Among the articles of faith on the pro-war right, few have been had more megabytes of text spilled over them than the claim that the war on Iraq was authorised by UN resolution 1441. So, it’s surprising to see Mark Steyn denying this claim in the course of an attempt to score points off me, cheered on by Tim Blair and JF Beck. Steyn says
I don’t believe I was ever aware that Aussie prof John Quiggin had launched a competition to demonstrate I was a congenital liar, but apparently he did back in 2002, indignantly objecting to my “lie” that Australia, Spain, Italy and co were “on board” for an America-led Iraq invasion without UN authorisation. Yup, he certainly nailed me on that one.
I’ll note first that Steyn scores yet more points for my claim of congenital dishonesty with the “and co”, which, in the original, read “Qatar and Turkey”. Like most of the other countries on Steyn’s list, Turkey had made no public commitment to invade Iraq at the time Steyn was writing. Unlike most of the others, Turkey held a parliamentary vote, which led to a decision not to invade.
But the real issue is that of UN authorisation. As I noted at the time, Australia’s public position was exactly the same as that of Britain, the country where Steyn’s piece was published but one that curiously failed to make his list. That’s because, as Steyn concedes here (July 2003), Blair was publicly opposed to going to war without a UN resolution, and it wouldn’t have done for Steyn to say that it was all a sham. As he says
In the end, Britain officially went to war on a technicality, and … that technicality – Saddam’s technical non-compliance with Resolution 1441 – still holds.
Of course, as we now know, it was all a sham. Bush was going to war regardless, and Blair was privately committed to following him, despite his public pronouncements at the time which, I have to admit, I believed. But without the figleaf of the UN, and the bogus interpretation of Resolution 1441, it’s doubtful he could have conned enough Labour MPs into supporting him.
Howard similarly made a string of statements to the effect that there would be no invasion as long as Saddam complied with Resolution 1441. I don’t have any details on Berlusconi, Aznar and others, but I’d be surprised if the same wasn’t true of them too.
John Quiggin 
Avaroo, as advised previously, you’ve been monopolising comments threads. You’re on automoderation from now on. You get one (normal length) comment per day. Use it well JQ
Michael,
The Australian Attorney General’s memorandum seems to contain the soundest arguments for the legality of the war. Much more sound than those made by the US, which appear to be based on 1) right to self-defense 2) pre-emption 3) international terrorism 4) regime change…
The Australian argument is that there were cease-fire violations. Iraq was in breach of the cease-fire agreement made 13 years earlier. The cease-fire at the time was a conditional cessation of hostilities that where revived by Iraq’s violations. Now a cease-fire is not peace. You don’t need a new UNSC resolution to resume hostility.
No court can exist without a sovereign to ensure that the judgements are upheld. No sovereign can exist without a military power to enforce its position.
this just in: the international court of justice does not exist.
Avaroo,
We have established that the soundest legal argument for war on Iraq is articulated in the Australian Attorney General’s Memorandum
http://www.pm.gov.au/iraq/displayNewsContent.cfm?refx=96
We have cleaned the table of Bushite anti-international law gobbledygook (e.g., war on terror, imminent threat, regime change, democracy through the barrel of the gun). The Australian Attorney General’s argument is in fact Clinton’s argument (the Bush regime does not respect US law and does not recognize international law).
The question is now how sound is the Australian Attorney General’s Memorandum.
In particular,
* Can resolution 678 authorizing force against Iraq in the first gulf war be “reactivated� without an explicit UNSC resolution reactivating it?
This is, the British Attorney General’s “revival” argument, which he admits “is controversial. It is not widely accepted among academic commentators.â€?
http://www.globalpolicy.org/security/issues/iraq/document/2003/0307advice.htm
It also came up much earlier than 2003. For example
“BYPASSING THE SECURITY COUNCIL: AMBIGUOUS AUTHORIZATIONS TO USE FORCE, CEASE-FIRES AND THE IRAQI INSPECTION REGIME� Lobel and Ratner
American Journal of International Law, 1999 (I only have a hard copy)
“We argue that two fundamental values underpinning the United Nations Charter—that peaceful means be used to resolve disputes and that force be used in the interest and under the control of the international community and not individual countries—require that the Security Council retain strict control over the initiation, duration and objectives of the use of force in international relations. To ensure that UN-authorized uses of force comport with those two intertwined values, this article argues for three rules derived from Article 2(4) of the Charter: (1) explicit and not implicit Security Council authorization is necessary before a nation may use force that does not derive from the right to self-defense under Article 51; (2) authorizations should clearly articulate and limit the objectives for which force may be employed, and ambiguous authorizations should be narrowly construed; and (3) the authorization to use force should cease with the establishment of a permanent cease-fire unless explicitly extended by the Security Council.
The questions raised by the Iraqi inspection crisis of 1998 are likely to arise in the future.8 The claim of the U.S. Government to an ongoing UN authorization to use force against Iraq to enforce the cease-fire agreement has resurfaced often over the past seven years and is unlikely to be withdrawn. Moreover, the tendency to bypass the requirement for explicit Security Council authorization, in favor of more ambiguous sources of international authority, will probably escalate in coming years.�
So at the very least the “reactivation� argument made by the Australian government and used to bypass the security council are not in keeping with the spirit and the intentions of the UN charter.
averoo, your method appears to consist of just throwing up a bunch of assertions, without even pretending to try and substantiate them in any way. so, for example, “Because resolutions don’t say there will not be another resolution” and “No, it wouldn’t have. Otherwise, all resolutions would say this” and “it did. I’ve already said this.” well if you’ve said it more than once, it must be true! i mean, would it be asking to much for you to prove, or at least provide a citation, for these assertions?
your claim that the phrase “all necessary means” is in UN 1441 is, whilst technically true, grossly misleading. the phrase appears in the recitals, i.e., the council merely recalls “its resolution 678 (1990) authorized Member States to use all necessary means”, which is not the same thing as the council making a determination in 2002 to do this, which, fatally to your argument, the council did not do.
No, [“decides to remain seized of the matter”] doesn’t mean that at all. It just means that the UN isn’t going to go away on the matter. This particular statement says nothing at all about whose prerogative it is to do what. Nor does it say a single thing about the behavior of any member state.
actually, the phrase is meant to protect the UNSC’s authority on matters of international peace and security from being encroached upon by others. it originally found its way into UNSC resolutions as a means of preventing action/deliberation on the seized matter by the UN general assembly [see article 12 of the UN charter], but is now understood also to indicate the UNSC’s determination that individual states respect its authority by not taking unilateral action.
umm Rog, that’s why nations have to sign up so as to give it authority. I believe we signed up so it has authority to try Austrlian citizens. I would guess that the UK has to so there Blair better watch out.
Bush and co are OK something as silly as a World Court isn’t worth signing up to. After all when you are a fairweather moralist using the doctrine of necessity that allows you to justify torture kidnappings etc, you would be spending a lot of time there.
a. the US is not a signatory to International Law
b. if GWB was to be tried for waging ‘aggressive’ war so would all NATO countries and Clinton for waging war in Serbia
c. there is no penalty for acting without UN sanction
d. there is no court that would try GWB, Blair etc.
You have to get a grip on the political realities of the situation. There are now calls to allow Israel to join NATO, about time too.
http://www.jcpa.org/brief/brief005-23.htm
a. the US is not a signatory to International Law
international law exists whether the united states agrees or not, which, incidentally, it does (agree). what you mean is that the US has refused to ratify the rome statute, which creates the international criminal court.
b. if GWB was to be tried for waging ‘aggressive’ war so would all NATO countries and Clinton for waging war in Serbia
the rome statute is not retrospective, that is, the ICC has no power to hear any matter pertaining the crimes committed prior to its inception [rome statute, article 11]. i.e., on any view of aggression, NATO/the clenis are in the clear.
c. there is no penalty for acting without UN sanction
d. there is no court that would try GWB, Blair etc.
re bush, you’re right, as the court can’t exercise jurisdiction over his war in iraq, as neither the U.S. nor iraq is a party to the rome statute. however, the ICC would have jurisdiction wrto blair, and it’s not inconceivable that he could be prosecuted in relation to the conduct of the war in iraq.
re aggression, article 5 of the rome statute specifies the crimes over which the court has jurisdiction. although aggression is included, this is subject to article 5(2), which provides that the ICC won’t have jurisdiction over aggression until a provision defining “aggression” is adopted in accordance with the statute.
however, the provisions on “war crimes” ought to discomfort blair a little. these provisions are in article 8, which specifies as war crimes, amongst other things:
– torture
– the taking of hostages
– and unlawful deportation or transfer [think extraordinary rendition];
all of which have occurred in connection with the war in iraq. of course, the ICC is a court of last resort, meaning it could only act if british courts refused to [i.e., there are several courts that could try blair, and of course the US congress retains the power to impeach bush].
Yeah sure
rabee,
There was a ceasefire because Iraqi forces vacated Kuwait as 660 demanded them to do. The events leading up to 2003 were unrelated to Kuwait. In fact, Kuwait counselled against the Iraq war.
Maybe you’re right that the Australian AGs argument was the soundest of the lot, which is some measure of the stupidity of the others.
All of which just underlies JQs’ point that “it was all a sham”.
rabee, If you’ll check my previous comment, you’ll see that I agree that the Australian AG’s comments are absolutely correct and are in fact, exactly what UNSC 1441, authored by the US, said. There isn’t any discrepancy that I can see between the AG’s comments and 1441.
To maintain the ceasefire, Iraq had to comply with 660 and all subsequent resolutions. The UN said repeatedly that it had not. In fact, that’s why the SC kept issuing resolution after resolution against Iraq, because it had not complied with the subsequent resolutions. Was the UN supposed to just forever keep issuing resolutions that said Iraq hadn’t done what it had to do? I don’t see the purpose of the SC to be the “world nag”, meant to just keep nagging people to take specific actions. Is that what it has become and if so, how is that a good thing?
Iran has just told the “world nag” that it doesnt give a damn what it says about Iran’s nuclear program and argues that if the SC makes decisions that are not within its competence Iran does not feel obliged to obey.
Given the SC are still unable to agree how to act on Sudan it is unlikely there will be any resolution on Iran.