Monday, November 24, 2008

Opinion - Illegal war?

Britain's Lord Bingham says the Iraq war is illegal

Are the UK armed forces war criminals?

By Christopher King

23 November 2008

Christopher King argues that if the Iraq war is illegal, then everyone participating in it would be involved in war crimes. He says an enquiry by the International Court of Justice is the only way in which Britain can regain international respect and its government regain trust.

Lord Bingham, a former Lord Chief Justice, has said that the legal advice given by the attorney-general to the Blair government was fatally flawed. This is because there was no proof that weapons of mass destruction (WMD) actually existed, nor that Saddam Hussein had failed to comply with the United Nations’s inspection requirements. He said also that Lord Goldsmith, the attorney-general, should have made it clear that it was the secretary-general of the United Nations who would decide whether there had been compliance and whether further action was necessary. If Lord Bingham is correct, Lord Goldsmith shares responsibility for a serious breach of international law – as serious as it is possible to be.

Lord Goldsmith’s response to this was, more or less, that this was merely Lord Bingham’ opinion and a lot of other countries went into Iraq with the UK anyway. That does not wash. Lord Bingham is the most senior law figure to have come to this view and it has never been a legal justification to say “everyone else did it”.

Lord Bingham is right, of course. You probably already know that Kofi Annan said that the Iraq war was illegal when he was UN secretary-general. Jack Straw, who is a barrister and was foreign secretary, said at the time that UN Security Council Resolution 1441 gave sufficient authority for war. He said it again in response to Lord Bingham’s statement, and Lord Goldsmith based his opinion on it, so let’s take a look at it. It’s actually a simple document.

As a summary of UN Security Council Resolution 1441 is this: Iraq continues to be in breach of Security Council resolutions, must re-admit the weapons inspectors (United Nations Monitoring, Verification and Inspection Commission, – UNMOVIC) and the International Atomic Energy Authority (IAEA). It must also make a full statement of its WMD, related documentation and facilities within 30 days. There were to be no omissions. Conditions relating to inspections are listed. UNMOVIC and the IAEA were to report in 60 days (paragraph 12).

There’s no process or timetable for going to war with Iraq in the event of non-compliance in this resolution. The final paragraph (13) says:

“The [Security Council] Recalls in that context [of receiving a report as in paragraph 12] that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations...”

This is the paragraph that Jack Straw continually says authorized war. Well, I can’t see it. Paragraph 13 relates the “serious consequences” to the report that the Security Council expected to get from the inspectors, so consequences would obviously depend on the report. There’s no authorization of war here or anywhere else in the resolution. Look for yourself.

The sequence of UK events leading up to Anthony Blair presenting the case for war to Parliament following Peter (Lord) Goldsmith’s decision are described here. Goldmith consulted the Americans, whose opinion was predictable but evidently no other international law authority. Elizabeth Wimshurst, Deputy Legal Adviser to the Foreign Office, resigned because she disagreed with the advice given by Peter Goldsmith, so the opinion that the Iraq war was illegal is by no means new and had well informed senior legal opinion against the war at the time.

In the event, UNMOVIC and the IAEA found no WMD whatsoever and, as Resolution 1441 warned the Iraqis not to conceal anything, they sent something like a lorry load of documents – probably everything they had. President Bush responded that the Iraqis were hiding their WMD and that the large volume of documentation was a trick to delay proceedings. US troops were already stationed in Saudi Arabia; others were being sent to Kuwait and, as subsequently uncovered documentaion reveals, he had already made the decision with Anthony Blair to go to war. Anthony Blair could not send troops or commence preparations because he was maintaining the fiction that he had made no decision. UK Cabinet office minutes show that the intelligence was being arranged around the decision that had already been made. There is good evidence, not simply that the interpretation of UN Resolution 1441 was wrong but that Mr Blair was at the centre of a criminal conspiracy. There was no possibility of the UN approving war against Iraq because the weapons inspectors had found no WMD which was the only basis for Messrs Bush’s and Blair’s case. They had already agreed privately that they were going to go to war but publicly said that Saddam Hussein possessed concealed WMD and war was justified by Resolution 1441.

No only does UN resolution 1441 contains no authorization for war against Iraq in itself, but there is specific evidence that it cannot be used for that purpose. Because the UN delegates from other countries knew that the US and UK who sponsored Resolution 1441 wished to use it as justification for war they clarified its interpretation. The representatives of the US, UK, France, Mexico, the Russian Federation, Bulgaria, Syria, Cameroon and China are all on record as saying that there was no justification for force contained in the resolution.

  • John Negroponte, US ambassador to the UN, said that the resolution contained no “hidden triggers” and no “automaticity” with the use of force. The procedure to be followed was laid out in the resolution.

  • Jeremy Greenstock, UK ambassador to the UN, said that if there was a further Iraqi breach of its disarmament obligations, the matter would return to the Security Council for discussion.

  • The Mexican representative said that the use of force was only valid as a last resort, with prior, explicit authorization of the Council.

  • The Republic of Ireland’s representative said that the resolution provided for a clear, sequential process for Iraqi compliance. Developments would be then examined by the Council itself, which had the primary responsibility to decide whatever action needed to be taken.

  • The Bulgarian representative said that the resolution did not provide a pretext for the automatic use of force.

  • The Syrian representative said that his country had voted in favour after having received from the United States and United Kingdom, as well as France and the Russian Federation, reassurances that the resolution would not be used as pretext to strike Iraq and did not constitute a basis for “automaticity”. The resolution should not be interpreted in any way that any entity could use force.

  • The Cameroon representative said that he welcomed the clear statements made by the sponsors of the resolutions (US and UK), spelling out the lack of a trap, trigger or automaticity in the resolution.

Read them for yourself at the end of the above linked United Nations document. It is absolutely clear from these statements that the US and UK had resolution 1441 passed by giving verbal assurances, which are doubtless minuted, that this resolution could not be used to justify force or for any automatic use of force. These comments were made by the representatives who were present in agreeing the text and in the discussions about its interpretation. They were made so that resolution 1441 could not be interpreted as authorizing violence. They place beyond doubt that Resolution 1441 specifically contained no authorization for the use of violence, in the event of a breach of the resolution occurring, much less when the UN special Commission (UNSCOM) and the IAEA have not reported a breach. The clarifying statements make clear that, under the agreed procedure, the matter would return to the Security Council for discussion and decision.

There is no possible justification for Peter Goldsmith’s or Jack Straw’s contentions that Resolution 1441 makes the Iraq war legal. Not only was there no evidence produced by the weapons inspectors that Iraq had WMD, it was found that Iraq did not in fact have them. Saddam Hussein had told the truth. Iraq was innocent of the charges against it. The war of aggression on Iraq, the deaths of more than a million Iraqis, the 4-5 million refugees created and devastation of that country are therefore war crimes.

What are the implications of this for the UK? It is difficult to express the enormity, the gravity of the situation in which Peter Goldsmith and Anthony Blair have placed our armed forces and country.

All the evidence is that our prime minister sponsored an illegal war, his cabinet and attorney-general supported it, our Parliament approved it and our armed forces carried it out. Except for a minority of MPs, it appears that they are all involved in war crimes of the most extensive and serious kind. Saddam Hussein was hanged for much less.

At the time, the armed services were deeply concerned about the legality of the war and on 10 March 2003, the chief of the defence staff, Admiral Sir Michael Boyce, asked the attorney-general for an unambiguous assurance in writing that the war was legal. He received this several days later. The armed services have a problem in these circumstances. They are committed to follow legitimate government orders, but if those orders are illegal, the Nuremburg principles and international law make no allowance for that. The individual officer or soldier must decide. An illegal order involves the chain of command at all levels in appalling problems where concepts of rebellion, mutiny and disobedience to orders might be applied. If, therefore, the Iraq war should be ruled to be illegal, as the former Lord Chief Justice and former UN secretary-general believe to be the case, everyone participating in the war would be involved in war crimes. Peter Goldsmith’s ruling and Parliament’s vote are no defence.

In a political context, if the chief of the defence staff were to refuse to follow government orders it would strike at the heart of democracy itself and the stability of the country. In these circumstances, I suggest that his action was correct. He had no opportunity and nor was it his role to evaluate the legal and intelligence information relating to a decision to go to war.

Public opposition to the war has sometimes, wrongly, been expressed as discrimination and insult against members of the armed forces in uniform because it is difficult to separate those who have participated, however unwillingly, in this illegal war from those who are responsible for it. It is absolutely wrong to blame the services for our government’s failings and undeniable failings they are. Public confidence in politicians is at an all-time low. From the reports of returned services personnel and statements of senior military staff, it appears that the army has also lost confidence in our government.

There have been 176 military deaths in Iraq with, at an estimated 8:1 ratio, about 1,400 wounded, some sustaining permanent disability. It is also essential that the armed services should have confidence in the competence and integrity of the government. There are signs that confidence has been severely shaken firstly by the government’s incompetent evaluation of the difficulty of the task and its failure to plan for the aftermath of the war. That Parliament has not acted to resolve the issue of the war’s legality, that is, the government’s integrity after extensive casualties have been suffered by the armed services is absolutely extraordinary. The evidence is that a core of individuals around Anthony Blair acted dishonestly and with intent to deceive Parliament and the country. Parliament’s failure to investigate this is due to its complicity in voting for the war.

The Iraq war is widely regarded to be wrong; the public considers it to be illegal as well. A million citizens marched through London in an unprecedented protest without reference to its legality because it was wrong in principle. It also fails the test of legality that the protesters felt it must. If our government does not respect legality, citizens might justifiably say to themselves, “Why should I respect the law if the government does not?” or “Why not steal a car? It’s not as bad as starting a war.” Lord Goldsmith has fostered contempt for the law in some; contempt for our politicians, lawyers and government in others.

Our own security services said at the time that, rather than making the UK more secure, the war would make the country less secure. This proved to be the case with bombing on London’s streets, a community relations disaster and costly security provisions in airports and elsewhere that are still in force and will be for the indefinite future.

At an international level, the UK’s and US’s illegal war of aggression is a precedent for any other country to carry out a “pre-emptive war”. It has undermined international law and stability as well as any moral right that the US and UK might have had to criticize other nations for breaches of international law. Nor do subsequent UN resolutions make the invasion legal when they have authorized the forces involved in the invasion to remain and maintain order. If a court orders a thief to make restitution it does not make the crime legal. Over one million Iraqi deaths, four or five million refugees, uncounted injuries and vast destruction cannot be ignored.

The involvement of as many countries as possible in this illegal invasion by Messrs Bush and Blair is an old trick. You might have read that in Athens around 400 BC when Socrates was on trial, [[]] he said: But when the oligarchy of the Thirty was in power, they sent for me and four others into the rotunda, and bade us bring Leon the Salaminian from Salamis, as they wanted to put him to death. This was a specimen of the sort of commands which they were always giving with the view of implicating as many as possible in their crimes.” The other four fetched Leon while Socrates went home and would have been executed for it if the government of the ‘thirty tyrants’ had not been overthrown. This did not help him at his trial. Nor did it help him that on another occasion he was the only one of the Assembly’s executive to oppose an illegal action by the assembly. Probably from their own guilt, those who colluded with the tyrants or on the other illegal action, condemned him to death. Let us not forget in this context Dr David Kelly, the weapons expert who spoke the truth and was hounded to suicide by the Blair government. This is typical behaviour by those determined to do wrong and justify it.

There was never any doubt that this war was wrong in principle. Its perpetrators therefore use weasel words about “legality”, using legality as a trick to make what is inexpressibly, disgustingly wrong into right. The war was also provably illegal as well. Challenges to its legality will never go away for this reason and because it has such far-reaching implications. The Liberal Democrats have called for a public enquiry. The problem is that a public enquiry in this country cannot possibly be credible because the greater part of our entire political class approved the war. The question can only be resolved by a completely neutral authority. The appropriate authority is the International Court of Justice which this country recognizes.

As the secretary-general of the United Nations and former Lord Chief Justice Bingham have said that Lord Goldsmith’s ruling is wrong, our armed forces that his ruling has placed in a situation of physical, moral and legal hazard are justified in demanding a ruling by an impartial, international body. There is overwhelming evidence that the ruling given by Lord Goldsmith led Admiral Sir Michael Boyce into error and improperly led our armed forces into taking a large number of casualties.

Many persons, particularly those who have a beneficial interest in, or voted for the war, will oppose such an impartial enquiry and we can expect all the self-interested excuses about national interest, morale of the army, security, protection of individuals etc. To use the government’s argument when prying into our privacy, if nothing wrong has been done, there is nothing to worry about. An enquiry by the International Court of Justice is the only way in which the UK can regain international respect and in which our government and politicians can regain the trust of its army and citizens. It is the only moral path to follow.

Christopher King is a retired consultant and lecturer in management and marketing. He lives in London, UK.

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