Iraq and International Law
The least important thing at stake in the Kuwait crisis is the fate of the tribal despotism of the al-Sabahs, even though Thatcher and Bush propose to launch a major war this December to restore it. The most important thing is the character, reputation and status of international law, and of the United nations as the guardian of international law.
Law has been travestied by the conduct of Bush and Thatcher in the past year. Last year they collaborated politically in the invasion of Panama and the fabrication of a new Government there on the basis of American arms for the purpose of continuing US control of the Panama Canal beyond its end-date. And that new Government was immediately admitted to Panama’s seat at the United nations. But the Cambodian Government set up by the Vietnamese army which overthrew Pol Pot continues to be excluded from the UN. And when the double-talk is discounted, the restoration of the Pol Pot regime remains the Anglo-American objective.
In point of humanitarianism Noriega was certainly not a worse dictator than Pol Pot. And in point of abstract law there was no difference between the two invasions. But Noriega is to be tried under the domestic law of the USA as if he were not the illegally captured head of a sovereign state, while Pol Pot is to be restored to power because his overthrow was in breach of international law.
The operative difference between the two cases is that Vietnam inflicted on the USA the greatest humiliation it has ever suffered, and the government it set up in Cambodia is therefore intolerable to American feelings. While Noriega attempted to conduct an independent policy in Panama The difference between the two invasions is American interests. And in the present condition of the United Nations that is what determines what is lawful and what is criminal.
Saddam Hussein tried to keep himself within the law by clearing his occupation of Kuwait with Bush through diplomatic channels. He thought he had cleared it And considering the service he had performed for them by containing the Iranian revolution, a favourable settlement of his conflict with Kuwait would have been no more than his due.
It was unfortunate for him that on the day of his occupation of Kuwait, Bush and Thatcher were holidaying together, wondering how to exploit their recently achieved victory in the Cold War. The moral collapse of the Kremlin and the moral cunning of Peking left them in the position of determining the shape of the world after the Cold War. Each had a powerful army and an economy in relative decline. If the new era was predominantly an era of economic competition neither would flourish. And Thatcher was desperate for issues with which to halt the development of the European Community. So it seems that on the spur of the moment they saw that great things might be done with a moral military crusade over Iraq. And Hurd and his little friend Waldergrave had to learn a new language for describing their hitherto strategic ally, Saddam Hussein.
If a war is launched in December it will be a unique war in the history of the world. It will be the least subtle of all wars. It will have been preceded by a food blockade such as Germany applied against England in 1939, and by six months of blatant warmongering while the armies were being openly massed. And the opening slaughter will be exacted in cold blood by Britain and America in ·the name of the agency of world peace. Will the United Nations survive that?
Law is debased when it is capriciously invoked, as it has been in this instance. The US kept itself legal last December by use of its Veto, and it clearly gave the go-ahead to Syria to do what it pleases in the Lebanon in return for a Syrian presence in the moral crusade against Iraq.
An operative system of law requires three things – a body of laws, a judicial tribunal and an executive arm for enforcing judgments. The UN is defective on the last two counts.
The Security Council is both the judiciary and the executive. And the states most likely to act repeatedly in breach of the body of laws all have exemptions of law in the form of the Veto.
There is, notionally, an independent UN judiciary in the shape of the International Court of Justice, or World Court. But the US destroyed the World Court as a credible institution four years ago.
The World Court is made up from various parts of the world according to a formula. And in June 1986, by the votes of 12 judges to 3 (the 3 being the American, British and Japanese judges), it upheld a case brought by Nicaragua.
It ruled that the US was in breach of international law on four counts – arming the Contras for the purpose of overthrowing the Nicaraguan Government; mining harbours; bombing harbour installations; and making intelligence flights in Nicaraguan air space. The court ruled that damages should be paid. It also ruled that the US trade embargo was in breach of its 1956 treaty with Nicaragua and (by 14 to 1) that a CIA manual for the Contras, advocating acts of terrorism against public officials to ‘neutralise’ them was in breach of the “general principles of humanitarian law”.
On July 31st, 1986, the US vetoed a Security Council resolution calling for compliance with the Court ruling, Britain and France abstaining. And on August 13th, the US Senate voted $100 million for the Contras.
Submission to the jurisdiction of the World Court is voluntary. In 1946 the USA submitted to it. theoretically, except when it impinged on American jurisdiction, with America reserving the right to determine when this was so. And in 1986 it subverted it in practice.
The Security Council is the real judicial tribunal. International law therefore does not apply to the major states. Therefore it is not law.
The most effective UN operation was in the Congo thirty years ago. It was conducted by the Secretary General, Dag Hammarskjold, who assembled an army which was predominantly African. If in the present instance the Secretary General had been empowered to deal with the Kuwait affair by raising an army which was chiefly Arab and negotiating a settlement which took due account of all factors, the cause of legality in international affairs would have been advanced.
By jumping in as they did, and by their obvious eagerness to prevent Saddam Hussein doing in Kuwait the sort of thing that Bush did in Panama, by megaphone warmongering and by threatening to revive the Nuremberg Trials after Washington has prevented trials of its own war criminals in the Vietnam War, they have debased the concept of international law.
The Secretary General was sidelined until, as a token gesture to the Palestinians, he was asked to look into the Israeli shootings in the annexed city of Jerusalem. Let us hope that he takes advantage of this matter and does something to relieve the UN from its present status as an instrument of American caprice.
This article appeared in November 1990, in Issue 20 of Labour and Trade Union Review, now Labour Affairs. You can find more from the era at https://labouraffairsmagazine.com/very-old-issues-images/.
I’m surprised that we cited the Congo intervention as a good example. It replaced the democratically elected Prime Minister, who was later murdered thanks to UN laxness. In its outcome, it was to prove just as bad as Iraq would be. But the other comments remain valid.