Friday, November 27, 2009

On the Legality Question of the Iraq War

Since the BBC is one of my primary sources for world news, I have been following with mild interest (which seems to be significantly more than that of American media) the proceedings of an inquiry into the initiation of the "Bush War" in Iraq. The head of the inquiry is Sir John Chilcot, who, prior to its first meeting, released a public statement emphasizing the objectivity of the procedures to be taken. Since both those procedures and the findings are likely to have a significant impact on both the current Prime Minister and his immediate predecessor, taking that emphasis seriously may be challenging; but I, for one, hope that Chilcot can make good on his intentions.

This morning's BBC News story dealt with the testimony of Sir Jeremy Greenstock, the United Kingdom's ambassador to the United Nations in 2003 when the United States' proposal to invade Iraq was being debated. Greenstock chose some interesting language to describe the ultimate conclusion to those debates:

I regarded our participation in the military action against Iraq in March 2003 as legal but of questionable legitimacy in that it did not have the democratically observable backing of a great majority of member states or even perhaps of a majority of people inside the UK.

There was a failure to establish legitimacy although I think we successfully established legality in the the degree, at least, that we were never challenged in the UN or International Court of Justice for those actions.

This strikes me as diplomatic language at its most evasive: The military action was legal because its legality was never challenged. What this proposition overlooks is that the United States can probably block any attempted action by the International Court of Justice, just as it has yet to accept the authority of the International Criminal Court. Simply put, American policy has put the United States beyond the limits of any court-based procedure that would resolve this particular question of legality. Since any challenge to legality would have to involve either the United States itself or specific Americans (such as the former President) as defendants, the United States has basically protected itself with a major barrier to such a challenge ever being resolved.

The current Administration seems content to leave that barrier in place. Barack Obama began his Administration with eloquent language of putting the past behind us, which basically meant that there would be no steps towards prosecution of anyone involved with our initiating the war in Iraq. His Attorney General took a few initiative steps of his own, but it would appear that his boss is keeping him on a tight leash. Similarly, there is no sign that the United States will change its position on refusing to recognize the authority of any international legal authority; so the barrier will remain secure. Perhaps Obama is banking on his personal appeal concealing that barrier in a smoke screen. This would certainly be effective politics, but would it be consistent with either our domestic model of proper judicial procedure or our need to respect justice as an international concept?

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