International Law, such as it is, is largely a fiction that exists in the head of well-meaning lefties, because they don’t like that America can basically do what the hell it likes.

Though they seem somewhat less concerned about the prospect since the US elected a gelationous blob of vacillation and inaction in lieu of a President.

Martin: so are you going to explain to me how international trade works? Is Interpol a leftist fiction? Does the European Union not in fact exist? What about all the UN peacekeeping missions in places like the Congo? What about NATO? I could go on and on.

“International Law, such as it is, is largely a fiction that exists in the head of well-meaning lefties, because they don’t like that America can basically do what the hell it likes.”

The past decade has proved that actually it can’t.

John Pilger, David Halpin, Yasmin Alibhai-Brown, Ken Loach, Noam Chomsky, Richard Dawkins, Lindsey German, Ben Griffin, Dr Nawal Saadawi, Haifa Zangana, Dr Kamil Mahdi, Bruce Kent, and other citizens of Spain, Argentine, USA, and UK, support a Blair War Crimes Foundation to seek signatures for a petition to the United Nations General Assembly and the UK Attorney General, to uphold the UN Charter, the Geneva and Hague Conventions, and International Law, and to indict Tony Blair for war crimes.
http://blairfoundation.wordpress.com/

Still, he should go to the Hague – he engaged in a willful act of misrepresentation and should suffer the consequences. Knowingly lied to parliament, completely ignored the people (although – that’s just bad form rather than illegal) and has increased our security risk as well as initiate a jihad. Apart from that – what’s on telly now X Factor has finished??

Luckily for him – Cameron doesn’t have the balls and the level of cronyism as expressed by the lickspittle Ken Macdonald (co-founder of Matrix with Imelda) means that it’ll just get ignored.

Anyway – what’s a million Iraquis worth these days eh? Few Euros and a packet of crisps.

@3:

I tell you what, when I see Bush and Blair standing trial for their “crimes”, maybe then we can all agree there is such a thing as International Law.

@4:

“John Pilger, David Halpin, Yasmin Alibhai-Brown, Ken Loach, Noam Chomsky, Richard Dawkins, Lindsey German, Ben Griffin, Dr Nawal Saadawi, Haifa Zangana, Dr Kamil Mahdi, Bruce Kent”

My Christ. It’s like a Who’s Who of pompous-yet-irrelevant leftie trolls.

[7] “a Who’s Who of pompous-yet-irrelevant leftie trolls”.

Chomsky?
Dawkins?
Loach?

Anyway, whatever their merits (as a group) they still feel that Blair should be pursued, presumably because a forum must exist to prosecute allegations made against him?
But Conor seems to be suggesting otherwise?

Even if the USA could do what the hell it liked (and there is a great deal of evidence about the limits of this approach) there is no reason why the UK should buy into this idea. On its own, the UK is a medium-seize power; its interests are best served by a world governed by clear rules and agreements and severe limits on military adventures. If the UK buys into the approach of the USA, and puts “standing shoulder to shoulder with the USA” above international law, it then becomes highly dependent on the USA for its defence. It’s far from clear that the UK should depend on the USA to this extent.

John Denham raised this issue in his resignation speech, but it is notable that no-one took him up on this point. It presents a big challenge to that part of our political elite that is keen on “Britain punching above its weight”.

Martin: arguing with people who say things like ‘when I see Bush and Blair standing trial for their “crimes”, maybe then we can all agree there is such a thing as International Law’ is a bit like arguing with people who don’t believe in gravity or evolution or who say things like ‘so how come if the world is round, like you say, then we don’t all fall off, huh, huh, answer me that – you can’t can you’.

You know there is this a website called Harry’s Place where I am sure you will be able to make lots of new friends . . . . .

Guano: yes – last week’s Economist had a good piece on the same point about post-imperial hubris. If John Denham became Labour’s next leader I would probably re-join the party.

a&e nurse: I think there is an arguable case for a prosecution (most likely scenario would be a Pinochet type one where Blair visits a country in which aggression is recognised as a crime of universal jurisdiction and a judge or public prosecutor initiates a case against him) but it is certainly not clear cut.

Rumsfeld almost did get arrested in Germany a few years back on this basis and I think the case against the Bush administration for torture is much stronger (UN CAT provides for a clearer legal basis and the evidence, in the form of torture memos, is also much stronger).

The best way of dealing with the issue would be through the ICC, but I strongly suspect the UNSC will put a veto on this through a referral requirement.

@Conor – didn’t Blair’s allies use chemical weapons in Iraq? And even if your retort is that Blair himself wasn’t responsible for this (he is), or that the death of non-combatants in Iraq was accidental (debatable, at least w.r.t. places like Fallujah), why does the fact that one used chemical weapons or committed genocide intervene in the moral equivalency I suggested?

To put it in the terms you have directed at me, I’m not trivializing genocide, but I think you are trivializing the realities of war. A death is a death, whether it’s a hundred thousand Kurds, or half a million Iraqis. I doubt very much that the intentions of those responsible count for beans with the dead.

The dirty fucking hippies said the war was illegal, and we said that it had nothing to do with weapons of mass destruction. But nobody listens to the dirty fucking hippies.

Bush and Cheney had already decided to take out Saddam before 2000. Blair was just a poodle who wanted to stay on side of Murdoch and the right wing press.

‘didn’t Blair’s allies use chemical weapons in Iraq?’

Not that I am aware of. From what I read about what happened in Fallujah (I was in Afghanistan at the time and so we did not have that much access to the media) I think there is a case to be made that war crimes were committed, but I have never heard of any chemical weapon attacks. The use of chemical weapons is expressly prohibited by international humanitarian law.

Clearly there were also numerous instances of torture and extra-judicial executions committed by individual troops – perhaps acting under orders, perhaps not. Obviously these should be investigated and people prosecuted (a friend of mine is currently researching some of the cases of prisoner abuse for HRW) and if command responsibility goes all the way to the top (the torture memos showed that it did with relation to Guantanamo) then prosecutions should follow.

But I don’t think you will find any instances of US or British troops deliberately attacking purely civilian targets with the intention of inflicting as many casualties as possible; and Saddam Hussein unquestionably did this when he ordered the gassing of the Kurds in 1988.

I tell you what, when I see Bush and Blair standing trial for their “crimes”, maybe then we can all agree there is such a thing as International Law.

Just because international law hasn’t been enforced against two individuals does not mean there is no international law – which is enforced every day against individuals, organisations, and states.

Hundreds of thousands of people have died in Iraq since the invasion of 2003. The vast majority of these killings were carried out by Iraqis and not by the occupying forces.

I am not saying that you are incorrect in making this statement Conor, but how do you know this with any certainty? How can any of us know what proportion are killed by insurgents, militias, suicide bombers, US troops when nobody keeps any detailed records of civilian casualties?

Let’s accept your your argument for a minute and suppose that the overwhelming majority have been killed by their fellow Iraqis. This still dosn’t absolve our leaders for partial responsibility for these deaths. They created a post-regime situation with terrible security for ordinary Iraqis. If a British goverenment presided over a 5 year term in which violent crime doubled in the UK and there was evidence that specific government policies contributed to this then we would the governmnet partly responsible for the increase in crime even though no single member of the governmnet had actually wielded a weapon.

bubby: yes I agree with that. Some of the people who were killed were my friends and colleagues and I think that Blair et al do bear some moral cuplability for sending them to their deaths.

Dave Semple: ‘To put it in the terms you (Conor Foley) have directed at me, I’m not trivializing genocide, but I think you are trivializing the realities of war.’

Yeah, Dave, you tell him. I bet Conor thinks that the realities of war are pretty trivial, given that he when he knows nothing about the subject bar risking his life as a humanitarian aid worker in Afghanistan, Sri Lanka and Bosnia. Good job you put him right.

An southern Irishman going on about war crimes; give me bloody strength.

“So are you going to explain to me how international trade works? Is Interpol a leftist fiction? Does the European Union not in fact exist? What about all the UN peacekeeping missions in places like the Congo? What about NATO? I could go on and on.”

Trade does not require any common statutory framework in order to operate. Rules between international buyers and sellers emerge naturally and private forms of arbitration are usually put in place. See the private Visa resolution courts, for example. The Lex Mercatores was in operation long before states started trying to codify it.

The rest are just deals struck between states and, in some cases, attempts to project power beyond their own borders.

I must say though, your post apart from its reliance on the notion of international is measured and well put.

@18 Dan, I have enormous respect for what Conor says and does. But I simply don’t see how the genocide against the Kurds is any worse than the death of however many Iraqis – of whatever disposition – have died. Perhaps you or he could explain it to me.

That Saddam did terrible things to his own people is worse than our governments and armed forces doing terrible things to them? I don’t see it that way.

@14 Conor, I’m sure you’re right that the British and American troops didn’t target civilians deliberately. But deliberate or not, it happened – and they knew it would happen, both in Iraq and the other theatres. In Serbia, at least, I can remember one instance specifically where Bill Clinton flagrantly lied about the targets that were hit – claiming it was a military installation when in reality it was a hospital.

Does its deliberation, bearing in mind that the US and UK deliberately went to war and with full knowledge of the potential for collateral damage, matter all that much?

As for the use of chemical weapons, I was referring to the US use of white phosphorus. Nick Davies in his book claimed that there was evidence the US had targeted the insurgents using said white phosphorus. Several other journalists claimed that the US had killed (accidentally or not) civilians using this weapon, which was one of the agents dropped on Halabja along with the VX etc. I would be interested to know what intelligence the US military had on the presence of civilians in the areas where white phosphorus was not used as an obscurant but directly as a weapon.

I don’t think what Blair said has any bearing on the legality of war.

We went to war on the basis of evidence of WMD. That Blair said he would’ve pursued regime change (note – not necessarily used the same tools ie we may not have gone to war) without this evidence means nothing without decisive proof he made up the evidence of WMD as a pretext.

I don’t think even the staunchest opponent of the war would argue that the UK should not have been pursuing policies to weaken Sadaam and bolster the opposition ie pursue regime change

I don’t think even the staunchest opponent of the war would argue that the UK should not have been pursuing policies to weaken Sadaam and bolster the opposition ie pursue regime change…

Well, it depends. Weakening dictators isn’t a necessary good; if there’s no better alternative, in fact, it’s downright foolish.

In case you miss it, try this article in The Times today by Sir Kenneth Macdonald QC, previously Director of Public Prosecutions 2003-2008 and currently visiting prof at the LSE:
http://www.timesonline.co.uk/tol/comment/article6955241.ece

“The degree of deceit involved in our decision to go to war on Iraq becomes steadily clearer. This was a foreign policy disgrace of epic proportions and playing footsie on Sunday morning television does nothing to repair the damage. It is now very difficult to avoid the conclusion that Tony Blair engaged in an alarming subterfuge with his partner George Bush and went on to mislead and cajole the British people into a deadly war they had made perfectly clear they didn’t want, and on a basis that it’s increasingly hard to believe even he found truly credible.”

In his law practice, Sir Kenneth Macdonald QC works out of Matrix Chambers, as does Cherie (Booth) Blair QC and Professor Philippe Sands QC, author of: Lawless World – Making and Breaking Global Rules (Penguin, 2006)

Professor Sands QC was among the signatories of this letter concerning the legality of the Iraq war, sent to The Guardian on 7 March 2003, shortly before the debate in Parliament on 18/19 March, which preceded the invasion on 20 March:
http://www.guardian.co.uk/letters/story/0,3604,909275,00.html

As for the United Nations, Blair said in a keynote speech in Chicago on the Blair Doctrine in April 1999:

“If we want a world ruled by law and by international co-operation then we have to support the UN as its central pillar.”
http://www.pbs.org/newshour/bb/international/jan-june99/blair_doctrine4-23.html

@23 bensix

Well it was UK and UN policy since the first Gulf War…

http://en.m.wikipedia.org/wiki/Iraq_sanctions?wasRedirected=true

If Blair would’ve gone to war regardless of WMD he did commit a hypothetical thought war crime, but I’m not sure that’s indictable

“I don’t think even the staunchest opponent of the war would argue that the UK should not have been pursuing policies to weaken Salaam and bolster the opposition ie pursue regime change”

But we brought him to power, and then propped him up for decades, and nobody gave a dam that he was treating his people like shit. It was only when he started to not be the obedient servant of Washington that we took action.

So all this “Saddam was a bad man “ is pure bullshit. He was a bad man from day 1

“So all this ‘Saddam was a bad man’ is pure bullshit. He was a bad man from day 1″

Absolutely – and he was set up as the Iraq strong man by Washington precisely because he could be relied on to be ruthless with any opposition.

A great pic of Rumsfeld, as an appointed special envoy of President Reagan, meeting with President Saddam Hussein on 20 December 1983:
http://www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB82/

Nick: But trade does require a rules-based framework and, for all the WTO’s problems, it has developed a dispute resolution mechanism that has enabled country’s like Brazil to challenge some of the more egregious practices of the rich world.

The Geneva Conventions, international criminal law and, of course, international human rights law is all still work in progress but enforcement mechanisms are developing. Pinochet, Taylor, Milosovic and Fujimori are straws in the wind . . . .

You can take an isolationist position on this – like Albania under Enver Hoxha or Sarah Palin today – or you can accept that their are benefits to be gained from pooling sovereignty, working together to tackle problems at a global level, bring criminals to justice, etc. One of the dividing lines of politics in the 1990s was that Labour was much more multilateralist than the Tories. When Labour won the 1997 election its manfiesto included a pledge to put human rights at the heart of its foreign policy and its early achievements – like incorporation of the ECHR, the ICC statute, the anti-personnel mines treaty, the creation of DfID, etc. were part of that process.

The decision to participate in an illegal invasion of Iraq was a great leap backwards – and it would have been even if the occupation had not gone so disastrously wrong. Had Saddam Hussein actually still been in possession of WMD – and therefore in violation of UN resolutions to get rid of them – then a case could be made for the war’s legality. Up until now Blair has stuck to the line that he genuinely believed this was the case and it was all a problem of faulty intelligence. Saying that he actually supported the invasion on regime-change grounds all along is actually, therefore, quite a revelation.

On the point about ‘no one could have foreseen how bad the occupation would go wrong’, there was actually a whole heap of evidence around by 2003 to show how difficult it is to set up governance arrangements of occupied countries. All the mistakes that were made in Iraq had previously been made in Kosovo, Timor Leste and Afghanistan. You had to be wilfully stupid not to see the same things were going to happen in Iraq.

Dave – point taken on the white phosphorous – I had heard about that, but I have not read Nick Davies’s book. I will try to pick it up sometime.

Dave Semple @21,

“Dan, I have enormous respect for what Conor says and does. But I simply don’t see how the genocide against the Kurds is any worse than the death of however many Iraqis – of whatever disposition – have died. Perhaps you or he could explain it to me.”

It’s worse to kill an innocent person on purpose than it is to do it through mistake, negligence or stupidity etc. Isn’t that kind of obvious?

(of course, both are bad. But one definitely worse than the other, which kind of kills Dave Semple’s claim that there’s a moral equivalence)

As far as I can see, there are two coherent positions:

1. international law exists, and under it the invasion of Iraq (and for that matter the Chinese invasion of Tibet, Argentinian invasion of the Falklands, etc..) are legal.

2. international law doesn’t exist but should, including a rule that forbids war.

What you need to be careful of doing is confusing the two, claiming the support of existing institutions like the EU, Interpol etc. for that hypothetical law against war.

It’s pretty clear no such law exists, in either statutory or customary form. For example, General Galtieri of Argentina was, after the Falklands war, overthrown, arrested and later pardoned, on various charges of throwing people out of helicopters and the like. You won’t find any record of any serious attempt to add ‘starting a war’ to the charges laid against him.

Even ignoring civil wars and sticking to the rarer strictly international conflicts, Vietnam war, Arab-Israeli war, Iran-Iraq and Gulf Wars, etc., in none of those did anyone from either side see a jail cell on charges of ‘starting it’.

Soru: the UN Charter prohibits the use of force save in two specified circumstances – self-defence and with UN authorisation. There is also the customary – and highly contentious – norm of humanitarian intervention.

Iraq’s invasion of Kuwait in 1991 was condemned by the UN as an act of aggression. When Iraq failed to withdraw a UN authorised coalition – led by the US, but supported by many other countries took military action to expel Iraq. The Korean war was also fought under UN auspices (Russia was boycotting at the time). The UN has made extensive use of its Chapter VII powers (action to prevent threats to peace and security) to send peace-keeping soldiers to various places.

The history of individual prosecutions of leaders for the crime of agression is rarer – basically there is Nuremburg – which is one of the reasons why it is unlikely the criminal proceedings will be broought against Bush and Blair, but the examples of Taylor, Milosovic, Pinochet, et al does point to an emerging trend.

How can you have “real” international law, when there is no internationaly recognized force to enforce law? Did you plan to arrest Saddam? The UN is a paper tiger , always has been.
How can you have “real” international law, without a world wide consensus on a range of issues? With the worlds many cultures, such a consensus would be virtualy impossible.
How can the UN be credible as world governing body or a general court for the World, when dictatorships have an equal voice with democracies? The mere fact that the UN recognizes a dictatorships’ “sovreinty” is digusting on it’s face.

Have international sactions ever worked? It didn’t work so well against Saddam, or Kim Il Jong.

The West was , at least in part,resposible for Saddams regime. It’s fitting that the West had to spend “blood and treasure” to return Iraq to it’s people. It was fitting that the West had to kill the monster they created. It is sad that the Iraqi people have had to endure so much loss for the sake of Western politics, but that which was done , would NOT undo itself , it had to be undone by force of arms.

Someone HAD to do something, those who could do something , did something. Now Iraq and her people are free to hate us, if they choose. When, in the history of the world, has toppling a viscous tyrant ever been “wrong”? It may not have been legal but it was right.

Soru: the UN Charter prohibits the use of force save in two specified circumstances – self-defence and with UN authorisation.

And it also says (article 39) that the judge and jury on such matters is the UNSC, which did rule against Saddam in the first Gulf war, but didn’t rule against Bush in the second.

You are free to lend your support either to existing international law and institutions, or the proposed international law drafted by Pinter, Chomsky et al.

I just don’t think you will get far by confusing the two. The UN charter was authorised by Stalin and Churchill, and I very much doubt either of them intended it to limit their right to invade such countries as they saw fit.

There was ample evidence that any invasion of Iraq would lead to ethnic conflict. A main factor in the coalition forces not occupying Iraq in 1991 was because the Sunni countries did not want a a civil war with the Shias and Turkey did not want the formation of a Kurdish State. One aspect whch the FCO seem reluctant to state is the quality of their information on Iraq post 1991. When the Shia rise up in 1991 , Saddam killed most of the leaders. By 2003 did the West have any useful humint in Iraq?

A major problem has been that with the fall of communism, very few people have appreciated the the resurgence of conflicts based upon ethnic and religious divides. One historian did say that if one wanted to appeciate the potential future of Europe, look at the ethnic boundaries pre -1914.

I think part of the problem is that by the early 90s, most of diplomats, politicians ,soldiers and historians who had experienced ethnic conflicts ( served in the Balkans in WW2 ) had retired.

Bob B. Saddam was given support by the Sunni Arab countries because Khomeini had just come to power and had threatened them. 15% of Saudi is Shia and they live mainly on the oil fields close to Kuwait: 25% of Kuwait is Shia and they caused conflict in the early 80s: 60% of Bahrain is Shia and there is alarge Shia population in Dubai . In addition, Iran has claimed the sea close Qatar ( and part of her natural gas fields) and islands in the Gulf belonging to the UEA and therefore part of their oilfields.

Saddan portrayed himself as the protector of Sunni Arabs against the Shia Iranians .

To say that the [Kosovo] intervention was straight forwardly illegal, though, is far too simplistic.

I think you mean inconvenient, Conor.

You either believe in the absolute sanctity of international law or you do not. I do not, which is why I have no problem conceding that the Kosovo intervention was illegal although I supported it then and do so now. Which is not to say I champion throwing out the baby with the bathwater; I don’t advocate the dismantling of the UN because it occasionally betrays the principles upon which it was founded, but I do recognise that there are more morally repugnant places one can find oneself than the wrong side of international law.

The intervention took place without UN sanction but it was legally justified with reference to the doctrine of humanitarian intervention (that is armed intervention to stop an ongoing act of mass killing).

Oh come on. You spent an entire paragraph telling readers why selective disregard for international law is a ‘bad thing’ yet here you are claiming Kosovo was legal because it satisfies your subjective minimum criteria for justification on doctrine of humanitarian intervention grounds, a doctrine which as you say remains uncodified and therefore has no universally agreed definition. This is the equivalent of defending an act as ‘legal’ in English law because it is covered by a bill having its first reading in Parliament.

Tell me, Conor, who determines when the doctrine of humanitarian intervention can be invoked if not the UN? Any old coalition of the willing? NATO, as and when they feel like it? Countries whose names begin with the letter ‘B’?

Of course, you won’t acknowledge this legal fudge on Kosovo as it better serves your interest if the Iraq war – unpopular and unnecessary in your view – cannot be bracketed with Kosovo – well-supported and, notwithstanding your reservations, enjoying greater global legitimacy.

If the Kosovo cat escapes the bag and the great and good who found themselves appalled at Bush/Blair war-mongering circa March 2003 suddenly learned that their cause celebre at the end of the millennium was itself illegal, you’d be in something of a fix, would you not? Wherefore your entreaties to avoid selective disregard for international law then, given the scant regard your average punter would display for a concept that proscribed action to prevent Serbian aggression against Kosovars?

(The joke is that in the case of Iraq there is at least an argument to be had about whether earlier UNSCrs endorsing the use of force were revived following Iraq’s failure to seize the “final opportunity” to comply afforded in 1441. In Kosovo, there were no current UNSCrs underwriting war or prior UNSCrs to revivie – just your own interpretation of when the doctrine of humanitarian intervention can be invoked. Weak.)

As one of Big Brother’s slogans went in Orwell’s 1984: Ignorance is strength

For a briefing on why maintaining international law is essential, especially with globalisation, try Philippe Sands QC on: International Law: alive and kicking:
http://www.guardian.co.uk/politics/2005/may/17/iraq.law

Or the entry on the scope of international law in Wikipedia:
http://en.wikipedia.org/wiki/International_law

Have international sactions ever worked? It didn’t work so well against Saddam, or Kim Il Jong.

Bloody hell. They *very very demonstrably worked really well* against Saddam – that’s why he destroyed all of his nuclear, chemical and biological weapons programmes and wasn’t able to commit any more genocides or wars of aggression. Whether the suffering they caused to the Iraqi people was worth those benefits is another question, but citing Iraq as a case where sanctions failed is like citing Las Vegas as a place where it’s cold and rainy.

When, in the history of the world, has toppling a viscous tyrant ever been “wrong”?

That’s a sticky one.

When, in the history of the world, has toppling a viscous tyrant ever been “wrong”? It may not have been legal but it was right.

A tyrant being toppled isn’t necessarily a good thing, or, indeed, a good act. If there’s no better alternative – practically speaking – and the deposition leads to greater suffering than existed before, there’s no utilitarian good. If the deposition took place in the knowledge that there was no better alternative, with scant concern for the question, or with scant concern for the people in general (ulterior motives, say) there’s a damn good case that it was “wrong” (i.e. immoral).

So if, as many believe, the Iraq invasion’s led to greater suffering, and was carried out with insufficient concern for this possibility, it’s difficult to argue that it wasn’t extremely immoral.

As for your question, here’s an example that no one will disagree with: Hitler’s (admittedly unsuccessful) invasion of Soviet Russia. That was an attempt to topple one of the most brutal tyrants that’s ever existed, but I think you’ll agree, without me even having to argue the point, that it was still “wrong“.

“But I don’t think you will find any instances of US or British troops deliberately attacking purely civilian targets with the intention of inflicting as many casualties as possible; and Saddam Hussein unquestionably did this when he ordered the gassing of the Kurds in 1988″

Throughout the late 90s and early 2000 (before 9/11) the US and UK was accused of bombing Iraq’s water facilities.

Brownie: Your starting point that the doctrine of humanitarian intervention does not exist is contradicted by virtually every legal scholar that I have ever read. It is part of customary law and state practice and there are dozens of instances of it being invoked by states in the past and those interventions not being condemned as illegal.

The ICJ had a chance to rule that the Kosovo intervention was illegal in a case brought by Serbia, they refused to do so. As I am sure you know full well, that has legal significance. The UN Security Council had a chance to vote on a resolution condemning the intervention, it was voted down by a simple majority.

It is also wrong to say that the UNSC would ever need to invoke the doctrine of ‘humanitarian intervention’ to justify an intervention. As you must know it merely needs to use its Chapter VII powers which contain no such language.

Finally, you are completely wrong in stating that there were not UNSC resolutions threatening ‘serious consequences’ over Serbia’s behaviour in Kosovo. Have a look at the wording of UNSC resolution 1199 – which was adopted under Chapter VII on 23 September 1998 – and get back to me.

I like you Brownie. Unlike some of your fellow contributors at Harry’s Place you do at least get the point that war is a serious business in which real people get killed and injured, but you are wrong on this point.

“Your starting point that the doctrine of humanitarian intervention does not exist is contradicted by virtually every legal scholar that I have ever read.”

Absolutely. In September 1939, Nazi Germany invaded Poland supposedly to protect ethnic Germans living in Danzig, then part of Poland’s sovereign territory.

That is why UN sanction is needed to distinguish between valid and and invalid claims to exercise the doctrine of humanitarian intervention.

The case on Fallujah runs like this: First, in 2004, a declaration of martial law stopped any males between 15 and 55 leaving Fallujah. Second, US troops shelled the town with a mix of high explosive and white phosphorous shells (in whar artillery men called a “Shake and Bake” operation). So it is something like a medieval siege, and does seem to be a deliberate attempt to attack a civilian centre. The US have since claimed that their use of White Phosphorous is not covered by the CW convention, but they have always been a bit slippery on this: At the time they denied using it as a weapon, and instead claimed it was used to “illuminate” targets (which was a transparent lie as WP shells will not illuminate anything, as they emit a thick white choking cloud). I spoke to the US official who put out this story, and he very embarrasedly admitted it was wrong and changed it.

there are other obvious cases of deliberately targeting civilians, although I don’t think you can easily say this was “with the intention of inflicting as many casualties as possible” , although that is setting the bar somewhat high . The bombing of Serbian TV during the Kosovo war springs to mind.

Solomon Hughes: yes, I picked my words carefully. As you may know the Human Rights Centre at the University of Essex (of which I am a visiting fellow) tried to take a case to the European Court of Human Rights over the bombing of the TV centre but lost on admissibility.

Brownie: ‘You either believe in the absolute sanctity of international law or you do not.’

One of the problems with debating this issue is that some people think that international law must a) be exactly the same as national law or b) does not exist. But, of course, neither of these statements are true and nor is the UN a World Government capable of imposing its will on member states.

Article 38 of the Statute of the International Court of Justice lists the means for determining the rules of international law as: international conventions establishing rules, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations and judicial decisions and the teaching of eminent publicists. General international law (customary international law) consists of norms that emanate from various combinations of these sources.

With the greatest respect, I don’t think that you fully grasp this point.

International law has emerged over time as a way of states agreeing to pool sovereignty in certain areas and cooperate together under a common framework of rules. Some states may sometimes find the rules inconvenient and either withdraw from certain international bodies or seek to evade the rules or cheat (eg Iran’s current attempts to get a nuclear weapon). This can lead to a ‘prisoner’s dilemma’ situation or ‘free-loading’ where the states that agree to abide by the rules suffer because the cheaters get an unfair advantage. That is a big issue in international trade law and the phenomenon of ‘social dumping’, but appplies to a whole range of other issues as well. When big states simply declare that the rules don’t apply to them this also weakens the entire system (eg Kyoto, ICC, etc.) That is why the illegality of the invasion of Iraq is one – although only one – of the reasons why I think it was wrong.

The UN Charter is one – but only one – source of international law that principally regulates state relations in the conduct of war and peace. The Charter is basically intended to prevent future war and so it prohibits the use of force save in two specified conditions: self-defence (Article 51) and where it has been authorised by the UNSC (Chapter VII). The Charter does, however, also contain numerous references to human rights and these have been elaborated in greater detail by numerous treaties. The ICJ has also made reference to human rights in various rulings including the issue of when one state can interfere in the affairs of another to protect human rights.

As Bob B states above, states frequently cite the doctrine of ‘humanitarian intervention’ when invading other countries. Hitler did it in Poland and, more recently, Russia cited in Georgia, so the test has to be more than just what the government of one country says. There is some guidance from the ICJ decision on Nicaragua v United States. There are also a whole raft of decisions by the International Criminal Tribunal for the Former Yugoslavia which touch on this and the ICJ decision on Srebrenica. The doctrine of humanitarian intervention can be drawn from this array of sources. It has also been extensively debated in relation to the R2P doctrine – which has been approved by both the UN General Assembly and Security Council.

The British government has twice relied on the doctrine of humanitarian intervention in recent times: first in relation to the creation of the safe have in 1991 and second over Kosovo in 1999. These were legal opinions which the government publicly advanced and defended. If you read the Attorney General’s private memo to Blair and the Chiefs of Staff of 7 March 2003 you will also see that he says that there are three legal grounds on which the use of force can be justified: ‘a) self-defence (which may include collective self-defence) b) exceptionally to avert an overwhelming humanitarian catastrophe and c) authorisation of the UN Security Council acting under Chapter VII of the UN Charter’

So this is hardly ‘my subjective definition’ is it Brownie?

Well I must say this thread has been an education for me and I am grateful to Conor and others for their contribution.

The bottom line as I see it is that the legal process is far from straightforward and when linked to a lack of appetite for prosecution (in certain quarters) it is hard to imagine Blair being taken down the same road as Milosevic even though the ex-PM may increasingly come to be regarded as a latter day Waldheim?
http://hague.bard.edu/

Conor – you think Kosovo was justified by “b) exceptionally to avert an overwhelming humanitarian catastrophe ” then ?

What’s your comment then on this from wikipedia :

“The United Nations Charter does not allow military interventions in other sovereign countries with few exceptions which in general need to be decided upon by the United Nations Security Council. The issue was brought before the UN Security Council by Russia, in a draft resolution which — inter alia — would affirm “that such unilateral use of force constitutes a flagrant violation of the United Nations Charter”. China, Namibia and Russia voted for the resolution, the other members against, thus it failed to pass.[49]

On April 29, 1999 Yugoslavia filed a complaint at the International Court of Justice (ICJ) at The Hague against ten NATO member countries (Belgium, Germany, France, Great Britain, Italy, Canada, The Netherlands, Portugal, Spain, and the USA). The Court did not decide upon the case because Yugoslavia was not a member of the UN during the war.”

http://en.wikipedia.org/wiki/Kosovo_War#Criticism_of_the_case_for_war

This seems to be saying you need a resolution from the UNSC to agree on war because of humanitarian intervention which didn’t happen in this case. Also the reason given here for the ICJ rejecting the Serbian case puts a different view on the legal status from what you said above.

MMN: the issue with Kosovo was whether it was indeed justified exceptionally ‘to avert an overwhelming humanitarian catastrophe’. I spend a chapter in my last book describing what actually happened in Kosovo in the run-up to and after the intervention. There is another chapter on humanitarian interventions and another on the Responsibility to Protect which discuss the legal basis more thoroughly.

I am with Oliver Kamm on his opinion of Wikipedia as authoritative source material. I don’t see anything wrong with those two sentences though. Russia did bring a resolution over Kosovo which was voted down and so it is safe to say that a simple majority on the UNSC did not regard the intervention as a violation of international law (which contradicts Brownie’s argument). The reason why there was no UNSC resolution authorising the action is that the Russians had indicated they would veto it and so it was felt to be legally stronger not to press the issue. The reason that there was not a UNSC resolution authorising the invasion of Iraq was because Britain and the US knew that they did not have a simple majority in favour of it (because Mexico and Chile had indicated they would vote against). Blair’s subsequent spinning of this as being about a French threatened veto has long been shown to be untrue (a lie in fact).

On the second paragraph, yes the ICJ threw the case out on procedural grounds. They also declined to hear the case under Article 9 of the Genocide Convention (which Serbia was a party to). So, again, when Brownie says the ‘Kosovo intervention was illegal’ what is his source? A court was given the opportunity to consider the case, and decided not to make such a finding.

I would dearly love a court to be given a similar opportunity to decide on the legality of the invasion of Iraq, but, for the reasons described above, I don’t think that it is very likely to happen. An alternative woould be the Chilcott Inquiry to address this, but it has no legal standing.

Brownie: Your starting point that the doctrine of humanitarian intervention does not exist is contradicted by virtually every legal scholar that I have ever read. It is part of customary law and state practice and there are dozens of instances of it being invoked by states in the past and those interventions not being condemned as illegal.

Conor, I never said that the doctrine of humanitarian intervention doesn’t exist because I don’t believe that. I’m firmly in the camp that would dearly love to see this doctrine codified and formally adopted as international law as we currently understand the term with the UN as the arbiter of when and where it can be invoked. My contention is not the states avoid invoking this doctrine to justify different acts, but that there is no agreement whence authority to so invoke derives. So country A decides to invoke the doctrine to justify act X, but who determines the legal legitimacy of such action absent UNSCrs? The answer is no-one.

The ICJ had a chance to rule that the Kosovo intervention was illegal in a case brought by Serbia, they refused to do so.

That’s a little bit naughty, Conor. They “refused to do so” not because they determined the intervention was legal, but because Serbia was not a UN member at the time of conflict and therefore the court refused to hear the case. The ICJ was entirely silent on the question of whether the intervention was legal or not.

As I am sure you know full well, that has legal significance.

Not in this case given the reason supplied above.

The UN Security Council had a chance to vote on a resolution condemning the intervention, it was voted down by a simple majority.

Since when does legality automatically flow because resolutions criticising action are blocked? This isn’t how it works, Conor. All that happened here was NATO decided to act and then many of those same NATO countries and their friends voted down a Russian-sponsored resolution in the UNSC. I really don’t think you you want to equate this with legality. You’re effectively giving every permanent member of the UNSC the greenlight to invoke the doctrine of humanitarian intervention on the most specious grounds as they’ll always be able to veto any condemnatory motion at the UNSC. You want to go down that route?

It is also wrong to say that the UNSC would ever need to invoke the doctrine of ‘humanitarian intervention’ to justify an intervention. As you must know it merely needs to use its Chapter VII powers which contain no such language.

You’ve misunderstood my point here. I’m absolutely not saying the UNSC needs to invoke the doctrine; I’m saying that without some agreed authority the use of the doctrine defence is entirely arbitrary. For example, from where did NATO derive its authority to invoke the doctrine to justify its intervention in Kosovo? You and I might agree that the situation pertaining in Kosovo in 1999 warranted such an invocation, but who are we? Since when was NATO granted special dispensation in international law to determine when and where the doctrine can be invoked? There was no judgment handed down by the ICJ that its use in Kosovo was justified, nor any UNSCr endorsing its use. NATO simply decided and then did. This is made legal how, exactly?

Finally, you are completely wrong in stating that there were not UNSC resolutions threatening ’serious consequences’ over Serbia’s behaviour in Kosovo. Have a look at the wording of UNSC resolution 1199 – which was adopted under Chapter VII on 23 September 1998 – and get back to me.

I’ve re-read my comment and I’m not sure how you’ve come to the conclusion that I stated what you claim I stated. I compared the legal case made for Iraq (which is that earlier UNSCrs authorising the use of military force were revived once Iraq’s continued non-compliance had been established), with the case made for Kosovo. I think it’s fair to say that similar arguments are not made to justify the war in Kosovo notwithstanding 1199, rather people tend to do as you do (and indeed as I have done) and invoke the doctrine of humanitarian intervention defence and the fact the action wasn’t explicitly called “illegal” by the UN.

To be clear, it doesn’t much matter to me whether either or both conflicts were illegal. The point I’m making is that it’s entirely hypocritical to claim the sanctity of international law is absolute when discussing Iraq, but then ditch that argument like a stone when we talk about Kosovo and/or perform intellectual gymnastics in a determined effort to demonstrate a veneer of legal legitimacy that doesn’t exist.

I like you too, by the way.

Russia did bring a resolution over Kosovo which was voted down and so it is safe to say that a simple majority on the UNSC did not regard the intervention as a violation of international law (which contradicts Brownie’s argument).

Huh? Contradict’s how? I’m asking from where NATO devied its authority to invoke the doctrine of humanitarian intervention? The fact that a simple majority of UNSC members refused to agree with a Russian motion criticising the NATO action does not, cannot, never could confer legal legitimacy. You most certainly would not have allowed such an argument to pass unchallenged had the UK second resoultion on Iraq achieved its simple majority, so you have a nerve deploying that argument with reference to Kosovo.

s Bob B states above, states frequently cite the doctrine of ‘humanitarian intervention’ when invading other countries. Hitler did it in Poland and, more recently, Russia cited in Georgia, so the test has to be more than just what the government of one country says. There is some guidance from the ICJ decision on Nicaragua v United States. There are also a whole raft of decisions by the International Criminal Tribunal for the Former Yugoslavia which touch on this and the ICJ decision on Srebrenica. The doctrine of humanitarian intervention can be drawn from this array of sources. It has also been extensively debated in relation to the R2P doctrine – which has been approved by both the UN General Assembly and Security Council.

Yes, yes, and when we’ve drawn on all these sources and countries A, B, and C claim the invocation of the doctrine to justify their action is correct, and countries X, Y and Z say otherwise, and the UNSC is deadlocked because at least some of these countries are permanent members and can veto any motion, and the ICJ is silent (in other words, when the situation is as it was in Kosovo), who gets to decide?

There was no legal authority prepared or able to endorse the action in Kosovo. The best you can come up with is that attemtps to get the action declared illegal at the UN were blocked by the same NATO countries responsible for the action, and that the ICJ refused to hear a case brought by Serbia for the reasons already cited. These facts nethier individually nor collectively come close to conferring legal legitimacy on the NATO action in Kosovo.

My contention that the war in Kosovo was illegal is based on the fact that no authority capable of conferring legal legitimacy did so; you object to this because no legal authority determined that it was illegal. Surely the legal standard for invocation of the doctrine must be higher than a failure of the international community to agree that such an invocation was explicitly illegal? That way lies trouble for reasons too obvious to mention.

So, again, when Brownie says the ‘Kosovo intervention was illegal’ what is his source?

In short, it’s that no legal authority empowered to confer legality did so. If one is genuinely concerned about the rule of international law (as I know you are), it strikes me this is a better test than “no legal authority empowered to determine illegality did so”. This assumes a default position of “legal” whenever and wherever a nation state decides to invoke the doctrine. I can’t believe you want that?

‘To be clear, it doesn’t much matter to me whether either or both conflicts were illegal.’

On that point we can at least agree. But it does to me – for the reasons I have given above. It also does to the British Government and to the Chilcott Inquiry and the British media and a large number of politicians and pundits, legal scholars, diplomats, soldiers, etc. which is why I wrote the post.

I am glad that we also agree that the doctrine of humanitarian intervention should be better codified (perhaps as a defence to the charge of aggression) although it is difficult to square this with your other view that ‘it doesn’t matter’.

The rest of what you say is basically wrong though. When you say that ‘So country A decides to invoke the doctrine to justify act X, but who determines the legal legitimacy of such action absent UNSCrs?’ Well the ICJ can do this. Have you read its findings on DRC v. Uganda in 2005 where it found Uganda had committed an act of aggression?

If the ICC incorporates this crime into its statute next year it will also be able to investigate cases. There is – as I mentioned above – already some jurisprudence from ICTY and there may be more coming out of the trial of Charles Taylor over his sponsorship of terror in Sierra Leone. If the signatories of the Euston Manifesto who called for a ‘reform of international law’ had shown any interest in or understanding of these arguments it would have been an interesting initiative – rather than just turning into another piece of Trot fish-and-chip paper.

On your comment on Kosovo and the ICJ – well you are the one saying that NATO’s actions were indisputably illegal so why did the ICJ not find this?

You are also glossing over why the ICJ refused to hear the complaint. Serbia claimed to be the successor state to Yugoslavia, but other states refused to recognise this claim mainly as a way of punishing and isolating the Serbian government due its role in the Bosnian conflict (which the ICJ has since ruled they basically sponsored). There was a huge amount of politics to that decision and so the ICJ refusal to hear Serbia’s claim was not some technical issue, but a direct snub to the Milosovic regime. They threw the case out at the very first stage on admissibility grounds. This was a legal triumph for NATO’s lawyers and yet you are citing it as backing your (and the Serbian government’s) position!

On the UNSC resolutions and Kosovo, well NATO threatened airstrikes unless the Serbs accepted the OSCE mission that was the clearly understood meaning of 1199 as everyone who followed it knew at the time. The OSCE KVM were like the weapons inspectors in Iraq and their expulsion that December (in disputed circumstances) became the trigger for war. That might have been avoided if an agreement had been reached at Rambouillet in February 1999 but the failure of this round of diplomacy (again in disputed circumstances) was what led to the start of the bombing campaign.

But – here is the difference with Iraq – NATO did not need to argue that UNSC 1199 was the justification for airstrikes, despite the fact that it was issued under Chapter VII and similar resolutions issued during the Bosnian conflict had led to airstrikes; they said that they were intervening to prevent an ongoing act of genocide or mass murder. That is the reason why they so massively inflated the civilian death toll before the start of hostilities – it was the legal justification that they were using for the resort to the use of force.

Blair would, I am sure, dearly liked to have used a similar justification for Iraq – the humanitarian intervention doctrine – but the legal advice that he got was that this would not stand up. So instead he used this incredibly convoluted argument about a resolution passed in 2002 ‘reviving’ ones passed in entirely different circumstances in 1991 and providing justification for a military attack 12 years later; even though the evidence that Iraq was in fact in breach was always very flaky and turned out to be completely wrong!

As the Attorney General said at the time ‘the UK has consistently taken the view . . . that, as the cease-fire conditions were set out by the Security Council in Resolution 687, it is for the Security Council to assess whether any such breach of those obligations has occurred.’

That was the private legal advice that Blair received 11 days before he sent British troops to war. I think that you have got a basic duty to your troops to give them not just proper weapons, kit and supplies, but also an honest assessment of whether their commanders are leaving themselves open to prosecution at some point in the future for following your orders.

On legality and agression – to be clear.

If the UNSC rules that something is an act of agression then it is. The UNSC is the highest body in the UN – which is a body charged with preserving the peace – and so when it ruled – for example – that Iraq’s invasion of Kuwait was an act of aggression that was sufficient to make it illegal and that was why the UN authorised the coaltion’s military action to expel Kuwait from Iraq (but not to go into Iraq and overthrow Saddam Hussein – as you surely know).

If the ICJ rules something is illegal then it also is. Read their judgments on Nicaragua v US, DRC v Uganda, Bosnia v Serbia and (if you can bear it) on Israel’s security barrier.

If another international legal body (eg ICTY, SCSL or the ICC) were to rule that something is a criminal offence then it is.

If a domestic court rules something is illegal – perhaps using laws of universal jurisdcition – than it is.

In all of the above cases there are consequences to such rulings. Sometimes people get put in prison, sometimes country’s are forced to pay damages, sometimes the UN authorises military action against countries.

If none of the above has happened then all we can say is that ‘there is a prime facie case that X is illegal’ because Y body held Z action to be illegal and that was similar to the case that we are discussing here. Or in A case B did not find that C was illegal and that is a bit like this issue.

You would also need to look at the totality of the relevant bits of international law – whereas you just keep coming back to the UN Charter. To use your own analogy, that is like basing your view on the current British criminal justice code on one law passed in 1948 and ignoring all the statutory legislation and case-law since.

One final point – before I delve back in criminal justice reform in Brazil – when you say

‘You most certainly would not have allowed such an argument to pass unchallenged had the UK second resoultion on Iraq achieved its simple majority, so you have a nerve deploying that argument with reference to Kosovo.’

But, of course I would!

I don’t think UN endorsement of the invasion of Iraq would have made much practical difference to the mess that was made of running the country (although read Samantha Power’s biography of Sergio de Mello for some of the detail of what went wrong in those first few months) but it certainly would have completely changed the debate about its legality.

The rest of what you say is basically wrong though. When you say that ‘So country A decides to invoke the doctrine to justify act X, but who determines the legal legitimacy of such action absent UNSCrs?’ Well the ICJ can do this. Have you read its findings on DRC v. Uganda in 2005 where it found Uganda had committed an act of aggression?

Conor, elsewhere in my comment I ask whence the authority derives absent UNSCrs and when the ICJ is silent. The point is that in the case of Kosovo, legal legitmacy was not argued for on the basis of extant UNSCRs and as for the ICJ, well, they gave no view. So I ask again: from which body empowered to confer legal legitimacy did NATO derive its authority to invoke the doctrine of humanitarian intervention to justify its actions in Kosovo? Of course, you and I both know the answer to that already.

On your comment on Kosovo and the ICJ – well you are the one saying that NATO’s actions were indisputably illegal so why did the ICJ not find this?

The ICJ refused to hear the case brought by Serbia. The fact is that the ICJ was silent on the il/legality of the war. This is indisputable. I’m taking the position that for a war to enjoy legal legitimacy, an authority empowered to confer such legitimacy ought to have done so, and that an absence of a declaration of illegality does not equate to ‘legal’. I think most people would agree that this is the way it should work. I’d venture that declaring an act illegal because it didn’t enjoy express legality from those bodies empowered to confer legality, is an infinitely more defensible postion than maintaining an act is legal because it hasn’t been declared illegal by the relevant authorities. You’ve just rendered war legal by default, otherwise.

You are also glossing over why the ICJ refused to hear the complaint. Serbia claimed to be the successor state to Yugoslavia, but other states refused to recognise this claim mainly as a way of punishing and isolating the Serbian government due its role in the Bosnian conflict (which the ICJ has since ruled they basically sponsored). There was a huge amount of politics to that decision and so the ICJ refusal to hear Serbia’s claim was not some technical issue, but a direct snub to the Milosovic regime.

It may have been the latter but it was definitely the former. Serbia was not a UN member and therefore the ICJ couldn’t hear the case. End of.

They threw the case out at the very first stage on admissibility grounds. This was a legal triumph for NATO’s lawyers and yet you are citing it as backing your (and the Serbian government’s) position!

“A legal triumph” only in the sense that a body that could have declared the war illegal was incapable of even taking the case into its consideration. Again, since when did such a state of affairs confer legitimacy? The ICJ was effectively saying, “We can’t comment on the question of legality.” I’m asking (rhetorically) that if neither the UN nor the ICJ declared the war legal, then who did? Clearly, no body with the requisite authority ever did.

Blair would, I am sure, dearly liked to have used a similar justification for Iraq – the humanitarian intervention doctrine – but the legal advice that he got was that this would not stand up. So instead he used this incredibly convoluted argument about a resolution passed in 2002 ‘reviving’ ones passed in entirely different circumstances in 1991 and providing justification for a military attack 12 years later; even though the evidence that Iraq was in fact in breach was always very flaky and turned out to be completely wrong!

Leaving aside the question of how convoluted was Blair’s argument as opposed to one that claims legitimacy for a war on the basis that it has never been formerly declared illegal, your understanding of constituted a breach of Iraq’s cease-fiire obligations as codifed in various UNSCrs is manifestly wrong. Iraq didn’t have to be in possession of a single vial of anthrax to be in non-compliance and contrary to what you say, the UNSC found Iraq to be in continued breach when it unanimously passed res.1441. There was no dispute about Iraq’s state of non-compliance, just a disagreement about how to address this.

As the Attorney General said at the time ‘the UK has consistently taken the view . . . that, as the cease-fire conditions were set out by the Security Council in Resolution 687, it is for the Security Council to assess whether any such breach of those obligations has occurred.’

Indeed 1441 itself talked of the need for the UNSC to reconvene in the event Iraq continued its non-compliance, and notwithstanding Blix’s infamous “progress on process” even he could not and never did claim Iraq was fully compliant. What 1441 did not say is that following a reconvening of the UNSC a further resolution would be required before military action could follow.

But regardless, and as you already know, I’m not too intersted in whether Iraq can be shown to be legal or illegal. But I do object to half-arsed attempts to demonstrate Kosovo enjoyed greater legal legitimacy when it clearly did not. The simple question you cannot answer is that if it did, from where did that legitimacy come? Not from the UN. Not from the ICJ.

The truth is that it was magic’ed out of thin air by NATO members, and a bloody good thing too.

Quoting from the original article:

if you selectively disregard international law than you weaken its framework and that makes the world a more dangerous place.

I think that need to be rephrased as:

If you selectively misrepresent international law, inventing doctrines on an ad-hoc basis to justify those decisions that worked out and condemn those that didn’t, then that will weaken it’s framework and make the world a more dangerous place..

If you want a law to have credibility, you need it to be debated in oak-panelled chambers, acclaimed by cheering crowds of all nations, and interpreted by old guys in wigs and robes. You can’t juat make it up on a whim in a blog post.

Brownie: read my posts 40 and 43 again.

‘Your starting point that the doctrine of humanitarian intervention does not exist is contradicted by virtually every legal scholar that I have ever read. It is part of customary law and state practice and there are dozens of instances of it being invoked by states in the past and those interventions not being condemned as illegal.’

‘Article 38 of the Statute of the International Court of Justice lists the means for determining the rules of international law as: international conventions establishing rules, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations and judicial decisions and the teaching of eminent publicists. General international law (customary international law) consists of norms that emanate from various combinations of these sources.’

Now, again:

The doctrine of humanitarian intervention – to which the Attorney General referred to in his memo – derives from those variety of sources. The British government has twice relied on in recent years as the basis for legal action. The whole point of it is that it does not rely on authorisation from the UNSC. What it relies on is the existence of a genuine humanitarian crisis and then a bunch of things related to proportionality, chances of success, etc. I am sure that you are very familiar with its content – even if you had not previously realised the source – since this is what Blair basically read out when he gave his Chicago speech in 1999. If you will remember he did not specify in that speech that military action needed to be authorised by the UNSC to be lawful – if it was done on humanitarian grounds. The logic of his argument was fairly clear up to that point, it was whn he tried to apply it to Iraq that he came unstuck (because there was not an ongoing humanitarian crisis at the time).

The logic of your argument about the ICJ decision is also back to front. The final judgment of the court was delivered on 15 December 2004. Serbia was a member of the UN by this stage and the ICJ most certainly could have heard the case. Serbia was also a party to the Genocide Convention, which also gave it standing. Courts can interpret their own rules far more flexibly than you give them credit for Brownie – particularly on an issue like this where there was no binding precedent. Had the ICJ wished to rule that NATO’s actions were unlawful it could have done so . Instead the court accepted the arguments of the lawyers put forward by the NATO country lawyers that there was no case to answer.

So, (again), the doctrine of humanitarian intervention permits countries to take unilateral military action in cases of grave humanitarian crises in order to prevent situations of mass killing. The basis of this doctine can be found in ‘international conventions establishing rules, international custom as evidence of a general practice accepted as law, the general principles of law recognised by civilised nations and judicial decisions and the teaching of eminent publicists’ which form the established basis of international law. While it is not explicitly contained within the UN Charter, this is only one of the basis of international law. States have invoked this doctrine in recent years as the basis for military action and neither the highest political body within the UN nor the UN’s Court have condemned them for doing so or ruled that such actions were illegal

Had the ICJ wished to rule that NATO’s actions were unlawful it could have done so . Instead the court accepted the arguments of the lawyers put forward by the NATO country lawyers that there was no case to answer.

Really? Early you wrote:

They threw the case out at the very first stage on admissibility grounds.

And this is very much my understnading and, for what it’s worth, the assessment as per Wikipedia. If you have a source that supports your claim here that the ICJ “accepted the arguments of lawyers put forward by the NATO countries that there was no case to answer”, assuming you mean this differently to “no case to answer because Serbia was not a UN member when the case was first brought”, then I’d be interested to read them.

My contention is that the ICJ was silent on legality/illegality of the war. Do you dispute this or don’t you?

As for the rest, we’re getting nowhere fast. I make absolutely no claims that UNSCrs are needed to legitimise invocation of the doctrine. I’m saying that absent UNSCrs and absent judgment from the ICJ, we have a legal bun fight and nothing more. One country’s “genuine humanitarian crisis” is another’s “transparently self-serving justification for war”. The UN won’t make a determination either way as allies of the first country vote down any resolution proposed by those of the second (pace what happened in the case of Kosovo and Russia’s attempts at the UN to have the war declared illegal).

So we’re left with competing theories and interpretations. Which serves the rule of international law how, exactly? You don’t think Russia and China can cite reputable legal sources who would dispute any case you or I or anyone else would care to make that claimed a legitimate invocation of the doctrine by NATO in Kosovo? You think that the next time a country cites the doctrine to justify its actions there won’t be dissenting voices in the UN? And when this happens, you aren’t honestly going to claim that said war is still legal because the UNSC couldn’t agree the action was de facto illegal?

Like you, I want to see the doctrine properly codified and ratified by treaty. Until then, its random invocation remains nothing more than a subjective interpretation of events on the ground. The logic of your current position is that NATO is effectively insultated against any claims its future actions could be deemed illegal as it can always cite the doctrine and its presence at the UNSC precludes any possiblity that body can hand down an unfavourable verdict. A self-fulfilling prophecy indeed.

A stalwart defender of the primacy of international law should not find himself in such a position, but you do.

Brownie: Again, I will refer you back to any amount of legal scholarly work, international human rights treaties, court judgments and state practice which describe the doctrine of humanitarian intervention. Until you can show me a single judgment, ruling, treaty or legal opinion that says a military intervention to prevent an ongoing act of genocide or mass killing is unquestionably illegal – even if it lacked UNSC authorisation – then I don’t see what case you are trying to make.

Of course there is a problem with states claiming the humanitarian intervention doctrine for false purposes, but the same point applies to claims of self-defence. This is explicitly recognised in the UN Charter, but is also frequently relied upon by states as a justification for military action. What is to stop them doing this? Well up until the ICJ or the UNSC, or some other body definitively states that they were not in fact acting in self-defence, but were in fact committing an act of aggression then nothing. However, there are numerous such judgments and findings by the ICJ, UNSC and other international bodies, which have rejected such claims. Read Nicaragua v US or DRC v Uganda, for example.

Can you give me even a single legal cite which supports your apparent position that a state which used the doctrine of humanitarian intervention as justification for a military intervention in a genuine humanitarian crises and which fitted the generally accepted criteria for what an intervention should be? Alternatively can you cite me a single scholar of international law who would argue that it is undisputably illegal for country A to intervene in country B if this was the only way to prevent an act of genocide or mass killing and such an intervention had a reasonable chance of making the situation better?

If not then I am not sure what your point is (except that you think that international law is more restrictive on this subject than is actually the case) and I think we can agree that this argument has run its course.

Thanks for conducting it in a reasonable way though.

Conor, I’m not certain that we actually disagree on that much. Let me distill my problem to a couple of sentences:

It’s perfectly possible, logically and morally, to have supported the war in Kosovo and oppsoed the invasion of Iraq. But I maintain it is highly hypocritical to do so and simultaneously make great play of the supposed illegality of the latter. I say this because the very best one can say of Kosovo is that it enjoys dubious legal status. I don’t mean “dubious” in that I would disagree with the invocation of the doctrine of humanitarian intervention by NATO, but in that some farily significant world players would contest such an invocation, in that the UNSC never endorsed the action and in that the ICJ was silent on its legality.

I certainly wouldn’t accept that given this backdrop the Kosovo intervention enjoys some form of default legal status, but I don’t have to go that far in order to make my point, which is that if you wed yourself to the importance of international law and demand that it be adhered to in spirit and letter, then we must do better than is possible with Kosovo where the legal justification hinges on a disputed invocation of a non-codified doctrine, and where the accepted arbiters of international law conferred no legal legitimacy using other arguments.

The moral and intellectually honest position to adopt, in my view, is to say that international law matters, but until such time as the doctrine of humanitarian intervention is properly codified and ratified by treaty, then it’s not all that matters. Indeed, even after this happens, it still won’t be all that matters.

This, more or less, is where I stand.

Thanks for the discussion.

Tx Brownie: I think the disagreement began to focus a bit too much on the specifics of the ICJ Kosovo case – which I know quite well from my Amnesty days – and think that you were over-simplifying. If you have got a spare few days to read through the various judgments it is actually very interesting.

On your broader point, what I think you are objecting to is what could be called the ‘Robin Cook argument’ – which is why get so riled up about legality over Iraq when it didn’t seem to matter so much over Kosovo. I think that is a bit unfair on him, personally, since I know that they did have good legal advice at the time that they were on the right side of legality, but I can see where you are coming from with the broader critique. I supported the NATO intervention at the time because I genuinely believed the stories about a hundred thousand people being killed – which turned out to be so much propaganda – and it was partly my experiences in Kosovo that made me so much more sceptical about the arguments for the invasion of Iraq.

My book on humanitarian interventions is also basically about that segment of liberal-left opinion with this sort of dilemma over the past two decades.

I will do another above the line piece in the next few days on the issue of war and legality since you raised a few points that I would need to spend more time on, which is always a sign of a good debate.