A war of words
We should not ask whether the Iraq invasion was 'legal' - we should ask whether it was 'good'David Aaronovitch
Sunday March 6, 2005
Observer
Last week's jilbab decision left me wondering whether the law was always this important. Wasn't there a time when schools could take decisions about the uniforms their pupils should wear without a judge having the final say? I see the advantages of greater legal protection for the individual and I also see the problems. And one of the dangers is that we may become reliant on legal processes to settle for us the question of what is right and what is wrong when, in reality, morality can neither begin nor end with the law.
Just as we talk more than we used to about law at home, so we also increasingly discuss international law. Thus it was with some fanfare that, also last week, Penguin published an important book by Professor Philippe Sands, a brilliant international lawyer. In Lawless World, Sands's central proposition is that the war on terror and the war on Iraq, as prosecuted by America and supported by Britain, pose a unique threat to a valuable system of international justice.
There is much that I can agree with in the book. In particular, I accept that the arbitrary procedures for dealing with 'terror' suspects at Guantanamo and Bagram have been a disaster, enhancing the likelihood of abuse, violating basic principles, discrediting those who laid most claim to be upholding human rights and strengthening opposition.
And yet I have some problems with other aspects of his approach. One is that, at important moments in his arguments about the law, I find that I have ceased to care as much as he wants me to about whether this or that action is, strictly speaking, legal. Instead, I find myself more concerned about whether the action is right. I'm not alone; many of those who routinely use the word 'illegal' about the war don't do so because of a detailed appreciation of Sands's judgment on UN Resolution 1,441 versus that of, say, Professor Greenwood of the LSE, but merely as meaning 'very bad'.
And a second is that I find myself wondering at the selectivity, the implied politicisation, if you like, of what are claimed to be dispassionate legal observations. It is interesting, for example, that though the book's index lists 15 references to Abu Ghraib prison and the abuses carried out there, only one mentions it was a prison under Saddam, and none details the years when executions and torture made Abu Ghraib infamous throughout the Arab world.
Let me further illustrate this problem of partiality. Before the war, a group of international lawyers, including Sands, wrote to newspapers, pointing out that an invasion of Iraq without a specific resolution of the UN Security Council would undermine the rule of law. The final paragraph added: 'Of course, even with that authorisation, serious questions would remain. A lawful war is not necessarily a just, prudent or humanitarian war.' This caveat would, presumably, have left some of the authors free to campaign against military action, even if it had been mandated by the Security Council. But it inevitably implied that an illegal war, or a non-legal war, might quite possibly be a just, prudent or humanitarian one.
Sands goes some way to suggest that a humanitarian justification of the war might have been available in the 1980s (or, one supposes, in 1991/2) when Saddam was at his most murderous. This is a position shared, I think, by Human Rights Watch. And, in giving evidence last year to the Commons Foreign Affairs Committee, Sands even seemed to recognise that under such circumstances, no authorisation by the Security Council, explicit or implicit, might be necessary.
'My personal view,' he told the MPs, 'is very much moving towards the view that the circumstances of Kosovo [where no UN authorisation was sought or obtained] do not pose a problem in existing rules of international law.' Of course, this was a slightly unhelpful five years after the event.
Just how the sands can shift was further illustrated by his response to the committee chairman's worry that he was in danger of sanctifying the decisions of a body - the Security Council - which is notoriously susceptible to political and even capricious vetoes.
'Would not,' he was asked, 'the international law be an ass if it could not respond in those circumstances?' Sands replied that humanitarian intervention was a 'grey area, but many people are now beginning to accept that is justifiable. In those circumstances, it does not matter what the Security Council does. If there is an overriding threat to fundamental human rights on a massive scale then, irrespective of what the Security Council does, one state or a group of states may claim to be free to act.'
Amen. But in the book, Sands describes Tony Blair's suggestion that Britain was entitled to override an 'unreasonable' veto as 'outrageous'. We have set up the rules of the Security Council and we must abide by them, he writes elsewhere. Except, apparently, when we mustn't.
This is the problem. In 1972, a neo-genocide by Pakistan in what is now Bangladesh was stopped by the unilateral intervention of India. Pol Pot was ousted by the Vietnamese in 1979, though the UN continued to recognise the Khmer Rouge leadership. Idi Amin's rule in Uganda was brought to an end by Tanzanian intervention. None of these appalling situations was resolved by the UN or the international legal system. Nor were what Sands admits were the 'gross failures to intervene to prevent genocide and other atrocities' in Yugoslavia and Rwanda in the 1990s the product of disregarding international law.
Sands is against what he sees as American and British illegality because 'relying on bad legal arguments destroys the credibility of governments', but he doesn't recognise that negligence in the face of mass murder, tyranny, the sponsorship of terror or massive abuses of human rights is a much worse destroyer of credibility. He observes that such events as Rwanda and the Balkans 'and most bitterly in the spring of 2003, Iraq, raised serious questions about the adequacy of international rules to protect fundamental human rights'. But why does the overthrow of a vile regime raise questions 'more bitterly' than the world's toleration of the murder of more than 800,000 people?
Nor can these negligences be somehow rectified by international courts after the event. As Peter Maguire has written: 'The UN has spent hundreds of millions of dollars to try nine men in Tanzania, and close to 100,000 remain in prison in Rwanda. Has their punishment resurrected the 800,000 hacked to death in 1994 or ended a civil war that now engulfs Congo?'
It isn't just about massacres, either. Sands believes that 'the UN's system of collective security had contained Saddam better than most would have expected'. The unstated price, of course, included sanctions that many reckoned killed far more Iraqis than any war might have done, and the reality that Saddam was allowed to remain in power.
But he recognises outcomes can alter the balance of even a legal argument. He wrote recently in the Guardian: 'There is little evidence that the world is a safer place, and a great deal more evidence that the Iraq war has provided a major distraction to the challenge posed by global terrorism and al-Qaeda. Neither can it be said that the Middle East is more stable or peaceful.' In the book, he describes the invasion as 'a dangerous fiasco'. Meanwhile, the silly, nasty, hubristic old neocons were in disgrace having predicted the spread of democracy.
This analysis looked a safer bet six months ago than it does now. Libya had already got rid of WMD capacity that it admitted possessing, but since then there have been the elections in Iraq, demonstrations against Syrian occupation in Lebanon, elections in Palestine, and suggestions of liberalisation in Saudi Arabia and Egypt. Even sceptics are wondering whether something isn't afoot, something caused, in part, by the removal of Saddam.
In these circumstances, it is an act of epic solipsism to argue this outcome is negated by the affront the action posed to the international legal system, a system that seemed to permit ill-doing and penalise its prevention. And if the law prevents good actions and objectively protects bad ones, it needs to be changed. Any non-lawyer could tell you that.
Guardian Unlimited © Guardian Newspapers Limited 2005
posted by Chris @ 3/19/2005 02:37:00 AM
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