There are few things that friends of the establishment dislike more than the kind of contextualisation they call “whataboutism”. When Washington says “Ukraine”, we mustn’t say “Iraq.” They are right, in a way. Trying to keep a score card of war crimes and human rights abuses by the world’s great powers would certainly be a futile task if the aim was to pick demons and saviours.
But that isn’t the point. The purpose of context and history is to create a picture of how international law actually works in the hope of understanding what consequences might follow from particular actions. You would be unwise to jump to conclusions about an alleged breach of domestic law without looking not only at the evidence, but also at police actions and case law and perhaps also the sociology of comparable incidents. You would be even more unwise to approach international law in ignorance of its case history. There is no international police force and no single straightforward court system comparable with domestic court systems. The concept of customary international law – the accumulation of unchallenged actions by states – has no real parallel in domestic law. War crimes prosecutions always involve politics in a much more explicit way than domestic prosecutions. You cannot talk about international law without talking about history.
So what about Afghanistan and Iraq?
Bush and Blair claimed that that their military action against Afghanistan after 9/11 was justified under Article 51 of the UN Charter, which recognises “the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations.”
Article 51 requires that the Security Council be notified of any exercise of this right. The US did so on 7 October 2001, a day after its bombing campaign had started, as, separately, did the UK (with the additional claim that “the United Kingdom is proud to be a multicultural, multiracial country”).
A little legal footwork was needed to deal with the fact that the 9/11 attack on the US was not carried out by the state forces of Afghanistan, and further legal footwork was needed to deal with the absence of real evidence of a continuing threat. The possibility that terrorists may strike again is not the same thing as the presence of an army that has attacked and is poised to press home the attack. Yet it is surely the latter situation that Article 51 was drafted to deal with.
The legal footwork didn’t matter greatly, as long as it was attempted. States invoking Article 51 are only required to notify the Security Council, not to obtain its approval. Any counter move to persuade the Security Council to forbid action against Afghanistan would have been thwarted by the vetoes held by the US and UK.
a necessity of self-defense, instant, overwhelming…
But the question remains – was the possibility of more 9/11s sufficiently concrete and imminent to trigger Article 51?
The accepted position in international law is that military action can be considered self-defence only when a threat is truly immediate. This position derives from a 19th century dispute – the Caroline case, named after the US ship involved in the incident – between the US and British Canada. The incident concluded with the acceptance by both sides that the right to self-defence is triggered only if there is “a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”
Even before 9/11, the US had been apt to claim more extensive rights to self-defence than this principle implies. After 9/11, and after its own “defensive” strike against Afghanistan, the US became quite explicit in asserting a right of preemptive self-defence. The new(-ish) doctrine of preemptive action was incorporated into the US National Security Strategy in 2002 without any reference to Article 51 of the UN Charter.
Most other countries have tended neither to accept the new US interpretation nor to go to great lengths to challenge it. No doubt they have been mindful that the targets for US preemptive “defence” had thus far been friendless countries (in 2001, the Taleban government of Afghanistan was only recognised by Pakistan, Saudi Arabia and UAE) that would make poor test cases, either in a legal forum or through a diplomatic-economic-military trial of strength.
The US-UK attack on Afghanistan might, rather generously, be described as a permissive use of the right to self-defence under circumstances that had no close precedent. The 2003 invasion of Iraq cannot be described like that. It was much more nakedly a war of aggression. It would have been so even if Saddam’s weapons of mass destruction had been less non-existent than they actually turned out to be.
Bush and Blair didn’t rely directly on the concept of self-defence to legalise their action, though they sometimes hinted at it, especially in domestic statements. Instead they relied on the Security Council’s 1991 authorisation of the use of force to drive Iraqi forces out of Kuwait coupled with resolutions requiring Iraqi cooperation with weapons inspections. It was at best a contrived argument and Bush and Blair didn’t put it to the test by seeking a further Security Council resolution. Had they done so, the new resolution would likely have been vetoed by France and Russia.
Instead, on 20 March 2003 US Ambassador to the UN John Negroponte sent a letter to the President of the UN Security Council saying:
“Coalition forces have commenced military operations in Iraq. These operations are necessary in view of Iraq’s continued material breaches of its disarmament obligations under relevant Security Council resolutions, including resolution 1441 (2002).
…The actions being taken are authorized under existing Council resolutions, including its resolutions 678 (1990) and 687 (1991).”
Towards the end of the letter, the US gives a slight nod towards the principle of self-defence. It says:
“They [the actions of the Coalition forces] are necessary steps to defend the United States and the international community from the threat posed by Iraq and to restore international peace and security in the area.”
This might perhaps be enough to allow the letter to count as an implicit Article 51 notification, but there is no attempt to develop the self-defence argument. Any claim of legitimacy for the invasion of Iraq rests so heavily on the supposed continuing effect of the 1990 and 1991 resolutions that it cannot survive recognition that this position was hopelessly flawed. There is no room left to invoke even an elastic concept of self-defence.
a ghost, now-you-see-it-now-you-don’t, war crime
Few people would now argue that the Bush-Blair position was legally correct. On the other hand, no country has challenged it in the Security Council. Any country that did so would run up against the US and UK vetoes, and also against the fact that the Security Council legalised the occupation of Iraq once the invasion was a fait accompli.
The invasion of Iraq has become a ghost, now-you-see-it-now-you-don’t, war crime. It is widely acknowledged to have been illegal, but not in the only place that really matters, the UN Security Council. It certainly tarnished the reputation of the US amongst ordinary people around the world, but there have been no other consequences – no sanctions, no diplomatic isolation, no veiled threats of coerced regime change. Relations between Bush, Blair and Putin were restored by the time of Putin’s state visit to Britain in June 2003.
Putin claims that Russia’s military action against Ukraine is an act of self-defence. On 24 February, the day that the “special military operation” began, the Russian ambassador to the UN notified the UN Secretary General that the operation had been undertaken “in accordance with Article 51 of the UN Charter in the exercise of the right of self-defence.” A copy of a speech by Putin to a domestic audience was attached as justification for the claim. The key passage relating to the Article 51 notification is:
“The circumstances require us to act decisively and immediately. The People’s Republics of Donbass appealed to Russia for help.
In this regard, in accordance with Article 51 (chapter VII) of the Charter of the United Nations, I have decided to conduct a special military operation with the approval of the Federation Council of Russia and pursuant to the treaties on friendship and mutual assistance with the Donetsk People’s Republic and the Lugansk People’s Republic, as ratified by the Federal Assembly on 22 February this year.”
The claim that the military operation is in support of the right to self-defence by republics conjured into independent being by Putin a couple of days beforehand is too contrived to take seriously, and would anyway fail the immediacy test set by the Caroline incident. The underlying reason for the invasion – Putin’s perception of the supply of weapons to Ukraine and a possible future move by Ukraine to join NATO as ultimately catastrophic strategic threats – also fails the immediacy test.
Much of Putin’s speech mirrors the way that Bush and Blair, in the period leading up to their attack on Iraq, attempted to invoke a sense of nebulous risk to their nations. In general terms Putin’s argument is better founded than Bush and Blair’s exaggeration of the Al Qaeda threat and their attempt to graft it onto Iraq. But in the end Bush and Blair didn’t formally base their case for war on this sort of rhetorical analysis and Putin cannot do so either.
The US position appears to be that Russia has not just stretched the principle of self-defence beyond the Caroline case, but also beyond the US’s own doctrine of preemptive self-defence. Even if this were true, there is no good reason for the rest of us to accept that the correct place to draw the self-defence line is between the US and Russian interpretations. Doing so just reinforces US attempts to consolidate its innovative post-9/11 notion of self-defence into customary international law.
Russia’s war on Ukraine is a war of aggression, as were the US wars on Afghanistan and Iraq
Russia’s war on Ukraine is a war of aggression, as were the US wars on Afghanistan and Iraq. It is certainly no more nakedly a war of aggression than the 2003 US invasion of Iraq, which was absolutely without legal justification. Making a bonfire of international relations and embarking on the road to world war is no more helpful a response to Russia’s war than it would have been to the US wars.
The international community usually has no difficulty adjusting its response to breaches of international law to suit the needs of powerful nations and their friends. The US isn’t the only beneficiary of this process. Israel enjoys impunity from UN General Assembly resolutions because of US veto power on the Security Council. The rest of us don’t need to concur with every such exercise of international privilege to insist that the avoidance of world war trumps everything. After all, the first of the purposes set out in Article 1 of the UN Charter is “to maintain international peace and security.”
Many of us opposed the invasion of Iraq, and some of us rooted for Iraqi resistance from time to time, despite its un-promising nature. Russia kept more or less quiet, despite its early opposition to US attempts to enlist the Security Council on its side. Had Russia attempted to stop the invasion by conspicuously backing the resistance and by taking spectacular moves against the US that threatened to drive the US to world war, I would have considered that not to be a help, but a catastrophe both for the people of Iraq and for the world. A local war of aggression is bad, but a world war is worse.
The point applies even more strongly to the Ukraine crisis. It is not really comparable to the Iraq war because it has from the outset been a superpower contest. In military terms it remains an undisguised proxy war on the US side, but in the economic sphere it is a direct contest between the US and Russia and is not far short of total war. In such a contest all kinds of interests are engaged across the whole world. Each side has at its disposal every lever of power that it holds anywhere on earth, and at the same time feels itself threatened by every lever of power held by the other side. Escalation is nearly impossible to avoid.
A direct contest like this between imperialist powers is a different thing from a colonial war – like the wars in Vietnam, Afghanistan and Iraq – fought against a background of imperialist rivalry. For ordinary people, a range of positions might be possible in the latter case.
But when faced with a direct contest between superpowers, our only sensible option is to say to our governments: STOP. And also, wherever we are able, to say: NO, we’re not doing that.