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The Iraq Crisis: What Now?

  • Vaughan Lowe

Extract

Much ink has been spilled over the question of the legality of the invasion of Iraq and of the extraordinary claims to a right to override ‘unreasonable’ uses of veto in the Security Council. That invasion has taken place, and as the United States and the United Kingdom withdrew from the Security Council the draft resoluation that would have expressly authorised that invasion, there was no occasion to override any veto that might have been cast against such a resolution had it been put to the Council. Writing while fighting in Iraq is still processding, it is both too late and too early to consider those questions of legality in great detail: too late to have any practical value; and perhaps too early for the measured appraisal of the situation that will be needed in due course. I want instead to address a slightly different question.

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1 House of Commons Foreign Affairs Committee, Fourth Report, Kosovo, Session 1999–2000, HC 28–1, Stationery Office, 23 May 2000.

2 Cmnd 3246, 3.

3 The conditions were discussed in the Foreign Affairs Committee's Fourth Report on Kosovo, above, n 1, and in certain memoranda submitted to the Committee and reproduced in ICLQ (1999) 876943.

4 Treaty-making and codification exercises are somewhat different in this respect.

5 States more often claim rights than they impose duties upon themselves through their practice.

6 See the National Security Strategy of the United States of America, 09 2002, 6, 15 <http://www.comw.org/qdr/fulltext/nss2002.pdf>.

7 See operative para 4, which states that the authorisation to use force will continue for the period required for Iraq to comply with certain cease-fire obligations not including disarmament.

8 See operative para 4, which states that the Council decides to guarantee the inviolability of Kuwait's boundary with Iraq (surely a litmus test of the survival of the coalition's independent authority), and operative para 34, which states that the Council ‘decides to remain seized of the matter and to take such further steps as may be required for the implementation of this resolution and to secure peace and security in the area’, which again clearly indicates that it is for the Council to decide upon what, if any, further action is needed.

9 See UN Doc S/PV 4644, 8 Nov 2002.

10 One recalls the words of Bosnian President Izetbegovié to the United Nations: ‘If the international community is not ready to defend the principles which it has proclaimed as its foundations, let us say so openly, both to the people of Bosnia and to the people of the world. Let it proclaim a new code of behaviour in which force will be the first and the last argument’, quoted in Glover, Jonathan, Humanity. A Moral History of the Twentieth Century (London: Pimlico, 2001), 140.

11 UN GA Resolution 377 (V), 3 Nov 1950.

12 Geneva Convention III, Art 118.

13 Ibid, Art 17.

14 [2002] EWCA Civ 1598.

15 It is a matter of some concern that the United States appears to be retreating from its international obligations regarding prisoners of war. In the Operational Law Handbook (JA 422) issued by the Judge Advocate General's School, United States Army, Charlottesville, Virginia, in 1997, it is stated that ‘the US views [among others, Art 45 of Additional Protocol I] as customary international law’ (18–2). The Handbook summarises Article 45 in the following terms: ‘prisoner of war presumption for those who participate in the hostilities.’ In the 2002 edition of Operational Law Handbook, however, this view has changed: it is said that the United States views Art 45 as ‘customary international law or acceptable practice though not legally binding’ (ch 2, 11).

16 Reprinted in Nagel, Thomas, Mortal Questions (Cambridge: Cambridge University Press, 1979, 1991), 75.

17 The recent development of this phenomenon is analysed in the fine book by Glover, op cit.

* This paper was originally delivered to the Spring Conference of the British Branch of the International Law Association, on 12 April 2003 at Reading University, as a curtain-raiser to a series of papers that dealt in greater detail with issues arising from the Iraq crisis. I have not changed its somewhat unscholarly style; but I have revised certain passages in response to helpful criticisms from two distinguished colleagues, whose kindness and perception I shall repay by preserving their anonymity

The Iraq Crisis: What Now?

  • Vaughan Lowe

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