The War in Iraq and International Law

Article excerpt

[In this paper I argue that the 2003 war on Iraq was illegal, and that this illegality matters. In the first substantive part of the paper (Part II), I consider three legal justifications that have been offered, to varying degrees, formally and informally, for the war. These are self-defence (and its more contentious variants, anticipatory self-defence and preventative war), collective security under Chapter VII of the Charter of the United Nations, and, finally, the doctrine of humanitarian intervention. None of these provides a secure basis for going to war. The most plausible of these justifications, based on an interpretation of existing Security Council resolutions, is arcane and unconvincing. Part III situates the debate over the war in the context of some recent dilemmas concerning the international order; namely the problem of law in international affairs, the question of novelty, the claims of equality, the assessment of evidence and the presence of hyperpower. Part IV ends by reminding readers of the many and varied ways in which international law does matter in ways that transcend the tedious debates about compliance.]

CONTENTS

I   1939: Some Pertinent Questions
II  2003: Was the Use of Force in Iraq Lawful?
      A The US Position
      B The Australian/UK Position
III 2005: Some Questions for the Future
IV  2005: Does International Law Matter?

I 1939: SOME PERTINENT QUESTIONS

In 1939, Sir Kenneth Bailey gave a lecture to the Victorian Branch of the League of Nations Union entitled: 'Why Did We Go to War? What Do We Hope to Achieve? What Sort of Peace Do We Want?--A Discussion of These Pertinent Questions'. (1) In that lecture, Sir Kenneth argued that '[i]t is entirely wrong to leave it until the war is over ... before one starts thinking about the terms of peace'. (2) At the end of the meeting, held at 177 Collins Street 65 years ago, a general statement was issued by the Council of the Victorian Branch. This statement warned that 'in order to establish peace on a just and permanent basis, it is not sufficient simply to win a war by force of arms'. (3) The lecture and statement were published in 16 pages, full of simple truths about war and peace that ought, perhaps, to have been required reading at the Pentagon in February and March of 2003.

These 'pertinent questions' have not changed greatly with the passage of time. Sir Kenneth may not have recognised the technology but he would have been familiar with the terrible dilemmas we faced before, during and in the aftermath of our war. Like it or not, this is our war--the war, perhaps, by which our generation will be judged. First, though, we have to judge the war. I am not in a position to evaluate every aspect of the war in this paper, but I want to provide a framework for understanding Sir Kenneth's questions.

On 7 March 2003, I was one of a small group of international lawyers in the United Kingdom who wrote to Prime Minister Tony Blair cautioning against engaging in an illegal war. (4) The publication of that letter, and its consequences, led me to two insights about international law. (5) The first was my belated appreciation of the extraordinary level of interest in, and dedication to, international law among a broad range of people. For many, international law is the last best hope on earth--the most powerful tool in the fight against poverty, oppression and Great Power arrogance. We who teach international law sometimes forget what it symbolises. We analyse it, we disclose its flaws, we enjoy the comfort of critique and we berate its lack of realism. Sometimes, though, international law requires us to be loyalists rather than critics.

My other insight was that international law exists in a particular context. It is not some free-floating set of ideas or institutions to be judged and rearranged in the abstract. It is situated at the heart of the great political and moral debates in which we must continue to engage. …