Tim Blair


New Criterion



Wednesday, February 26, 2003
A PRE-EMPTIVE STRIKE on Iraq would constitute a crime against humanity, write 43 experts on international law and human rights according to Henny Herald's sub-editor. What they say is The initiation of a war against Iraq by the self-styled "coalition of the willing" would be a fundamental violation of international law.

What's an expert on human rights? How do you earn the qualification? Good questions.

But let's look at their argument.

1. International law exists, and its requirements haven't been met.

International law recognises two bases for the use of force. The first, enshrined in Article 51 of the United Nations Charter, allows force to be used in self-defence. The attack must be actual or imminent.

The second basis is when the UN Security Council authorises the use of force as a collective response to the use or threat of force ... only if there is evidence that there is an actual threat to the peace (in this case, by Iraq) and that this threat cannot be averted by any means short of force (such as negotiation and further weapons inspections).

Now the experts rush on to conclude that the conditions haven't been met. So these 43 multi-talents are not only experts on international law and human rights, but also on military affairs, intelligence, geopolitics and global terrorism, because all of that's involved in applying that law.

How do they convince us punters that they've got the real stuff? By a neat sleight-of-hand.

2. What the US is proposing is a new doctrine, pre-emptive attack.

This doctrine contradicts the cardinal principle of the modern international legal order and the primary rationale for the founding of the UN after World War II - the prohibition of the unilateral use of force to settle disputes.

But this doctrine is only really new if you believe that a nation must wait to be attacked by a particular State in order to prove that it is defending itself. And that, as several countries discovered in 1939-41, is a very dangerous maneuvre. When should the democracies have acted, assuming they had the will? 1936? 1938? Five minutes before Hitler's bombers and tanks moved east?

Where is your analysis of the nature of today's threats? The beast in 2003 is not the beast of 1938, so now add in WMDs, global Islamic terrorism, rogue states, the continuing unreliability of allies in long campaigns. Your thoughts, Professors?

Silence. These lawyers are hanging judges who don't publish their reasons.

Then we follow with a glissando into the justification for invoking the UN's provisions for collective action. And pretend it's part of the argument about self-defence.

The weak and ambiguous evidence presented to the international community by the US Secretary of State, Colin Powell, to justify a pre-emptive strike underlines the practical danger of a doctrine of pre-emption. A principle of pre-emption would allow particular national agendas to completely destroy the system of collective security contained in Chapter Seven of the UN Charter and return us to the pre-1945 era, where might equalled right. Ironically, the same principle would justify Iraq now launching pre-emptive attacks on members of the coalition because it could validly argue that it feared attack.

What a load! Professors, would you let your first-years get away with logic like that?

And since you've introduced the subject of UN action on Iraq, where do UN resolutions in 1990-1 and 2002 require the US - which has been kind enough to provide the means that makes the UN more than a bunch of Antipodean professorial wankers, to play Dick Tracy with Saddam Hussein and his European co-conspirators?

3. The US always kills more bystanders than is reasonable.

Even if the use of force can be justified, international humanitarian law places significant limits on the means and methods of warfare. ... Intentionally launching an attack knowing that it will cause "incidental" loss of life or injury to civilians "which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" constitutes a war crime at international law.

I somehow guessed we'd get here; the US government is comprised of war criminals.

The military objective of disarming Iraq could not justify widespread harm to the Iraqi population, over half of whom are under the age of 15. The use of nuclear weapons in a pre-emptive attack would seem to fall squarely within the definition of a war crime.

Did you see that? Just before you could ask what they meant by "widespread" they nuke you. What a shut-your-face that was. But even without the nukes:

Estimates of civilian deaths in Iraq suggest that up to quarter of a million people may die as a result of an attack using conventional weapons and many more will suffer homelessness, malnutrition and other serious health and environmental consequences in its aftermath.

Whose "estimates"? And why "up to" rather than the best estimate? This are standard rhetorical devices employed by political shonks. Is that what you are, professors?

What about the 'estimates' that 'up to' ten million Iraqis will be dancing in the streets when the Saddamite dictatorship falls? And the lives saved by ending those UN sanctions. Not to mention the two million Saddam-generated corpses, who have no rights.

Can I ask, professors, whether the case in international law for action by the targets is enhanced by the propensity of rogue states for acquiring nukes etc and spreading them round?

The professors have this stunning answer:

4. Heads of State can be put on trial before their regimes are destroyed by war.

Until recently, the enforcement of international humanitarian law largely depended on the willingness of countries to try those responsible for grave breaches of the law. The creation of the International Criminal Court last year has, however, provided a stronger system of scrutiny and adjudication of violations of humanitarian law.... It specifically extends criminal liability to heads of state, leaders of governments, parliamentarians, government officials and military personnel.

That's good news, people. I'm prepared to lend you my old .22 if you're prepared to lay hands on old Saddam and Jung-il, and frog-march them into your tribunal.

Sorry. I mistook your intentions:

But, if all else fails, it is to be hoped that the fact that there is now an international system to bring even the highest officials to justice for war crimes will temper the enthusiasm of our politicians for this war.

It's not Saddam and Jung-il you want in court - it's George Bush and Tony Blair and John Howard.

5. Only criminal nations defend themselves.

Respect for international law must be the first concern of the Australian Government.

but needn't bother any potential or declared enemy.

What is it about signing a collective statement that turns professional men and women into a bunch of pea-and-thimble tricksters?

To see the full list of those you would never trust with the education of your children - if you had a choice - go here.

And if you want to see a similar quality of argument from Victoria's religious leaders when they stoop to a collective conscience, go here.