Debating the Iraq War

This morning at the ASIL Annual Meeting Ruth Wedgwood of Johns Hopkins and Philippe Sands of the University of London debated the legality of the War in Iraq. They gave 25 minute presentations before a bench of “judges” comprised of (real life) Judge Diane Wood of the Seventh Circuit, Christine Chinkin of the London School of Economics, and Yoram Dinstein of Tel Aviv University. The idea was to argue about the legality of the war based on what we knew at the time the hostilities began. The result was a fascinating exercise in showing how malleable international law can be.

Wedgwood started things off by considering the resolutions prior to the 1991 Gulf War. She argued that Resolution 678 empowered the member states to enforce “all subsequent resolutions” of the Security Council in order to “restore peace and security in the region” as well as the withdrawal of Iraqi troops from Kuwait.

Judge Wood asked whether this was actually begging the question as the issue was really “all subsequent resolutions” about what? Weren’t those orginal resolutions merely about ousting Iraqi troops from Kuwait?

Wedgwood replied that the resolution contemplated peace and security in the region,not only in Kuwait. After years of bad acts by Saddam’s regime, the Security Council had given states the ability to deal with Iraq until it ceased to be a regional threat.

There were a series of questions as to the various interpretations of Resolution 678 and the subsequent Resolution 687. Wedgwood argued that anecdotal evidence that certain political leaders or commanders did not view Resolution 678 as authorizing the take-over of Baghdad is of little consequence as these were not authoritative interpretations based on the history of the resolutions. Moreover, someone speaking at the time of Resolution 678 cannot say that certain actions are not allowed as they do not know what future resolutions may bring.

Asked as to what are the first principles from which her arguments stemmed, Wedgwood replied that the UN has the Chapter VII framework, but it has never operated as intended. There is no standing U.N. force, for example. There have always been coalitions fo the willing. We now live in an era of Charter v. 2.0: we are trying to give meaning to the Charter although the secuirty architecture it envisioned was never really built.

She closed by turning the title of Sands’ recent book on him “It is a lawless world,” she declared. It is lawless when Kurds are wiped out in Northern Iraq; it is lawless when the Marsh Arabs are killed off by Iraqi troops; it is lawless when Iraq invades Kuwait. The Charter cannot be read as a tax code, it is a document to which we must give meaning in an imperfect, dangerous, world. Over time we may find that passivity in the face of such a reality may be as bad as or worse that activity.

Sands began by explaining that his argument has four main points: (1) what did resolution 678 actually authorize?; (2) Can 1 or more Security Council members decide if Iraq is in breach of a resolution or is that for the Council as a whole?; (3) what is the practice of states in this area and (4) what is the effect of Security Council Reslolution 1441?

These words had barely left his mouth when the bench started peppering him with questions. One interesting question had to do with how Sands thought one should approach interpreting a Security Council resolution. There was a disagreement as to whether the Vienna Convention on the Law of Treaties would provide the proper interpretive rules for a resolution as such a resolution is not actually a treaty. Sands replied that it emanates from a treaty and as such it is proper to use the VCLT, especially as the VCLT’s rules have been used to intepret a variety of non-treaty text.

Sands explained that his basic view was that something that would have been illegal in 1991 is not somehow authorized in 2003.

After the main presentations and rebuttals, the panel did not give a ruling but rather comments. These included two judges remarking that they had expected the litigants to spend more time discussing self-defense or humanitarian interventions.

Judge Wood said that the key issue for her was in figuring out who can decide– who can interpret the reolsutions, who can decide that conflict is legal?

A related matter consdiered by the bench was in assesssing if and how the UN Charter has evolved over time. Wedgwood and Sands had focused on the interpretation of Security Council resolutions. Yoram Dinstein believed there was little need to resort to the resolutioins as the Charter itself provided the necessary answers. He disagreed with the notion that the UN Charter had been turned into some new “version 2.” The original verson still worked and in this case Iraq’s invations of Kuwait would have given Kuwait a right to individuial or collective self defense. The subsequesnt cease-fire would be then understood as an agreement between the belligerents that would only last as long at they maintain compliance. A breach would give the other signatories the right to recommense hostilities and use military force to re-enforce compliance.

In the end, then, no answers. Although, in seeing how Wedgwood and Sands (and the Judges) could use the same few texts and come with different results and/or justifications, perhaps we all gained a better sense of each others’ arguments. And perhaps as well a sense that it would have been healthy for the body politic to have had such a debate before the real war, but that was not to be.

Overall, a good, interesting discussion. Although much of this ground had been covered before, notably in a special agora issue of the American Journal of International Law, it was great to hear these arguments forcefully set out by two learned advocates as if before a court of law.