[HPFGU-OTChatter] Re: UN and Iraq

[Shaun Hately]

On 30 Sep 2004 at 12:51, olivier.fouquet+harry at m4x.org wrote:

> Shaun
>  > Under international law, it is, in fact, very likely that the
>  > invasion of Iraq was legal - whether it should have been or not is
>  > another question. But the 1990/91 law ended in a cease fire that
>  > was contingent on Iraq acceding to certain demands. Iraq failed to
>  > accede to those demands and under international laws relating to
>  > cease fires, that means the war can continue. Further US and other
>  > nations aircraft enforcing the no-fly zones were fired upon on
>  > numerous occasions by Iraqi troops. In international law,
>  > deliberately targeting the military assets of a nation is a clear
>  > casus belli.
>  >
>  > The major issue in international law is Iraq's repeated violation
>  > of the cease fire agreement which was put in place in 1991. It
>  > wasn't just one violation, it was numerous violations, and the
>  > requirement for Iraq to comply was stated and restated by the
>  > Security Council on several occasions, so it wasn't a dead issue.
> 
> I am not an expert in international law, so I formed my opinion by 
> referring to scholarly resources. On that particular point, I quoted 
> from Phyllis Bennis, a researcher at the Institute for Policy Studies. 
> You can hear her whole statement on the controversy on 
> www.fair.org/counterspin

Yes, I am aware of her work and I am also aware that a great many 
experts in international law consider it to be incorrect. Others 
agree with her.

> According to her, the resolutions condemning Iraq explicitly stated 
> what should happen if Iraq violated them, and, still according to her, 
> in that case, the Security Council had to decide what consequences 
> would follow. This did not happen. The US decided alone that they would 
> go to war.

First of all, the United States did not decide alone that it would 
go to war. The decision was taken by the United States, the United 
Kingdom, and the Commonwealth of Australia in the form of a 
Coalition of the Willing, which is a model specifically recognised 
in international law to be used in cases when the United Nations is 
unable, or unwilling to authorise a specific UN force. The Security 
Council may choose to authorise such a coalition, but doesn't need 
to.

Now, the Security Council had the power to decide what *additional* 
consequences or *alternative* consequences could be applied to Iraq 
in the event of failure to comply with the ceasefire.

But unless the Security Council agreed on alternatives, the normal 
consequences in international law of breaching a ceasefire - the 
resumption of hostilities apply.

To agree on alternatives, the Security Council would have had to 
specifically pass a resolution forbidding military action - it 
never did so (and if it had, it would probably have been vetoed).

The thing is international law is incredibly complex. There's no 
clear agreement on what it means and what it doesn't mean in many 
areas.

Basically it comes down to which expert you want to believe.

There's also the issue in international law that a body that cannot 
enforce its rulings has no authority. The Security Council cannot 
enforce its rulings against the Permanent Members, because they can 
veto anything it does.
 
> Mrs. Bennis also addresses the claim about the no-fly zones. According 
> to her, they are not explicitly part of the resolution, so they cannot 
> be used as a reason for military intervention. I would rather believe 
> her on that one, as I personally worked for the US Air Force in Saudi 
> Arabia during the no-fly zone period and I do remember legal issues 
> were raised from times to times.

She's probably correct that the no-fly zones cannot be used as a 
reason for war in and of themselves. However, the fact that Iraq 
fired on US and other aircraft enforcing those zones is a casus 
belli. An attack on a nations military assets is virtually always a 
casus belli. There are no exceptions to that in international law - 
all that can sometimes be argued is that the country fired upon 
might have itself initiated a casus belli.

When Iraq fired on a US aircraft, it committed an act of war. That 
is part of a very simple part of international law.

The only real 'defence' Iraq could have offered is that the 
enforcement of the no-fly zones were acts of war on the part of the 
nations policing them. But that would have required the Security 
Council to decide.

The basic problem in international law is that the US, UK, and 
France set up the no-fly zones to enforce Resolution 688. 

While Resolution 688 does not specifically authorise the no-fly 
zones, it does authorise member states to take unspecified action 
based on that resolution.

De facto, a case can be made that it therefore authorises the no-
fly zones. The Security Council could have, at some stage, ruled 
that they shouldn't be authorised - but never has. China and Russia 
have raised some objections - but chose not to raise the issue in a 
Resolution - and France withdrew from enforcement after a while.

Regardless though of whether or not the No-Fly zones are 
authorised, firing on an aircraft is an act of war.

The problem is there's no clear international law on most of these 
issues except that international law is what the Security Council 
says it is.

There's hundreds of opinions about what other principles of 
international law say.

And that comes back to the veto problem.

> At any rate, and without entering a subtle discussion on international 
> law, it is clear that violation of a UN resolution is not a sufficient 
> reason to make an invasion legal. If it were, I am afraid Israel could 
> be invaded any time.

No, but the difference is the case of Iraq there are 'ceasefire' 
resolutions - there was no peace treaty.  

Not all Security Resolutions resolutions are identical, or have 
identical effects.  

A ceasefire only holds while the ceasefire conditions remain 
intact. It is a special case.  

>  > That is correct - but if France hadn't been willing to veto, it is
>  > likely that at least 9 of the 15 nations involved, possibly more,
>  > would have supported the UN Resolution. A significant number were
>  > not willing to support it unless France was, because a situation in
>  > which the Security Council rendered a majority vote, only to have
>  > it vetoed by France, could have damaged the Security Council almost
>  > beyond repair. And that was not worth risking.
> 
> Surely you cannot believe that Shaun. There has been instance of an 
> unanimous Security Council resolution vetoed by only one member. The 
> only damage it would have done would have been to France. I would have 
> been the first to call it a shame, had France vetoed an otherwise 
> unanimous resolution. 

Please note that I did not claim that there would be a unanimous 
vote (14-1). I don't think there would have been.  

But I do believe a simple majority might well have been achieved 
(not definitely would have been but might have been) if France had 
been willing to make a commitment not to veto. And a quorum is 
possible.

The 15 members of the Security Council at the time were the United 
States, the United Kingdom, Russia, China, France (all permanent 
members) Bulgaria, Cameroon, Guinea, Mexico, Syrian Arab Republic, 
Angola, Chile, Germany, Pakistan and Spain.

The US and UK would have definitely voted to support the 
resolution.

France was opposed - and also very likely to use its veto power.

Russia, China, Germany and Syria, were less opposed than France and 
Germany - but still unlikely to move - although Russia and China 
were unlikely to actually veto, even if they didn't vote for the 
resolution.

Spain and Bulgaria were highly likely to support any resolution.

Chile wanted Iraq to be given one more chance, but was willing to 
support military action if that failed.

Angola, Cameroon, Guinea, Mexico, and Pakistan were the 'swing 
voters' that could have gone either way.

So there were 4 in favour (with a 5th broadly in favour but wanting 
Iraq to be given one more chance), 5 opposed, and 5 swinging.

Unanimity wasn't going to happen - but a 10-5 or a 9-6 vote were 
distinct possibilities.

But if France was going to veto, there was no point the 5 swingers 
committing one way or the other.

> Indeed, I suspect it has happened during the war 
> in Algeria, and it was one of the most shameful time in french history. 
> Anyway, it is hard to know what would have happened. We know what did 
> happen. And on the basis of what did happen, I don't see any reason to 
> blame any country for blocking the diplomatic process.

I don't exactly blame France - France was acting in France's 
interests, and any nation should do that. What I blame is the veto 
system for rendering the Security Council virtually impotent - 
because virtually any major decision is likely to be against the 
interests of at least one veto power.
 
>  > Iraq was under sanctions for over a decade. These sanctions were
>  > largely intended to force his removal from office. They didn't
>  > succeed.
> 
> I was rather referring to cutting support from dictators we support. 
> Not enemies. I, for one, would be glad to see France ending its support 
> to the current tunisian regime. It is possible that some americans feel 
> it would be sensible to stop supporting the Saudi monarchy.

Yes, very possible. 
 
>  > There's nothing wrong with trying those methods - because there are
>  > rare occasions, where they are successful. But when you've tried
>  > them for 12 years, and they haven't done any good, it's time to do
>  > something else.
> 
> But the UN did something else. Inspectors were working in Iraq just 
> prior the war. And they were quite satisfied with their working 
> condition (largely because of military threat, but still). Was it worth 
> it to engage in a war which killed one thousand Americans and more than 
> 12,000 iraqi civilians?

Sorry, the inspectors were *not* satisfied with their working 
conditions. I have spoken personally with Richard Butler, who 
headed the international inspections for several years. Iraq was 
showing more compliance in late 2002 and early 2003 than it had 
before. But it wasn't enough. The inspectors were relatively happy 
with its improved compliance - but that was relative to virtually 
no compliance for four years.

Inspecting the whole country under the conditions they were working 
under would have taken at least a decade - and that was if Iraq 
didn't kick them out again.

It's also now known that the inspectors missed quite a few things.

It's possible that a more rigorous inspection plan might have been 
worthwhile - but that would almost certainly have not got through 
the security council.

The weapons inspectors did a lot of good in the mid 1990s - but 
they'd found all they were likely to find by 1998.
 
>  > International law does not ensure peace.  In fact the number of
>  > wars increased every decade between the 1940s and the 1990s.
> 
> They don't, but it's the only thing we have. So I would be in favor of 
> following them.

International law only works in cases where both sides comply or if 
there is some form of enforcement. Iraq did not comply. It would 
not comply. And in the case of Iraq, there was no ambiguity - it's 
violations were absolutely clear, based on written, published UN 
Security Council Resolutions.

Following international law requires taking action when a nation 
refuses to comply. Iraq refused to comply for over a decade.  

If you want to complain about someone not following international 
law, that person was Saddam Hussein. And the world sat back and let 
him get away with it, for 12 years.

If international law has any value, it must be enforced.


Yours Without Wax, Dreadnought
Shaun Hately | www.alphalink.com.au/~drednort/thelab.html
(ISTJ)       | drednort at alphalink.com.au | ICQ: 6898200 
"You know the very powerful and the very stupid have one
thing in common. They don't alter their views to fit the 
facts. They alter the facts to fit the views. Which can be 
uncomfortable if you happen to be one of the facts that 
need altering." The Doctor - Doctor Who: The Face of Evil
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