Sunday, August 10, 2008

Perhaps, finally, Blair has come of age

ON Aug 1, when delivering the 22nd Sultan Azlan Shah Lecture, former British prime minister Tony Blair said the rule of law was more relevant than ever in today's era of globalisation.

"Although the rule of law is an initiation of political leaders, like me, it is also a vital component for political success as it ensures an orderly society," Blair said when presenting the lecture entitled "Upholding The Rule of Law: A Reflection".

I must say I could not agree more with him. We lawyers are often reminded of the celebrated words of the English pamphleteer Thomas Paine (1737-1809): "For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other."

Likewise, the law governing international relations is the United Nations Charter. Indeed, international rule of law is a vital component for peace as it ensures an orderly world.

However, by supporting and participating in the 2003 United States-led invasion and occupation of Iraq, I wonder whether Britain, being the world's oldest democracy, still possesses moral authority in a comity of nations to lecture on the principle of rule of law.

On Sept 14 last year, Opinion Research Business, an independent polling agency in London, released estimates of the total war casualties in Iraq at over 1,220,580 deaths. Thousands more were maimed and scarred for life.

According to the report, the number exceeded even the 800,000 to 900,000 deaths in the Rwandan genocide in 1994, and may even overtake the 1.7 million casualties of Cambodia's killing fields in the 1970s, two great crimes of the last century.

Of course, the debate rages on whether the invasion of Iraq was a breach of international law.

Under international law, there are probably two grounds where the use of force is justified.

The first is provided for under Article 51 of the UN Charter, which confers an inherent right upon a state to use force in self-defence.

The other is when the use of force is authorised by the Security Council under Article 42 of the Charter.

It is interesting to note that both camps seem to rely on the UN Security Council Resolutions 678 and 1441 to justify their arguments for and against the invasion.

Resolution 678 was passed on Nov 29, 1990, then giving Iraq one final opportunity to withdraw from Kuwait by Jan 15, 1991, failing which members of the UN in cooperation with the government of Kuwait were authorised to use "all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions and to restore international peace and security in the area".

UN Security Council Resolution 660 demanded that Iraq withdraw its forces unconditionally to the positions in which they were located before they invaded Kuwait on Aug 1, 1990.

Resolution 1441, passed unanimously on Nov 8, 2002, offered Iraq "a final opportunity to comply with its disarmament obligations".

The United States seemed to hold the view that Resolution 678, backed by Resolution 1441, was sufficient, without the need for any further resolution, to clothe it with the legal authority to use force against Iraq.

But how was that possible when there was no threat of an armed attack or act of aggression from Iraq, whether actual or imminent?

Similarly, the UN Charter does not permit such notion of pre-emptive strike or preventive war in international law as advanced by the US and its allies.

Iraq obviously did not commit or threaten to commit any act of "aggression" as defined by the UN General Assembly Resolution 3314 (XXIX).

In fact, during a 2004 interview with the BBC, the then UN Secretary-General Kofi Annan had this to say: "I have indicated it is not in conformity with the UN Charter, from our point of view, and from the Charter point of view it was illegal."

Similarly, the so-called "shock and awe" blitzkrieg to secure Iraq's compliance with its disarmament obligations was a totally disproportionate response, causing huge civilian casualties in breach of the Geneva Conventions of 1949 and their 1977 protocols.

It has now become abundantly clear that the infamous invasion was intended to remove Saddam Hussein, who in the eyes of the US and its allies was a recalcitrant dictator.

It is also abundantly clear that the UN inspectors who scoured Iraq for weapons of mass destruction did not eventually find any.

It is unfortunate that as a permanent member of the Security Council, Britain, then headed by Blair, did not stand up to this flagrant disregard of international law by the Bush administration.

Instead, Blair led Britain to join the US in this illegal war.

This went against the very foundation in which the UN Charter came into being after World War 2, that is, as stated in its preamble, "to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind" .

Unless one has been bereft of loved ones before, one may not appreciate why parents, widows and orphans shriek and thump their chests crying to high heaven and pleading for justice in agony, misery and sorrow when their innocent children, spouses and parents perish in a war.

The preamble to the Charter also reaffirms faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small in order to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.

Hence, the manner in which suspected terrorists are treated and incarcerated speaks volumes of the US's record of respecting basic human rights.

Today and like before, history seems to be repeating itself. The Bush administration is now saying that any withdrawal of the US and allied troops will plunge Iraq into a civil war.

Looking back at history, when Britain invaded Iraq in 1917, the British, too, claimed to be the liberators and not conquerors of the Iraqis.

The reason was the same, that is, to set up democracy in Iraq. The then prime minister, Lloyd George, too, warned that if British troops should leave Iraq there would be civil war.

Abandoned Iraq, they did, and the Baath Party led by Saddam Hussein then took over.

Sadly, the mess now created in Iraq is the result of failure and refusal by powerful nations to respect and commit to international rule of law.

The invasion and continued occupation of Iraq have never been expressly authorised by the UN Security Council.

Winston Churchill once put it aptly: "The whole history of the world is summed up in the fact that, when nations are strong, they are not always just, and when they wish to be just, they are no longer strong."

As the UN is powerless to act and enforce international law when the culprits are the world's powerful nations, one can only leave it to history to judge whether Bush, Blair, John Howard and the others are saviours or butchers of the Iraqis.

Published in New Straits Times, 10 August 2008

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