ABSTRACT
The invasion of Iraq by ‘coalition’ forces in 2003 was mounted in the face of enormous opposition in the countries composing the coalition and in those outside it. The political and moral arguments rumble on, even after the military defeat of Saddam Hussein and his capture. Civilian and military casualties continue to mount. Iraq has become a vacuum into which sundry ‘terrorists’ are drawn. As other contributors to this book make clear, peaceful transition to an engineered ‘democracy’ remains a problematic exercise. There are few signs of any diminution of resistance activity. The USA, the UK and other countries sending forces into the quagmire continue the work of occupation,3 the work of the warriors, despite the deaths, despite the chaos, despite the lack of acceptance by many among the ‘liberated’ population, despite the partial retreat by some international organizations.4 On the basis of sundry UN resolutions, there is at last a ‘formal’ endgame for the re-transfer of sovereignty to the Iraqis, but only a mist of possibilities beyond that. On the international law front, it is hardly an exaggeration to claim that the great majority of international lawyers,5 including those in the USA, have regarded the war as an illegal enterprise from its inception,6 and that many governments take a similar view. On the other hand, the ‘official’ US and UK positions continue to assert the legality of their actions against Iraq, even if there are nuances of emphasis as to which legal norms best lend strength to the enterprise. Perhaps the UK has strained the harder of the two to find and describe underpinning principles consistent with the existing framework of international law. There is also a sense with the UK and the USA of ‘shifting the goalposts’ in search of justifications, or adopting the retrospective approach, lauding the end of a tyrant and the liberation of his people as justification in itself. Some supporters of the invasion concede the point on illegality but claim it was ‘legitimate’, or suggest that insisting on ‘formal’ illegality is ‘counterproductive’ bearing in mind that the UN is a political institution as well as a legal one.7 The illegality of the war has been more or less conceded by one of its architects, Richard Perle, even if his is not the official position. In Perle’s view, international law ‘stood in the way of doing the right thing’.8 Others would simply dismiss international law and the UN as ‘irrelevant’, certainly if it impedes the pursuit of the national self-interest of the USA, an approach which has the potential to reach beyond the confines of the Iraq conflict to the wilder shores of international order
and disorder. Against the US ‘exceptionalists’ and their acolytes, something approaching a consensus gentium refuses to concede that international law is irrelevant but that, on the contrary, and despite its various lacunae, it provides the only viable framework in which to situate and appraise the political decisions of states including those in the vital area of security
The present chapter provides a reminder of the UN legal framework and the principal UN Security Council ‘signposts’ in the unfolding Iraq crisis, followed by a rehearsal of the main justifications in the context of the conflict-the selfdefence and weapons of mass destruction arguments; the claims of Security Council authorization; and the subsidiary or default mode calling up of humanitarian intervention and regime change. The chapter does not separately investigate the dubious claims of linkages between the regime of Saddam Hussein and international terrorism, except when referred to in the justifications. The principal planks in the coalition argument are appraised in the light of the contemporary framework of international law, or at least ‘international law as we understood it’. Partly because the writer is an under-labourer in the field of human rights, more elaborate attention is paid to the role of human rights in the whole scenario, especially through the mediating notion of ‘humanitarian intervention’.9 This concept flits like a bat around the primary justifications, even if it does not stand out consistently or stand alone. The NATO intervention in Kosovo was largely premised on addressing a humanitarian emergency and may have contributed to a lowering of the intervention threshold for Iraq and the future. While humanitarian intervention arguments have a certain antiquity in international relations, they may exert a particularly strong pull on a contemporary constituency schooled in sensitivity to human rights. Deploying human rights as a reason to violate sovereignty raises hard questions of international law, encouraging us to consider how to ‘do’ human rights, and the nature of the tasks for those who claim to further the cause of human rights as duty, vocation or career.
