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24 March 2003: "Illegal war? Say what?"

The phrase "illegal war on Iraq" is being bandied about a fair bit. Greenpeace, the Center for Constitutional Rights, Canadian MP Svend Robinson (NDP) and Australian Senator Andrew Bartlett (Democrat), to name but a few from a long list, use the phrase as if there is no question about this war's legal status. Is this realistic? I think not.

For openers, where did this notion spring from that war is, by default, illegal in the first place? Possibly this is based on a narrow reading of Article 2 of the UN Charter, and especially the third principle by which the UN and its members are supposed to operate, which reads:

All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

If history—especially that of the Cold War—teaches us anything, it's that peace (if we take peace to simply mean "the absence of armed conflict") and justice have an annoying tendency of being mutually exclusive.

Moreover, the fourth principle listed in Article 2 reads:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

If we assume that the third principle outlaws warfare, or at least offensive warfare, why should it be necessary to further specify purposes to which force may not applied?

This latter point is further reinforced by the creation of the Geneva Conventions of 1949 (thus coming after the drawing up of the UN Charter) and the Additional Protocols of 1977, which regulate armed conflict. How can one regulate an activity which is supposedly illegal to begin with? How can one have "war crimes" if war is a crime? If we also look at the number of wars that have been fought since 1945, many of them by members, even founding members, of the United Nations, we can only come to the conclusion that—even if war were ever, in fact, formally illegal—it has in effect been decriminalised almost since the moment it was made illegal.

Then again, the argument might run, it is not war per se which is illegal, but rather aggressive warfare. While there is truth to this, finding legal precedent as to what constitutes "aggression" presents a challenge. One might cite the charge of aggression brought against the defendants before the International Military Tribunal at Nuremberg. However, the IMT presents an extremely shaky foundation on which to assert case law, since any first-year law student would point out that the charges brought against the Nazi brass were imposed ex post facto; there were no international agreements, conventions or the like outlawing "aggression" before the defendants were arrayed before the Tribunal. Moreover, it has not been clearly defined since what constitutes "aggression." As an illustration, I refer to the Rome Statute, the founding document of the fledgling International Criminal Court, and in particular Article 5 of the Statute. Paragraph 1 states that the Court shall have jurisdiction over "the crime of aggression." Paragraph 2 states:

The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

In short, there is no definition for what constitutes "the crime of aggression." How can anyone claim this war fits the description of "the crime of aggression" when there is no description?

That said, there is a subtle difference between an activity being "not illegal" (which merely requires the absence of a law outlawing the activity) and it being "legitimate" (which requires a positive justification). Before addressing this issue, however, I will point out that this a distinction evidently not made by those who refer to this war as "illegal." One may draw one's own conclusions from this fact, especially where members of legislative bodies—i.e. lawmakers—such as Messrs. Robinson and Bartlett are concerned.

The governments of the United States, the United Kingdom and Australia have expressed their opinion that this military action (to avoid the legal connotations of the term "war") is granted legitimacy under Security Council resolutions 678 (1990), 687 (1991) and 1441 (2002). The short version is that resolution 678 authorised use of armed force against Iraq, resolution 687 set the terms for a ceasefire between the members of the 1990-1991 Coalition (which included the US, the UK and Australia)and Iraq, and resolution 1441 affirmed that Iraq was in violation ("material breach") of the terms of the cease-fire as set out in 687. Thus, resumption of the hostilities authorised by 678 are warranted.

This position has been criticised by, among others, Vaughan Lowe, professor of international law at Oxford University, and Gavan Griffith QC, former Solicitor General of the Commonwealth of Australia. Their arguments are remarkably similar, to the extent that they display the same inconsistency.

Regarding the continued validity of resolution 678, Griffith argues:

It is plain that the authority of para 3 for the use of force of that 12 year old resolution expired with the Gulf War and successive resolutions of the Security Council leading to SCR 1441 of 2 November 2002.

It may be plain to Mr. Griffith, but he sees no need to inform us lesser mortals why this should be so, except to say:

Para 34 of SCR 678, cited in para 18, denies the continued authority of that resolution to support present action by individual states, as does the entire SCR 1441.

Actually, resolution 678 only contains five paragraphs, so Mr. Griffith is presumably referring to resolution 687; but it is possible that the error is not Mr. Griffith's, but that of a sub-editor at the Sydney Morning Herald who was ignorant (and I use that term deliberately) of the difference between the resolutions and sought to correct an error where there was none. Paragraph 34 of resolution 687, then, reads:

[The Security Council decides] to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.

Lowe takes, as stated, a remarkably similar tack, arguing that resolutions 678 and 687 were "creatures of their time" and that:

to say that any state that happened to be a member of that coalition ten years ago has for perpetuity the right to use force to restore peace in the Middle East, I think is just obviously absurd.

Even Lowe's use of the word "obviously"—made without any explanation as why this should be obvious—echoes Griffith's use of the word "plain"; both are contrary to the principle common in Boolean logic of audiatur et altera pars.

Both Griffith and Lowe cite paragraph 34 of resolution 687 to illustrate that the decision to employ continued force against Iraq is the prerogative of the Security Council, only to be determined by means of further resolutions; however, both fail to acknowledge that the Security Council in effect renounced this prerogative over a decade ago, when it took no action to prevent the US, the UK and France to impose and enforce the "No-Fly Zones" over northern and southern Iraq, thereby accepting the argument that continued use of force against Iraq in order to force Iraq's compliance with relevant resolutions was authorised under resolution 678.

In light of the above, it seems almost superfluous to address professor Lowe's following point, but I will for completeness' sake.
Lowe argues that the 1991 cease-fire was conditional, not upon Iraq's fulfilling the conditions demanded under resolution 687, but merely upon its acceptance of the terms of the cease-fire. To say this argument is specious is an understatement. Resolution 1441 affirmed that Iraq was in "material breach" of its obligations under 687; it strikes me as no great leap of imagination to conclude that when a government actively strives, as indicated by numerous UNSCOM and UNMOVIC reports, to avoid fulfilling its accepted obligations in the way Iraq has, that it has not actually accepted those obligations (at least, in any commonly accepted sense of the word).

Thus, both Griffith and Lowe argue the letter of resolution 1441, while simultaneously circumnavigating the letter of resolutions 678 and 687, and the de facto situation regarding the Security Council's primacy (non-existent) over the past 12 years. These are arguments postulated by some—supposedly—pre-eminent legal minds as to why this war is illegal, or at least illegitmate. Given their failure to do make a convincing case, I think it is fair to conclude that this war is neither.

Replies: 8 Comments

Well said. What is being waged now is not "Gulf War 2," but the second half of the Gulf War. The 1991 war will end in 2003.

Bob Waters said @ 03/24/2003 03:27 PM Z-8

Why is no one in the press calling these people on their "illegal war" bullshit? Are they devoid of all journalistic integrity, totally ignorant or just afraid of a bit of research? Either way, I can't think of a reason to let slide such failure to hold people accountable for their words.

Jackie D said @ 03/24/2003 08:02 PM Z-8

I should commend you on your analysis. Although, I do not absolve George Bush (along with Don Rumsfield)for making us wage this war, I believe every point you make is correct.

Going on a tangent could you read the article in this link and let me know what you think

http://www.outlookindia.com/full.asp?fodname=20030325&fname=monbiot&sid=1

Thank you

Friedel craft said @ 03/25/2003 02:35 PM Z-8

Fantasti article, alas George Bush does not have the wit to say the things you said.

you have given us some analysis about why this war is legal/legitimate. However, the reason purported by George Bush is the war is essential for regime change and not as a outcome of non-compliance with the UN resolutions. Since when did non-compliance with resolution become necessity for regime change.

James said @ 03/25/2003 02:46 PM Z-8

Thanks for the comments, folks.
Some points made are addressed in the follow-up, and this earlier entry.
(Friedel, thanks for the cue; I'll be adressing Camp Delta shortly.)

Jurjen said @ 03/25/2003 06:33 PM Z-8

I think the "illegal war" thing has also been tossed around by the Sec General of the UN. One would think that's a fairly reliable source.

Outlandish Josh said @ 03/26/2003 07:21 AM Z-8

The level of thought and reasoning of the 'antiwar' folks has ranged between that of a slug and lemur. They're not thinking so deeply to go that far into the UN Charter. All they know is that the final resolution was not passed by the Security Council. Therefore, the war is not approved and is illegal. Of course you nuke this argument in your response to poor Marjolein. And of course, none of this truth and logic will make a dent in the 'pro-tyranny' folks. They're motivated by hatred, not reason and thought is far from their minds.

Jabba the Tutt said @ 03/26/2003 08:06 AM Z-8

Actually, Josh, Kofi Annan (according to this article) "lamented the attack came without U.N. support and said the nations of the world 'want to see power harnessed to legitimacy.'"

This statement must be seen in light of this speech Annan made in February, in which he said:
"'Today, it is thanks in large part to the firm challenge issued by President Bush -- and the pressure that followed it -- that the inspectors are back in Iraq.'

Annan warned Iraq that if it failed to make use of 'this last chance, and continues its defiance, the council will have to make another grim choice, based on the findings of the inspectors ... When that time comes, the council must face up to its responsibilities.'

If war results, 'it may cause terrible loss and suffering to the Iraqi people and perhaps to their neighbors, too,' Annan said. 'We all -- first and foremost the leaders of Iraq itself -- have a duty to prevent this, if we possibly can.'

'But our founders were not pacifists. They knew there would be times when force must be met by force.'"
I would interpret that as diplmatic language for "enforce those sodding resolutions already, you putzes!"

Jurjen said @ 03/26/2003 09:31 PM Z-8

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