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March 04, 2010

Let us start by sacking all the international lawyers - Brendan Simms on the Iraq Inquiry

Posted by Brendan Simms

Brendan Simms - Professor in the History of International Relations at the Centre of International Studies at the University of Cambridge - argues that wars are only ever deemed illegal if they end in failure.

In 1868, the British Liberal Sir William Harcourt remarked that intervention was

a high and summary procedure that can sometimes snatch a remedy beyond the reach of law. As in the case of revolution, its essence is its illegality and its justification and its justification is its success.
I was reminded of this statement during the Iraq Inquiry's questioning of Sir Michael Wood and Elizabeth Wilmshurst, the two Foreign Office lawyers who had advised the Attorney General Lord Goldsmith on the legality of going to war against Saddam Hussein in 2003. Both opposed the invasion, the latter resigning over the issue. Wilmshurst told the inquiry:
We were talking about an invasion of another country, a change in the government of that country, and in those circumstances, it did seem to me that we ought to follow the safest route.
Her evidence provoked an ovation from the public gallery.

Nobody seems to have asked the obvious question: "Safest for whom?" Certainly not for the millions of Iraqis who rejoiced in Saddam's downfall and who have endorsed his removal by large majorities in all post-war polls (the only country in the world, incidentally, where this is the case). Decisions about whether or how to remove a terrible dictator, who had not only launched unprovoked attacks on two neighbouring states, but also continued to inflict extensive human rights abuses on his own population, cannot be decided by international law alone.

Nor should it be clouded by the issue of whether or not British soldiers, or ministers, might end up before an international court for waging "aggressive war". It was for this very reason that many were sceptical of the International Criminal Court, which would only constrain those capable of global policing, and leave the real transgressors unpunished. The problem with those who applauded Ms Wilmshurst is that they believe that the juridification of political, strategic and moral issues take the pain and uncertainty out of difficult decisions, and lifts them to a higher "safe" and "legal" plane.

They would do well to note the response of the distinguished Philip Allott, retired Professor of International Law at Cambridge. While not necessarily endorsing the invasion himself, he judges that the Iraq war was neither lawful, nor unlawful. Allott continues:

It is wrong to suppose that the so-called legality of such a thing can finally be determined as if it were a civil or criminal wrong in national law.
Morever, he is clear that:
it is wrong to suppose that the legality of a particular war can be finally determined by a few words in those masterworks of cynicism, dishonesty and opportunism known as Security Council resolutions.
All the Foreign Office lawyers were doing, in effect, was expressing the view - from which Goldsmith ultimately dissented - that the existing Security Council resolutions provided no authorisation for an invasion. They were not - and could not - be pronouncing on whether the war itself was legal.

In this context, it would be useful to know what the confidential legal opinion on the Kosovo intervention of 1999 was. Some senior international lawyers, such as Ian Brownlie, argued passionately at the time that the use of massive aerial force to compel Slobodan Milosevic to desist from his policies in Kosovo was a violation of state sovereignty, grievously compounded by the absence of a UN mandate (this was blocked by the Russians and Chinese on the Security Council).

What, one wonders, would have happened had that intervention gone awry? It very nearly did: nearly seventy days, not the 48 hours NATO had hoped, were required to bring Milosevic to heel. The cost would have been enormous: millions of Kosvovar refugees would have been permanently homeless; Macedonia might well have collapsed under the strain; Albania, Greece and possibly even Turkey might have been dragged into the conflict; and NATO holed below the waterline. These scenarios were endlessly rehearsed at the time. The resulting witchhunt would no doubt have unmasked a clique of liberal interventionists determined to nail the Serbian leader, who had bent international law in order to manoeuvre him into a corner at the Rambouillet conference.

These charges - in circulation at the time and since - have never gained traction, largely because the intervention was ratified by success. A independent committee of experts pronounced soon after the end of hostilities that the operation had perhaps not been legal, but that it was certainly legitimate. So we see once again the truth of the old adage.

Treason doth never prosper.

What's the reason?

Why if it prospers, none dare call it treason.

Were Harcourt alive today, he would surely remark that all illegal interventions must be failures. Because if they weren't, none dare call them illegal.

Dr Brendan Simms is Professor in the History of International Relations at the Centre of International Studies at the University of Cambridge and co-President of the Henry Jackson Society.


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