Tuesday, July 11, 2006
Point of law
The following relates to international law, a matter I have no expertise at all in. Nor do I believe that the legality of an action, whether under national or international law, is anything like decisive in regard to its morality. I'd be interested to get an idea of the general state of scholarship on the relevant questions touched on here, in particular the interpretation of the Genocide Convention. This post represents no more than an amateur dipping of the toe into international legal waters. I hope nobody will misinterpret it as legal fetishism, nor, above all, as an attempt to in some way downplay the crimes of the Baathists in Iraq.
Jeff Weintraub says not only that the invasion of Iraq was legal, but that it was legally mandatory - that it was illegal not to overthrow the Baathist regime. This is because it was, says Weintraub, guilty of genocide at least once (against the Kurds during the Anfal campaign of the late eighties) and possibly twice (against the Marsh Arabs). This, so the argument continues, meant that all signatories of the Convention on the Prevention and Punishment of the Crime of Genocide were legally (as well as morally) obliged to act.
There are problems with this.
Firstly, I'm not sure that Saddam is in fact guilty of genocide (as opposed to mere mass murder), even according to the fairly broad definition of the Genocide Convention. Broad as that definition seems to be, the Convention nevertheless stipulates that for the various specified acts to be genocidal they must be "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such".
That "as such" seems to me to be important. Does it not imply that the victims must be targeted because of their nationality, ethnicity etc.? If so, must not one ask: in unleashing terror upon the Kurds, was Saddam attempting "to destroy, in whole or in part" the Iraqi Kurds "as such" i.e. as Kurds - or because Kurdistan and the Kurds were seen as a centre of opposition to the regime? (The same question applies to the Marsh Arabs).
Secondly, does the Convention really give the right to, indeed place an obligation upon, every signatory to prevent and punish genocide in whatever manner they see fit? Wouldn't that conflict with another piece of international law, the UN Charter, which outlaws all military action (at least against UN members) except in self-defence and/or with the assent of the Security Council? Perhaps this might be seen as a development of international law, rather than a contradiction of it, but I have my doubts, given article 8:
This seems to indicate that the Genocide Convention is not supposed to overrule or amend the Charter's restrictions of warfare. One might point out that this article only says what signatoires "may" do, not that they cannot act unilaterally to enforce the convention as they see fit.
Perhaps. But as with the above expressed doubts regarding the guilt of Saddam Hussein and his regime (on the specific charge of genocide) this question, and any other, would, according to the terms of the Convention, surely have to be settled by the International Court of Justice. Article 9 seems fairly clear on this:
I think it's fair to say that any attempt to defend (legally) the invasion of Iraq as an "application" of the Genocide Convention would have been subject to such a dispute, not least because the Iraqi government was itself a party to it. Has the ICJ made any judgements that may be seen as pertaining to the Iraqi case in 2003?
Jeff Weintraub says not only that the invasion of Iraq was legal, but that it was legally mandatory - that it was illegal not to overthrow the Baathist regime. This is because it was, says Weintraub, guilty of genocide at least once (against the Kurds during the Anfal campaign of the late eighties) and possibly twice (against the Marsh Arabs). This, so the argument continues, meant that all signatories of the Convention on the Prevention and Punishment of the Crime of Genocide were legally (as well as morally) obliged to act.
There are problems with this.
Firstly, I'm not sure that Saddam is in fact guilty of genocide (as opposed to mere mass murder), even according to the fairly broad definition of the Genocide Convention. Broad as that definition seems to be, the Convention nevertheless stipulates that for the various specified acts to be genocidal they must be "committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such".
That "as such" seems to me to be important. Does it not imply that the victims must be targeted because of their nationality, ethnicity etc.? If so, must not one ask: in unleashing terror upon the Kurds, was Saddam attempting "to destroy, in whole or in part" the Iraqi Kurds "as such" i.e. as Kurds - or because Kurdistan and the Kurds were seen as a centre of opposition to the regime? (The same question applies to the Marsh Arabs).
Secondly, does the Convention really give the right to, indeed place an obligation upon, every signatory to prevent and punish genocide in whatever manner they see fit? Wouldn't that conflict with another piece of international law, the UN Charter, which outlaws all military action (at least against UN members) except in self-defence and/or with the assent of the Security Council? Perhaps this might be seen as a development of international law, rather than a contradiction of it, but I have my doubts, given article 8:
Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide...
This seems to indicate that the Genocide Convention is not supposed to overrule or amend the Charter's restrictions of warfare. One might point out that this article only says what signatoires "may" do, not that they cannot act unilaterally to enforce the convention as they see fit.
Perhaps. But as with the above expressed doubts regarding the guilt of Saddam Hussein and his regime (on the specific charge of genocide) this question, and any other, would, according to the terms of the Convention, surely have to be settled by the International Court of Justice. Article 9 seems fairly clear on this:
Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.
I think it's fair to say that any attempt to defend (legally) the invasion of Iraq as an "application" of the Genocide Convention would have been subject to such a dispute, not least because the Iraqi government was itself a party to it. Has the ICJ made any judgements that may be seen as pertaining to the Iraqi case in 2003?
