T Nation

Casualty: The Legal Case for War

Questions of legality from the Guardian. Wonder if the media over here will start to ask these questions some day.

http://www.guardian.co.uk/comment/story/0,3604,1327800,00.html

[b]This week’s casualty: the legal case for war in Iraq

It can only be a matter of time before the invasion is challenged in court[/b]

Robin Cook
Friday October 15, 2004
The Guardian

When I met Zaneb in Brighton during the Labour party conference she could only walk with the help of crutches. One of her legs had been amputated after she and the children with whom she was playing were caught in the bombing around Basra at the time of the invasion. Seventeen members of her extended family were killed that day, including her mother.

It is a characteristic of modern, aerial warfare that it leaves behind more casualties among civilians than among combatants; and in a developing country such as Iraq where half the population is under 14, many of them will be children. Any decision to go to war, in full knowledge of the casualties that will follow, therefore has to be born out of necessity and built on cast-iron certainty. The awful truth that is now clear is that the Iraq war was not necessary and was based, in the Joint Intelligence Committee’s own words, on “sporadic and patchy” intelligence which has turned out to be wholly false.

The formal admission this week that the 45-minute claim was bunkum comes 18 months too late to save Zaneb and her family, or to influence the vote on war in parliament. Whitehall knew long before that vote that much of the intelligence in the September dossier was unsound. They knew because Hans Blix and his inspectors had visited sites it identified and drawn a blank. They knew because SIS had already developed doubts about the credibility of the source of the 45-minute claim. Andrew Gilligan was only in error about timescale when he claimed Whitehall knew that intelligence in the September dossier was wrong. They did not know it at the time of its publication, but they did know when they asked parliament for authority for war.

The political dilemma for Downing Street is that it desperately wants the nation to move on from the controversy over the origins of the war, but is also determined to avoid anyone taking the rap. Yet it is impossible to see how the government can achieve closure on the biggest blunder since Suez without first achieving a catharsis which attributes responsibility and apportions blame.

At prime minister’s questions, Tony Blair again pleaded the defence of good intentions - he acted in good faith but was misled by wrong information. This leaves a conundrum: why is he not more angry with those who misled him? John Smith, for example, would have been incandescent with an intelligence agency that had so badly misinformed him, and with a private office in Downing Street that apparently did not ask elementary questions, such as whether they were talking about battlefield or strategic weapon systems. Tony Blair is curiously indulgent to all those who led him into the most damaging episode of his premiership. We even read that all the key players in preparing the false prospectus for war are to be rewarded in a special honours list. A parade of the relevant officials down Whitehall in sackcloth and ashes would provide a more convincing demonstration that Downing Street is really sorry.

There is another awkward question that has become more acute with each new revelation, and which will not go away until it is answered. What does the government now think was the legal basis for war?

The initial opinion of the attorney general, Lord Goldsmith, was that invasion would require a second UN resolution. This was an opinion that he only revisited when it became evident that there would be no second resolution. At this point Elizabeth Wilmshurst, the deputy legal adviser to the Foreign Office, resigned and subsequently protested that “the conflict in Iraq was contrary to international law”. This week we learned that two other colleagues resigned along with her, which must have left a lot of empty desks in the legal department.

The attorney general himself still appeared unsure of his ground, but his dilemma was eased by the suggestion from Downing Street that he outsourced the drafting of his opinion to a law professor with a record of support for war. As a result the nation went to war against the advice of Whitehall’s experts in international law and on the strength of an opinion from a professor at the LSE.

The government has resisted publishing the text that resulted, presumably because even it would reveal awkward reservations and legal quibbles, but a precis was produced as a parliamentary answer. What is striking is the centrality that disarmament plays in it as the justification for war. Thus Iraq is held to be in material breach of the ceasefire resolution because it had not fulfilled “its obligations to disarm”. There is a logical, inescapable conclusion from this chain of reasoning. If Iraq had in reality fulfilled its disarmament obligation there was no legal authority for the invasion.

Tony Blair appeared conscious of this problem when he answered questions this week. He does not now rely on the need to disarm Iraq, but on other breaches by Saddam of UN resolutions. But the only breach that could have justified a war would have been failure to disarm. To be sure, Saddam was in breach of his obligation to keep proper paperwork on the destruction of his chemical and biological weapons, but that hardly justifies an intensive bombing campaign and a ground invasion by a quarter of a million troops. Any international court would be certain to rule by its first coffee break that such a response was not legitimate when weighed against the twin tests of proportionality and necessity. We are left with the unsettling conclusion that the legal case for the war collapses among the rubble of false intelligence in the same way as the political justification.

Lord Goldsmith is a decent, able lawyer. It may be that he was just as duped as parliament by the assurances from Downing Street that the evidence of the intelligence was much firmer than it has turned out to be. Maybe they also withheld from him the growing evidence from the UN inspections that our intelligence was simply wrong. If so, the attorney general owes it to himself, never mind the rest of us, to state what would have been his opinion on the legality of the war if he had been given the true facts. It may be prudent on his part to prepare a revised opinion, as now it can only be a matter of time before the legality of the war is challenged in the British or international courts.

Does the legality of the war still matter over a year after the event? The only responsible answer must be yes.

In the first place we are still struggling with the legacy of our decision to conquer Iraq and the incompetence of an occupation that has compounded the original misjudgment. Iraq may have been no threat to us at the time of the war, but we have certainly turned it into one as a base for international terrorism. Instead of delivering a modern Iraq as a model for the region, we have made Iraq a source of instability in a Middle East that looks much more precarious than two years ago.

But it also matters because the fabric of orderly relations between nations, the strength of human rights law and cooperation against terrorism are built on respect for international law. We cannot demand that respect from other nations if we ourselves do not give it a higher priority than we appear to have done in reaching our decision to go to war in Iraq.

Thanks tme,

I thought about posting this one, too. Anyone any thoughts on this? BTW, Robin Cook is not just some crazy leftwinger, but the former UK Foreign Secretary (the equivalent of Rummie) who left the Blair gouvernment during the runup to the Iraq war. He was not convinced by the cause for war for Britain, and well … he seems to have been right.

Makkun

You’re welcome, Makkun.

Still waiting for any of the yeahbutwecanthinkupnewrationalizationsforwhythiswarwasjustified-
fasterthanyoucandisprovethem crowd to chime in on this. Not likely to happen, though I guess.

Nice article by the admirable sir Cook.

You’ll hardly hear something equally honest and sensible from someone at the Bush administration. Those bastards have zero responsibility for anything and will support their mantra like a herd of cattle no matter how ridiculous it is.

We’re really not getting enough horror videos from Iraq. People are ignorant, to them Iraq is something far away and non-existant. They don’t realize the real scene when every week reports of killed civilians are presented. Many folk are too numb to the events and to them Iraqi lives barely mean anything.

And it’s so embarrassing to America that even though the UK was not the prime mover of the war agenda, so many important people left their high positions in disagreement. How much of that happened here in the States?

One question:

Should Saddam be reinstalled as President of Iraq?

If the war was truly illegal, then no one had any right to remove Saddam from his position, and it is our duty to restore everything to as it was before the illegal act occurred.

So, to those of you that think the war was illegal, shouldn’t Saddam be given back what he had before he was illegally toppled?

thunderbolt23,

[quote]thunderbolt23 wrote:
One question:

Should Saddam be reinstalled as President of Iraq?

If the war was truly illegal, then no one had any right to remove Saddam from his position, and it is our duty to restore everything to as it was before the illegal act occurred.

So, to those of you that think the war was illegal, shouldn’t Saddam be given back what he had before he was illegally toppled?

[/quote]

No, off course he should not be reinstalled. One of the few good things the Iraq war has achieved was the toppling over of Saddam’s regime.

But this is not the point.
The legality issue in this instance is if the Blair gouvernment has acted according to UK laws when it went to war. So the question is not whether Saddam should be reinstated, but if the Blair gouvernment may be pursued for its actions. It’s a valid discussion, and the gouvernment is under increasing pressure on that issue, as its main arguments for war seem to have fallen through.

As for Saddam - no one sane on the anti-war side has ever claimed that Saddam was not a gruesome dictator who deserved to be taken out of the picture. But the question is what kind of politics we in the western nations practice when we break our own rules when confronted with a perceived threat. It’s a question that concerns our own identity and it is a questions that has been bothering me for quite some time.

Makkun

Without the benefit of the legal opinion, and with de minimus knowledge of the precise British laws applicable, I don’t claim any expertise on the specific question at hand.

However, please revisit this paragraph of the letter:

The U.N. resolution specifically put the burden of proof for demonstration of disarmament on Saddam. Saddam was not cooperating, and actively promoted the idea that he indeed had weapons. Lord Cook references a “ceasefire resolution” – is this the U.N. resolution or a parliamentary resolution?

With the benefit of information gained only via the invasion of Iraq, the intelligence on Saddam’s actual WMD holdings appears to have been incorrect, but if the key to the legal case is the U.N. resolution, Saddam was clearly in breach simply via his non-cooperation. As to the logic of treating him, with his history, as if he was bluffing, I think we’ve discussed that already.

Without getting drawn into the whole Iraq argument, I do find the notion of war being legal or illegal a bit silly really.

As far as I see it, wars are generally seen as legal by those invading and generally seen as illegal by those being invaded.

I don’t really see how the law has any control over wars (beyond the rules of engagement - to an extent) as they are always going to be seen as unjust by some people, no matter what the ‘case’ for war may be.

Just my opinion.

BostonBarrister wrote:

"The U.N. resolution specifically put the burden of proof for demonstration of disarmament on Saddam. Saddam was not cooperating, and actively promoted the idea that he indeed had weapons. Lord Cook references a “ceasefire resolution” – is this the U.N. resolution or a parliamentary resolution?

With the benefit of information gained only via the invasion of Iraq, the intelligence on Saddam’s actual WMD holdings appears to have been incorrect, but if the key to the legal case is the U.N. resolution, Saddam was clearly in breach simply via his non-cooperation."

You are forgetting that the UN inspectors could not locate any signs of such weaponry. And they were absolutely correct, Saddam has been severely weakened by the UN sanctions. There was no reason to attack him.

Joe Daley wrote:

“As far as I see it, wars are generally seen as legal by those invading and generally seen as illegal by those being invaded.”

Not true, those who attack first are usually completely aware that what they’re doing is illegal, they just ignore the whole legality issue in it’s entirety. And if their attack is to be judged, then legal/illegal pretty much means reason enough/not reason enough. The Iraq war certainly had no legitimate reason to occur, Saddam wasn’t a threat, his regime wasn’t any worse than almost a hundred other regimes.

tme,

“Still waiting for any of the yeahbutwecanthinkupnewrationalizationsforwhythiswarwasjustified-
fasterthanyoucandisprovethem crowd to chime in on this. Not likely to happen, though I guess.”

Not likely unless you read the laundry list in Resolution 1441. The reasons were many, and even written down and signed by the UNSC.

How about naming a few of those “many”?
I mean seriously. At least can you post a link?

[quote]w2097 wrote:

You are forgetting that the UN inspectors could not locate any signs of such weaponry. And they were absolutely correct, Saddam has been severely weakened by the UN sanctions. There was no reason to attack him.

[/quote]

No, I’m not forgetting that. The inspectors were not given the full access that they were supposed to be given, and that it was promised they would be given. As I said, if Lord Cook was referring to the various U.N. resolutions, the burden of proof and the burden of compliance were on Hussein. Those burdens were not met.

Those were minor deviations and the verdict was given that there are no weapons, all experts were confirming that. Saddam was becoming weaker by the year. Overall the inspectors pretty much went through what they wanted and at that point it was obvious to anyone that Saddam isn’t a threat. Now considering the fact that the Bush administration was heavily pushing to produce links to Al Quaeda and reasons to go to war right after Sept 11 the case is pretty clear.

[quote]w2097 wrote:
Overall the inspectors pretty much went through what they wanted and at that point it was obvious to anyone that Saddam isn’t a threat.
[/quote]

Uh… dude? Maybe I’m remembering this wrong, but weren’t the inspectors still asking for more time to conduct their searches up until the last minute before we invaded? Weren’t the inspectors kicked out of Iraq a few times? Weren’t they forbidden access to certain locations? In my book, that makes the UN powerless to maintain their obligations to control a guy who had demonstrated in his past a willingness to obtain and use chemical weapons. It also didn’t help when several UN member nations were going around the sanctions that were put in place in order to keep their interests afloat with Saddam. These same UN members were also the ones who were vehemently opposed to a US-led coalition going in and enforcing the sanctions that the UN was no longer able to maintain. Nobody was going to able to do anything about this guy but us. You are worried about the legality of our actions, and that’s fine, but you gotta realize that Saddam left us with no real responsible choice. If he had nothing to hide, why did he act the way he did? Why did he block the inspectors? This guy gassed like 20,000 Kurds to death. And he was acting like he had more left in stock. You do the math.

w2097,

“How about naming a few of those “many”? I mean seriously. At least can you post a link?”

Seriously, I can.

“Recognizing the threat Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security”

“Deploring also that the Government of Iraq has failed to comply with its commitments pursuant to resolution 687 (1991) with regard to terrorism, pursuant to resolution 688 (1991) to end repression of its civilian population”

“Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein”

Noncompliance of UN Resolutions, support of terrorism, repression of civilian population, breach of ceasefire.

All noted in the Resolution leading up to the war - all reasons Iraq got leaned on.

http://www.state.gov/p/nea/rls/15016.htm

The concept of a legal war is at best an academic discussion.

It is only in the past 75 years or so that countries stopped making war for economic gain and plundering of resources.

Wars are fought to protect national interests in modern times. Despite the current left wing thinking that Iraq is to further political interests, it is not. The administration percieved Iraq as a link, or possible link, in the terrorist network. That is why Saddam was toppled. In past days it would have been done behind the scene’s by the CIA but since that capability was eliminated in the 70’s we are forced to use more overt means.

It is why Iran will fall next and then North Korea. It is because they must. In these times you cannot be percieved to be a threat to the strongest nation on earth with the most powerful military and expect to prosper. Sure you can be a pain in the ass like Cuba but when you start aligning with terrorists and mention the word nuclear you should have accept the consequences.

[quote]lothario1132 wrote:
Uh… dude? Maybe I’m remembering this wrong, but weren’t the inspectors still asking for more time to conduct their searches up until the last minute before we invaded? Weren’t the inspectors kicked out of Iraq a few times? Weren’t they forbidden access to certain locations? In my book, that makes the UN powerless to maintain their obligations to control a guy who had demonstrated in his past a willingness to obtain and use chemical weapons.[/quote]

The inspectors were there for three months and didn’t find dick. Afterwards they had to leave because apparently the US didn’t want to wait for them to finish their search and report that the deadliest weapon in Iraq shoots bullets and the deadliest gas comes from binge-eating spicy food.

[quote]lothario1132 wrote:
These same UN members were also the ones who were vehemently opposed to a US-led coalition going in and enforcing the sanctions that the UN was no longer able to maintain.[/quote]

Oh, so now someone is listening to them? US didn’t listen to anyone and bombed the shit out of there. How about not listening and enforcing the sanctions instead? Nope, they were to busy making sure the Oil Ministry is the only secure site.

[quote]lothario1132 wrote:
Nobody was going to able to do anything about this guy but us. You are worried about the legality of our actions, and that’s fine, but you gotta realize that Saddam left us with no real responsible choice.[/quote]

Nobody was able to do anything about this guy? And just what was there to do? They had a pile of other regimes where weapons are certainly present and people are getting killed x100 to that of Iraq and you say he hasn’t left us with a choice? They went to war and killed tens of thousands of civillians with almost zero probability of major weapons being there. Nice going, why bother being angry at Bin Laden who got away with a mere 3000?..Oh wait, we AREN’T mad at him because we put ten times the amount of military in Iraq instead.

[quote]thunderbolt23 wrote:
Seriously, I can.

“Recognizing the threat Iraq’s non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security”[/quote]

You said seriously so it’s kind of confusing because Saddam didn’t have any of that.

[quote]thunderbolt23 wrote:

“Deploring also that the Government of Iraq has failed to comply with its commitments pursuant to resolution 687 (1991) with regard to terrorism, pursuant to resolution 688 (1991) to end repression of its civilian population”

“Recalling that in its resolution 687 (1991) the Council declared that a ceasefire would be based on acceptance by Iraq of the provisions of that resolution, including the obligations on Iraq contained therein”[/quote]

Yeah, and a reason for war would be nice. I mean seriously, if these would be prerequisites for war then Iraq would be one of the last countries on the list. Their reasoning for attacks were not the resolutions, nobody spoke of resolutions to justify the war. The talk was about Iraq being a threat. They were completely unable to prove it waving aerial shots from '91 and didn’t allow the inspectors to complete their job. After that they just invaded.

Meanwhile there are genocides and killings all over the place, countries building nukes and WMDs, but almost the entire US military is stretched out in Iraq with death tolls rising.

w2097:
Hmmm… I find your perspective on this matter interesting. In another thread where you were bashing Bush, you mentioned:

“Excuse me, but there’s nothing courageous about Bush. Any president would have gone to war after 9/11.”

Now don’t get me wrong here, I’m no avid Bush supporter or anything, but I wonder how you came to the conclusion in that thread, and then now you are so anti-war as to not make much sense. Go back and read your replies to my post. The questions and points you raised were pretty much answered by what I had written already. I mean, it’s cool to disagree on things, that’s why we’re here (in a way), but throwing negative emotional appeals at folks only gets you so far. After a while, you gotta have some substance.

Oh my god, is this bullshit debate still going on?

Here is the legal justification for war. Iraq violated the cease fire agreement. Not once, not a few times, but repeatedly for 13 years.

Did we find weapons? No, other then the10 rounds of saran and mustard gas, and some precursors for mustard gas also. (Possibly other things I haven’t heard of.)

But it was not our job to find the stuff before the war. It was Saddam who was supposed to prove he didn’t have the stuff. He didn’t want to do that. Why? Because he didn’t want to look weak.

Why are people ignoring the information coming out? Is fucking over the presidency, and possibly the world, just to get a Democrat in office worth it?

If Gore won the presidency and did exactly what Bush did the Democrats would be backing him completely. Republicans would also back him, (for obvious reasons) but there would be a small vocal group attacking for political reasons. And they would be just as wrong.

People need to pay attention to this food for oil scam. It is going to be big. If not suppressed, (boy do they want it suppressed,) it will tear the UN apart.

I was surprised to find out that before food for oil, Saddam’s reign was close to an end. (1995) Food for oil saved him, gave him billions, and helped rebuild his ability to restart his WMD programs. A few years down the road, he would have been a much bigger threat. We may have dodged a bullet, if not a bomb.

Saddam may not have had to hide weapons, but I am fairly certain he did want to hide how ready he was to rebuild his arsenal. And with the help of bribed and corrupt officials, he was on his way.

Watch this closely. It will be a huge historical event. This is only the beginning. You can see the people working to cover this up.

[quote]w2097 wrote:
Those were minor deviations and the verdict was given that there are no weapons, all experts were confirming that. Saddam was becoming weaker by the year. Overall the inspectors pretty much went through what they wanted and at that point it was obvious to anyone that Saddam isn’t a threat. Now considering the fact that the Bush administration was heavily pushing to produce links to Al Quaeda and reasons to go to war right after Sept 11 the case is pretty clear.[/quote]

THis is talking legal case, yes? If so, it doesn’t matter if you want to characterize something as a “minor deviation” or not. THere is compliance, and non-compliance. Saddam was not in compliance. That’s all there is to it (assuming, as before, this is what the British built their case upon).