Before The Law

by Quinn

So Kofi Annan has finally been goaded by a BBC journalist into stating that the invasion of Iraq was illegal. This should come as no surprise. He had previously stated that it “lacked legitimacy”, which diplomatically speaking is the same thing. The reaction from the prosecutors of the war is understandable but still quite amusing. Embarrassment must be the main reason; it can’t be nice for for the war to be spelt out as being unlawful in such black and white terms. But really, did they honestly think they could get away with this nonsense for so long?

Most people I have spoken to who claim the war was lawful quote the British Attorney General’s legal advice which was presented to Parliament. There are two problems with this. Firstly, Lord Goldsmith is the Government’s legal advisor and he does not make the law, no more than in domestic legal affairs your solicitor makes the law. All he can do is give his opinion, just as your Solicitor can give you an opinion on a legal matter; but it is only when you get to court and the judge makes his decision that you find out whether or not he is right. Secondly, the problem with Lord Goldsmith’s advice is that it is bollocks.

Now don’t get me wrong; the Attorney General has forgotten more about the law than I will ever know, but let us look at his decision with a bit of common sense.
Firstly, taking Resolution 1441, Goldsmith states that Iraq was in material breach, which is hard to argue with. He states that as 1441 refers to all previous UN resolutions, we effectively are referred back to the situation at the time of Resolution 687. Note how he clearly admits that 1441 on its own does not authorize force. Jack Straw’s regular assertion that everyone in the UN knew that the reference to “serious consequences” in 1441 referred to war is therefore blown out of the water. Of course, we know that this is also bollocks anyway; if the members of the security council did think “serious consequences” meant war, then Resolution 1441 would never have been passed, at least not unanimously.

Secondly then, taking Resolution 687, which refers to the cease fire following the first Gulf War, he states that any material breach refers us back further to the time of Resolution 678. Again, I am not going to argue that Iraq was in breach of UN resolutions, so Goldsmith is correct to state that when 687 is invoked then Resolution 678 is subsequently re-invoked.

So then, onto Resolution 678. Unlike Resolution 1441, 678 did authorize force, in response to the Iraqi invasion of Kuwait. This paved the way for the first Gulf War. It is on this basis that Goldsmith states that the second Gulf War is also considered legitimate. But Resolution 678 authorizes force only insofar as it results in the liberation of Kuwait. In other words, we can consider ourselves at war with Iraq, but with no mandate to go any further than the Kuwaiti border. In 1991, despite many people’s wish that we should “finish the job” and remove Saddam Hussein, it was clearly spelt out that there was no UN mandate for doing so.

As it was in 1991, so it was in 2003. There may be many arguments in favour of taking action in Iraq, but whatever you may think, I cannot see any way that it can be considered legal.

A further word on the UN. The article I referred to earlier, regarding the Coalition’s response to Kofi Annan, made for interesting reading I thought. Interesting that John Howard talks of the UN being a “paralyzed” body, and that Rumsfeld’s former advisor states that Annan “ultimately works for the member states”. They are both right. But if the UN is paralyzed, then the fault must often lie at the door of the individual member states themselves. Linda Polman’s book We Did Nothing shows how often the inaction and ineffectiveness of the UN is a direct consequence of the actions of the US, UK and Australia. Even the very limited involvement often proposed by the UN is undermined by the lack of willingness on the part of the richest countries to get involved in the world’s troublespots. Suddenly, however, when the US and its allies want the support of the UN, it seems it is supposed to roll over and give them whatever they want.

The UN is a deeply flawed organization, but it is the best one we currently have. Kofi Annan I think recognizes it’s weaknesses, which is why he has made tentative moves to widen the debate on pre-emption. For UN soldiers to stand by while Genocide occurs in Rwanda for example is unacceptable, but in the Sudan it does look like we are moving towards a situation where the Blue Helmets, along with African Union soldiers, can be more than just “peace-keepers”.

However, for speakers from the US administration to criticise the UN is hilarious. Here is an administration choc-full of neo-cons, who’s philosophy as outlined in the Project for the New American Century is to sideline the UN in order to promote unilateral “American global leadership”, but claims, when invading Iraq, to partly be doing so in order to uphold UN resolutions; yet it does so without a UN mandate, by ignoring the will of the Security Council, and in defiance of what there is of International Law. Was hypocrisy was ever more clear cut?