Editor's Pick

No regrets on mass destruction

9 February 2010, 18:00 PM
EDITORIAL
Kazi Anwarul Masud
TONY Blair continued to be unrepentant for the illegal invasion in Iraq. The six hours deposition to the Chilcot Inquiry Commission, described by some as an appeasement response to public demands where the Blair government reveals the process which led Britain to war, saw Tony Blair quite unruffled and unrepentant. He dismissed the distinction between regime changes and disarming Saddam Hussein in the face of the then Attorney General Lord Goldsmith's written advice to Blair of deposing Saddam Hussein being a breach of international law. Lord Goldsmith pointed out that: -War could not be justified purely on grounds of regime change, -Though the UN permitted military intervention in self-defence, it was not applicable in this case because Britain was not under threat from Saddam's regime, -Humanitarian intervention was also not applicable in the case of Iraq, -Use of earlier UN resolutions of the nineties approving the use of force against Saddam Hussein would be difficult to justify Iraq invasion. Later, three days before the invasion, Lord Goldsmith revised his earlier opinion by declaring that the war was legal, allegedly after being bullied to back the war by Blair's cronies. Additionally, Sir Michael Wood, the then senior most legal advisor in FCO, and his deputy Elizabeth Wilmhurst insisted that another UN resolution would be needed before an invasion could be considered. But to no avail. From his testimony to the Chilcot Inquiry, it was evident that the terrorist attacks of 9/11 totally changed his "mindset." In Blair's words: "I never regarded the September 11 as an attack on America, I regarded it as an attack on us." He added that despite the disagreement with Robin Cook on the Iraq issue, the British cabinet was kept fully informed having discussed about Iraq 25 times before the invasion. What was striking was Tony Blair's total disregard of international law and that his decision to join Bush's invasion of Iraq was taken on Saddam Hussein's history of brutality, his use of chemical weapons, 10 years of breaking UN resolutions etc. The Bush-Blair misadventure is all the more stunning in the backdrop of an advice given by the International Commission of International Law Jurists, prior to the invasion, that it would be blatantly illegal under international law for Anglo-American belligerents to invade Iraq; and that their joint decision as commander-in-chief to commence hostilities would constitute prosecutable war crimes. Compounding to US exceptionalism, the other worrying aspect of the Bush NSS document was the "doctrine of pre-emption." Bush's doctrine expanded the relatively non-controversial concept of true pre-emption, allowed under the UN Charter that could be legitimised if taken under against an imminent, specific and near-certain attack. The most basic reference to legality of any war under the UN Charter is under articles 42 and 51, either one acts in self-defence or under the authority of the UNSC. War in any other form would be illegal and unjust. Professor Michael Walzer of Princeton University and the author of Just and unjust war expounded that nothing but aggression can justify war. Walzer argues that, as with domestic crimes, use of force would require actual or imminent boundary crossing, invasion and physical assault. Otherwise, resistance to aggression would have no determinate meaning. Wlazerian concept presupposes the war between states that were also in the minds of the framers of the UN Charter. They could not have foreseen the devastating role played by non-state actors, the problem of failing and failed states and the technological nature of the threat. Critics of the Bush doctrine asserted that the doctrine represented a major redirection of policy and a radical revision of existing security rules. With repeated usage of military power, where the responsibilities of being the judge, jury and executioner remain with a single country, one has to be aware of the warning echoed by the then Russian President Putin of "the danger that the current system of international security will collapse [...] If we allow international law to be replaced by the law of the fist, according to which the strongest has the right to do whatever he wants and is not limited by anything in choosing means to achieve his goals, then one of the basic principles of international law will be called into questioning the principle of the inviolability of the state's sovereignty. Then nobody or no country of the world would be safe." It has been argued that in the changed world of post-9/11, the UN system, set up to regulate inter-state relations, is now faced with the arrival of globally organised terrorist groups or non-state actors. So when the Taliban were driven out of Afghanistan, in a way the "law of war" was revised. Definition of self-defence as given in the UN Charter, some feel, needs revision due to the change in technological nature of the threat. If the reaction time is too short then should the "intended victim" wait till it is attacked so that self-defence measures can be taken? Another factor was added by the dissolution of Yugoslavia and consequent Bosnia, Croatia and Kosovo crisis. Despite article 2(7) of the UN Charter related to territorial integrity regardless of what is happening within the territory; the Nato bombings in Serbia established the fact that sovereignty does not allow waging war against one's own people. Bush's legal advisor, William Taft IV, saw the use of force pre-emptively "as a natural adaptation of the concept of imminence to an era of mass destruction […] The right of self-defence could be meaningless if a state cannot prevent an aggressive first strike. The rights of self-defence must be attached early enough to be meaningful and effective." There has been a public demand to try Tony Blair as a war criminal, because the decision taken by him did result in the infractions of Geneva Conventions related to the laws of war and the post-conflict situation in Iraq. If there is a widening chasm between the Muslim world and the West, the Bush-Blair misadventure is mainly to be blamed for it regardless of the theses by historian Bernard Lewis of Islam's defeat at the hands of the Christians and Samuel Huntington's Clash of Civilizations and his conclusion on Islam's inability to adapt itself with the demands of modernity as the main problem.
Kazi Anwarul Masud is a former Secretary and Ambassador.

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