*Blairdoyer comes from the French word plaidoyer/closing argument in a court case[This is a cross-post. You can visit the original site here]
Experts disagree as to whether the war in Iraq was legal or illegal. It is a result of the complex nature of international law which is different to national and European law. It is customary law, has no common legislator, is vague and its legitimacy derives from the recognition of states concerned. Overall, international law has no supremacy over national law.
Casus belli- The case of war
In order to establish the legality of the war in Iraq, it is essential to understand the long history of violence of the country. The war was launched for different reasons. Sanctions against the regime were crumbling and the No-Fly–Zone policy not working. While the Iraqi civilian population was heavily suffering, it had little impact on Saddam’s terror regime. Smart sanctions were suggested by the US and the UK in the UN Security Council but were blocked by Russia for economic interests. The problem of Iraq remained unresolved. In fact, the problem had remained unresolved for over 12 years.
9/11 changed the mentality of the US administration and also its policy. Self defence and conflict prevention were now on top of the agenda. The premise was that war is sometimes inevitable, necessary to restore peace and security, in order to address the roots- such as bad governance and dictatorship- of potential threats.
The question remains if the Iraq war was legal under international law. According to Chapter VII of the United Nations Charter, the use of force is authorised under two circumstances:
a) Self defence (Article 51)
b) A Security Council Resolution (Article 42)
One could argue that in case of Iraq both conditions were met, as explained by the following. Saddam was a potential threat because the possession or the capability to build WMDs constituted a threat to international peace and security. On top, the humanitarian situation was alarming. Saddam was the Ethnic Cleanser of the Middle East. Furthermore, the use of force was covered by previous UN Security Resolutions.
The opponents of the war claim this argumentation is invalid. They insist the intelligence on Saddam’s WMD capabilities was flawed. Some go a step further and accuse the government of manipulating information and misleading the public and parliament. Additionally, they do not accept Resolution 1441 as a justification for the use of previous resolutions as the legal basis for the military invasion.
Bona fide- Good faith
One could follow the argument of the anti-war brigade and assume that some of the intelligence was false. This is a far cry from a lie and does not make the war in Iraq illegal under international law. The crucial question is if the British government deliberately misled the country.
So far there is no indication the Blair administration acted in bad faith. There is no evidence they doubted the existence of WMDs. There is no proof they deliberately lied to the public or parliament. Tony Blair and his ministers believed what most of people believed at that time, namely that Saddam was in possession or at least was capable of building WMDs. The French and the Russians, the strongest opponents of the war in Iraq, did not disagree. Neither did the UN Secretary General or the weapons inspectors beg to differ.
The UK parliament shared this view and voted in favour of the invasion of Iraq. This was crucial, since after all, national law has supremacy over international law. With the backing of the House, the UK government therefore established the legal basis for the war with Iraq under national law.
Actio non accrevit infra duodecim annos- Action has not accrued within twelve years
Saddam refused to cooperate with the UN for over a decade; he was not complying with any of the Security Council Resolutions. It was impossible to assess the potential threat of Iraq. Under the given circumstances it was right of the US and the UK to use force in anticipatory self- defence.
On August 2, 1990 Kuwait was invaded by Saddam’s army. The UN issued Resolution 660 and asked Iraq to drop out of Kuwait immediately. Diplomatic efforts failed. As a result, the UN adopted the infamous Resolution 678, which set a deadline for January 15, 1991 to comply with Resolution 660. Again, Saddam refused to act according to the previous resolution. Since Resolution 678 allowed “to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area”, the legal basis for the military operation Desert Storm was given.
On April 3, 1991, the Security Council issued another decisive Resolution, 687, which outlined the conditions for a ceasefire with Iraq:
a) Destroy all biological and chemical weapons, as well as ballistic missiles. On top, Iraq had to agree to inspections
b) Do not use, develop, construct, or acquire WMDs
c) Do not develop or acquire nuclear weapons or material of that sort
The UNSCOM was established to carry out the inspections and Iraq was asked to cooperate with the IAEA. On April 6, 1991 Iraq formally accepted the Resolution and a ceasefire was spelled out between Kuwait and Iraq.
However, Saddam never lived up to his promises. He remained in breach of the Security Council Resolutions for all those years. Repeatedly, the UN complained about the non-compliance of Iraq but never took serious actions. On November 12, 1997 Resolution 1137 was adopted, as a response to Iraq’s constant denial to allow the UN weapons inspectors to do their work. It “condemn[ed] ….the continued violation by Iraq of its obligations under the relevant resolutions to cooperate fully and unconditionally with the UNSCOM. “ Thus, the UN expressed its “firm intention to take further measures as may be required for the implementation of this resolution.”
Si vis pacem, para bellum – If you want peace, prepare for war
On November 8, 2002 the UN Security Council unanimously adopted Resolution 1441. It gave Iraq “a final opportunity to comply with its disarmament obligations”. It insisted that Iraq remained “in material breach” and noted the absence of weapons inspectors in Iraq since December 1998, Saddam’s refusal to cease international terrorism and the repression of the Iraqi people. It threatened Saddam’s regime with “serious action”, if he continued to refuse to comply with the international community.
But once again, Saddam failed to provide full and unconditional cooperation. It was impossible for the UN weapons inspectors to do their work, and as a result impossible to accurately assess the threat deriving from Saddam’s regime. Thus, he remained not only in breach of Resolution 1441 but also of all previous ones, including 678. Crucially, it has never been rescinded and therefore established, together with Resolution 1441, the legal basis for the invasion of Iraq in 2003.
Legally, it is incredibly illogical to claim, as some opponents of the war do, that Resolution 678 was no longer valid because it was over 12 years old. Most of the primary and secondary legal sources on which our society is based are many years old. It would be like saying that someone is not accountable for a murder anymore because it happened 20 years ago. That is not how our legal system works.
Homo praesumitur bonus donec probetur malus- One is innocent until proven guilty
As the examination of the legal setting showed, there was sufficient authority for the use of force against Iraq under national and international law. It is sensible to claim that without war, it would have been impossible to restore stability and peace in Iraq.
However, many people remain sceptical of the legality of the 2003 invasion. So far, all attempts to hold the UK government responsible for war crimes in front of a court have failed. It is highly unlikely that the Chilcot Inquiry will provide the necessary information to change that. Like the four previous inquiries into the war with Iraq, it will criticise the government for its shortcomings but not question the legitimacy of the invasion.
The opponents will accuse Chilcot of a whitewash. They will not accept the inquiry’s findings, until it fits their agenda. But the anti-war brigade has to accept that, although they reject the policy on Iraq, it was and is not necessarily illegal. Tony Blair is not a war criminal. He was not tried by a court and he presumably never will.
The doubters should learn to cherish one of the fundamental principles of our European democratic legal system:
–Innocent until proved guilty–