Iraq – Questions of Legality: Bingham V Goldsmith

Comment at end

25th November, 2008


This article by normblog, referring to Martin Kettle’s arguments against Lord Bingham’s recent remarks panning the “legality” of the Iraq invasion, pinpoints the nub of the matter alluded to in Kettle’s article.

The nub is not the fact that many have died as a consequence, mainly at the hands of insurgents, tragic as that is.

Nor that Blair said there were WMDs with 45-minute striking capability, which he later retracted, but is still seen as the salient point for antis. In other words, that Blair “lied”.

Nor that Bush’s “regime change” argument is not an argument for invasion under international law. It is  considered insufficient reason to invade another country.

Nor that some claim, wrongly, that there were no WMDs in Iraq.

Nor even that these WMDs were largely, possibly, supplied by the west.

The nub of the argument is that the UN does not do its job, because it is hamstrung by other major political players – namely, at present, China & Russia. But one day, perhaps other even more dangerous states.

Normblog fails to mention in his article below that the argument on the side of the invading countries was that the UN Security Resolution DOES allow for just such an invasion, where threat is (expressly believed to have been) identified. Or that other interventions, widely hailed as a good thing by most of the world, presumably because successful on outcome, such as Sierra Leone and Kosovo, have proved much less controversial in “legality” terms.

Why does this disparity in consistency of argument leave me with the feeling that some are pursuing a political agenda in their campaign for the International Court appearance of western leaders, rather than their oft-stated humanitarian or “justice for all” reasons? Call me suspicious.

Minor points if you take the view that for his “crimes” Blair should “face a firing squad”, as so characteristically put by a commenter at Martin’s page. These peace-and-lovers continue to damn themselves with their own words.

It really is time this crowd of Guardian Cif-ers were tucked back into their beds.

Normblog article follows:

International law with reservations

Martin Kettle welcomes the strengthening of the rule of international law that the Iraq war, he thinks, has willy-nilly achieved. I won’t summarize the details of his argument. You can follow them for yourself. I want to comment on just one feature of what he says. Martin registers a problem with Lord Bingham’s view, as follows:

The second [objection] is that, in practice, the security council may be incapable of authorising otherwise legally justifiable military action because China or Russia will use their veto to prevent it. In practice, therefore, Bingham seems to be in danger of arguing that lawful military action is military action that Vladimir Putin permits – a position that would make international law an ass.

In the context of his column overall, it puzzles me that Martin should feel able simply to mention this point and then pass on without further ado. For the problem is worse than he says. Not only China or Russia but any of the veto-wielding countries could prevent an ‘otherwise legally justifiable military action’. Indeed, no veto might be needed, since there could be a consensus in the UN security council against a military action that had overwhelming moral justification – because (say) only that could put a stop to a genocide in progress.

Like Martin, I think the strengthening of international law is one of the more important political goals of the present century. But the above facts indicate that the existing regime of international law is seriously flawed. One of the ways of strengthening the rule of law is to note when the law is in need of reform and to press for this. Simply to get behind the system as it is does nothing to strengthen that system; rather, it helps to discredit it. A rule of international law that has no effective juridical mechanisms for identifying and intervening in a timely fashion to halt the very worst of crimes is not a rule of law that should be supported unconditionally, but only with clear reservations, both theoretical and practical. Martin’s objection, therefore, has a bigger consequence for the rest of his argument than he himself makes room for.

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One Response to “Iraq – Questions of Legality: Bingham V Goldsmith”

  1. Pernoms Tommy Mattia Says:

    Tony Blair and George Bush action on Iraq/Saddam Hussein was an appropriate one because that is what spelt the special relationship. Therefore, I do congratulate these two great statemen for that value that we must live in a secure and safe world. Knight Bruce LJ, in an analogous case nighty years ago said:
    ”A country whose administration of justice did not afford redress in a case of present description would not be in a state of civilization”. Slim v Croucher
    Iraq with Saddam Hussein in power was not a civilize country and we were not safe in the world. Those fools criticizing Blair and Bush, the terrorist attacks on New York and Washington on 11 September 2001 when the world was in shock didn’t you see and hear Saddam on radio/television that he was having no affection? Where dangerous Al Qaeda men not killed in Iraq? If these terrorists are coming for us, should the UK and America wait for the UN and International law and they catch and kill us? I think in the world interest Britain and America must always take the lead and their allies will follow.

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