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June 19, 2004


Chris Lightfoot

"[The FT] should say why it believes Saddam Hussein should have had a free pass where adherence to international legal requirements was concerned."

Ah, it's nice to see someone who believes that internation law should be upheld! Clearly Saddam should have been at the top of the list of leaders to be overthrown for breaching international law, but who should be next on the list, I wonder? Is there an approved ordering axiom over these people? If so, what is it?

Dan Goss

Chris Lightfoot,

Since those "legal requirements" Oliver alluded to were preconditions to the cessation of hostilities in the first Gulf War, and since those preconditions were never met, the connection you seem to be drawing between such truly spectacular violations of international law and any and all others suggests a disturbing sort of legal equivalence. (We don't generally equate litterbugs with serial killers, for example.)

As to your desire for "an approved ordering axiom" for breaches of international law, surely an obvious first step toward any such ordering would involve giving a somewhat higher priority to genocidal tyrants who repeatedly violate WMD-related Security Council resolutions, for years, over other offenders.

That first step seems so unremarkable, in fact, that it shouldn't even merit mentioning.

Oliver Kamm

Dan is right. Baathist Iraq was not the only regime to be in violation of international law, but it was the only one whose adherence to international law was a prerequisite of the cessation of hostilities. It was for this reason that, contrary to the claims of the anti-war protestors, the US-led coalition that overthrew Saddam was not engaging in pre-emptive war: rather it was concluding the war that Saddam started in August 1990 when he invaded and annexed Kuwait.

Chris Lightfoot

i.e., rather than the general idea that Iraq should have been attacked because of clear violations of international law (developing nuclear weapons, developing chemical weapons, developing banned missiles, genocide, starting an aggressive war, etc. etc.) its offences have the character of alleged procedural violations of the conditions placed upon it by the UN. Iraq had violated international law at the beginning of 2003 only because of conditions placed uniquely upon it by the UN at an earlier time.

In particular, nobody is now claiming that Iraq actually had any chemical or biological weapons at the time of last year's war (though, at the time, some did), merely that its failure (judged against that Resolution) to demonstrate that it did not have those weapons was sufficient cause to invade that country. Like gaoling Al Capone for tax evasion it was legally workable, but morally unsatisfying.

I ask about an ordering axiom for breaches of international law because I'd like to know where this kind of procedural noncompliance ought to rank by comparison with actual breaches. Clearly it is a much more serious matter -- but how much more serious?


"nobody is now claiming that Iraq actually had any chemical or biological weapons at the time of last year's war "
So a shell containing sarin and another one containing mustard gas don't count?
The Iraq Survey Group found evidence of an ongoing project to "weaponise" ricin. Well, of course, we don't mind a little ricin...
More importantly, we never can know exactly what is going on in a foreign despotism. We knew that the regime had not satisfied the requirements of the ceasefire agreement of 1991 despite 12 years of sanctions.
It was also routinely firing SAMs at Allied aircraft - i.e. the regime was already at war with Britain and America.



I disagree with your implication that a couple of old artillery shells constitute a valid reason for invading Iraq. We know Iraq had a WMD programme at one point (how do we know this? In the words of Bill Hicks... "we looked at the receipts"), and given the state that the Iraqi military infrastructure was in after Gulf War One, it was probably unavoidable that a few specific items from that programme would be overlooked in any disarmament effort (even if such an effort was undertaken with the best will in the world).

However, i'm more intrigued by your statement that the exchange of fire between Iraqi anti-aircraft batteries and US/UK jets is evidence that "the regime was already at war with Britain and America".

By that logic, can we assume that during the past two decades, India has been at war with Pakistan and Bangladesh? Turkey has been at war with both Syria and Greece? The two Koreas have been at war? As have China and Taiwan? Thailand has been at war with Burma/Myanmar?

I could go on (and on), GrimReaper. You seem to be unaware of the fact that exchanges of fire across borders, and between nations is - unsettlingly - rather common... and it does *not* constitute "being at war".

Chris Lightfoot

Ah yes, the famous evidence of "weapons-of-mass-destruction-related-programme-activities". And the odd sarin shell that was buried since the FIRST Gulf War and then unearthed by some insurgents who probably didn't even know what it was does not constitute evidence of a extant threat to the west.

None of that, of course, alters the basic premise here, which is that advocates of the "war against Iraq was justified by international law" thesis have run out of real breaches of international law (having to do with chemical, biological or nuclear weapons, terrorists, crimes against humanity, etc.) to justify the war, and so are relying on a procedural one instead.

This is a pretty surprising result, since (as we are constantly reminded) Iraq was a very unpleasant place ruled by a very nasty family who murdered hundreds of thousands of people and committed any number of lesser crimes. Hence the question about the relative importance of such procedural breaches of international law.

James Hamilton

Chris, just a point about the sarin shell. It wasn't a leftover from before Gulf I: the contents would have long decayed to uselessness, which was not the case here. Secondly, and in my view more worryingly whatever anyone has been claiming, is that the design of the shell was not one ever declared by Iraq at any stage, nor suspected of them at any stage: it seems to have surprised everyone.
At first, the US view was yours - that it was a leftover, accidentally uncovered by terrorists. The accidental discovery and ignorant use of the shell still seem believable, but the provenance of the shell as a pre-91 artifact is not.

Ed Snack

James, the Iraqi's did declare a development project to develop "true binary" gas shells. They claimed to have made (or attempted to make) a few tens of examples, but never went on to manufacture in quantity. True binary sheels do not suffer from tha degradation of the Sarin, the components are considerably more stable, hence the desire to develop them. Agreed, it is possible that this was a stray left over from that project, but maybe not. Not quite sure of the timing of the project 1990-91 I think, but this needs confirmation from UN sources.

It is possible for any nation to "lose" such items. Six chemical weapons were discovered at a US miltary dump not many years ago, and yet I don't think it is at all reasonable to accuse the US of attempting to conceal them.


"By that logic, can we assume that during the past two decades, India has been at war with Pakistan and Bangladesh?
Turkey has been at war with both Syria and Greece?
The two Koreas have been at war?
As have China and Taiwan? Thailand has been at war with Burma/Myanmar?"
Yes. Deliberately shooting across an international border is always an act of war. If the other side chooses to exercise restraint, that may calm the tensions. But any country may react with "maximum force".


You are right that invading Iraq over compliance with UN resolutions is legally workable, but not morally satisfactory. That's why Americans like to point out that deposing Saddam (for whatever reason) is very morally satisfactory. It's just that Americans are always hearing that they have to operate according to international law, and that it doesn't matter how "moral" (such a Manichaean concept!) deposing Saddam is. So they're damned if the do (comply with international law) and damned if they don't.

Anyway, if I understand correctly, deposing Saddam was both legally and morally satisfactory, but this is not good enough, because the legal and moral arguments were not the same arguments. Thus it is illegitimate to depose any tyrant (or pretty much anything else) until international law agrees with morality (i.e. until the end of time).

BTW, if we take the UN Security Council as our guide, there is no "second" person on the list of people to depose, as they haven't passed resolutions against other countries which are comparable to the resolutions passed against Iraq. It's that simple.



It's interesting that you failed to pick up on the one example i provided (the two Koreas) which differs from all the others owing to the fact that a state of war *has* legally existed between North Korea and South Korea since the end of the Korean War.

Cross border fire does *not* legally constitute an act of war. In fact there is no generally accepted definition of what constitutes a "state of war", or indeed an "act of war". However, in (public) international law, it is recognised that minor border skirmishes, and individual acts of cross-border aggression do *not* constitute acts of war (i.e. they cannot be used as justification for the seizure of territory or the escalation of aggression by one of the parties).

I'm aware - of course - that phrases like "war on terror" and "war on drugs" have somewhat diluted the meaning of the word "war", but this particular discussion seems to be centered upon the legality of Gulf War Two; so i figured we weren't using such colloquialisms.

I find your claim that cross-border fire between Greece and Turkey provides legal justification for Turkey to carpet-bomb Athens more than a little bizarre. But hey, that's just me.


I think there would be a difference between carpet-bombing Athens and violating Greece's sovereignty to further a reasonable cause.
But that's just me.

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