The United States is headed for an ignominious defeat in Iraq, the consequence of egregious strategic and political incompetence on the part of the Bush administration.
Under the banner of a radical Wolfowitzian plan to ‘spread freedom and democracy’ around the world, Bush and his entourage of corporate profiteers are making a killing in Iraq, literally and figuratively.
But while Big Oil and the military industrial establishment are reaping the rewards of chaos and instability, the civilised world is crying out for sanity and humanity to prevail.
Nothing exemplifies the appalling dysfunction of the Bush administration better than the President himself, who continues to justify the attack on Iraq as a noble, altruistic act of liberation, while ignoring the unpleasant fact that Iraq has descended into violent anarchy with little hope of immediate improvement.
Perhaps Bush believes he can convince the American electorate that his grand vision is succeeding and real world evidence to the contrary is irrelevant and should be ignored. Unfortunately, such collective delusion on the part of American society will do little to improve the situation in Iraq.
Parading his puppet prime minister, Iyad Allawi, before a joint congressional sitting last week, simply further confirms the utter contempt Bush has for tact, reason and the views of those who oppose his reckless and aggressive unilateralism.
The mutual confidence and excessive cordiality evident between Bush and Allawi is more a reflection of inherent dependence than any sincere expression of trust or friendship. The President desperately needs to believe his strongman can deliver stability in Iraq, and Prime Minister Allawi cannot hope to survive without the President's support and a cordon of US bodyguards.
Each needs the other more than they care to admit, but neither can really feel assured the other will deliver. The stakes are high. For Bush, failure to secure peace and stability in Iraq will cost America dearly; financially, strategically and politically. A defeat of the US military at the hands of the Iraqi resistance will undermine US credibility and weaken America's willingness to engage threats elsewhere in the world. Bush will go down in history as the president who single-handedly neutered the US military.
For Allawi, failure to gain the support of his fellow citizens by restoring security and essential services will very likely cost him his life, or many more years in exile. Ironically, his vaunted propinquity with the Bush administration may well be his greatest liability. There is no doubt the majority of Iraqis are bitterly opposed to the US occupation, and anyone closely associated with the occupation forces is generally considered to be collaborating with the enemy. Such widespread popular sentiment bodes ill for Allawi's future in Iraq.
Allawi's gravest mistake has been his eagerness to align himself closely with Bush, compounded by his failure to moderate the aggressive behaviour of US forces in many parts of the country. Most Iraqis now regard Allawi as little more than an American stooge, doing the dirty work for George Bush and his neocon warriors. Allawi's reputation sinks lower with each additional civilian death, and his inability to stem the violence undermines his support, both at home and abroad.
There are now signs coming from the White House that suggest some senior administration officials are beginning to doubt the wisdom of open ended support for Allawi. The other day, Defence Secretary Rumsfeld opined that US forces might be withdrawn from Iraq even before the violence and conflict is resolved. He was signalling Allawi that America cannot be relied upon to restore security to that war ravaged nation.
And last week, the right wing journalist, Robert Novak, wrote that inside the Bush administration, "there is strong feeling that US troops must leave Iraq next year," a determination "not predicated on success in implanting Iraqi democracy and internal stability." Novak made the astute observation that "getting out of Iraq would end the neoconservative dream of building democracy in the Arab world."
With insufficient military strength on hand to defeat the resistance in Iraq, the US has three available options. They can maintain troop numbers and continue to fight an interminable guerilla war, with the ever increasing cost in life and treasure for no discernable advantage. Or they can greatly increase troop numbers and the use of force in an effort to subdue the resistance, an extremely expensive and potentially disastrous escalation of the conflict with no guarantee of success. Or they can cut their losses and leave.
According to Novak, well-placed sources in the administration are confident that Bush, Rice and Wolfowitz all favour withdrawal. This would leave Allawi in a precarious position as the various tribal and sectarian groups battle among themselves for power in the chaotic emergence of a new Iraqi government. Apparently, the Bush administration views such an internecine outcome as vastly preferable to Saddam's regime.
With typical insouciant certainty, Bush is displaying the sort of limited strategic cognisance that has epitomised his presidency. No thought given to the longer term ramifications of his belligerence, no regard for America's standing in the world, little more than arrogance, blind obstinacy and pig-headed aggression.
The attack on Iraq has been nothing short of an unmitigated strategic disaster for America, with serious geopolitical consequences for the whole world. It has weakened the international system of collective security. It has undermined US credibility on the world stage and consequently strengthened the position of other major forces, including non-state actors like al Qaeda. It has destabilized a region of immense strategic significance, at enormous cost to the United States, creating conditions that will lead to even more conflict and instability.
It is a testament to the fatuity of the Bush administration that they continue to portray their achievement in Iraq as a benefit to America and the world. But for those who appraise the situation with a modicum of objectivity, the horrible truth is all too apparent.
Tuesday, September 28, 2004
Wednesday, September 22, 2004
World must respect the rule of law
The 59th Session of the United Nations General Assembly opened this week in New York, with a stern warning from the indomitable Kofi Annan...
But Kofi Annan was only just beginning, his message to the world was forthright and succinct...
Whatever challenges we face, the decisions we make must be guided by one "all-important framework - namely the rule of law." The Secretary General cited the vision of "a government of laws and not of men", one that embodies universal "principles of justice" including "legal protection for the poor" and "restraints on the strong, so they cannot oppress the weak."
The origin of law in ancient Mesopotamia, the land we now call Iraq, "was a landmark in mankind's struggle to build an order where, instead of might making right, right would make might." The United Nations was founded on these same principles, he said, "Yet today the rule of law is at risk around the world."
With unwavering nerve, Mr Annan went on to deplore the prevalence of war crimes and crimes against humanity around the world today, noting examples from the Sudan, Uganda, Palestine, Beslan and Iraq, including the "disgraceful abuse" of prisoners at Abu Ghraib.
Mentioning the war crimes of the US military in the same sentence as terrorist crimes is a bold exercise of impartiality, and one which will iritate the neoimperialist warmongers who regard themselves as being culturally and morally superior to the rest of us.
To drive the point home, Kofi Annan chastised world leaders for "our collective failure to uphold the law, and to instil respect for it in our fellow men and women." He urged all members of the United Nations to do whatever they can to restore that respect.
"We must start from the principle that no one is above the law, and no one should be denied its protection." The notion of equal justice under law, dispensed without fear or favour, lies at the heart of the American Constitution, but is it reflected in America's foreign relations?
But America is not the only western democracy that should consider itself chastened by the Secretary General. Countries like Britain, Australia and Israel should also pay heed to his warnings, especially if they wish to reverse the slide toward international anarchy and global insecurity.
“The United Nations is the indispensable common house of the entire human family. Let's not imagine that, if we fail to make good use of it, we will find any more effective instrument.”Those who believe US military might is the best guarantor of global peace and security, were no doubt rankled by the Secretary General's opening remarks.
But Kofi Annan was only just beginning, his message to the world was forthright and succinct...
“We have reached a fork in the road. If you, the political leaders of the world's nations, cannot reach agreement on the way forward, history will take the decisions for you, and the interests of your peoples may go by default.”
Whatever challenges we face, the decisions we make must be guided by one "all-important framework - namely the rule of law." The Secretary General cited the vision of "a government of laws and not of men", one that embodies universal "principles of justice" including "legal protection for the poor" and "restraints on the strong, so they cannot oppress the weak."
The origin of law in ancient Mesopotamia, the land we now call Iraq, "was a landmark in mankind's struggle to build an order where, instead of might making right, right would make might." The United Nations was founded on these same principles, he said, "Yet today the rule of law is at risk around the world."
With unwavering nerve, Mr Annan went on to deplore the prevalence of war crimes and crimes against humanity around the world today, noting examples from the Sudan, Uganda, Palestine, Beslan and Iraq, including the "disgraceful abuse" of prisoners at Abu Ghraib.
Mentioning the war crimes of the US military in the same sentence as terrorist crimes is a bold exercise of impartiality, and one which will iritate the neoimperialist warmongers who regard themselves as being culturally and morally superior to the rest of us.
To drive the point home, Kofi Annan chastised world leaders for "our collective failure to uphold the law, and to instil respect for it in our fellow men and women." He urged all members of the United Nations to do whatever they can to restore that respect.
"We must start from the principle that no one is above the law, and no one should be denied its protection." The notion of equal justice under law, dispensed without fear or favour, lies at the heart of the American Constitution, but is it reflected in America's foreign relations?
“Every nation that proclaims the rule of law at home must respect it abroad; and every nation that insists on it abroad must enforce it at home. Yes, the rule of law starts at home. But in too many places it remains elusive. Hatred, corruption, violence and exclusion go without redress.”The idea of a black African telling the mighty US of A, that it should abide by the same rules and standards it seeks to apply to others, is enough to send some patriotic Americans into fits of apoplexy.
“The vulnerable lack effective recourse, while the powerful manipulate laws to retain power and accumulate wealth. At times even the necessary fight against terrorism is allowed to encroach unnecessarily on civil liberties.”Powerful words from one who exudes composure and diplomatic restraint, words that carry the full weight of moral and intellectual authority. Mr Annan is, of course, quite right, “at the international level, all states - strong and weak, big and small - need a framework of fair rules, which each can be confident that others will obey.”
“Where the rule of law is most earnestly invoked, as in the Commission on Human Rights, those invoking it do not always practise what they preach. Those who seek to bestow legitimacy must themselves embody it; and those who invoke international law must themselves submit to it.”This is clearly an indirect criticism of the Bush administration's unilateralist approach to international affairs and the contempt for international law that has seriously undermined the credibility of the Security Council and the legitimacy of the United States' foreign policy.
But America is not the only western democracy that should consider itself chastened by the Secretary General. Countries like Britain, Australia and Israel should also pay heed to his warnings, especially if they wish to reverse the slide toward international anarchy and global insecurity.
“It is the law, including Security Council resolutions, which offers the best foundation for resolving prolonged conflicts - in the Middle East, in Iraq, and around the world. And it is by rigorously upholding international law that we can, and must, fulfil our responsibility to protect innocent civilians from genocide, crimes against humanity and war crimes.”Kofi Annan
Tuesday, September 21, 2004
Not everyone agreed Iraq had WMD
On ABC radio recently, John Howard claimed that "everyone agreed Iraq had WMD". Is this claim correct, or just another example of "truth overboard"?
Let's be quite clear about one thing, there was no unanimous agreement that Iraq did in fact possess WMD. While Britain, Australia and America all insisted Iraq had reconstituted its arsenal of WMD, they could not provide any credible evidence to support that claim.
The UN weapons inspectors were given unprecedented powers to inspect facilities, interview officials and search for evidence of WMD in Iraq. The Security Council urged all governments to provide any information that would assist the inspection process.
Despite these efforts, combined with intensive satellite surveillance and intelligence gathering by the CIA and MI6, the UN weapons inspectors and other independent experts were unable to find any evidence to support the claim that Iraq possessed stockpiles of WMD.
In December 2002, just weeks before the invasion of Iraq, chief weapons inspector, Hans Blix, told the UN Security Council "UNMOVIC at this point is neither in a position to confirm Iraq's [disarmament], nor in possession of evidence to disprove it."
Again in February, 2003, Blix told the Security Council that UNMOVIC had found no evidence of WMD in Iraq, challenged several claims made to the UN by Secretary of State Colin Powell and accused the US administration of withholding intelligence information.
Intelligence agencies were equally equivocal, but Messrs Bush, Howard and Blair ignored all these uncertainties, caveats and qualifiers, instead they selected the most dramatic and often unsubstantiated accusations in their effort to justify aggression against Iraq.
Hans Blix, Scott Ritter, Rolf Ekeus, Joe Wilson, Greg Theilmann, Ray McGovern, Andrew Wilke, David Kelly... there were many experts who did not agree, but Howard can say "everyone agreed" and the media just lap it up, it seems no one wants to challenge the lies, the deceit, the misrepresentations that have become daily fare from the Howard government.
To their credit, both the Age and the SMH published articles on August 18, that revealed Blix had told Howard there was no evidence of WMD in Iraq as early as January, 2003. Yet Howard continues to insist that everyone agreed Iraq possessed WMD.
Let's be quite clear about one thing, there was no unanimous agreement that Iraq did in fact possess WMD. While Britain, Australia and America all insisted Iraq had reconstituted its arsenal of WMD, they could not provide any credible evidence to support that claim.
The UN weapons inspectors were given unprecedented powers to inspect facilities, interview officials and search for evidence of WMD in Iraq. The Security Council urged all governments to provide any information that would assist the inspection process.
Despite these efforts, combined with intensive satellite surveillance and intelligence gathering by the CIA and MI6, the UN weapons inspectors and other independent experts were unable to find any evidence to support the claim that Iraq possessed stockpiles of WMD.
In December 2002, just weeks before the invasion of Iraq, chief weapons inspector, Hans Blix, told the UN Security Council "UNMOVIC at this point is neither in a position to confirm Iraq's [disarmament], nor in possession of evidence to disprove it."
Again in February, 2003, Blix told the Security Council that UNMOVIC had found no evidence of WMD in Iraq, challenged several claims made to the UN by Secretary of State Colin Powell and accused the US administration of withholding intelligence information.
Intelligence agencies were equally equivocal, but Messrs Bush, Howard and Blair ignored all these uncertainties, caveats and qualifiers, instead they selected the most dramatic and often unsubstantiated accusations in their effort to justify aggression against Iraq.
Hans Blix, Scott Ritter, Rolf Ekeus, Joe Wilson, Greg Theilmann, Ray McGovern, Andrew Wilke, David Kelly... there were many experts who did not agree, but Howard can say "everyone agreed" and the media just lap it up, it seems no one wants to challenge the lies, the deceit, the misrepresentations that have become daily fare from the Howard government.
To their credit, both the Age and the SMH published articles on August 18, that revealed Blix had told Howard there was no evidence of WMD in Iraq as early as January, 2003. Yet Howard continues to insist that everyone agreed Iraq possessed WMD.
Monday, September 20, 2004
Australia threatens first strike on terror
Ozzy PM, John Howard, today reiterated his intention to unilaterally and preemptively strike at suspected terrorist targets in Australia's neighbouring countries, if he believed they represented a threat to Australia's security.
Given Howard's record of involvement in a preemptive strike against Iraq, based on the mistaken belief that Iraq posed a serious threat, many of our neighbours could be excused for feeling concerned and uneasy about the Howard government's bellicose posturing.
Add to that, Howard's enthusiasm for the US missile defence system and his decision to purchase $450 million worth of intermediate range cruise missiles, which enhance our capability to conduct such preemptive strikes, it is quite likely that some of our neighbours are wondering where all this is headed.
Perhaps most troubling is the Howard government's determination to impose US-style hegemony on the region, taking its cue from the unilateralist Bush administration, and living up to its reputation, in some quarters, as an arrogant "deputy sheriff" of the United States.
The opposition leader, Mark Latham, wasted no time in condemning Howard's "clumsy foreign policy", ruling out any support for such preemptive strikes and reaffirming his party's commitment to work cooperatively with our neighbours in the region.
This in turn provoked the usual accusations of Labour being "weak on national security" from Howard and Downer, who have both become increasingly shrill in their personal attacks on Mark Latham in the lead up to the October 9 federal election.
No doubt, many in the region will be hoping for a change of government here in Australia, not least the East Timorese, who have been rather unfairly treated by the Howard government over the marine boundary dispute involving the offshore Greater Sunrise petroleum reserves.
In that dispute, Howard has unilaterally withdrawn Australia from the jurisdiction of the World Court and refused to negotiate on the contested boundary, claiming Australian possession of the seabed to within 9 miles of the East Timorese coast line, 60 miles from Australian shores.
The alternative Latham government has said it will return to the negotiating table with East Timor, a welcome sign that Australia might soon become, once again, a fair-go sort of country that respects the rights and aspirations of our neighbours.
Given Howard's record of involvement in a preemptive strike against Iraq, based on the mistaken belief that Iraq posed a serious threat, many of our neighbours could be excused for feeling concerned and uneasy about the Howard government's bellicose posturing.
Add to that, Howard's enthusiasm for the US missile defence system and his decision to purchase $450 million worth of intermediate range cruise missiles, which enhance our capability to conduct such preemptive strikes, it is quite likely that some of our neighbours are wondering where all this is headed.
Perhaps most troubling is the Howard government's determination to impose US-style hegemony on the region, taking its cue from the unilateralist Bush administration, and living up to its reputation, in some quarters, as an arrogant "deputy sheriff" of the United States.
The opposition leader, Mark Latham, wasted no time in condemning Howard's "clumsy foreign policy", ruling out any support for such preemptive strikes and reaffirming his party's commitment to work cooperatively with our neighbours in the region.
This in turn provoked the usual accusations of Labour being "weak on national security" from Howard and Downer, who have both become increasingly shrill in their personal attacks on Mark Latham in the lead up to the October 9 federal election.
No doubt, many in the region will be hoping for a change of government here in Australia, not least the East Timorese, who have been rather unfairly treated by the Howard government over the marine boundary dispute involving the offshore Greater Sunrise petroleum reserves.
In that dispute, Howard has unilaterally withdrawn Australia from the jurisdiction of the World Court and refused to negotiate on the contested boundary, claiming Australian possession of the seabed to within 9 miles of the East Timorese coast line, 60 miles from Australian shores.
The alternative Latham government has said it will return to the negotiating table with East Timor, a welcome sign that Australia might soon become, once again, a fair-go sort of country that respects the rights and aspirations of our neighbours.
Apocalyptic violence & the war on terror
We will export death and violence to the four corners of the earth
in defense of our great nation -- Bush at War
To what extent does apocalyptic theology inspire and inform the protagonists on either side of the war on terror?
If we compare the rhetoric of extremist Islamic jihadis with that of the crusading Christian evangalists, we notice some fascinating similarities.
For example, they both portray the current conflict as a "monumental struggle of good versus evil".
They both promote violence as an instrument of divine will, a cleansing force that will purge the world of sinners and deliver an age of peace and religious purity.
Each side justifies their violence in terms of "retribution" and "retaliation", blaming the other side for creating conditions in which violence is the only viable response.
George Bush says he is doing God's work, hunting down and destroying evil doers. The Jihadis constantly punctuate their threats and Fatwahs with the phrase God willing. In each case, they hand responsibility for their violence up to God.
Both sides deny the possibility of dialogue, compromise or negotiated settlement, preferring instead to rely entirely upon the purifying power of apocalyptic violence.
Each side believes they have God and Right on their side, and nothing less than complete annihilation of the other can guarantee their own survival.
They share a bizarre, almost obscene enthusiasm for a conflict that they believe heralds the "end time", culminating in God's destruction of the world and the return of the messiah.
Their zealotry is characterised by a combination of grandiosity and paranoia, a pathological brew of omnipotence and vulnerability, as if each is both the instrument and the victim of devine wrath.
Another interesting correlation is the way these fundamentalists reject the moderate elements of their own societies, often with great loathing and hostility.
For example, bin Laden has condemned the Saudi royal family as corrupt, despotic apostates and has called for their overthrow.
On the other side, evangelist Jerry Falwell has blamed the attacks of 9/11 on fellow Americans who are gay, pagan, pro-choice, feminist &/or involved with the American Civil Liberties Union.
What I find disturbing is the fact that mainstream moderates are also peddling alarmist hysteria. We have politicians like Kim Beazley and Robert Hill, warning that civilization itself, indeed our very existance, is threatened by evil terrorists who must be destroyed.
Fueling this phenomena is the practice of politicians and the media, who use language to shape our understanding of the conflict and our opinion of the opponents.
So for example, violence against the West is described as "vile", "heinous" and "barbaric", the perpetrators are called "murderous criminals" and "terrorists".
On the other hand, violence by the West is described as a "military response" or an "air strike". The perpetrators are "brave men and women serving their country and defending our freedom".
Similarly, any suggestion that our violence is harmful and might actually create or provoke more violence against us, is vehemently condemned as "moral equivalence", "appeasement" or "aiding the terrorists".
Very often we find those who are the most enthusiastic about the use of violence against others are also the most vitriolic in their condemnation of the use of violence by others.
It is precisely this sort of bigotry, prejudice and hypocisy that presents the greatest obstacle to resolving conflict around the world.
Sunday, September 19, 2004
International Law and the Gulf War
A week before the attack on Iraq, Foreign Minister Downer gave an interview on ABC Lateline in which he said “our judgment is that under Chapter 7 of the United Nations Charter, on the basis of Security Council resolutions, in particular, but not exclusively 678, 687 and 1441, there is authority to enforce those Security Council resolutions by militarily disarming Saddam Hussein”.
When asked if military action without specific UN authorisation would violate the UN Charter, he admitted that “without any authorisation that would obviously be a problem... I'm just saying that, sure, if you acted outside of the Charter and outside of the Council, that would be true, but our response to that is that if Saddam Hussein was disarmed through military action, that would actually be within the charter under chapter 7 of the charter and building on Security Council resolutions in the past, resolution 678 and 687 in particular”
Despite Howard's claim that he “tabled” his legal advice at the time, the government has NOT released its expert legal opinion, which according to the PM, said the invasion was "entirely legal". So we cannot comment on its content, or discuss its merits, because we do not know what it says. If it really does support his claim, why is he so reluctant to release it?
But it probably resembles the legal advice provided by the British Attorney General, Lord Goldsmith, who has said that UNSC Resolution 678, which authorized "all necessary means" to evict Iraqi forces from Kuwait in 1991, and to "restore international peace and security" in the region, still applied or could be revived.
However, that resolution did not authorize the use of force to invade and occupy Iraq, or to change the regime, or even disarm Iraq. The authority to use force, provided by SCR 678, expired with the liberation of Kuwait. This was clearly the understanding held by most authorities at the time, including then president George H W Bush, who wrote in his 1998 book A World Transformed, "Going in and thus unilaterally exceeding the United Nations mandate would have destroyed the precedent of international response to aggression we hoped to establish."
The requirement that Iraq disarm was imposed after the ceasefire, along with many other demands and sanctions which were attached to the ceasefire agreement. These obligations were formalised in the subsequent UNSC Resolution 687, which became known as "the mother of all resolutions". SCR 687 did NOT authorize "all necessary means".
All subsequent resolutions relating to Iraq have referred to the obligations contained in SCR 687, but none of these resolutions explicitly authorize the use of force against Iraq. Furthermore, all these resolutions, up to and including SCR 1441, affirmed the Security Council would "remain seized of the matter" in order to "maintain peace and security".
In other words, the Security Council was pursuing a formal, legitimate process to ensure that Iraq complied with its obligations and was not a threat to international peace and security. UN weapons inspectors were actively inspecting facilities and interviewing Iraqi officials. There is simply no basis to the charge that UN processes had failed or that the Security Council was incapable of enforcing its resolutions.
The fact is, George W Bush unilaterally and unceremoniously terminated the UN process on March 19, 2003, when he announced his decision to attack Iraq. By aiding and abetting this unlawful aggression, the Howard government willfully defied the authority of the Security Council and conspired to commit war crimes.
The following is a summary of the legal advice from British Attorney General, Lord Goldsmith
Source: Downing Street, April 28, 2005
26. To sum up, the language of resolution 1441 leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the Council as to the legal effect of the resolution. Arguments can be made on both sides. A key question is whether there is in truth a need for an assessment of whether Iraq's conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP4 such that the basis of the cease-fire is destroyed. If an assessment is needed of that situation, it would be for the Council to make it. A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has predetermined the issue. Public statements, on the other hand, say otherwise.
27. In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. The key point is that it should establish that the Council has concluded that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.
28. Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.
29. However, the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider very carefully whether the evidence of non-cooperation and non- compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.
30. In reaching my conclusion, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a "reasonable case" does not mean that if the matter ever came before a court I would be confident that the court would agree with the view. I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained.
However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree of public and Parliamentary scrutiny of the legal issue was nothing as great as it is today.
31. The analysis set out above applies whether a second resolution fails to be adopted because of a lack of votes or because it is vetoed. As I have said before, I do not believe that there is any basis in law for arguing that there is an implied condition of reasonableness which can be read into the power of veto conferred on the permanent members of the Security Council by the UN Charter.
So there are no grounds for arguing that an "unreasonable veto" would entitle us to proceed on the basis of a presumed Security Council authorisation. In any event, if the majority of world opinion remains opposed to military action, it is likely to be difficult on the facts to categorise a French veto as "unreasonable". The legal analysis may, however, be affected by the course of events over the next week or so, eg the discussions on the draft second resolution.
If we fail to achieve the adoption of a second resolution we would need to consider urgently at that stage the strength of our legal case in the light of circumstances at the time.
When asked if military action without specific UN authorisation would violate the UN Charter, he admitted that “without any authorisation that would obviously be a problem... I'm just saying that, sure, if you acted outside of the Charter and outside of the Council, that would be true, but our response to that is that if Saddam Hussein was disarmed through military action, that would actually be within the charter under chapter 7 of the charter and building on Security Council resolutions in the past, resolution 678 and 687 in particular”
Despite Howard's claim that he “tabled” his legal advice at the time, the government has NOT released its expert legal opinion, which according to the PM, said the invasion was "entirely legal". So we cannot comment on its content, or discuss its merits, because we do not know what it says. If it really does support his claim, why is he so reluctant to release it?
But it probably resembles the legal advice provided by the British Attorney General, Lord Goldsmith, who has said that UNSC Resolution 678, which authorized "all necessary means" to evict Iraqi forces from Kuwait in 1991, and to "restore international peace and security" in the region, still applied or could be revived.
However, that resolution did not authorize the use of force to invade and occupy Iraq, or to change the regime, or even disarm Iraq. The authority to use force, provided by SCR 678, expired with the liberation of Kuwait. This was clearly the understanding held by most authorities at the time, including then president George H W Bush, who wrote in his 1998 book A World Transformed, "Going in and thus unilaterally exceeding the United Nations mandate would have destroyed the precedent of international response to aggression we hoped to establish."
The requirement that Iraq disarm was imposed after the ceasefire, along with many other demands and sanctions which were attached to the ceasefire agreement. These obligations were formalised in the subsequent UNSC Resolution 687, which became known as "the mother of all resolutions". SCR 687 did NOT authorize "all necessary means".
All subsequent resolutions relating to Iraq have referred to the obligations contained in SCR 687, but none of these resolutions explicitly authorize the use of force against Iraq. Furthermore, all these resolutions, up to and including SCR 1441, affirmed the Security Council would "remain seized of the matter" in order to "maintain peace and security".
In other words, the Security Council was pursuing a formal, legitimate process to ensure that Iraq complied with its obligations and was not a threat to international peace and security. UN weapons inspectors were actively inspecting facilities and interviewing Iraqi officials. There is simply no basis to the charge that UN processes had failed or that the Security Council was incapable of enforcing its resolutions.
The fact is, George W Bush unilaterally and unceremoniously terminated the UN process on March 19, 2003, when he announced his decision to attack Iraq. By aiding and abetting this unlawful aggression, the Howard government willfully defied the authority of the Security Council and conspired to commit war crimes.
The following is a summary of the legal advice from British Attorney General, Lord Goldsmith
Source: Downing Street, April 28, 2005
26. To sum up, the language of resolution 1441 leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the Council as to the legal effect of the resolution. Arguments can be made on both sides. A key question is whether there is in truth a need for an assessment of whether Iraq's conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP4 such that the basis of the cease-fire is destroyed. If an assessment is needed of that situation, it would be for the Council to make it. A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has predetermined the issue. Public statements, on the other hand, say otherwise.
27. In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. The key point is that it should establish that the Council has concluded that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.
28. Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.
29. However, the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider very carefully whether the evidence of non-cooperation and non- compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.
30. In reaching my conclusion, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a "reasonable case" does not mean that if the matter ever came before a court I would be confident that the court would agree with the view. I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained.
However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree of public and Parliamentary scrutiny of the legal issue was nothing as great as it is today.
31. The analysis set out above applies whether a second resolution fails to be adopted because of a lack of votes or because it is vetoed. As I have said before, I do not believe that there is any basis in law for arguing that there is an implied condition of reasonableness which can be read into the power of veto conferred on the permanent members of the Security Council by the UN Charter.
So there are no grounds for arguing that an "unreasonable veto" would entitle us to proceed on the basis of a presumed Security Council authorisation. In any event, if the majority of world opinion remains opposed to military action, it is likely to be difficult on the facts to categorise a French veto as "unreasonable". The legal analysis may, however, be affected by the course of events over the next week or so, eg the discussions on the draft second resolution.
If we fail to achieve the adoption of a second resolution we would need to consider urgently at that stage the strength of our legal case in the light of circumstances at the time.
Friday, September 17, 2004
Kofi Annan calls Iraq attack illegal
United Nations Secretary General, Kofi Annan, set the cat among the pigeons this week when he said the attack on Iraq was illegal.
Standing by his decision to join the “illegal” invasion, Ozzy PM, John Howard, claimed he had “tabled” the legal advice his government received regarding the legality of the invasion of Iraq.
Howard is lying, again! He has consistently refused to make available the legal advice he received prior to the invasion.
Howard also expressed surprise that the issue of the legality of the invasion had been raised by Kofi Annan, questioning why such concerns had not been expressed earlier.
None so deaf as those who do not listen.
The UN Secretary General has previously expressed his concern about the legality of the invasion on a number of occasions. For example, one year ago, on Sept 23, 2003, in an opening speech to the UN General Assembly, Annan criticised states that assumed "the right and obligation to use force pre-emptively". Annan said "My concern is that, if it were adopted, it could set precedents that result in a proliferation of the unilateral and lawless use of force, with or without credible justification."
On March 11, 2003, nine days before the invasion, Kofi Annan warned that if the United States failed to win approval from the Security Council for an attack on Iraq, Washington's decision to act alone or outside the Council would violate the United Nations charter. ("Annan Says U.S. Will Violate Charter if It Acts Without Approval" By Patrick Tyler and Felicity Barringer, The New York Times, March 11, 2003)
"International lawyers around the world advised their governments that the US-led invasion of Iraq was in violation of fundamental international law. Professor Anne-Marie Slaughter, in her Presidential address to the Annual Meeting of the American Society of International Law on Thursday, April 3, 2003, estimated that eight out of ten international lawyers have concluded the invasion of Iraq was unlawful". ( http://jurist.law.pitt.edu/forum/forumnew107.php )
Standing by his decision to join the “illegal” invasion, Ozzy PM, John Howard, claimed he had “tabled” the legal advice his government received regarding the legality of the invasion of Iraq.
Howard is lying, again! He has consistently refused to make available the legal advice he received prior to the invasion.
Howard also expressed surprise that the issue of the legality of the invasion had been raised by Kofi Annan, questioning why such concerns had not been expressed earlier.
None so deaf as those who do not listen.
The UN Secretary General has previously expressed his concern about the legality of the invasion on a number of occasions. For example, one year ago, on Sept 23, 2003, in an opening speech to the UN General Assembly, Annan criticised states that assumed "the right and obligation to use force pre-emptively". Annan said "My concern is that, if it were adopted, it could set precedents that result in a proliferation of the unilateral and lawless use of force, with or without credible justification."
On March 11, 2003, nine days before the invasion, Kofi Annan warned that if the United States failed to win approval from the Security Council for an attack on Iraq, Washington's decision to act alone or outside the Council would violate the United Nations charter. ("Annan Says U.S. Will Violate Charter if It Acts Without Approval" By Patrick Tyler and Felicity Barringer, The New York Times, March 11, 2003)
"International lawyers around the world advised their governments that the US-led invasion of Iraq was in violation of fundamental international law. Professor Anne-Marie Slaughter, in her Presidential address to the Annual Meeting of the American Society of International Law on Thursday, April 3, 2003, estimated that eight out of ten international lawyers have concluded the invasion of Iraq was unlawful". ( http://jurist.law.pitt.edu/forum/forumnew107.php )
Subscribe to:
Posts (Atom)