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.

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.

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.

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.

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 ?

“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.

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?

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.

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.

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.

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.

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.

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”?

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.