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WAR IN IRAQ – YES OR NO?

 

 

Notes on a meeting organised by CCADD and the Centre for Defence Studies, at Kings College, 5th November 2002

 

This meeting, held in the Committee Room at Kings College, was attended by about 25 people from both organisations, and was chaired by Richard Harries (Bishop of Oxford and President of CCADD). There were four main speakers:

Dr. Rein Mullerson, Professor of International Law at King’s College

Dr. Lawrence Freedman, Head of the School of Social Science and Public Policy, King’s College

Dr. Paul Cornish, Director of the Centre for Defence Studies

General Sir Patrick Cordingley, former Commander in Chief of British Land Forces during the Gulf War

 

The following is a summary of each speaker’s contribution, with notes of the following discussion.

  1. Professor Mullerson

 

  1. The legal context:
  2. Relevant international law includes not only the UN Charter, but also ‘customary law’. This includes a) the principles of necessity, immediacy and proportionality in self-defence (the ‘Caroline case’ is a relevant precedent here) and b) new developments that have changed the traditional Charter paradigm (e.g. the new interpretation by the Security Council of threats to international peace and security; authorisation by the Council for use of ‘all necessary means’ (i.e. including armed force) for humanitarian purposes. The interventions of ECOWAS in Liberia and Sierra Leone that were only ex post facto legitimised by the Security Council also differ from what the textual reading of the Charter implicates. Precedents such as Kosovo and Northern Iraq also show that the traditional Charter paradigm is in the process of rather radical change.

  3. The use of force before an attack occurs:
  4. Such use may be pre-emptive, anticipatory or interceptive. Our current concern is with the anticipatory use of force. The 1967 Israeli war was a legitimate example of the anticipatory or interceptive use of force. The 1987 Israeli attack on the Osirak nuclear installation was pre-emptive, and most authorities agree that it was illegal. Yet nobody is expected to become a ‘sitting duck’. Most authorities accept the legality of anticipatory use while pre-emptive use of force has to be dealt with as an issue of collective security and consequently through the Security Council. The issue of armed reprisals is also in the process of review. Traditionally such reprisals have been considered illegal. However, in cases of self-defence against terrorist attacks both anticipatory self-defence and using reprisals (so called defensive reprisals and not only punitive ones) may become necessary. Since 1990 international law has developed a good deal, with the certainties of the UN Charter being somewhat undermined. But new norms have not yet crystallised because of the lack of consensus.

  5. Iraq

There is no doubt that Iraq is in violation of international law obligations, and under UN Chapter VII sanctions. Therefore, under international law, Iraq is not like any other state. Mere allegations of links to Al Q’aeda do not support the use of military force but possession of WMD by a recent user of such weapons who is under the obligation to get rid of such weapons can’t be ignored. The are four possible scenarios: a) Iraq fails to co-operate with inspectors and this leads to UN authorisation to use ‘all necessary means’; b) Iraq co-operates fully with UN inspectors, and the latter show that Iraq is ‘clean’. This would clearly mean that any use of force would be illegal; c) The Security Council can’t agree, and the US goes ahead with use of force without its authority; d) The Security agrees a resolution which Iraq fails to comply with, but the Security Council does not authorise the use of force, and the US goes ahead without it. The UN Charter implies that c) and d) would both be illegal, but for example recent statements by Kofi Annan on the Kosovo crisis suggest something different. The law is changing. If the Security Council fails to rise to a challenge, this would not only betray the UN’s founding principles but would also mean that somebody else should replace the ineffective Council.

Conclusion

If the Security Council is not capable of fulfilling its fundamental role, it may be by-passed. Power and legitimacy must work together. If the US went ahead with the use of force ignoring the Council, this would be contrary to international law. But if Washington tries multilateral means and these fail, then such violations of the law may become the means of transforming it. In international law the maxim ex factis jus oritur (facts have a tendency to create law) sometimes trump another maxim ex unjuria jus non oritur (violations of law do not change law)

Discussion and Questions

  1. Can Iraq already be in ‘material breach’ of the law in the absence of proof of the existence of Iraqi nuclear weapons? Answer: this is an issue in the Law of Treaties. A ‘material breach’ is a basis for denouncing a treaty. But Security Council resolutions are different. Iraq has long been in ‘material breach’ because of its failure to co-operate with UN inspectors even if there is no proof of the existence of forbidden weapons.
  2. How elastic is the UN Charter? Does it recognise the distinction between robust and weak or failed states? Answer: it’s as flexible as states want it to be. Iraq is not a failed or weak state, and in any case since the establishment of no-fly zones in Northern and Southern Iraq, the use of UN force against it is not new. Only the scale of the proposed use of force is new. The key point is that Iraq is in violation of international law, and this violation, as the Security Council has repeatedly found, constitutes a threat to international peace and security.
  3. Is ignoring the UN different from ignoring Kofi Annan’s recent pronouncements? What is the legal force of Annan’s statements? Answer: In the cases of Northern Iraq and Kosovo the Security Council did not authorise use of force, so states took the issue into their own hands. These precedents may become consolidated into law. If the Security Council does something effective, this may become the law. Power and legitimacy have to be balanced. If the US were not energising the Council (and Iraq too) by threatening to go unilateral, the Council would be as effective as it is and Iraq would not even talk about the return of the inspectors.
  4. Surely the failure of the Security Council to act undermines its legitimacy? Can an action be illegal but moral? Yes: but morally justifiable violations of law have a tendency to become a new law.

 

  1. Professor Freedman
  2.  

    The ‘Saddam Problem’ goes back to the late 1960s. There was a pathetic response by the international community to the aggression against Iran in the 1980s, because Saddam was seen as a bulwark against Iran. The West did not turn a blind eye to Saddam‘s CW, but just hoped for a change in Iraqi attitudes because its foreign policy seemed quite moderate. But Saddam’s refusal to change became evident before the Kuwait war, with the gassing at Halabja and Britain’s refusal to sell Hawk aircraft. It was evident before the Kuwait invasion that Iraq was arming itself quickly, yet the international community failed to stop Saddam’s squashing of the post-war insurrection, and instead adopted a policy of containment through inspections and sanctions as an alternative to the use of force. (The left dislikes the sanctions because they hit the vulnerable, and the right because they strengthen the regime). The inspections broke down in 1996 (not 1998) although they had disposed of all of Saddam’s nuclear weapons and 80% of his CW. The ‘Presidential palaces’ are in effect military strongholds for the security apparatus.

    By 1999/2000 Iraq was pushing its luck, the Security Council was not interested, and the airstrikes were ineffective. After the defeat of the Taliban Bush might have been tempted to solve this problem through airpower and local allies, but this time the local allies were no good. By the summer of 2002 the US and UK governments had lost control of things, and were surprised by the level of anti-war feeling at home. A move into Baghdad would be very difficult, and there is no serious military plan how to do it. Blair has managed to put the matter back into the hands of the Security Council, where it belongs, but where there was failure in 1996-98.

    Where do we go from here? The US will probably get quite a tough resolution through the Security Council, and Saddam will probably accede to it. The threat of force will probably compel Saddam to accede because his supreme purpose is personal survival. If not, there will either be a war, or an ‘in-between’ situation in which things will go back to the Security Council. The first test will be Saddam’s declaration of what weaponry he’s got. His recent release of prisoners shows he is already weak. His regime may already be somewhat destabilised. A tough UN resolution, plus the ending of sanctions, may do the trick. There is a 55/45% chance of avoiding war.

    Discussion

    Points raised concerning war included: the killing of civilians (how many?), Muslim reactions and environmental destruction. Answers were that, while we must not ignore the Islamic issues, there were some Islamic ambitions that could not and should not be met. Environmental destruction may not be too catastrophic. Ending the regime will be a bloody business whenever and however it occurs. What about a military action not designed for regime change: eg. hard and determined strikes against Iraq’s military, such as the republican guards? Prof. Freedman replied that we should not rely too much on airpower, and punishment of Iraq won’t work anyhow. The problem of Iraqi WMD programmes can no longer be postponed to another day. The US still counts on an insurrection to do the trick, and may not want to lose support by over-reliance on airpower. It was suggested that the neo-conservative Bush administration wants regime-change and nothing short of that will be acceptable to it. The answer was that while any war would involve regime-change, the administration would probably be obliged to accept a successful disarmament process.

  3. Paul Cornish

 

The whole Iraq issue is fraught with arguments pro and con. What is it reasonable to think or do about it?

Arguments against war: a) past action has been inconsistent (yes: but we mustn’t expect perfection); b) the consequences may be unmanageable (yes: but this is not conclusive); c) motives for a war will be questionable; d) international order through the UN ought to be decisive (but how much confidence do we have in it?); e) whose national interest is being served? f) why can’t deterrence and containment work? (perhaps Iraq’s WMD makes this impossible); g) war must be a last resort (yes: but it’s a matter of timing).

Arguments for war: a) Iraq may be linked to Al Qaeda; b) Iraq poses a threat to ‘the West’ as a whole; c) Iraq is a threat to its region; d) there is an humanitarian case for improving the lives of the Iraqis.

No course of action will be beyond criticism. But we need a central reference point. One should be the immunity of the innocent, but set against the ‘munity of the nocent’. Another must be to prevent the use of WMD. Saddam must be cut off from WMD. If other measures don’t work, then it is OK to use force to achieve this (here any credible threat of force necessary implies that use would be acceptable and justified, unlike in the nuclear deterrence debate). It is inevitable that such force must be employed by sovereign states, with all the compromises that entails. But it must be proportionate. Saddam’s nuclear weapons are not the problem: his biological weapons are. The choice is not a rational calculation but is a matter of meeting complex challenges. The key aim must be prevention of, and protection from, WMD proliferation.

Discussion

Points made included: It is agreed that Saddam is in gross violation of international law, and rapid decisions must be made. The use of force with UN authorisation is OK: the problem is that without it we are tearing up international law. Is this wise? What ‘killer’ evidence exists to justify it? What would be the effects on international order of defying the UN? On the other hand, doing nothing is not an option. Are we (ie ‘the West’) not part of the problem too? The USA is a universal empire with transnational reach and vulnerability, and that is part of the problem. There is tension between globalisation and the state-sovereignty which underlies threats of pre-emption. There are different strands with both Christianity and Islam, and these must be recognised by everybody. An alliance of Saddam and Al Qaeda seems unlikely. There has been no serious assessment of how far a war would incite further terrorism, or how to balance the good and evil consequences of a war. A regime of international law which allows the proliferation of WMD is not worth having. But then we have to keep the promises made in Art. 6 of the NPT, and nobody is prepared to do this. The UN has never properly tackled wars and threats of war seriously: how to intervene? By what means? These are diplomatic questions. We need a diplomat’s view of all this.

4. General Cordingley

 

Experience of the Gulf War shows that the initial enthusiasm of troops is soon dispelled by the dangers and problems of plague/anthrax threats. Support from home is crucial to morale and thus success (as important as food). Soldiers can easily feel unloved, and undermined, by the media back home. In the Gulf War the Iraqi forces were defeated but not destroyed. This time the US seems determined on their destruction. Containment worked, but coercion cannot work without invasion. (Cruise missiles cannot coerce, and neither can inspectors). Meanwhile the level of terrorism is going up. A war will require a massive air-denial campaign, but this will be complicated by Saddam’s use of Iraqi civilians as ‘shields’. The regime is isolated, but will nevertheless be hard to dislodge. Most of the one million Baathists are in Baghdad. There may not be a lot of allied casualties but there will be a lot of civilian deaths. Saddam’s CW and BW are designed for deterrence, not warfighting.