The world order after Iraq
EVER since he was created man has been at war, either to defend himself and his territory against aggression, often by neighbours, or to aggrandize himself by acquiring the territory of others, be they neighbours or not. In this connection, the Greek, Roman, Persian, Portuguese, Dutch, French and British empires come to mind. Over the years the concept of neighbourhood has changed. Today, we are constantly reminded, in the jargon of globalisation, that the whole planet is a village, a neighbourhood.
After the Second World War, two hegemons straddled the world. It was not a village then. Each had the wealth to produce, and the will to use, weapons of awesome power and range to promote and defend an ideology or to deal with a perceived threat to their security, even if it arose halfway across the globe. Before the demise of the Soviet Union every nook and corner of the earth had become a potential point of confrontation between the two hegemons. Only the balance of nuclear terror, at least in the minimal sense of foreclosing the option of all out war, achieved the maintenance of global order.
Today, the situation is different. Only one hegemon survives and that one has acquired the unprecedented, even an undreamt of, capacity to destroy or dominate militarily, at least for a while, any part of the world, however far away it may be from home, without running any risk of apocalyptic nuclear retaliation. Even before Iraq the world had become unbalanced in military terms, although the full extent of that imbalance did not become clear until the invasion of Iraq occurred.
Simultaneously with the concentration of such fearsome power in the hands of one nation state, new concepts of war have emerged which seek to justify, in certain circumstances, armed intervention in the affairs of another sovereign state. I refer to the concept of the humanitarian war to prevent or punish genocide, ethnic cleansing and other heinous crimes, and the war to effect a regime change in order to liberate an oppressed people from dictatorship and install a democratic form of government. If such a war were waged with the approval of the Security Council, there would be no problem as to its legality. If, however, it were to be launched by a state that possesses the capacity to do so unilaterally or in alliance with other like-minded states, grave questions would arise as to its legality, moral validity and practicality.
The war against Iraq brings these questions to the fore. Ancillary questions arise concerning the real, as opposed to the stated, motive for the war; the credibility of the principal protagonists in making their case for war; the impact of the war on relations with other states; the limits of technological superiority in achieving a just and durable peace after the war; the possible militarisation of the world as a backlash to the military dominance of one state; and the role of civil society in influencing decisions regarding war and peace.
All over the world, in countries big and small, rich and poor, a sense of unease, bewilderment and fear is firmly anchored in the minds of the millions in cities everywhere who, having no sympathy whatsoever for Saddam Hussein, nevertheless marched against the use of force in Iraq. Ordinary people ask ordinary questions: What exactly was the problem? Was it really necessary to use massive force to resolve it? Has the problem, in fact, been resolved? Will what happened there happen again somewhere else? Who is next, why and where? The invasion of Iraq is seen by many as a cataclysmic event that has seriously disturbed international relations. The ripples have spread far and wide. A vision of the world order after Iraq must necessarily, at this point of time, be based to a large extent on conjecture; and conjecture as to the future, to have any reasonable prospect of validity, must be based on an understanding of the events that led to the invasion. An evaluation of those events inescapably involves judgmental decisions.
I wish at this stage to make some observations about America which I believe would command wide acceptance. The people of the United States of America have countless friends and admirers all over the world. We, the people of South Asia, must remember that our interactions with the American people have always been friendly. They and their governments harboured no colonial designs against us. They did not stand in the way of our own drive for independence.
The society they have built for themselves is a magnet to which others elsewhere are irresistibly drawn. America has throughout its history provided a home for the oppressed in search of refuge. It has been a land of hope and opportunity for those who yearn for a chance of leading a better life, in a country where talent is accommodated and encouraged to flourish, where hard work brings rewards. We must not forget that America has been generous. It has spearheaded astounding progress in every avenue of human endeavour. Her friends would wish to see America remain a strong, confident and benevolent champion of democracy. That is why so many are so disturbed that the image of a fair and just America has been shattered by the events in Iraq.
Notwithstanding those events the community of democratic states must always remain in dialogue with American governments and the people of America, so that America will never be allowed to feel abandoned, isolated and lonely. When we differ from American policy our criticisms should be tempered with understanding. A giant should not be left friendless, bereft of honest counsel, lest it be tempted to use its enormous strength in irrational and harmful ways. Here, India, whose relationship with the United States has entered a new phase of warmth and cooperation, has a vital role to play in keeping in touch with America at every level. Hundreds of thousands of South Asians now live and work in America. They profit from, but also contribute greatly to, the wealth and prosperity of that great country. Visceral links have been established between the North American continent and our own subcontinent.
And in the struggle against terrorism, which America must perforce lead, the democratic community must stand together; otherwise, each democratic state will be in danger of falling separately. I sought to express this thought in the following words in a speech at Warsaw in June 2000 at a ministerial conference on the theme ‘Towards a Community of Democracies’. ‘A democracy standing alone cannot possibly survive a sustained terrorist onslaught because democracy is vulnerable; it is fundamentally constrained, limited by the demands of democratic practice and tradition. A democracy even at a time of war has to remember the rule of law, the freedom of the press and all those requisites of a practicing democracy. How then do we fight, how then do we survive?
‘My plea is a very simple one. Please do not forget that unless the democracies of the world stand together and fight together and always come to the aid of a member in peril, democracy will not survive. A challenge to democracy anywhere in the world is a challenge to democracy everywhere. The great liberal democracies must wake up to the fact that it is their duty to come to the aid of a democracy in peril in practical ways, with moral support yes, words and declarations, but also by a demonstration of political will that sends a message to the terrorists of the world that their days are numbered, that there will be no succour, no solace, no safe haven, no place to hide, nowhere to run for the terrorists of the world when all of us, the democratic states, stand together and fight together.’
We must not forget that the trauma of September 11 is still fresh in the minds of the American people. They had never before been called upon to face terror in their own homeland, the kind of terror that overshadows our daily lives in South Asia. For them it was a new experience that has coloured their view of the world and brought to them a sense of insecurity that they never experienced before. Being of a trusting nature, safely ensconced in fortress America, the American people for the first time in their history have become distrustful and apprehensive of foreigners in their midst, their famously open society now circumscribed by security concerns.
In judging the foreign policy motivations of an American government we must be mindful of the fact that America is a deeply wounded society after September 11. That is why, no doubt, a majority of the people of America, not altogether surprisingly, have supported the war against Iraq. We must, therefore, be mindful of the context and the national mood in which important governmental decisions came to be made relating to Iraq.
Let me turn now to the question of the justification for the war against Iraq. There is a case for and a case against. Both cases are founded on factors that go beyond legality alone. They encompass considerations of morality and practicality as well. There is a school of thought that believes that in inter-state relations a course of action may be justifiable on moral or practical grounds, although unlawful in legal terms. The case for justification is succinctly made, for instance, by that reputed journal The Economist.
Initially the case for war against Iraq was based to a large extent on the alleged existence of weapons of mass destruction under Saddam Hussein’s control which posed a threat to regional and world peace. As the British government stated in the opening paragraph of its paper – ‘Iraq: Military Campaign Objectives’ (March 2003) – ‘The prime objective remains to rid Iraq of its weapons of mass destruction and their associated programmes and means of delivery, including prohibited ballistic missiles, as set out in the relevant United Nations Security resolutions.’
Since that branch of the case for war is fast unravelling for lack of evidence that such weapons existed, the case was reformulated, a few weeks ago, on somewhat different grounds by The Economist which now suggests that the justification for the war is best addressed by dividing it into three questions: One, were there ‘good grounds’ to threaten Saddam Hussein with an imminent military attack if he did not comply with United Nations resolutions? Two, when he did not comply were there ‘good grounds’ for carrying out that threat? Three, after the military victory, have the allies acted in such a way as to make things better both in Iraq and in the region as a whole? Thus, the reformulated case for war moves the focus away from legality, in terms of international law and practice, to justification on moral and practical grounds.
According to The Economist, Hussein himself provided the answer to the first question. He had signed an agreement in 1991, after the first Iraq war, under which he promised to get rid of his nuclear, chemical and biological weapons programmes, to scrap long range ballistic missiles, and to stop brutalizing his people, among other things, all within a year. He did not comply, and UN weapons inspectors established that he had concealed his weapons. For example, having at first denied that he had ever produced a deadly nerve agent called vx, he then responded to a discovery by claiming to have made only 200 litres, but the UN inspectors showed that at least 3,900 litres had been made.
Having established that he could not be trusted, inspectors were barred from Iraq after withdrawing in 1998. Given that by 2002 he had flouted 16 binding UN resolutions, the question arose as to how best to persuade him to allow inspectors to return. By making a credible threat that the measure promised by such resolutions, the use of force, would be carried out if he did not? That required the stationing of troops on his border and the passing of a further UN resolution 1441 in November 2002 stating what he had to do to comply.
The Economist argues that none of that has been called into doubt by the lack of discoveries since the war. Hussein had a clear record of developing these weapons, using them and concealing them. However, the question The Economist fails to ask is whether he actually had them, or whether there were reasonable grounds to conclude that he had them at the moment his country was invaded. If not, then the ‘prime objective’ of the war becomes irrelevant.
There can also be no doubt, according to The Economist, that he was a brutal, ruthless dictator who murdered hundreds of thousands of his own citizens and harboured ambitions to dominate his region: he had fought Iran during the 1980s, had invaded Kuwait in 1990, and threatened Israel, Saudi Arabia and (in 1994) Kuwait again. He was thus plainly a dangerous man, in whose hands such dangerous weapons could pose a real threat, both to regional peace and, through the power that dominance of the world’s oil reserves would bring, to the whole world.
Thus, ex post facto the double argument for war appears to be that he is a dangerous man in possession of dangerous weapons who must be removed. Would the case for war hold if he did not, in fact, possess dangerous weapons? Would he not then cease to be a dangerous man? As we shall also see the argument glides into the proposition that whether he be a dangerous man in possession of dangerous weapons or not, he is, at any rate, a ‘deceitful liar’. The question would then arise whether massive damage should be inflicted on a people because their leader is a ‘deceitful liar’. Does any nation state have the legal or moral right, unilaterally or in concert with others, to punish an entire people for their misfortune to be led by a ‘deceitful liar’?
The argument then slides once again into another proposition – that a people should be liberated from ‘deceitful liars’ even against their will, or without prior consultation with them. If so, how many such peoples are there waiting to be so liberated, and who will have the legal and moral right to make such a far-reaching decision? And what standard of judgment will be used – one standard for all such candidates for liberation, or different standards depending on the relationship of the victim state to the judge and executor? This conundrum could be neatly stated thus: Iraq must be attacked because it may have weapons of mass destruction; North Korea must not be attacked because it does have weapons of mass destruction. Thus North Korea may safely assume that it remains safe.
The public is now raising interesting questions. One writer to The Economist last week says: ‘If it is right for a rich, powerful democratic nation to conquer a poor, weak, nasty one and force it to become democratic, why start with Iraq? Heroin and cocaine are weapons of mass destruction that have been causing horrendous casualties in America for decades. The countries that produce them are not all perfect democracies either, so one of them should have been first on the list.’ This letter may not be representative of world opinion but it does reflect a prevalent cynicism regarding the way global issues are decided. It raises the old question of double standards.
Several features of The Economist’s revised rationale for war need to be noted. First, the expression ‘good grounds’ is intended to indicate ‘good grounds’ other than the initial ‘good ground’ which was the alleged existence of WMDs. Second, notwithstanding the lack of discoveries since the war began, Saddam Hussein’s ‘brutal, ruthless’ murderous record as a dictator is relied on to justify his removal as a ‘plainly dangerous man’ in whose hands ‘such dangerous weapons’ could pose a real threat, both to regional peace and, through the power that dominance of the world’s oil reserves would bring, to the whole world. But this argument is self contradictory because in the absence of WMDs, whether he remains in theory a dangerous man or not, his capacity for threatening regional, let alone world, peace can only be described as minimal. Third, the oil factor is brought into the picture in the revised rationale suggesting another, somewhat understated, motive for war.
What, then, of the second question posed by The Economist. Was it right (meaning morally right as opposed to legally right) to carry out the threat, making the war both punitive and pre-emptive? According to The Economist there can be no doubt about one thing: Saddam did not comply with resolution 1441 of November 2002. The weapons inspectors appointed by the UN said that he did not comply, either in his formal declaration last December or in the inspections process itself. For a man with a proven record of concealment to choose not to comply, even as American and British troops were massing on his border, was remarkable.
This provoked another debate: might he be persuaded to comply by further UN inspections, during which, for instance, he might at last agree to allow Iraqi scientists to be flown out of the country for questioning, with their families? Those who opposed war in March 2003 but had voted for resolution 1441 (including France) in November 2002 thought he could be, since he seemed to have become more cooperative. Those in favour of carrying out the threat, including The Economist, thought that to wait was too risky. He had successfully wriggled away in the past when offered the chance of delay, and could well do so again.
The Economist concedes that reasonable people could disagree about that decision, and about whether it might have been better first to get a unanimous vote on a new Security Council resolution. But, in the opinion of The Economist, neither the non-discovery of weapons nor the recent evidence of ‘exaggeration’ by the British and American governments of elements of their claims alters the argument for or against permitting further delay.
What then, it is reasonable to ask, might change The Economist’s mind? The magazine itself asks that question. It says that if Messrs. Bush and Blair were shown not just to have ‘exaggerated’ but also actually to have lied, knowingly putting false information before their voters, it would be a huge scandal and would destroy their governments’ credibility for future interventions overseas. But to make the Iraq war look unjustified in retrospect, such a scandal would have to amount to clear evidence that it had not, in fact, been reasonable to believe that Hussein was a dangerous liar and concealer. This would require, says The Economist, somewhat generously to the governments concerned, that the distortions or deceits be astonishingly widespread and conducted over a long period of time. Given that spying agencies currently look incompetent rather than capable of such a broad, effective campaign, this looks unlikely, says The Economist.
But here the magazine is on slippery ground because the evidence is mounting that British intelligence was either grossly and recklessly negligent (which is much more serious than being guilty of innocent exaggeration) or artfully devious. The British prime minister is in serious trouble, his credibility fraying at the edges and soon likely to be in tatters. He will have to testify before a Commission of Inquiry. The sudden death of scientist David Kelly from a slashed wrist does not advance the cause of clarity; rather it plunges the problem into deeper mystery.
The British Parliament’s Foreign Affairs Committee which was tasked with examining the intelligence material that was placed before Parliament prior to a decision being taken to go to war, reached a number of unfavourable conclusions regarding the manner in which the intelligence dossiers were assembled. Thus, the Committee concluded that there was only limited access to human intelligence in Iraq and that as a consequence the United Kingdom may have been heavily reliant on US technical intelligence, on defectors and on exiles with an agenda of their own; that the government should state whether the September 2002 dossier about Iraq’s chemical and biological weapons programmes is accurate in the light of subsequent events; that documentation in regard to the Iraqi purchase of uranium from Niger was forged; that the allegation that Iraqi chemical and biological weapons could be launched in 45 minutes was unwarranted because it was based on intelligence from a single, uncorroborated source; that the second (February) dossier was ‘a disaster’. It was ‘badly handled and was misrepresented as to its provenance and was thus counter productive.’ Do not these findings amount to ‘astonishingly widespread distortions or deceits’ which should inculpate, rather than exonerate, the British government?
On the US side too the intelligence situation does not appear to have been much better. It will be recalled that President Bush had in sixteen words in his State of the Union Address conveyed the impression that he was convinced that Iraq had tried to purchase uranium from Niger. When the truth came out the Director of the CIA, no less, had to admit that he was the culprit. Secretary Colin Powell was so disturbed about questionable American intelligence on Iraq’s weapons of mass destruction that he assembled a secret team to review the information he was given before he made a crucial speech to the UN Security Council on 5th February.
According to the US News and World Report of 1st June, Powell’s team removed dozens of pages of alleged evidence about Iraq’s banned weapons and ties to terrorists from a draft of his speech. At one point he became so angry at the lack of adequate sourcing to intelligence claims that he declared: ‘I am not reading this. This is ‘bovine excrement’. The day might soon come when the crucial question could well be whether high officials of two major countries whose probity has always been taken for granted have joined Hussein in the company of ‘dangerous liars and concealers.’ What then will the international community do if the judges and executors of military intervention in another state are shown to be themselves ‘deceitful liars’ – apply one rule to some, another rule to others?
But there is a further mind-changing possibility on justification for the war, says The Economist. It lies in the answer to the third question posed by the journal: After the military victory, have the allies acted in such a way as to make things better both in Iraq and in the region as a whole? If they have not done so already or are unable to do so in the future that could indeed make The Economist decide that the war had not, after all, been justified.
At this point the argument descends to a somewhat lower level. It is said that ultimately, even if the grounds for going to war in March 2003 were strong, the case for it also depended on the notion that America and its allies were determined to make the country and its troubled region more peaceful, more prosperous and less threatening in the future than might have been the case had Hussein been left in place. Many of the opponents of the war thought they were not so determined: that Iraq might be left to collapse in civil war or else might be repressed and exploited as an American colony; that countless fresh grievances would be created, causing more terrorism, and that there would be no serious American effort to bring about peace between Israel and the Palestinians.
The Economist says that President Bush has begun a serious effort to persuade Israel and Palestine to make peace, and that process has inched edgily forwards. The future question will be whether he maintains that effort in the face of inevitable setbacks, and of the fact that both Yasser Arafat, still the Palestinian figurehead, and Ariel Sharon, the Israeli prime minister, are reluctant either to compromise or to help build trust. Even the sunniest optimist is unlikely to agree that the complexities of this stubborn problem will dissolve into consensus in the near future.
There is also the distraction of the 2004 presidential election in America. The grounds for cautious optimism are that President Bush really cannot afford to shrink back now that he has made his commitment, and that the opportunity for change provided by the victory in Iraq will last forever. That must be the hope, and must be what Bush’s allies should urge, says The Economist, although as the journal admits, in Iraq itself the Americans have made an appallingly bad start. Their reasons for having had no post-war plan are almost as incomprehensible as Saddam’s reasons for having neither complied with the UN resolution nor deployed any banned weapons. They have also failed, so far, to beat back or deter the guerrilla tactics being used against them.
There are, though, some encouraging signs too, according to The Economist. Chief among them is the recent establishment of the new 25-member Iraqi Governing Council, the first big step the Americans have taken towards devolving power to Iraqis themselves and towards establishing some sort of representative democracy. It concedes that the new council is far from democratic. Paul Bremer, America’s chief administrator, picked its members albeit after consultation – but it is fairly representative, opines The Economist.
It is hardly surprising that it took three months before such a Council was set up, given that Iraq has only just emerged from a long and repressive dictatorship. But the delay still sowed doubts about America’s intentions, according to The Economist. I would add that to make matters worse, if the London Guardian of 13 April is right, ‘its favoured Iraqi protégé, Ahmed Chalabi, scion of the old Iraqi ruling class who last set foot in Baghdad 45 years ago, was flown into Nasiriya by the Americans and, almost unbelievably for someone convicted of fraud and embezzlement, is being lined up as an adviser to the finance ministry.’
America’s predicament is that it must simultaneously prove that it is committed to staying in Iraq in order to rebuild it as a secure, stable and peaceful country, and that it is preparing to hand over power to democratic institutions and then leave. Making the Council a success will be an important part of its plan. So too will be the commencement of real work to prepare for elections, first at a local level and later at national level.
Alongside that, however, says The Economist there can be no substitute for the deployment of people and money: more troops, to pacify the areas of Iraq in which guerrilla campaigns are being fostered and to show that America is not going to allow the Baathists to claw their way back; more money to restore utilities faster and as a further show of commitment, particularly given that oil exports have been much slower to resume than was expected. It seems to me that the budget for all this is going to be astronomical. It could run to hundreds of billions of dollars. I would say that even Croesus would flinch from paying such a bill. Serious domestic repercussions could ensue for the American economy.
And so, The Economist asks, will America really remain committed, especially in the face of daily casualties? The casualties are growing. One remembers the Vietnam syndrome where the war was lost in the drawing rooms of America. The answer given by The Economist is that America cannot afford not to be committed. Afghanistan has been left, both by America and by other rich countries, in far too vulnerable and disorderly a state. That is tragic and shameful, but if the same were to happen in Iraq the result could be catastrophic: a deadly civil war in which neighbouring countries felt they had no option but to become involved, and a huge stain on America’s reputation, not only for justice but also for effectiveness.
The Economist points out that in America’s history there are too many examples of a short attention span. But there are also bigger examples of the country’s ability to pick itself up after initial stumbles and to sustain a long-term commitment: the troops that have sat in danger by North Korea’s border with the South for 50 years: the Marshall Plan that boosted Europe’s economic recovery for a full two years after victory in the second world war. Again, a long-term, costly commitment is going to be needed in Iraq. Will it be forthcoming?
The foregoing catalogue of ifs and buts involved in the scenario unfolding around Iraq gives one a glimpse of the many complex facets of the problem which confronts the international community in the aftermath of the invasion of Iraq. Where are we heading? Does anybody know?
I turn now to the case against the military invasion of Iraq. It has been cogently argued by, among others, Judge Christopher Weeramantry, a former Vice President of the International Court of Justice, in a recent book provocatively titled Armageddon or Brave New World – Reflections on the Hostilities in Iraq. The judge argues that it is the Security Council alone that can authorize the use of force. Questions naturally arise regarding the legality of the unilateral resort to force. In the United Kingdom the Attorney General gave an opinion stating that the authority to use force against Iraq derives from the combined effect of resolutions 678, 687 and 1441. All of these resolutions, he said, were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security.
He went on to say that in resolution 678 the Security Council authorized force against Iraq ‘to eject it from Kuwait and to restore peace and security in the area’; in resolution 686, which sets out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under resolution 678; a material breach of resolution 687 revives the authority to use force under resolution 678. In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution; the Security Council in resolution 1441 gave Iraq ‘a final opportunity to comply with its disarmament obligations’ and warned Iraq of ‘serious consequences’ if it did not.
The Security Council also decided in resolution 1441 that, if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution 1441, such a failure would constitute a further material breach; that Iraq has failed to so comply and therefore Iraq was at the time of resolution 1441, and continues to be, in material breach and that, thus, the authority to use force under resolution 678 has revived and so continues today; that resolution 1441 could in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended.
Thus, all that resolution 1441 required, according to the British Attorney General, was reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorize force. No reasons accompanying the Attorney General’s rather sparse opinion were released. The next day the House of Commons decided to endorse the decision to go to war. No doubt, a crucial factor influencing members in reaching their decision on this awesome issue was the endorsement of legality contained in that opinion by the Chief Law Officer of the Crown.
Robin Cook, who resigned from high office on the issue of the war, said in his statement to the Foreign Affairs Committee on 17th June 2003: ‘The Attorney General’s legal advice is founded entirely on the failure of Saddam to comply with the "obligations on Iraq to eliminate its weapons of mass destruction".’ ‘I am no lawyer,’ said Robin Cook, ‘but it does appear arguable that if Iraq had no weapons of mass destruction there could in logic be no legal basis for a war to eliminate them.’ Indeed, the logic is irrefutable.
Judge Weeramantry points out that the vast amount of diplomatic activity resulting from the lack of specific authorisation of force, the fluctuating array of changing circumstances, and the universally agreed necessity for specific UN authorization of force in the context of the particular circumstances of today, are not considered in this opinion. It is moreover totally silent on the core principles and considerations of international law that provide the necessary background to an adequate interpretation of the particular phraseology of the resolutions.
As the judge observes, ‘These become particularly essential if the opinion is to be a solid basis on which to take a great nation into war in this nuclear age, particularly in a volatile region of the world where no prediction can be ventured regarding the manifold ramifications of hostilities once commenced.’ Not surprisingly, Lord Goodhart, a distinguished lawyer, in opening the debate in the House of Lords on the legality of the war described it as ‘a highly questionable conclusion, which is based on a dubious interpretation of deliberately ambiguous wording.’
In a detailed critique of the British Attorney General’s opinion Judge Weeramantry gives 33 reasons why it cannot stand objective scrutiny. Among them are the following:
‘The general principle that the use of force needs specific and particular authorization by the Security Council; the purpose of resolution 678, namely, the use of force in the context of the expulsion of Iraq from Kuwait had been achieved, whereupon basic rules of interpretation would indicate that the authority granted for this purpose lapsed. A blanket authorization to use force for 12 years would have been furthest from the intentions and the practice of the Security Council when it passed resolution 678 in 1990. The common understanding of all members of the Council (which the United Kingdom itself shared) at the time of resolution 1441 was that a specific resolution authorizing force was necessary; there was an express statement by the ambassadors of both the United Kingdom and the United States when resolution 1441 was adopted that it contained no automaticity; there were very clear pronouncements by China, Russia and France and other signatories at the time of the resolution that it was on that basis alone that they were party to it.
‘The serious consequences referred to in 1441 related not to the ejection of Iraq from Kuwait but to the totally different question of eliminating weapons of mass destruction; the phraseology used in 1441, namely "serious consequences", was deliberately chosen in rejection of phraseology suggested by the United States and the United Kingdom which directly sought authorisation for the use of force. Paragraph 12 of resolution 1441 expressly stated that should there be any further material breach, the Council will meet again to consider the situation – a far cry from the assumption that a 12 year old resolution on a different matter would govern such a situation; the authority to use force nowhere appears in the operative part of resolution 1441.
‘After resolution 1441, which did not authorize the use of force, there was likewise a clear understanding of the need for a further resolution specifically authorising the use of force, if force was to be used; it was the very inapplicability of a spent resolution of 12 years ago that was the driving force behind the urge to obtain a specific authorization through resolution 1441 and when that failed through a succeeding resolution; when a phrase like "serious consequences" is used it is only the Security Council that can interpret this language and extend it to include a specific authorization to use force; not one of the resolutions passed by the UN authorizes the violent overthrow of a sovereign state or the use of force outside the UN Charter.
‘Disarmament and regime change are two vastly different concepts and objectives which attract vastly different principles of international law; all previous resolutions put together and interpreted in today’s context do not amount to an authorization to use force; in Security Council parlance phrases like "any necessary means" are required to authorize the use of force. The cardinal Charter principle which outlaws the use of force in the absence of actual or imminent attack needs clear and unambiguous language to override it. The resort to war is so contrary to the central objectives and spirit of the UN Charter and so contrary to the normal methodology of UN operations, that an intention to invoke it in any given circumstances needs to be categorically stated rather than left to speculation, uncertainty, and doubtful inference; that the principle against the unilateral use of force would amount to ius cogens, i.e. a bedrock principle of international law which even Congresses or Parliaments cannot override.’
In my opinion, the avalanche of reasons given by Judge Weeramantry for his contention that the unilateral use of force in Iraq was in violation of the UN Charter and accepted principles of international law must surely sweep aside the conclusions reached by the British Attorney General that a specific resolution authorizing the use of force was not required after resolutions 678 and 1441. Again, like the intelligence debacle, is this a case of tailored legal advice to suit a predetermined, political decision? The consequences of such a possibility are extremely grave for the future.
The Iraqi war has triggered a vigorous debate across the world. Constraints of time do not permit here a representative analysis of what has been said. Since I have already dealt with the arguments in favour of the war, a few samplings of transatlantic opinions will give us an indication of what the anti-war lobby feels about some of the issues raised by the war. Former US Assistant Secretary of State for South Asia, Karl Inderfurth, and others, have made certain observations that merit careful reflection.
Answering the question, at a press interview, whether the abandonment of the Security Council in favour of unilateral military action was a failure of US diplomacy, he replied: ‘There is no question that US diplomacy has failed to bring together the Security Council in a course of action. The fact is that there were only four members of the Council, counting the United States, that were prepared to go forward with that second resolution. Some others may have voted in favour but we will never know because although President Bush said he would call for a vote where everyone would put their cards on the table, he retreated from that because there was a recognition that not only would France veto but also that it was unlikely that there would be nine affirmative votes. So this was not one of our better moments in terms of bringing the international community together for a course of action.’
To the question whether unilateral military action would be illegitimate, Inderfurth replied: ‘The administration is making the case that previous UN resolutions, and Article 51 of the UN charter calling for self-defence, provide a basis for this action. But there is no question that the administration and President Bush are venturing into new legal territory where they are attempting to assert the right of countries to take either preventive or preemptive action in its defence that many view with great concern. This was not the world we wanted to visit at the end of the Cold War. We wanted to have a greater sense of cohesion in the international community. We didn’t want division between east and west.
‘The assertion by President Bush of this new doctrine of preemption is one that causes many people great concern. Somebody has said that the administration during its first two years was operating on the basis of the 3 Ds – disdain, disregard and disrespect for the international community, including allies and friends and unfortunately in many cases that was how many in this administration – not Secretary Powell – proceeded and that kind of build-up helped to lay the ground-work for the diplomatic failure in the Security Council.’
It is worth recalling that, over the Suez crisis, President Eisenhower, with enormous experience of war behind him, was passionately opposed to the use of force, even for the purpose of upholding the principle of free passage through the canal.
Crossing over to Paris for an opinion, this is what President Chirac had to say: ‘Whether it is a matter of the necessary disarmament of Iraq or of the desirable change of regime in that country, there is no justification for a unilateral decision to resort to war. Iraq does not today present an immediate threat warranting an immediate war. To act outside the authority of the United Nations, to prefer the use of force to compliance with the law, would incur a heavy responsibility.’
On the question whether, as UN Secretary General Kofi Annan has said, the US action has inflicted serious damage to the credibility of the United Nations, Inderfurth’s reply was that ‘it calls into question the credibility and the viability of the United Nations and the Security Council in being able to address such difficult issues. I do not believe it serves the purpose of the US to suggest that the UN and the Security Council are moving toward irrelevancy. That would be as damaging to the United States as it would be to any other country. We will need the Security Council in the future, perhaps even with the North Korean crisis, which this administration has been basically disregarding. We will need the UN and its member states in the post-conflict period in Iraq. So while the credibility of the Security Council is being called into question, in my view the long-term need for the Security Council is absolutely abundantly clear, and we need to protect that institution.’
On the question of damage to relations with other states, including India, which had refused refuelling to US planes in the case of war with Iraq, Inderfurth voiced the following opinion: ‘My feeling and my hope is that the Bush administration will not hold grudges against those who, for their own reasons, could not offer more support for the war on Iraq. Remember, for the last war, there was a UN authorization in the Persian Gulf. That allowed India and other countries to offer various things as part of that UN sponsored effort. We do not have it this time. The administration will simply have to take that into account and recognize that, while we have our priorities as defined by President Bush, which is the regime change in Iraq, other countries do not see it that way and we should be respectful of that. So I am hoping that there will be no lessening of the growing relationship between the US and India over this matter. I also hope that in the near future the administration will be willing to do more listening to other countries as opposed to issuing demands and pronouncements about what they should do.’
Robin Cook, who resigned his high office as Secretary of State for Foreign and Commonwealth Affairs over the Iraqi war, had this to say: ‘There has been a wide impact on our international relations from Britain’s participation in the unilateral decision of the United States to launch a pre-emptive strike. The Iraq war has divided us from our principal partners in Europe. It has removed us from the inside track we had built up with Russia under Putin. It has undermined the authority of the Security Council as the forum for multilateral decisions on peace and security. It has reduced our standing throughout the Third World, where few countries supported US intervention. It has broken up the impressive global coalition against world terrorism which came into being in response to the attack on the twin towers.’
On the question whether regime change in Iraq could be a precedent for regime change in Pakistan, Inderfurth says: ‘The fact is when the US announces that it is pursuing a course of action, which legitimizes pre-emptive or preventive action, how can the US argue that other countries cannot also pursue a similar course of action? That would be a double standard. That would be hypocrisy. The fact is there should be certain universal standards in the world for how nations act and react to each other. The US cannot set itself aside – even if it is the sole superpower – it cannot operate in the world today on the basis of its own interpretations of international norms. This will be a very dangerous precedent and example for other countries. So whether it be in the South Asian context or any other context, these things must be viewed as perhaps setting examples we may not want to set for others.’
On the question whether the war would arouse more anti-American anger or terrorism in the Arab World or have the opposite effect, Inderfurth’s view is that ‘the possibility of a war leading to new recruits for Osama bin Laden’s campaign of terror is a real one. We have to realize that bin Laden does want to see the United States at war in Muslim countries, because he uses it to suggest there is a real clash of civilizations between Islam and the West. It will be up to the United States to prove him wrong once this war is over.’
Senator Robert Byrd made some caustic comments on the floor of the Senate on 21 May: ‘How could we expect to easily plant a clone of US culture, values and government in a country so riven with religious, territorial and tribal rivalries, so suspicious of US motive and so at odds with the galloping materialism that drives the western-style economies? As so many warned this administration before it launched its misguided war on Iraq, there is evidence that our crackdown there is likely to convince 1,000 new bin Ladens to plan other horrors of the type we have seen in the past several days. Instead of damaging the terrorists, we have given them new fuel for their fury.’
The question has been raised whether in the complex world of today it is possible for any one state, however powerful, to dominate it? Eric Hobsbawm argues that with the exception of its military superiority in high-tech weaponry, the US is relying on diminishing, or potentially diminishing, assets. Its economy, though large, forms a diminishing share of the global economy. It is vulnerable in the short term as well as in the long term. Imagine that tomorrow the OPEC decided to put all its bills in euros instead of in dollars. At some stage both the US government and electors will decide that it is much more important to concentrate on the economy than to carry on with foreign military adventures, especially with unemployment at an eight-year high.
As Jonathan Schell says, the larger question facing not just the United States but any country that might be eager to establish an empire, is whether the connection between military and political power – snapped by the world revolt of the 20th century – can be restored. Does power still flow from the barrel of a gun or a B-52 bomber? Can the world in the twenty-first century be ruled from 35,000 feet? Can cruise missiles build nations? Modern peoples have the will to resist and the means to do so. Force can confer a temporary advantage, but politics is destiny.
An objective analysis of the events that preceded the invasion of Iraq leads me to ten conclusions: one, that, in the absence of a specific authorization of war by the Security Council the unilateral resort to force by the United States, the United Kingdom and some other states was illegal. Two, that since the case for war on both sides of the Atlantic was heavily based on the existence in Iraq of weapons of mass destruction, the non-discovery of such weapons up to date deprives the case of its alleged moral justification. Three, the argument that there is a moral right which could be exercised by any state or combination of states, without the sanction of the Security Council, to oust or destroy a tyrannical ruler cannot be entertained because it has dangerous implications for arbitrary action based on subjective criteria.
Four, serious damage has undoubtedly been done to the standing of the United Nations as a result of the unilateral resort to force by a group of countries. The weakening of the United Nations, especially the Security Council, creates uncertainty and has a destabilizing effect on the world order. Five, the flawed procedure adopted for the preparation of crucial intelligence dossiers has created controversy within the two governments concerned and raises disturbing questions regarding their credibility. When the credibility of major powers falls into question it has a destabilizing effect on the world order.
Six, the impact of the war on the Islamic countries is problematic. An increase in terrorist activity as a response to the war cannot be ruled out. The most serious immediate development is the transformation of the Shiites, who are supposed to be most hostile to Saddam Hussein, into a resistance movement that employs suicide operations as weapons against the coalition. It would appear that an Iraqi Hizbullah is being founded and trained in South Lebanon. Other manifestations of militarisation would have to be expected throughout the Muslim world.
Seven, the critical question in the short term is likely to be whether the United States will again bypass the Security Council in pursuit of its policy goals. Certain statements have been made in responsible quarters that indicate Syria and Iran could be targets for regime change. In that event, dangerous schisms would be created and the potential for further destabilization of the world order would be enhanced. Eight, the United Kingdom, in particular, will have to decide whether it should use its influence to indicate to the United States that there are limitations on the deployment of US power. In the light of recent experience over Iraq it is hard to see British public opinion agreeing yet again to support the United States in a unilateral resort to force without the sanction of the Security Council.
Nine, although worldwide opposition to the invasion of Iraq on the streets of capital cities was impressive it was essentially an ephemeral phenomenon that did not in fact alter the decisions of the US and British governments. In the future, the critical question will be public opinion in the United States; will it support war again? This will depend to some extent on how quickly US casualties subside, and how effectively the US government restores law and order in Iraq and constitutes a viable form of government, but to a greater extent, perhaps, on domestic economic questions and the role of civil society in shaping governmental decisions.
Ten, in 1994 Henry Kissinger wrote that the new world order will contain at least six major powers – the United States, Europe, China, Japan, Russia and, probably, India as well as a multiplicity of medium-sized and smaller countries. Although Kissinger did not seem to envisage at that time a unilateral reassertion of American military power, such as we have seen over Iraq, his basic configuration of major powers seems to be right. The possibility, in the medium term, of Europe, China, Russia and India emerging as a like-minded, counter-vailing group to US power cannot be ignored.
Analysts dissect the operations of international systems; statesmen build them. The analyst can take his time to come to a clear conclusion; the overwhelming challenge to the statesman is the pressure of time. The analyst runs no risk; nothing turns on whether he is right or wrong; the statesman is permitted only one guess; his mistakes could be irreversible.
* An edited version of the Eighth Prem Bhatia Memorial Lecture, 11 August 2003, New Delhi. Reproduced with permission.