Nothing new here; move along please
I was going to comment on reports of the speech that Lord Bingham delivered on Monday, in which he described the invasion of Iraq as a "serious violation of international law". I thought he dressed up "I didn't agree with it" in the full ermine robes of a former Lord Chief Justice, rather than gave a legal argument. But I discover that Oliver Kamm has just expressed my views better than I could, so I shall simply quote him:
I find it unconvincing, because it represents as a disinterested legal judgement an assessment of evidence concerning the conduct of Saddam Hussein's regime. I do not believe Lord Bingham advances that issue in any respect, and certainly not beyond the judgement proferred by Michael O'Hanlon of the Brookings Institution in 2004:
"Resolution 1441 did not allow Saddam several more chances and several more bouts of imperfect compliance with U.N. demands. Once he again obstructed and obfuscated, it became clear he was not voluntarily and verifiably disarming—and 1441's clear implication was that this was unacceptable. Whether it automatically justified war was of course debatable, and was hotly debated at the time. But a legal case certainly could be made for that justification.
"To be sure, when Washington tried to secure formal approval for war, the United States and its partners failed to gain their desired second U.N. resolution in early 2003. That is why, practically and legally, the war was not explicitly or unambiguously legal. It was in a grey area. But again, being in a grey area is not the same as being illegal."
Lord Bingham proceeds with an observation of singular unhelpfulness, according to the report: "Governments were bound by international law as much as by their domestic laws, he said. 'The current ministerial code,' he added 'binding on British ministers, requires them as an overarching duty to 'comply with the law, including international law and treaty obligations'.'"
Well, yes: governments are of course bound by international law and treaty obligations, and I'm in favour of the diminution of state sovereignty that that arrangement requires. But international law is not the same type of thing as domestic law, in a crucial respect: there is no institution that exercises sovereignty over the international order, and thus no one capable of implementing the body of international law. That may be a good or a bad thing, but it is inevitable so long as nation-states exist. Democratic states, by virtue of their sensitivity to cultural mores and popular sentiment, are even less likely to abolish themselves than autocratic ones.
If there is no supranational organisation capable of exercising sovereignty, then it will be left to the United States - which, uniquely among states, provides global public goods such as a guarantee of collective security - to confront the behaviour of miscreant regimes. That's just the way it is, and the way it will continue to be under President Obama. If there is to be a successful containment of Iran's nuclear adventurism, for example, then European powers might usefully show greater understanding than they did in the case of Saddam's regime of both the necessity and the costs of containing states that threaten regional stability.
I see that John Rentoul is rewriting history yet again! UN Resolution 1441 was only allowed to pass in the first place on the understanding that it would not be used by itself as an authorisation for military action. The following passages are from the Wikipedia entry :-
{ "While some politicians have argued that the resolution could authorize war under certain circumstances, the representatives in the meeting were clear that this was not the case. The ambassador for the United States, John Negroponte, said:
“[T]his resolution contains no "hidden triggers" and no "automaticity" with respect to the use of force. If there is a further Iraqi breach, reported to the Council by UNMOVIC, the IAEA or a Member State, the matter will return to the Council for discussions as required in paragraph 12. . .If the Security Council fails to act decisively in the event of a further Iraqi violation, this resolution does not constrain any member state from acting to defend itself against the threat posed by Iraq, or to enforce relevant UN resolutions and protect world peace and security.”[2]
The ambassador for the United Kingdom, the co-sponsor of the resolution, said:“ We heard loud and clear during the negotiations the concerns about "automaticity" and "hidden triggers" -- the concern that on a decision so crucial we should not rush into military action; that on a decision so crucial any Iraqi violations should be discussed by the Council. Let me be equally clear in response... There is no "automaticity" in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in paragraph 12. We would expect the Security Council then to meet its responsibilities.[3] ”
The message was further confirmed by the ambassador for Syria:“ Syria voted in favour of the resolution, having received reassurances from its sponsors, the United States of America and the United Kingdom, and from France and Russia through high-level contacts, that it would not be used as a pretext for striking against Iraq and does not constitute a basis for any automatic strikes against Iraq. The resolution should not be interpreted, through certain paragraphs, as authorizing any State to use force. It reaffirms the central role of the Security Council in addressing all phases of the Iraqi issue.[4]
[2] ^ United Nations Security Council Verbotim Report meeting 4644 page 3, John Negroponte United States on 8 November 2002 at 10:00 (retrieved 2007-09-07)
[3] ^ United Nations Security Council meeting 4644 page 4 on 8 November 2002 (retrieved 2007-09-06)
[4] ^ United Nations Security Council PV meeting 4644 page 10, Mr. Mekdad Syria on 8 November 2002 (retrieved 2007-03-16) }
You will note that I have included the relevant citations from the Wiki entry.
Posted by: Mark Underwood | Wednesday, 19 November 2008 at 05:45 PM
John Rentoul ! What planet did you come from ? Lord Bingham was in no position to do more than express an educated opinion. This he did in a reasonable and convincing way as it was his right to do.
Just as it is everyone's right to be able to read a reasoned opinion that challenges the spin that emanated from the disgraceful cabal that engineered this war.
Just look at the felons. Bush, Cheney, Perle, Wolfawitz, Blair, Straw, Hoon, Mandelson;
All the dressed up gobbldygook legal terminology could not disguise the fact that with that lot in charge, war in Iraq was inevitable.
Posted by: Maurice Smith. | Thursday, 20 November 2008 at 12:27 AM
""If there is no supranational organisation capable of exercising sovereignty, then it will be left to the United States - which, uniquely among states, provides global public goods such as a guarantee of collective security -""
That is one of the most facile statements I've ever read. America has been, since 1945 the most belligerant and aggressive states with it's proxy wars around the world, direct and indirect interference in South America, Middle East and Asia, never mind its invasions and occupation of other people's countries based on the belief of American exceptionalism.
If this period has shown anything it is that we need the UN more than ever but a democratic UN where there are NO permenant members based on their military might and economic power.
Posted by: flipped | Thursday, 20 November 2008 at 12:25 PM