Opinion
March 17, 2003
Bush: a policeman with the law on his side
by William Rees-Mogg
timesonline.co.uk
The House of Commons deals with the money; the House of Lords deals with the law. That is the division of responsibilities in Parliament. The House of Lords includes the Law Lords, who are the Supreme Court of the United Kingdom. It also includes retired Law Lords, many of great distinction, who feel more free to speak in debate.
There are leading counsel from all parties, Conservatives such as Lord Alexander of Weedon, Liberal Democrats such as Lord Goodhart or Lord Lester of Herne Hill. Politically the most significant of all are the three leading lawyers in the present Government, Lord Irvine of Lairg, the Lord Chancellor, Lord Williams of Mostyn, the Leader of the House of Lords, and Lord Goldsmith, the Attorney General.
Lord Goldsmith, the least political of the three, has advised the Prime Minister and the Government of the issues of international law which arise in the case of Iraq. It is expected that his advice will be given to the House of Lords today. Yesterday’s Observer reports that he has, in fact, advised that “a pre-emptive military attack would not breach international law, even without a second UN resolution”.
Lord Goldsmith is expected to argue from the UN resolutions themselves. At the end of the first Gulf War, in 1991, the UN passed Resolutions 686 and 687 which required Saddam Hussein to disarm as a condition of the ceasefire. It can be argued that the Iraqi failure to disarm over a period of 12 years invalidates the original ceasefire, and releases the United States and Britain from obligations under the ceasefire agreement. In effect, this is derived from the law of contract, in which failure to carry out the contract by one party can free the other party from obligation.
Friends of the Iraqis might argue that the UN has failed to enforce the contract of disarmament for 12 years and has therefore acquiesced in the present situation. Lord Goldsmith could well reply that last year’s Resolution 1441 refers to the previous resolutions and reaffirms the UN commitment to the disarmament of Iraq, with the threat of serious consequences if it does not disarm. Put Resolutions 686, 687 and 1441 together and there is plainly a strong case for the legitimacy of further action.
International law does not have a Supreme Court, so there is no final way of determining whether any international action is inside or outside the law. However, there are modern developments within international law which support Lord Goldsmith’s view. I have previously quoted Lord Goodhart’s important opinion. “Let us look first at humanitarian intervention. This is a new principle which has arisen outside the Charter (of the United Nations). It was most clearly recognised in Kosovo. It is widely, but not universally, accepted by international lawyers. In cases such as genocide by rulers against their own people, such as Rwanda and Cambodia, it is hard to deny that such a principle exists.”
Lord Goodhart’s opinion is all the more persuasive, as he does not himself consider that the conduct of the Iraqi regime constitutes genocide, a view hard to maintain when there have been millions of refugees from Saddam Hussein. It is, however, simply a statement of fact that “humanitarian intervention” is widely accepted by international lawyers as proper grounds for unilateral action. Most observers agree that the actions of the Saddam Hussein regime against the Kurds, the Marsh Arabs and the internal opposition amount to ethnic cleansing, with very heavy casualties.
The doctrine of humanitarian intervention is supported by two international conventions, the Convention on Genocide, which goes back to 1948, and the more recent Convention on Torture. These conventions, to both of which the United Kingdom is a party, mean that genocide, ethnic cleansing and torture are not protected by national sovereignty, when committed by a government against its own people. They, not intervention, are the crimes.
The argument from these conventions is buttressed, in British law, by the judgments of the House of Lords in the case of General Pinochet. The House of Lords found that the general was not protected by sovereign immunity from charges of torture, used against the people of Chile. This was a radical change in British law, overruling the Court of Appeal and open to criticism. Even so, that House of Lords judgment undoubtedly defines the present state of law. If Saddam Hussein were to be apprehended, under the Convention on Torture he can be tried in a British court, or extradited to a court which would try him.
In recent years British governments have acted under this doctrine of humanitarian intervention. It was the justification for the Nato bombing of Kosovo, to which France was also a party, and it formed part of the justification for the British intervention in Sierra Leone. No one now questions that the world should have intervened in Rwanda and Cambodia, with or without UN approval.
Kosovo is the nearest comparable case to Iraq. Nato acted without UN approval on the grounds that Milosevic’s conduct was a crime against humanity. He has subsequently been brought to trial for his misdeeds. The case against Saddam is much stronger; he has used weapons of mass destruction, he has killed and tortured for a longer period and on a greater scale.
The UN Charter also provides for independent action in self-defence. On his record, it is reasonable to regard Saddam as a permanent threat to world peace. That view is supported by Resolution 1441.
It is hardly possible to find a distinction in international law which would make Kosovo legal but the projected intervention in Iraq illegal. That is a problem for the French, who supported the action in Kosovo, and for Robin Cook, who was Foreign Secretary at the time. I myself thought that the Kosovo bombing probably fell outside international law; much of the support for the Kosovo action came from people who are now most opposed to action in Iraq. If Kosovo was legal, Iraq will be legal as well.
In domestic or international law, it is always unsatisfactory to create an offence but deny a remedy. The offences of the Iraqi regime include the original invasion of Kuwait, the failure to disarm, the use of poison gas, ethnic cleansing, the use of torture, the holding of Iranian and Kuwaiti prisoners as hostages. These offences can be remedied only by changing the regime, a precondition to the restoration of humane life in Iraq.
The French agreed Resolution 1441, which demanded that Iraq should disarm or face the consequences. They now claim that the process of inspection is securing disarmament. The truth is that Iraq has never given positive co-operation to disarmament; anything that has been achieved has been a response to the build-up of US forces.
Europe has a problem which is one of power rather than law. Since 1945 Europe has relied on the United States to defend the West. Originally the US protected Europe from the Soviet Union. Since the end of the Cold War, the US has maintained a much greater defence capacity than Europe. The global village has only one policeman, though Britain has been a loyal special constable.
The world has not become less dangerous, though the nature of the threat has changed from major to minor powers. The United States has to enforce whatever world peace can be achieved, not only in the Middle East, but in all the areas of tension. It is the United States which has to help India and Pakistan avoid a potentially nuclear conflict, or protect South Korea and Japan from the North Korean nuclear threat. Europe could play a larger role, but Europe has not given defence the necessary budgetary priority.
If there is only one policeman in the village, it is no good for the parish council to expect to tell him what to do. The policeman sees the maintenance of order as his responsibility. He knows very well that any breakdown of order means that he will be called upon to intervene.
Europe has chosen to leave the job to the United States. Now France and Germany have become hostile to the United States’s way of doing the job; indeed, they are backing a violent and genocidal regime against the United States. Law can never be separated from enforcement. The United States is operating inside modern conceptions of justifiable intervention; France and Germany are trying to prevent international law being enforced. |
