Just One Question…

Just One Question…

The British newspaper The Guardian is currently having Hay Festival, major book festival.



With all these writers and public figures around, there are some fun possibilities. As the folks at The Guradian put it:

Hay is full of the cleverest and sharpest minds, but if they could ask one person just a single question, who would they choose – and what would they ask? We brought them together to find out.

Here are two examples that I thought Opinio Juris readers might find interesting:

George Monbiot, author and Guardian columnist asks John Bolton, former US ambassador to the UN



Q The International Military Tribunal at Nuremberg ruled that “to initiate a war of aggression … is not only an international crime; it is the supreme international crime”. You were instrumental in manufacturing the case for war with Iraq, using false intelligence. Why should you not be put on trial as a war criminal?



A Since the Security Council’s unanimous 1991 adoption of Resolution 678 – the ceasefire resolution ending the first Persian Gulf war – Saddam Hussein’s regime repeatedly violated it. By systematically demonstrating its unwillingness to abide by Security Council resolutions, Iraq violated the terms of the ceasefire in countless ways. By so doing, Iraq vitiated the ceasefire, and revived the initial authority under Security Council Resolution 678 to use all necessary means to deal with the threat posed to international peace and security by Iraq. Accordingly, the premises of your question are erroneous in law and erroneous in fact.







John Bolton, former US ambassador to the UN asks James Naughtie, broadcaster



Q
How much longer will the state own the BBC and why?



A If John Bolton hasn’t yet worked out the difference between state-owned and publicly funded, it’s probably too late to hope for enlightenment. But the distinction is the one that matters. The implication that the BBC’s public funding puts it in thrall to government is simply wrong. The founding charter protects us from interfering ministers just as it obliges all of us to practise independent journalism. I think that has produced a healthier broadcasting environment than the one the US now enjoys. And as it happens, many Americans seem to agree, because the number of listeners and viewers there is rising fast. So I hope our form of ownership remains indefinitely.








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Benjamin Davis
Benjamin Davis

You can always count on KUKD Bolton to assert as fact a highly contested argument as to the legality of the Iraq War. Hans Corell, former Legal Advisor to the UN Secretary General in March 2003 was very clear in (sadly) considering that the invasion was an illegal act by two of the key members of the Security Council. You can see his comments in the ASIL Proceedings 2007 under Ethics, Legitimacy and Power……”

Best,

Ben

stevelaudig
stevelaudig

“Since the Security Council’s unanimous 1991 adoption of Resolution 678 – the ceasefire resolution ending the first Persian Gulf war – Saddam Hussein’s regime repeatedly violated it. By systematically demonstrating its unwillingness to abide by Security Council resolutions, Iraq violated the terms of the ceasefire in countless ways. By so doing, Iraq vitiated the ceasefire, and revived the initial authority under Security Council Resolution 678 to use all necessary means to deal with the threat posed to international peace and security by Iraq. Accordingly, the premises of your question are erroneous in law and erroneous in fact.” Followup questions: Mr. Bolton: Other than the Security Council what entity or body is authorized, under international law, to render a binding legal conclusion that “repeated” violations of a Security Council’s resolution have, in fact and in law, occurred? Provide legal authority to support the entities or bodies you name. Identify all other instances where “vitiation” of a ceasefire resulted in the lawful resumption of war under a Security Council resolution. Provide other examples initial authority to wag war have been “revived” by an entity other than the Security Council. What entity or body, other than the Security Council, is authorized, under international… Read more »

Matthew Gross
Matthew Gross

Better yet, explain why violation of a ceasefire shouldn’t renew an already-authorized war in the manner that breaking a ceasefire has done for the last century or so?

Tobias Thienel

Better still, explain why a ceasefire should be capable of perpetuating a casus belli under the jus ad bellum? Say, if the original action against Iraq had been based on Article 51, rather than Article 42, why would a ceasefire, containing all sorts of conditions, keep the justification of self-defense available in respect of armed action against any future Iraqi breach of those conditions, whether they involve an ‘armed attack’ or not?

Why, furthermore, should Article 60 VCLT (the source of the concept of a ‘material breach’) apply to SC resolutions? Explain, if you will, why – given that the SC, unlike the drafters of a treaty, remains in place to decide all subsequent matters itself – it should be appropriate to allow the norm takers to affect the existence of the rules where necessary, when the norm giver might do it just as well.

Matthew Gross
Matthew Gross

Better still, explain why a ceasefire should be capable of perpetuating a casus belli under the jus ad bellum? Say, if the original action against Iraq had been based on Article 51, rather than Article 42, why would a ceasefire, containing all sorts of conditions, keep the justification of self-defense available in respect of armed action against any future Iraqi breach of those conditions, whether they involve an ‘armed attack’ or not? A cease-fire is merely a pause in hostilities agreed to by both parties. Cease-fires are ended all the time without effecting the legal status of the conflict (I’d point to the Israeli-Palestine conflict as an example.) As such, it wouldn’t effect casus belli for a conflict at all. The aggressors are still the aggressors, regardless of who ended the cease-fire. Why, furthermore, should Article 60 VCLT (the source of the concept of a ‘material breach’) apply to SC resolutions? Explain, if you will, why – given that the SC, unlike the drafters of a treaty, remains in place to decide all subsequent matters itself – it should be appropriate to allow the norm takers to affect the existence of the rules where necessary, when the norm giver might… Read more »

Tobias Thienel

I wasn’t going to suggest that a ceasefire affected the casus belli. Instead, I would suggest that the casus belli, particularly one under Article 51, lapses of its own operation once the original ‘armed attack’ is no longer present (which, admittedly, is still the case if there is still a proximate risk of renewed attack). Once the facts on the ground have reached that stage, the defender state must cease using force. It cannot simply declare a ceasefire and take up arms again in accordance with that, unless a new ‘armed attack’ materializes. Nor would a ceasefire put in place before the end of lawful defensive measures (i.e. still in the presence of an ‘armed attack’) provide any basis for the renewal of armed action if the ‘armed attack’ ceases to be present while the ceasefire is in force. Basically, my argument is that the existence of a ‘state of war/armed conflict’ has no bearing whatsoever on the legality of military action. That is always a question of the jus ad bellum. A ceasefire may therefore be no more than a pause in hostilities, and leave the characterization of the situation unaffected (though I wonder what the concept of the… Read more »

Matthew Gross
Matthew Gross

Instead, I would suggest that the casus belli, particularly one under Article 51, lapses of its own operation once the original ‘armed attack’ is no longer present (which, admittedly, is still the case if there is still a proximate risk of renewed attack). Once the facts on the ground have reached that stage, the defender state must cease using force. It cannot simply declare a ceasefire and take up arms again in accordance with that, unless a new ‘armed attack’ materializes. Nor would a ceasefire put in place before the end of lawful defensive measures (i.e. still in the presence of an ‘armed attack’) provide any basis for the renewal of armed action if the ‘armed attack’ ceases to be present while the ceasefire is in force. While I understand your line of reasoning, I think you underestimate how undesirable such a situation would be. Ceasefires can be called for a number of reasons, ranging from a break for (possibly unsuccessful) peace talks to a mutually-agreed break to allow for the evacuation of civilians. If it is held that casus belli such as that provided by Article 51 expires, we add a significant risk to declaring a ceasefire. If one… Read more »

Tobias Thienel

If it is held that casus belli such as that provided by Article 51 expires, we add a significant risk to declaring a ceasefire. If one is attacked by a hostile nation, and then declares a ceasefire for whatever reason, you’re left with no legal recourse as your enemy positions themselves for the next attack. If you argue that nothing short of an “armed attack” can breach a ceasefire, you strip any conditional ceasefire (such as Resolution 678) of any real meaning. Is it really altogether desirable to say to an aggressor state that once it has attacked its neighbour, it is never again protected by Article 2(4)? If not, I suppose we will have to accept that the casus belli of self-defense must expire at some point. I find it only natural that this would be the point where the purpose of defensive action has been achieved, i.e. where the threat of a continuation or resumption of armed action has subsided. I find it possible that in your examples, the defender state would still be allowed to continue its armed defensive action. This is largely because a state victim of an armed attack may, of course, while the attack… Read more »

Matthew Gross
Matthew Gross

Of course it could have done, but the fact that it did not does not mean it has endorsed, much less authorized, the second Iraq war. To make such a point would be to turn Article 42, and the voting regime of the Council, on its head. But is that actually your argument?

Not in a real sense, it merely shows (in my opinion) that the Security Council had no real objection towards the US’s position regarding resuming war after the ceasefire. We should at least be able to assume that the Security Council did not think the US invasion was a violation of Article 2.

Of course, the decision was ruled by realpolitik rather than legal reasoning, but in the end, all Security Council decisions are.