International law and the conflict in Iraq


Universe Column

by David Alton

George Bernard Shaw once said of economists that “if you laid them all, end to end, they would never reach a conclusion.”  You could say the same about lawyers – with the notable difference that when economists disagree we laugh, and when lawyers disagree, we pay.

But the fundamental disagreement between international lawyers about the legitimacy of war is Iraq is no laughing matter. It illustrates how complex these issues are and that good men and women can honorably disagree.  International law is itself notoriously plastic and different States have differing treaty obligations. As Alice might have said to the Mad Hatter, only one thing is clear, that the law is unclear.

In a written statement to the House of Lords the Attorney General, Lord Goldsmith, set out the legal basis for the use of force. The crux of this argument is that the combined effect of resolutions 678, 687, and 1441, all adopted under Chapter VII of the UN Charter, allows the use of force. Lord Goldsmith maintains that Iraq’s failure to disarm revives the express authorisation of force contained in resolution 678: “whatever other differences there may have been in the Security Council, no member of the Council has questioned this conclusion.”  Article 678 allowed for “all necessary means” to be used.  Phrases like “material breach” and “serious consequences” have been the historic formula used in permitting force.

Throughout the 1990s, Saddam’s regime issued endless bogus statements but evaded obligations of full disclosure of chemical and biological weapons, and it failed to destroy them.  Meanwhile, the regime carried out acts of brutality and genocide against its own people. These two issues have been at the heart of the Prime Minister’s case for the use of force and is the justification of the revival of the authority contained in Resolution 678 – which is not a historical document and has never been repealed.

As far as Resolution 1441 is concerned – and the failure for a second, or more precisely an eighteenth resolution – to be agreed, the Government’s legal advice is that when the Council is deadlocked, preceding and existing resolutions are the ones that continue to apply.  Simply trying to get a second resolution doesn’t undermine your legal case.

Only if France had tabled a Resolution prohibiting the use of force, and had carried this with nine votes, and no veto being applied, would that alone have nullified the previous body of resolutions.

Many people have said their minds would have been changed if a “second” resolution had been carried. The hard truth is that although this was desirable political reasons, it doesn’t add one iota to the moral or ethical arguments.

Nor should we attach too much significance to vetoes threatened by the former head of the KGB, by the Chinese (with their deplorable human rights record) or by the French (with their extraordinary statement that they would veto any new resolution, whatever it said).

The international law that I would like to see applied is the law against genocide. I should like to see those responsible for torture and ethnic cleansing and the forced exodus of millions of frightened people, for the use of poison gas against the Kurds, for the massacre of tens of thousands of Marsh Arabs, for the assassination of opponents, and for the subsidising of suicide bombers and terrorists, brought to justice. Interpretation of the law should not always be the last word in international affairs – justice is more important.