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Bush, Blair and Howard – Three reckless adventurers in Iraq (Part 7)

The Iraq Inquiry Report (2009-2016) documents how Tony Blair committed Great Britain to war early in 2002, lying to the United Nations, to Parliament, and to the British people, in order to follow George Bush, who had planned an aggression on Iraq well before September 2001.

Australian Prime Minister John Howard conspired with both reckless adventurers, purported ‘to advise’ both buccaneers, sent troops to Iraq before the war started, then lied to Parliament and to the Australian people. He continues to do so.

Should he and his cabal be charged with war crimes? This, and more, is investigated by Dr George Venturini in this outstanding series.

Was the war legal? (continued)

On 31 October 1998 President Bill Clinton signed into law the bill for an Iraq Liberation Act, which became Public Law 105-338, Statutes at Large 112 Stat. 3178. It contains a United States Congressional statement of policy stating that “It should be the policy of the United States to support efforts to remove the regime headed by Saddam Hussein from power in Iraq…”

President Clinton had stated in February 1998:

“Iraq admitted, among other things, an offensive biological warfare capability, notably, 5,000 gallons of botulinum, which causes botulism; 2,000 gallons of anthrax; 25 biological-filled Scud warheads; and 157 aerial bombs. And I might say [the United Nations Special Commission] UNSCOM inspectors believe that Iraq has actually greatly understated its production …

Over the past few months, as [the weapons inspectors] have come closer and closer to rooting out Iraq’s remaining nuclear capacity, Saddam has undertaken yet another gambit to thwart their ambitions by imposing debilitating conditions on the inspectors and declaring key sites which have still not been inspected off limits …

It is obvious that there is an attempt here, based on the whole history of this operation since 1991, to protect whatever remains of his capacity to produce weapons of mass destruction, the missiles to deliver them, and the feed stocks necessary to produce them. The UNSCOM inspectors believe that Iraq still has stockpiles of chemical and biological munitions, a small force of Scud-type missiles, and the capacity to restart quickly its production program and build many, many more weapons …

Now, let’s imagine the future. What if he fails to comply and we fail to act, or we take some ambiguous third route, which gives him yet more opportunities to develop this program of weapons of mass destruction and continue to press for the release of the sanctions and continue to ignore the solemn commitments that he made ? Well, he will conclude that the international community has lost its will. He will then conclude that he can go right on and do more to rebuild an arsenal of devastating destruction. And some day, some way, I guarantee you he’ll use the arsenal …”

The Act ‘found’ that between 1980 and 1998 Iraq had: committed various and significant violations of international law; had failed to comply with the obligations to which it had agreed following the Gulf war and further had ignored resolutions of the United Nations Security Council.

In November 1998 President Clinton stated that: “The evidence is overwhelming that such changes will not happen under the current Iraq leadership.

The Act required the President to designate one or more qualified recipients of assistance, with the primary requirement being opposition to the Saddam Hussein regime. Such groups should, according to the Act, have included a broad spectrum of Iraqi individuals, groups, or both, who declared to be committed to democratic values, peaceful relations with Iraq’s neighbours, respect for human rights, maintaining Iraq’s territorial integrity, and fostering cooperation among democratic opponents of the Saddam Hussein regime. On 4 February 1999 President Clinton designated seven groups as qualifying for assistance under the Act. The groups were:

The Iraqi National Accord,

The Iraqi National Congress,

The Islamic Movement of Iraqi Kurdistan,

The Kurdistan Democratic Party,

The Movement for Constitutional Monarchy,

The Patriotic Union of Kurdistan, and

The Supreme Council for Islamic Revolution in Iraq.

The Act authorised the President to assist all such groups with: broadcasting assistance – for radio and television broadcasting, military assistance – for training and equipment, and humanitarian assistance – for individuals fleeing the regime of Saddam Hussein.

President George W. Bush, who followed Clinton, often referred to the Iraq Liberation Act and its findings to argue that the Clinton administration supported regime change in Iraq – and, further, that it believed Iraq was developing weapons of mass destruction. The Act was cited as a basis of support in the Congressional Authorization for use of Military Force Against Iraq in October 2002.

Closing the door to such controversial developments in international law as the recognition of ‘pre-emptive self-defence’, Lord Alexander declared: “Most states strongly oppose these developments believing rightly that such policies pose too great a threat to state sovereignty. With such great international opposition the policy of one state is not sufficient to create a valid rule of international law. Neither regime change nor pre-emptive self-defence can provide a legal justification for the use of military force in Iraq. Nor, as I understand it, was it suggested in the end that it could.”

His Lordship then went on to deal with the argument of humanitarian intervention.

“The idea of humanitarian intervention has strong, understandable and emotional support. Humanitarian intervention has been a notoriously controversial doctrine.

But the prohibition on the use of force in Article 2(4) makes it very unlikely that any customary international law right of unilateral humanitarian intervention survived the Charter.”

Furthermore, “The humanitarian situation in Iraq in March 2003, grim though it was for the Iraqis, was not claimed by the government to amount to an “overwhelming humanitarian catastrophe” as required by the Foreign Office criteria. Even if a right to humanitarian intervention had developed in international law, it would not have applied to Iraq any more than to any of the arbitrary tyrannies which sadly still exist. There are many who consider that, when it comes to removing Saddam Hussein, the end justified the means, indeed, would justify almost any means. This instinct is all too understandable. But surely it would be a most dangerous path to embark on. Careful criteria would need to be established to ensure that the oppressed are liberated in all cases of need, regardless of whether their state is rich in oil or diamonds. We must be careful when celebrating the demise of Saddam Hussein not to create a dangerous precedent in which any unilateral military action may be condoned when one of its consequences happens to be humanitarian relief. [Footnote omitted] It is United Nations decisions and their implementation which should be the rock on which the international community sets its feet when it intervenes on humanitarian grounds.”

Was there an “implied authorisation?” at this point asked Lord Alexander.

“It is sometimes argued that the existence of Security Council approval to use force can be implied from prior Security Council decisions without having to obtain explicit permission. Advocates of this approach argue that it is politically convenient because it enables states to act at times when minimum world order requires that action be taken, but there are geopolitical factors in play which prevent express Security Council authorisation. [Footnote omitted].

A short examination of the implied authorisation argument reveals its fallacy. Firstly, it is inconsistent with the principles and purposes of the United Nations Charter. From reading Article 1 it is clear that the basic premise of the collective security system is that force should only be undertaken jointly and in the interests of the international community as a whole. A system that allows states to unilaterally decide when a use of force is or is not in the interests of the international community is dangerously vulnerable to abuse. The only way to ensure that military action is truly collective is if it is expressly authorised by the Security Council.”

What is then the case of an unreasonable Security Council veto? Lord Alexander disposed of the matter as follows:

“In the debates before the war the Prime Minister several times suggested that an unreasonable use of the veto in the Security Council would somehow allow members of the United Nations to act unilaterally without express authorisation.”

Lord Alexander quoted the Prime Minister: “Of course we want a second resolution and there is only one set of circumstances in which I’ve said that we would move without one … that is the circumstances where the U.N. inspectors say he’s not cooperating and he’s in breach of the resolution that was passed in November but the U.N., because someone, say, unreasonably exercises their veto and blocks a new resolution [sic].” (Tony Blair, B.B.C. Breakfast with Frost, 26 January 2003).

Unreasonable Security Council veto is “is a variation of a theory, expressed in academic literature, that the inability of the Security Council to fulfil its collective security role restores the right of each member state to act unilaterally.” Lord Alexander referred to the work of Julius Stone in Aggression and World Order (London, Stevens, 1958), p.96: “any implied prohibition on Members to use force seems conditioned on the assumption that effective collective measures can be taken under the Charter to bring about adjustment or settlement “in conformity with the principles of justice and international law.” It is certainly not self-evident what obligations (if any) are imported where no such effective collective measures are available for the remedy of just grievances.” For the opposite view, see Ian Brownlie, “Thoughts on Kind-Hearted Gunmen” in Lillich (ed), Humanitarian Intervention and the United Nations (Charlottesville, University Press of Virginia, 1973), p.139, 145.

But His Lordship said quite bluntly: “This concept [that is to say, the doctrine of ‘unreasonable Security Council veto] has no basis in international law.”

Coming to deal with a possible breach of Resolution 1441, Lord Alexander said this:

“Resolution 1441 was the freshest, and most immediate resolution in force at the time of the invasion. Yet there has been no suggestion that Resolution 1441 justified the invasion. Why? Because Resolution 1441 did not expressly authorise force. [Footnote omitted] The collective security system requires that the authority to use force, which is the most serious and deadly means of enforcement, can only be conferred by unambiguous means. [Footnote omitted] The graver the consequences, the clearer must be the words providing for them. No one has suggested that Resolution 1441 contains such clear language. Indeed a draft resolution containing the phrase “all necessary means”, the diplomatic code for the authorisation of force, was rejected by members of the Security Council in early October 2002. (U.S./U.K. Draft Security Council Resolution, leaked to the Financial Times, 2 October 2002. It was circulated to other Security Council permanent members but was never formally tabled). The parties to 1441 all recognised that there was no “automaticity” of consequences and that the issue would have to come back to the Council which was “to remain seized of the matter”. (Ambassador John Negroponte, statement to Security Council, 8 November 2002; Ambassador Sir Jeremy Greenstock, statement to the Security Council, 8 November 2002; Joint statement by China, Russia and France, 8 November 2002).

It was later suggested somewhat faintly that the “further consideration” mentioned in 1441 meant that there would simply be a report and a debate without the Security Council determining what the serious consequences should be. If that was so it is far from clear why the United States and our government worked so hard to sponsor a second resolution to spell out the consequences of Iraq’s failure to comply. It was only the realisation that a second resolution would not get through which led the U.S. and the U.K. to change tack and to look for some other basis in international law which allowed them to invade Iraq. They alighted upon Resolution 678. It was their only lifeline. [Emphasis added] For it is recognised that nothing short of a statement of the right to use “all necessary means” or “all necessary force” would be sufficiently unambiguous as to allow the extreme step of engaging in armed hostilities or invasion.” [Footnote omitted].

None of the subsequent resolutions, including 1441, gave such a mandate.

Tomorrow: Was the war legal? (continued)

GeorgeVenturini Dr. Venturino Giorgio Venturini – ‘George’ devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975, invited by Attorney-General Lionel Keith Murphy, Q.C., he left a law chair in Chicago to join the Trade Practices Commission in Canberra – to serve the Whitlam Government. In time he witnessed the administration of a law of prohibition as a law of abuse, and documented it in Malpractice, antitrust as an Australian poshlost (Sydney 1980). He may be reached at George.Venturini@bigpond.com.

⬅️ Part 6

➡️ Part 8

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