Lord Liverpool's Cabinet
Sunday, December 11, 2005
International Law Commentary
International Law
Jeremy Bowman wrote: “I have a question for defenders of “international law” and anyone else who maintains that the war against Iraq was immoral because it was “illegal.” What does international law prescribe as our next move? If the legal president of Iraq remains Saddam Hussein, doesn’t international law say we should go and put him right back where he was? And if that is the “legal” thing to do, aren’t we morally obliged to break the law here? And if the law is such a poor guide in the current situation, why should if have been any better in the previous situation?”
Mr. Uschanov has already ably and adequately answered one of the main questions raised above – that is, whether international law demands the restoration of Saddam Hussein. Since it appears that it does not, the remainder of Bowman’s argument falls apart.
I am not an expert on international law, but I arrived at much the same conclusion by the following line of reasoning: The American invasion of Iraq destroyed a functioning government and civil system, and did a great deal of damage to the physical infrastructure of the country. Under any legal system with which I am familiar, if it were a matter of dispute between two private parties, the person who had destroyed another person’s property would be liable for the damage, even if his actions were not illegal. However, there are many situations in which it is impossible, or impracticable, to restore the property to its original state, in which case one attempts, through mediation or litigation, to arrive at some fix which both parties accept as being equivalent.
Nothing is so abundantly clear as, that attempting to restore Saddam Hussein and his surviving associates to power would be an unmitigated disaster. To the established record of ruthlessness and violation of human rights would be added the cumulative resentments against anyone who was seen as having collaborated in any way with the foreign occupying forces. Unilaterally withdrawing, leaving a weak Iraqi government seen as a creation of the Americans in nominal power, is likewise a frightening prospect. Regardless of how we got there, we (and I speak as a taxpaying, voting American citizen) now have no moral option but to stay there until an effective civil authority more acceptable to the people of Iraq can be put in place. The alternative is a bloody civil war with the prospect that the conflict could spread to other nations in the region. That region includes not one, but four Islamic powers with nuclear capabilities – Pakistan, Kazakhstan, Uzbekistan, and Turkmenistan.
International law is something more than either a hodge-podge assemblage of national laws applied on an international scale, or an arbitrary creation of the World Court and the United Nations. It’s essentially common law, based on precedent, and rests on the authority of treaties and agreements entered into between nations. As T. P. Uschanov pointed out, much of it applies to commerce and to the use of resources which transcend national boundaries. As in domestic legal systems, an action can be perfectly legal, and yet immoral according to a particular ethical code, especially in a large multicultural system. The opposite – a law seeming to require (as opposed to condoning) something that an individual or state finds morally reprehensible – is rarer, and characteristic of totalitarian states. I can think of no example involving the World Court or the United Nations.
This question of morality versus legality is a broad one, bordering on the genuinely philosophical. Although the specific example given is spurious, it might happen that a state was party to a treaty or international accord requiring it to support some action which, according to the traditions, religion or consensus of the citizens of that country, was immoral. For example, if the World Health Organization saw fit to contribute large sums of money toward opening abortion clinics in Third World countries, the Republic of Ireland might well demur. In that case, the state is in the same position an individual citizen is in, when he is compelled to contribute his resources to an enterprise, one part of which he finds unsupportable. When the state and individual conscience conflict, which does one follow, and what principles does one use to decide? When I pose this question using a specific example, many of my fellow citizens, some well-educated and supposedly thoughtful, will agree in principle that a person should question the morality of the state but insist that the United States Government, being democratic, is immune to grave moral errors of the sort that made the twentieth century a wasteland of unprecedented carnage, and that in the specific example I give, I am just plain wrong. This argument seems circular to me; it seems to imply that individual conscience requires validation by the majority.
To return to the original question – what would international law suggest doing now in Iraq? – I think it would be at least be instructive to examine that crucible of precedents in modern international relations, the peace settlements at the end of the Napoleonic Wars, and in particular, the Bourbon restoration in France. There is an excellent set of contemporary commentaries on this, the Letters of Probus by Edward Sterling, on which I am basing my comments. He quotes extensively from Vattel’s “Law of Nations”, the then acknowledged compendium of international law as it was understood in the latter part of the eighteenth century.
The situation was somewhat different than Iraq in that the occupying force was truly international and all of the nations involved had been directly attacked by France during the course of the war that had just ended. Thus there was no question about the legality of the occupation, and no external support for its opposition. Part of our problem in Iraq is the same problem the Soviets had in Afghanistan: the internal opposition to the occupation is fanned by covert aid from external sources.
Occupation of France by foreign troops lasted a little over three years, with the final withdrawal decided upon and engineered at the Congress of Aix la Chapelle in 1818. The occupation was marked by little in the way of insurgency and left no enduring legacy of bitterness; the French nation which emerged was no paragon of stability and not immune from human rights violations, but it was stable enough and responsive enough to its citizens to evolve into a modern democracy over the course of the nineteenth century.
In attempting to provide France with a government to fill the vacuum left by Napoleon and his followers, the allies chose to work with what was left of the Ancien Regime. France had a constitution, much violated not only by Napoleon but by Louis XIV and XV. It had a parliament, and a mechanism for electing it. By working with this system, with its acknowledged flaws, the allies escaped the charge of cramming a foreign system down the throats of the French public, and they had some assurance that what they were working with was adapted to the society to which it was to be applied.
With a few exceptions, people who had been members of the Napoleonic system were not subsequently excluded from public life. The exceptions were people who, having taken an oath of allegiance to Louis XVIII during the first Bourbon restoration, allied themselves with Napoleon during the 100 days. When parliamentary elections were held in 1816, and a Cabinet appointed, a number of prominent Bonapartists were included in the new government. This included people who in Sterling’s view (a reasonable measure of conservative British opinion) were war criminals. Does giving people the right to choose include giving them the right to choose wrong? Suppose a genuinely free election in Iraq were to return the Baathist party to power? Could we live with the result? If we are not willing to live with that possibility, if we are only willing to allow as much democracy as will confirm what we desire in Iraq, let us at least admit it.
Based on historical research and my understanding of international law, I have the following conclusions:
The invasion of Iraq was a violation of international law, in particular the United States taking upon itself the task of unilaterally enforcing an agreement between Iraq and the United Nations.
That, had the violations of that agreement which faulty intelligence indicated had occurred in fact occurred, the invasion would have been justified by prudence and self-protection. Therefore, assuming that our government did not engage in deliberate deception [I reserve judgment on this one], we’re dealing with a massive mistake, not a criminal act.
That one way or another, we’re going to pay dearly for our mistake. The moral as well as the prudent thing to do is to ensure that our subsequent actions promote the well being of the Iraqi populace and the stability of the region. Neither withdrawing prematurely nor meeting an escalating internal conflict with more firepower and more repression will do this.
In theory the United Nations would be the body to step in, but I don’t see this happening in practice. When the world’s only superpower gets itself into a jam, but still isn’t willing to let go of the reins, an international organization with no real power of its own isn’t much help. Yet some sort of international intervention not dominated by the US seems to be the only answer. It has occurred to me (only partly in jest) that reviving the “Holy Alliance” – having an international organization consisting of the remaining hereditary monarchs of the world, most of whom represent inoffensive countries like Sweden and Thailand – and giving their decisions some authority, couldn’t be worse than what we have now. Deus ex machina, where are you?
Martha Sherwood
Jeremy Bowman wrote: “I have a question for defenders of “international law” and anyone else who maintains that the war against Iraq was immoral because it was “illegal.” What does international law prescribe as our next move? If the legal president of Iraq remains Saddam Hussein, doesn’t international law say we should go and put him right back where he was? And if that is the “legal” thing to do, aren’t we morally obliged to break the law here? And if the law is such a poor guide in the current situation, why should if have been any better in the previous situation?”
Mr. Uschanov has already ably and adequately answered one of the main questions raised above – that is, whether international law demands the restoration of Saddam Hussein. Since it appears that it does not, the remainder of Bowman’s argument falls apart.
I am not an expert on international law, but I arrived at much the same conclusion by the following line of reasoning: The American invasion of Iraq destroyed a functioning government and civil system, and did a great deal of damage to the physical infrastructure of the country. Under any legal system with which I am familiar, if it were a matter of dispute between two private parties, the person who had destroyed another person’s property would be liable for the damage, even if his actions were not illegal. However, there are many situations in which it is impossible, or impracticable, to restore the property to its original state, in which case one attempts, through mediation or litigation, to arrive at some fix which both parties accept as being equivalent.
Nothing is so abundantly clear as, that attempting to restore Saddam Hussein and his surviving associates to power would be an unmitigated disaster. To the established record of ruthlessness and violation of human rights would be added the cumulative resentments against anyone who was seen as having collaborated in any way with the foreign occupying forces. Unilaterally withdrawing, leaving a weak Iraqi government seen as a creation of the Americans in nominal power, is likewise a frightening prospect. Regardless of how we got there, we (and I speak as a taxpaying, voting American citizen) now have no moral option but to stay there until an effective civil authority more acceptable to the people of Iraq can be put in place. The alternative is a bloody civil war with the prospect that the conflict could spread to other nations in the region. That region includes not one, but four Islamic powers with nuclear capabilities – Pakistan, Kazakhstan, Uzbekistan, and Turkmenistan.
International law is something more than either a hodge-podge assemblage of national laws applied on an international scale, or an arbitrary creation of the World Court and the United Nations. It’s essentially common law, based on precedent, and rests on the authority of treaties and agreements entered into between nations. As T. P. Uschanov pointed out, much of it applies to commerce and to the use of resources which transcend national boundaries. As in domestic legal systems, an action can be perfectly legal, and yet immoral according to a particular ethical code, especially in a large multicultural system. The opposite – a law seeming to require (as opposed to condoning) something that an individual or state finds morally reprehensible – is rarer, and characteristic of totalitarian states. I can think of no example involving the World Court or the United Nations.
This question of morality versus legality is a broad one, bordering on the genuinely philosophical. Although the specific example given is spurious, it might happen that a state was party to a treaty or international accord requiring it to support some action which, according to the traditions, religion or consensus of the citizens of that country, was immoral. For example, if the World Health Organization saw fit to contribute large sums of money toward opening abortion clinics in Third World countries, the Republic of Ireland might well demur. In that case, the state is in the same position an individual citizen is in, when he is compelled to contribute his resources to an enterprise, one part of which he finds unsupportable. When the state and individual conscience conflict, which does one follow, and what principles does one use to decide? When I pose this question using a specific example, many of my fellow citizens, some well-educated and supposedly thoughtful, will agree in principle that a person should question the morality of the state but insist that the United States Government, being democratic, is immune to grave moral errors of the sort that made the twentieth century a wasteland of unprecedented carnage, and that in the specific example I give, I am just plain wrong. This argument seems circular to me; it seems to imply that individual conscience requires validation by the majority.
To return to the original question – what would international law suggest doing now in Iraq? – I think it would be at least be instructive to examine that crucible of precedents in modern international relations, the peace settlements at the end of the Napoleonic Wars, and in particular, the Bourbon restoration in France. There is an excellent set of contemporary commentaries on this, the Letters of Probus by Edward Sterling, on which I am basing my comments. He quotes extensively from Vattel’s “Law of Nations”, the then acknowledged compendium of international law as it was understood in the latter part of the eighteenth century.
The situation was somewhat different than Iraq in that the occupying force was truly international and all of the nations involved had been directly attacked by France during the course of the war that had just ended. Thus there was no question about the legality of the occupation, and no external support for its opposition. Part of our problem in Iraq is the same problem the Soviets had in Afghanistan: the internal opposition to the occupation is fanned by covert aid from external sources.
Occupation of France by foreign troops lasted a little over three years, with the final withdrawal decided upon and engineered at the Congress of Aix la Chapelle in 1818. The occupation was marked by little in the way of insurgency and left no enduring legacy of bitterness; the French nation which emerged was no paragon of stability and not immune from human rights violations, but it was stable enough and responsive enough to its citizens to evolve into a modern democracy over the course of the nineteenth century.
In attempting to provide France with a government to fill the vacuum left by Napoleon and his followers, the allies chose to work with what was left of the Ancien Regime. France had a constitution, much violated not only by Napoleon but by Louis XIV and XV. It had a parliament, and a mechanism for electing it. By working with this system, with its acknowledged flaws, the allies escaped the charge of cramming a foreign system down the throats of the French public, and they had some assurance that what they were working with was adapted to the society to which it was to be applied.
With a few exceptions, people who had been members of the Napoleonic system were not subsequently excluded from public life. The exceptions were people who, having taken an oath of allegiance to Louis XVIII during the first Bourbon restoration, allied themselves with Napoleon during the 100 days. When parliamentary elections were held in 1816, and a Cabinet appointed, a number of prominent Bonapartists were included in the new government. This included people who in Sterling’s view (a reasonable measure of conservative British opinion) were war criminals. Does giving people the right to choose include giving them the right to choose wrong? Suppose a genuinely free election in Iraq were to return the Baathist party to power? Could we live with the result? If we are not willing to live with that possibility, if we are only willing to allow as much democracy as will confirm what we desire in Iraq, let us at least admit it.
Based on historical research and my understanding of international law, I have the following conclusions:
The invasion of Iraq was a violation of international law, in particular the United States taking upon itself the task of unilaterally enforcing an agreement between Iraq and the United Nations.
That, had the violations of that agreement which faulty intelligence indicated had occurred in fact occurred, the invasion would have been justified by prudence and self-protection. Therefore, assuming that our government did not engage in deliberate deception [I reserve judgment on this one], we’re dealing with a massive mistake, not a criminal act.
That one way or another, we’re going to pay dearly for our mistake. The moral as well as the prudent thing to do is to ensure that our subsequent actions promote the well being of the Iraqi populace and the stability of the region. Neither withdrawing prematurely nor meeting an escalating internal conflict with more firepower and more repression will do this.
In theory the United Nations would be the body to step in, but I don’t see this happening in practice. When the world’s only superpower gets itself into a jam, but still isn’t willing to let go of the reins, an international organization with no real power of its own isn’t much help. Yet some sort of international intervention not dominated by the US seems to be the only answer. It has occurred to me (only partly in jest) that reviving the “Holy Alliance” – having an international organization consisting of the remaining hereditary monarchs of the world, most of whom represent inoffensive countries like Sweden and Thailand – and giving their decisions some authority, couldn’t be worse than what we have now. Deus ex machina, where are you?
Martha Sherwood
posted by Moldy Martha # 8:58 AM 
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