Tuesday, July 18, 2006


More law

I've been meaning for some time to acknowledge Jeff Weintraub's response to my response to his post (at Normblog) on the Genocide Convention.

Firstly I want to thank Jeff for taking the time to reply. I was glad (and somewhat relieved) to see that my thoughts didn't come across as too superficial.

I don't have too much to say in re-response.

The first thing I will say is that it's true that Jeff did not (as I said he did) say that the Iraq war was legal because of the Genocide Convention. Actually all he pointed out was that it was illegal to do nothing to punish and/or prevent genocide in Iraq, and that this was rarely if ever mentioned by those who opposed the invasion because of its purported illegality. Both these points are true (though I'm unsure of what the legal or practical implications ought to have been in 2003).

In fact, it did occur to me, while I was arguing against the idea that the terms of the genocide convention could vindicate the invasion legally, that there was a better (though not necessarily convincing) argument that they did make illegal the actions of those countries that opposed the invasion at the UN (while doing nothing else to punish/prevent genocide in Iraq.)

On the question of whether the Iraqi regime was in fact guilty of genocide: I think Jeff makes a good argument that my interpretation of the Genocide Convention (specifically of its stipulation that the ethnic, religious, national or racial groups targeted by violence must be targeted "as such" for it to amount to genocide) would unreasonably restrict the category of genocide, ruling out any genocide with any kind of instrumental purpose. In response I would say that without this "as such" the Convention's definition of genocide is unreasonably wide. This has arguably already happened with Srebrenica, but a literal reading of the Convention (less "as such") could include all and any types of hostile acts towards human beings. Even with the "as such" qualification it could be seen to include every racist/xenophobic/sectarian killing.

I reckon a better definition of genocide can be produced, one that better captures the specificity of the crime of genocide. Of course, that will probably have to happen via judicial review, since the Convention's wording is unlikely to be appropriately amended.

(Oh yes, one other thing: I think that the idea that "one side-effect of [the Iraq war] was to prevent what would almost certainly have been another genocidal bloodbath in Iraqi Kurdistan after the 'containment' of Saddam Hussein's Iraq had collapsed" is far too breezy to play a major role in any cassus belli. Firstly, I don't see that the no-fly zones were in such bad shape - morally as well as in terms of implementation and sustainability - as the sanctions regime was. But more importantly it was too much of a long term consideration to justify a war in 2003.)


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