it is not a matter of serious debate that the Kosovo war was de facto illegal. The late Robin Cook, who resigned from the cabinet over Iraq, was the foreign secretary at the time and he implicitly conceded this point whilst trying to reconcile the irreconciliable with talk of ‘broad consensus’ and ‘NATO endorsement’, as if this makes the illegal legal.

All of which goes to show that there are worse places one can find oneself than the wrong side of international law.

Has anyone else appreciated the irony of reading appalled media elites excoriating the Brown government for refusing to break diplomatic relations with the detestable China, when many of the same hacks proclaim the illegalty of the war in Iraq because it lacked the support of, amongst others, China?

Imagine that, eh? A war leant legitimacy because it has the support of Beijing?

Oh, and that stalwart of liberal democracy, Putin.

Yes, I’d be positively brimming with the moral certitude that comes from knowing the Iraq war had the support of Russia and China, and was therefore unambiguously ‘legal’. That would be so much better.

30

douglas carnall 04.29.08 at 4:46 pm

“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.

31

Conor Foley 04.29.08 at 4:56 pm

Well fair enough Brownie but then why launch a manifesto calling for the reform of international law? Or why does does Norman Geras write so many articles on the topic:
http://normblog.typepad.com/normblog/2008/04/is-internationa.html

There are a whole range of subjects that I do not know very much about, but I try not to shoot my mouth off about them.

32

Brownie 04.29.08 at 7:49 pm

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.

33

Conor Foley 04.29.08 at 7:57 pm

A fairly simple point Brownie. Do you think that all international law is a “sick joke” or are there just parts of it that you don’t like?

34

Brownie 04.29.08 at 8:59 pm

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.

35

gandhi 04.29.08 at 9:23 pm

Thanks for those links rdb#21. The single Australian link in favour of the war’s legality, from Greg Hunt (still the Liberal member for Flinders) was particularly entertaining.

I should have guessed that Prof Q would post this here as well as on his personal blog page, where I have already commented extensively on the ICC and Hague limitations.

I have also written my own post on the (il)legality of the Iraq war.

My conclusion is that (as glen said at #3) we need “to dispose of our own trash”. From an Australian perspective, that means a Royal Commission: we cannot prosecute War Crimes when so much of what happens remains shrouded in government secrecy, and protected by media complicity.

36

Conor Foley 04.29.08 at 10:03 pm

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.

37

Brownie 04.30.08 at 1:02 am

Many argue that there is an “extreme circumstance threshold” which might justify an “unauthorised humanitarian intervention”.

Yeah, I’d be one of them, but I don’t pretend this passes muster as a legal argument. There was no genocide and no self-defence justification and no UNSC resolution underwriting the action. It was illegal, no matter how “broad” the consensus. You can’t be a bit pregnant and a war can’t be a bit illegal, but then you already know this. Of course, this doesn’t matter to me because 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.

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

Oh give me a break. I supported both interventions because I was convicned by the arguments. I might just as easily have supported one but not the other, or neither. The salient point, however, is that my opposition would have had nothing whatever to do with il/legality.

There are lots of good arguments against war in Iraq and even some good ones against intervention in Kosovo, but none of them has anything to do with the fact one or both is/are illegal.

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.

Since when was a motion condenming military action the sine qua non of illegality? This simply shows that a majority in the UN supported action. Unffortunately for your argument, this is not the required legal test. But you already know that, too.

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.

I have yet to hear a single supporter of the manifesto explain what they actually mean by this

Well then you haven’t been paying attention.

38

gandhi 04.30.08 at 1:36 am

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?

39

Bob B 04.30.08 at 2:23 am

The invasion of Iraq began on 20 March 2003. From the G8 summit in June that year, it was reported that:

“Tony Blair has rejected calls for an official inquiry into the government’s claims about Iraq’s weapons of mass destruction. Speaking at the G8 summit in Evian, Mr Blair said he stood ‘100%’ by the evidence shown to the public about Iraq’s alleged weapons programmes.

“‘Frankly, the idea that we doctored intelligence reports in order to invent some notion about a 45-minute capability for delivering weapons of mass destruction is completely and totally false,’ he said.”
http://news.bbc.co.uk/1/hi/uk_politics/2955036.stm

Curiously, no WMD have been found in Iraq. This is not really surprising. In Britain’s Ministry of Defence, a branch of the Defence Intelligence Service was tasked to monitor and assess incoming intelligence on WMD. At the time of the Iraq invasion, Dr Brian Jones was head of this branch. This report in The London Times on 4 February 2004 relates to the doubts Dr Jones had about the claims made in the government’s dossier on Iraq’s WMD published on 24 September 2002:
http://www.timesonline.co.uk/tol/news/uk/article1011171.ece

A link to that dossier on Iraq’s WMD is at #18 above.

40

Bob B 04.30.08 at 2:23 am

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

Brownie 04.30.08 at 8:12 am

bob b,

So there was no unanimity within intelligence circles as regards the assessment of Iraq’s WMD capability. What a shocker. Do you think, on any given day, there is unanimity within intelligence circles about anything? You know what “intelligence” is, right?

And I’m not certain why you would juxtapose Blair’s comment and Jones’ letter? Whatever criticisms there were in Hutton and the 3 other enquiries about government conduct and the overly-close relationship with JIC, for example, the charge that intelligence was doctored has been shown to be without merit, no matter often anti-war dupes like to repeat it.

42

Bob B 04.30.08 at 10:20 am

#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

43

Conor Foley 04.30.08 at 10:35 am

So Brownie how do you define the term “war criminal” – or do you think that is a meaningless concept as well?

44

Conor Foley 04.30.08 at 11:26 am

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?”

45

Bob B 04.30.08 at 2:31 pm

C’mon. Let’s not leave Bush’s first Treasury secretary, Paul O’Neill, out of this.

As he said in an illuminating CNN interview in January 2004, the Bush administration started planning for the Iraq war within days of entering the White House in January 2001, months before 9/11:
http://www.cnn.com/2004/ALLPOLITICS/01/10/oneill.bush/

And BTW Richard Perle – a key member of the defence policy board which advised Donald Rumsfeld – has already admitted that the Iraq war was illegal:

“International lawyers and anti-war campaigners reacted with astonishment yesterday after the influential Pentagon hawk Richard Perle conceded that the invasion of Iraq had been illegal.”
http://www.guardian.co.uk/uk/2003/nov/20/usa.iraq1

46

Uncle Kvetch 04.30.08 at 4:27 pm

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.

47

Bob B 04.30.08 at 5:10 pm

Absolutely. May they RIP.

Never mind about Mahathir Mohamad. Before the thread closes, I think a hat tip is due to John Quiggin who has performed a valuable public service in starting this thread so those of us who care about the issues can have a round-up of news, views and links.

At least two more links merit inclusion IMO. First, the Richard Clarke interview on 60 Minutes:

“(CBS) In the aftermath of Sept. 11, President Bush ordered his then top anti-terrorism adviser to look for a link between Iraq and the attacks, despite being told there didn’t seem to be one. . . Clarke says that as early as the day after the attacks, Secretary of Defense Donald Rumsfeld was pushing for retaliatory strikes on Iraq, even though al Qaeda was based in Afghanistan. Clarke suggests the idea took him so aback, he initally thought Rumsfeld was joking. . . “
http://www.cbsnews.com/stories/2004/03/19/60minutes/main607356.shtml

And, of course, mention must be made of the missing billions. There is a choice of relating reports:

“Paul Bremner, former head of the US led civilian administration in Iraq was quizzed by a Congressional committee which is investigating allegations of fraud. Mr Bremner defended his decision to send billions of dollars in cash to Baghdad during the years 2003 to 2004. These funds originally came from Iraqi oil revenue and frozen assets.

“Much of the money sent by Bremner went missing and can still not be tracked to this day. When questioned by Henry Waxman, the democratic Chairman of the House Oversight and Reform Committee, Mr Bremner answered; ‘that he had done his best to kick-start Iraq’s economy.’

“Henry Waxman asked,’ who in their right mind would send 360 tons of cash into a war zone?.’ He added, ‘But that is exactly what our Government did. There is no way of knowing whether the cash which totals $9 billion and flown over on pallets from the US would end up in enemy hands.'”
http://www.associatedcontent.com/article/143983/paul_bremer_sending_billions_of_cash.html

48

Hidari 04.30.08 at 9:43 pm

‘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.

49

Brownie 05.01.08 at 12:39 am

Conor,

Please, don’t lose any sleep worrying that I feel patronized by you. I can assure you I don’t and if you carry on as you have on this thread, I never will.

We were having a discussion about legality. In trying to distinguish Kosovo from Iraq you referenced:

1 – Russia’s failed attempt to have the Kosovo intervention condemned at the UN

2 – The “broad consensus” argument as regards the same conflict

3 – And “the extreme circumstances threshold”

Not one of these is germane to issue of legality. A failure to have a motion passed condemning action does render that action legal. “Broad consensus” at the UN is meaningless whilst permanent member UNSC vetoes still apply. And the “extreme circumstance threshold” is a preferred legal test of those who, amongst other things, agree with me that international law as currently crafted does not provide the necessary cover for humanitarian intervention. But this remains a pure flight of fancy and currently plays no role in any test of legal authority. It should, but it doesn’t currently.

This is sum total of your attempts to contrast the legality of Kosovo and Iraq respectively, apart from reeling off the names of few well-known QCs (glad to see you’re a fan of Greenwood, by the way, or is that only when he’s arguing the case for Kosovo and not Iraq?). You haven’t provide one sentence of argument for the legality of the Kosovo intervention using international law as it exists today. Yet I’m “moronic”? I hope for your sake you’re just being knowingly obtuse and you don’t actually believe there is, currently, any legal merit in the arguments you’ve put forward.

Your correspondence with me always winds up with you making hysterical appeals to authority….haven’t I read this, don’t I know so-and-so, etc. You’re waiting to unleash a list of names every time the going gets tough in discussion, as if your interlocutor will be forced into coneding that he doesn’t know what he’s talking about no matter how irrelevant the citations and references you produce. It might work on some people, but I’ve seen this too often from you. Like, every time we converse.

Exhibit Z:

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.

Who is claiming the debate about “unauthorized interventions is fixed”? Not I. This debate wasn’t started by the International Commission on Intervention and State Sovereignty’s “Responsibility to Protect” report produced in 2001, but it was certainly given new impetus by it. There absolutely is plenty of discussion about whether states should have to meet minimum duty of care standards in order to benefit from sovereign status and I’m sympathetic to most arguments that they should have to pass such tests, but unlike you, I don’t confuse the ongoing debate about legal reform with the reality of the extant legal framework within which states are currently required to operate. That framework was despatched when NATO led the intervention in Kosovo and a bloody good thing too, but ‘legal’ it wasn’t, and in half a dozen comments so far, you haven’t produced one single argument that makes the case for Kosovo intervention legality invoking inernational law as it currently exists. Not one. In the case of Iraq, the argument that authority is derived from resolution 678 et al as Iraq was in flagrant breach of cease-fire terms is at least legally coherent, even if you believe that it stretchs legality beyond breaking point, but you build no such case for Kosovo. Probably because there isn’t one (no UNSC’s authorising military action to fall back on), which makes your unevidenced pretence to the contrary all the more bizarre.

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?”

Except it’s your arguments that are defying gravity, Conor. I can assure you I’ve read more about this subject than you give me credit for, but I didn’t know this was a biggest dick competition. I thoguht we were arguing about the legality of Kosovo. Please cite the precise legal article that you think leant legal legitimacy to the war, because for all your name-dropping and vague references to books that discuss legal reform, you’ve thus far conspicuously failed to deliver. I can’t be the only one who has noticed.

Bob b,

Re Perle…sorry, chap, you seem to have me confused with someone who thinks the matter of the legality of the Iraq War is actually important. I’m afraid I can’t help you.

And so many links, so little evidence of docotring, lying, saying things known at the time to be false.

The most serious charges against Blair are false and have been concluded as such by Butler, Hutton and two select committees. Not that this will stop you.

I look forward to your next couple comments the include links to articles that are either irrelvant or fail to pass muster as evidence of Blair’s lying. More of the same, in other words.

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.”

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.

50

Conor Foley 05.01.08 at 1:44 am

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.

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Bob B 05.01.08 at 5:02 am

“And so many links, so little evidence of docotring, lying, saying things known at the time to be false.”

C’mon. Check the letter from Dr Brian Jones at the link in #40 above.

Presumably, Blair was aware of the profound reservations from within the Defence Intelligence Service in the MoD about the claims made in the dossier of 24 September 2002 when we went to war with Iraq on 20 March 2003.

And I suggest a careful re-reading of this retrospective report on events in the decision-making process in government leading up to the invasion:
http://www.timesonline.co.uk/tol/news/uk/article387237.ece

I think it will be fairly evident to most readers that there were systematic attempts to deceive Parliament and the public at large about the claimed risks from Iraq’s WMD as well as on the issue of whether the war was legal. Many tens of thousands of Iraqi civilians have been killed as the result of this war.

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Brownie 05.01.08 at 1:01 pm

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.

53

engels 05.01.08 at 2:39 pm

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.

The thing is, Brownie, it’s statements like this that make it clear that you are out of your depth here, and quite tragically so. Legal analysis really isn’t just a matter of reeling off quotations from statutes or treaties…

54

Conor Foley 05.01.08 at 4:27 pm

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.

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Conor Foley 05.01.08 at 5:33 pm

Oh and a few more references:

Nina Jorgensen, ‘State responsibility and the 1948 Genocide Convention’, in The reality of international law, essays in honour of Ian Brownlie, Goodwin-Gill and Talmon (eds) Oxford University Press, 1999, p.273-293.

Barcelona Traction case (Belgium v Spain) ICJ Rep. 1970, Judgment of the Court, para 39.

Legal consequences for States of the Continued Presence of South Africa in Namibia. ICJ Rep. 1971, para 131

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Uncle Kvetch 05.01.08 at 9:43 pm

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.

57

Martin Wisse 05.02.08 at 10:00 am


Correction: the latest edition of: Philippe Sands: Lawless World, was published in 2006 (ISBN-13: 978-0141017990). According to amazon.co.uk, this is still in print and available.

And it’s an excellent book for anybody who is interested in the idea of international law and how it applied to the War on Iraq and such. Sands is brilliant in showing how modern international law developed in the last two-three decades, what the issues are that John’s asking about here as well and how the US and UK have violated them, without relying on anything but legal arguments and doing it in a way that non-lawyers like myself can follow the argument.

Back on the subject, the example of Belgium might be instructive in how the UK and US avoid prosecution for their warcrimes. Belgium used to have a law that allowed for prosecution of warcrimes/crimes against humanity all over the world, whether or not Belgian citizens where involved or not, but it was amended under heavy pressure of the US once it looked like they could be a target…

58

Brownie 05.02.08 at 10:23 am

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.

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Conor Foley 05.02.08 at 1:39 pm

Brownie: but we are not discussing the weather, we are discussing the topic of international law and your critique of it.

On Kosovo, a case was brought to the ICJ which could have ruled that it was illegal, but chose not to. If a case is brought to court and the court in question chooses not to make a judgment then that obviously has legal significance. To use your own analogy, it is like an alleged burglar being brought to court and the court failing to convict him.

You originally stated that “Whatever the arguments about Iraq war legality, it is not a matter of serious debate that the Kosovo war was de facto illegal.” But it is. People are extremely divided on the question.

I am not assuming pig ignorance on your part. When I first read the Euston Manifesto I actually assumed that its drafters must have understood the debate that has been going on about humanitarian interventions over the last 20 odd years. What pretty much everyone involved in those debates thinks is that we need to strengthen international law and its enforcement mechanisms.

The UN Agenda for Peace report of 1992 sets out what most humanitarian workers think is needed.
Since that report we have seen the creation of the ICC and we also have the experiences of over a dozen large-scale humanitarian interventions to draw on. There is a real debate going on about these successes and failures and the strengths and weaknesses of the ICC. The ICISS report and the R2P are building on these discussions and it is an ongoing and interesting debate.

You say that you have been following the debate for the last five years, which I assume coincides with the invasion of Iraq. You supported this invasion and I opposed it and we can debate the rights and wrongs of that some other time.

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. Your assertion of a few months ago that the Kurdish safe haven had been established without either a UN resolution or ground troops was a case in point.

I am not meaning to patronise you, but it does seem from your comments that you are relying on some fairly cliched and superficial accounts about particular humanitarian interventions (Sierra Leone, the Balkans, etc.)

You also do not seem to get the distinction between customary and treaty law that we have been debating here. Perhaps your daughter can explain it. Her dissertation sounds very interesting, and I would agree with her argument that we need a codified basis to address the issue of humanitarian intervention. I would put that alongside a clear definition of the crime of aggression (with a defence that would include “exceptional humanitarian circumstances”).

The basic difference between us is that I want to strengthen the international legal framework whereas you appear to want to tear it down (or maybe just disregard it).

On my earlier question, though, how do you define a “war criminal”?

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zdenek 05.02.08 at 2:36 pm

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.

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Conor Foley 05.02.08 at 5:11 pm

Zdenek: a fair point, but it is means and ends. During the intervention in Afghanistan, for example, the US and UK reported to the UN that they were acting under Article 51 (self-defence) and their aim was to get those responsible for 9/11 (Al Qaeda) and those who had “harboured, sheltered and protected” them (the Taliban). The UK repeatedly stressed that the aim was not regime change, per se, but that this was a means to an end. Blair was very careful in the wording that he used in his speeches on the topic.

Similarly, a humanitarian intervention could lead to regime change. It might even include the specific aim of toppling a regime that was responsible for the serious MHRVs and bringing its members to justice (through an international criminal tribunal), but, again, this could not be the primary justification of the intervention.

Both the “doctrine of humanitarian intervention” and the “crime of aggression” are recognised parts of international law (arguably with customary status), although they have not been properly defined and codified in an international treaty. Had the EM’s supporters come into this debate, they could have made a useful contribution about how this could be done, but that would have required a little bit more humility and less public posturing.

One interesting point that Brownie raises above is that virtually no one tries to rely on the Chapter VII resolutions that the UN had previously passed in relation to Kosovo as the justification for NATO’s final action. As he notes, this is because they did not mandate military action. The Attorney General’s confidential legal advice about Iraq also strongly suggested that the previous UNSC resolutions passed in relation to Iraq could not provide a sufficient mandate for intervention. Yet that was the public argument that they finally decided to go with.

I think that Blair knew that the invasion of Iraq without a UN mandate would be illegal and so, having decided that he was going to back it anyway, he then tried to use the debate about the R2P doctrine to just have a general dig at the concept of international law. He has done a huge amount of damage to the cause of humanitarian intervention as a result.

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Conor Foley 05.02.08 at 5:36 pm

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.

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zdenek 05.02.08 at 7:11 pm

conotfoley “but, again, this could not be the primary justification of the intervention.”

Yes, true but this can be understood as a claim about what the *law* says or what the *Just War Doctrine* says. And of course once we make this distinction it is possible to agree with you that from the point of view of the law, regime change can not be the primary justification of the intervention but what if the argument is that regime change can sometimes be justified from JWD perspective ( this I take to be what Brownie means when he says that such an intervention may be morally justified ).

But this makes things interesting because suppose now–not implausibly– that there is such an argument that rests on and is powered by JWD . Because JWD involves a set of moral principles that actually *underwrite* international law which deals with war it would appear that Blair cannot really damage the cause of humanitarian intervention.

Moreover and interestingly for your criticism of Blair to work it is not enough to only show that his views are incompatible with the legal status quo as far as regime change is concerned if you want to show that he has damaged the cause of humanitarian intervention. You need to show that his position is incompatible with JWD which you have not done.

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Conor Foley 05.02.08 at 9:46 pm

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).

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Brownie 05.03.08 at 1:45 am

Conor,

Just a handful of brief points:

Your assertion of a few months ago that the Kurdish safe haven had been established without either a UN resolution or ground troops was a case in point.

Do you ever stop? I said the safe haven in northern Iraq was safe thanks to illegal no-fly zones, at which point you decided to lecture me on Operation Provide Comfort. More Foley pedantry, this time pointing out that there were a few thousand ground troops in Iraq at the time, as if this invalidates my point about the role played by the RAF and USAF. And it was only the RAF and USAF, because almost every other UNSC member who expressed an opinion about the no-fly zones believed them to be an abuse of res.688. The UNSG declared the no-fly zones illegal. As I said in the original thread, this is the sort of thing that is ordinarily considered important by those who opposed the Iraq war.

The Attorney General’s confidential legal advice about Iraq also strongly suggested that the previous UNSC resolutions passed in relation to Iraq could not provide a sufficient mandate for intervention.

The advice posited two interpretations of extant resolutions: one that did not provide cover and another that did not. This is what a lawyer does, no? S/he explains what the possible legal implications are and decisions are made on this basis. What the advice didn’t suggest – which is certainly what people like you were hoping for – is that it was impossible to build a coherent legal case which argued authority flowed from res.687, etc.

The basic difference between us is that I want to strengthen the international legal framework whereas you appear to want to tear it down (or maybe just disregard it).

Well then I guess you haven’t been reading my comments, after all. I said above:

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.

In Blair’s Chicago speech, he said:

On the eve of a new Millennium we are now in a new world. We need new rules for international co-operation and new ways of organising our international institutions.

And:

If we want a world ruled by law and by international co-operation then we have to support the UN as its central pillar. But we need to find a new way to make the UN and its Security Council work if we are not to return to the deadlock that undermined the effectiveness of the Security Council during the Cold War. This should be a task for members of the Permanent Five to consider once the Kosovo conflict is complete.

Doesn’t sound like he wanted to “tear it down”, either.

I would prefer to see international law reformed and cover for humanitarian intervention – even humanitarian intervention with a regime changing dynamic – codified. I don’t *want* a free-for-all. Equally, I think there is sometimes a moral imperative to intervene even in circumstances where legal authority is not obtainable.

Far be it for me to speak for others, but I think I’m on relatively safe ground when I say this is the commonly-understood Euston view that you pretend to find so impenetrable.

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Brownie 05.03.08 at 2:08 am

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?

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Conor Foley 05.03.08 at 12:58 pm

Brownie: why don’t I just post the original exchange that we had on the topic of the Kurdish safe haven. I said:

“Yes the morality/legality dichotomy is difficult and was the main reason why the International Commission on State Sovereignty and Intervention was set up. I agree with where it drew the line with the R2P doctrine, but I can understand why other people do not. . . I was actually in the safe haven in Northern Iraq when the genocide started in Rwanda and my general view, for what it is worth, is that we always seem to end up drawing the wrong lesson from the last country when it comes to humanitarian interventions.”

You said: “Well, what exactly is the lesson we can draw from Rwanda? And that safe haven in Northern Iraq was ‘safe’ thanks to de facto illegal no-fly zones enforced by the RAF and USAF without any authority from the UNSC whatsoever.”

I said: “Brownie: no there were ground troops in Iraq at the start of Operation Provide Comfort and it was covered by UNSC Resolution 688.”

You posted several subsequent comments to which I replied and then, as here, you accused me of “trying to turn the discussion into a contest”.

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”.

Now after I have responded to your demands that I give you specific cases and legal references on Kosovo you just ignore them all.

Your particular combination of ignorance and arrogance makes it very difficult to have a coherent discussion with you, although I dare say our positions are probably not actually that far apart. Let’s just drop this and keep out of another’s way in the future.

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zdenek 05.03.08 at 5:03 pm

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 ?

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Conor Foley 05.03.08 at 5:39 pm

zdenek: I will pass if you don’t mind. I’ve not read the book in question and would not have any way of getting hold of it here in Brazil. As I said above, there are hundreds and hundreds of scholarly books and articles on the topic, which approach it from a variety of perspectives. I am assuming that Coates and Boyle are philosophers, which is not really my field.

I have never actually claimed to be any type of expert on this subject, incidentally. The sort of points that I have made above could be made by anyone who has served in a UN mission or has a passing familiarity with international law or humanitarian relief work.

What I find bizzare about the debating style of Brownie, and others, is that they make assertions like “the safe haven was made safe by the NFZ” and then when someone who was actually there has the nerve to contradict them they start huffing and puffing. If you read the HP thread he concludes by telling me that I “benefited from the protection” of the NFZ – whereas, in fact I was almost killed by a Turkish air strike – and finishes off with a sarcastic quip about “the great and the good” not even “tutting their disapproval as more innocent lives were sacrified on the altar multilateralism.” In that particular context, you have got to wonder about the mentality of someone who could make such a remark.

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Brownie 05.03.08 at 6:44 pm

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.

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Conor Foley 05.03.08 at 7:42 pm

OK Brownie let’s finish this here and then, seriously, don’t bother me again.

You asked me a question about international law on that thread to which I replied. You then told me that the safe haven was made safe by the NFZ. I responded by telling you that it had actually been created by ground troops and that it was implicitly authorised by a UNSC resolution. You then repeatedly told me exactly the same thing (that the NFZ made the safe haven safe but had no lawful authority).

I was genuinely confused at what you were saying at first (and thought you might have been refering to the fact that 688 was not adopted under Chapter VII). Eventually it dawned on me that you were simply equating the safe haven and the NFZ, although these are actually quite different issues. There was an NFZ in the south as well, but no safe haven.

Let us be very clear about this, the safe haven was not “made safe” by the NFZ. If you had ever been there you would know that. Iraqi forces were turned back by ground forces in 1991. They were then detterred from a full-scale assault on the area by a number of factors. The NFZ was only one of them but only one (the token presence of UN observers, the agreement that the govt had signed with the UN and the proximity of US bases in Turkey were all just as important).

But also – take it from me – Northern Iraq was not safe, it was the most dangerous place that I have ever been in in my entire life. There were constant shootings, missile attacks, bombings and skirmishes.

I raised that point during our discussion and would have been happy to expand on it, but you just seemed to want to score a point about illegality and the NFZ.

Your comments became increasingly shrill as you “emphatically” insisted and tried to “get me to accept” said that I was “attempting to square” and then finally told me that I actually personally “benefited from the protection” of the NFZ.

I had started the debate thinking that you might genuinely be interested in the issue, but it gradually dawned on me that you just wanted to score points.

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Brownie 05.03.08 at 10:17 pm

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.

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