Remembering Iraq’s illegal invasion

The possible legal justifications for the intervention by the US and the UK in Iraq were all based on lies. No argument supporting the invasion was convincing. In the UK the Inquires Act 2005 has produced the Iraq Inquiry (which is not yet concluded). In the inquiry so far we have heard evidence from several high-profile personalities. Infamously Tony Blair has had the chance to reiterate the “other view” on the matter but this time with an American accent. Having been a war-time prime minister rather than a peacemaker has suited Mr Blair in the long run and it seems that he is very well taken care of by his American friends. His evidence to the inquiry can be viewed here.

Military intervention by the west began in Iraq on 20th March 2003. It stemmed from the previous Gulf War (1990-1991). According to American imperialists and their British acolytes the legal grounds for intervening militarily were contained in the Security Council’s past resolutions; this was sold as “the revival argument.” Moreover, the warmongers harped that the war on terror specified that Iraq was materially connected to and remained a benefactor of al-Qaida.

Demonic glosses were cast upon Iraq’s weapons capabilities and its terrorist affiliations. Suddenly OBL’s “work” provided impetus and “justified” military intervention in Iraq. In any event, business was left unfinished from the Gulf War because Saddam Hussein remained in power; he pursued WMD; Saddam violated international law posing an imminent threat to the Middle East and; Saddam’s brutal minority regime systematically persecuted Iraq’s majority populations, namely the Kurds and Shia.

In November 2010, I heard Professor Charles Tripp lecture in LSE about the nature of the patrimonial state in modern Iraq. According to his expert opinion post war Iraq has just inherited the earlier model of a sectarian Iraqi state which was erected in 1921. The only difference is that in 1921 the British were the “masters” and now it is the Americans who call the shots. Professor Tripp also said that sanctions against Iraq strengthened Saddam and removing them would have been far better than to invade the country. According to Professor Tripp there was no government of national unity in Iraq and the country was doomed because the government was split around Shia, Sunni and Kurdish lines.

Numerous UNSCRs placed various requirements on Iraq following its annexation of Kuwait. Notable UNSCRs used to drum up support for the intervention were (i) 660(1990) demanded “Iraq’s immediate and unconditional withdrawal”; (ii) 661(1990) imposed comprehensive monitored sanctions; (iii) 678(1990) authorised Members to use “all necessary means” in ensuring Iraq’s compliance with UNSCRs; (iv) 687(1991) declared a ceasefire formally ending the Gulf War, established the UN Special Commission on Weapons (UNSCOM) to supervise the destruction of weapons and extended sanctions; (v) 1154(1998) warned Iraq that non-compliance on its part would invite “severest consequences”; (vi) 1284(1999) replaced UNSCOM with United Nations Monitoring Verification and Inspection Commission (UNMOVIC) and allowed for suspending sanctions upon UMMOVIC’s certification regarding disarmament; (vii) 1441(2002) established an “enhanced inspection regime” to dispose of the disarmament process demanding that Iraq provide “accurate, full and complete” disclosure of its proscribed weapons programmes and recalled, while remaining seized of the matter, that the SC “repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations.” In 1441 the SC decided that Iraq was in “material breach” of its obligations “under relevant resolutions including 687(1991).”

Whether or not breaches of the SCRs enumerated above were sufficiently serous to merit the use of force was, of course, a matter of opinion. Lord Goldsmith (AG to Tony Blair’s government), who now thinks that there was no reasonable case against Iraq to use force, argued on the “revival” grounds that the use of force need not be express because (i) in SCR 678 using force was authorised; (ii) SCR 687 suspended, but did not terminate, the use of force and that its “material breach” revived exercising force; (iii) in SCR 1441 it was determined that Iraq was and remained in material breach of SCR 687 by not disarming as agreed; (vi) SCR 1441 afforded Iraq “a final opportunity” to disarm and warned of “serious consequences” if this obligation remained outstanding, non-compliance with SCR 1441 constituted a further and continuing breach by Iraq; (v) Iraq has consistently and constantly failed to abide by international law; (vi) therefore the un-extinguished authority to use force in SCR is revived and; (vii) if force was to be authorised expressly then SCR 1441 would state this unequivocally, the requirement in 1441 was that the SC discuss Iraq’s failures and a further decision to use force was inappropriate (see 7th March 2003 advice at [15], [22], [28] & [29]).

However, it is imperative to note that Lord Goldsmith stressed that the lawfulness of military action depended equally on proportionality in addition to the issue of legality and he categorically rejected regime change as “the objective of military action” (at [36]). Lord Goldsmith advised that a compelling case required “hard evidence of non-compliance” and “the views of UNMOVIC and IAEA” were  “highly significant in this respect” (at [29]). Even if Goldsmith did not change his mind the invasion was anything but proportionate.

Moreover, in those terrible days of 2003, Australia’s AG Daryl Williams took Lord Goldsmith’s advice far beyond its logical conclusion arguing that SCR 678 did not (i) limit the time in which force could to be used and; (ii) did not restrict the use of force specifically to restore the independence and security of Kuwait. Williams (at [15]) said “[t]here is no finite time under the Charter in which the authority given in a Security Council Resolution expires. Nor is there any indication in Resolutions subsequent to SCR 678 that the use of force contained in that resolution has expired.” John Ashcroft, then US AG, did not set out the case against Iraq. Instead Bush argued his case on “regime change” for which he did not require “anybody’s permission” and being the boss he bamboozled his claim over everything else.

International law specialists took the view that since it was the SC that extinguished the use of force in SCR 687 only it could revive using force. Gray asks “[h]ow could the USA and UK argue that a material breach…by Iraq of the ceasefire regime in Resolution 687 ended the cease-fire and revived the authority to use force under Resolution 678 in the absence of a determination by the Security Council that the cease-fire was over?”

What further diminished the thrust of the Anglo-American and Australian position was the fact that SCR 1441 does not expressly refer to SCR 678 and a tacit revival of the use of force was not possible within the terms of SCRs re Iraq. The British FCO’s legal advice of 21st July 2002 (at [2]) said that Iraq’s behaviour undermined the ceasefire and the SC may assess the breaches on Iraq’s part. However, the FCO explained that neither the UK nor any other state in the world shared the US’s view that individual states comprising the SC were singularly competent to determine material breaches of Iraq’s obligations under international law.

Both  the UK and US agreed that there was no automaticity to use force in SCR 1441 but they maintained that no second resolution was necessary because 1441 did not set out the need for a second resolution. Therefore, no second SC decision was required for intervention because SCR 1441 only required that the SC “consider the situation” (SCR 1441 at [12]). The legal justifications for invading Iraq were, within the Charters of the UN and the IMTN, never very compelling.

Recognising this fact the White House said that it would act outside the UN Charter because there were “many ways” to enforce international law. The WMD issue sought to bolster the weak case against Iraq. Yet images of Saddam’s 1983 use of chemical and biological weapons against the Kurds and Iranians raised concerns regarding his future intentions and ability in committing crimes against humanity.

In the wake of the egregious events which culminated in the 2003 intervention, specialist legal and practical opinion overwhelmingly opposed the war. Franck described using unilateral force as making “a mockery of the entire system.” Hans Blix (linked to inquiry), head of UNMOVIC, explained that “eight years of inspections and four years of no inspections” only “for a couple of months” were “a rather short time to close the door and say, this is it” (NY Times 11/3/2003). Similarly Mohamed El Baradei, Director General of the International Atomic Energy Agency (IAEA), said “we have to date found no evidence of ongoing prohibited nuclear or nuclear related activities in Iraq”

In 2007 the Iraq Study Group Report described the situation was “dire” where “[t]here is no magic formula”. Insurgent groups had different objectives but all of them opposed the presence of foreign forces and “Al Qaeda in Iraq is Iraqi run” whose “goals include instigating a wider sectarian war … and driving the United States out”. Moreover,  “a deadly cycle” grips Iraq despite “$400 billion” spent on the war and a final estimate of “£2 trillion of the final cost of the U.S involvement in Iraq”. The ISGR warned that “time” was “running out” and the US’ ability “to shape outcomes is diminishing”. The ISGR was co-chaired by James Baker (US Secretary of State 1989-1992) and it made recommendations which included (i) direct involvement by the US in resolving the Israeli-Palestinian conflict to which “there is no military solution” and; (ii) engaging Iran and Syria in taking steps fostering Iraq’s stabilisation to mitigate the US’ failure in Iraq. Yet this very important advice has not been taken seriously and no advances have been made on any of these issues.

In the end it was all for nothing. So much blood spilt just to make some money. None of the promises made have been kept and Iraq is really badly off. Al Qaida is stronger than ever. Armed gangs roam around in broad day light doing whatever they want. Suicide bombings are endemic and the poor Christians of a once secular country cannot even celebrate Christmas. For the minorities of Iraq to be murdered they way  they are now is all a consequence of the mad invasion of that country in 2003. How sad is all of this? Why is it that people who come to power in the name of democracy never deliver on their promises? Mr Iraq, Charles Tripp, has some tips.

Professor Tripp described the rule of the present Iraqi Prime Minister Nouri al-Maliki with the following words of wisdom:

“Dictators didn’t come out of nowhere, they didn’t come by a great explosion. They come by capturing small things bit by bit. Small things are very telling – they tell you the nature of things to come. One day people will wake up and ask how did we come here, it must be an awful conspiracy.”

There were three reasons to go to war. Firstly, Saddam had WMD. Secondly, he was connected to al-Qaida. Thirdly, it would be good for Iraqis if Saddam’s regime was deposed. Seven years later Iraq is in ruins. It would have been been a much better idea to remove the sanctions against Iraq and destabilise Saddam that way. But alas it was not to be and Iraqi civilians are paying for the invasion with their blood.

Post a comment or leave a trackback: Trackback URL.


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

%d bloggers like this: