Saddam is a ruthless ruler, no need to stretch the law for him

Attorney General of Britain Lord Goldsmith recently explained why he considered the war to be legal: UN resolution 1441 passed last November involves a finding that Iraq is in material breach of earlier Security Council resolutions. The earlier resolution, which had been passed at the time of the last Gulf War, had directed Iraq to destroy all its weapons of mass destruction, particularly the chemical and bacterial ones, under UN supervision.

It cannot be denied that at the time this resolution was passed, Iraq possessed weapons of mass destruction — it had used them liberally in the war against Iran as well as against its own Kurdish population. UN Inspectors were doing what Iraq was expected to do itself. Even this was interrupted in 1998 when they were forced to walk out of Iraq. Also, it cannot be denied that many offending weapons had escaped destruction by the Inspectors. The burden of proof that these were destroyed by Iraq after the Inspectors left is on Iraq. It has not been able to account for their destruction. Even if it could, a technical breach of the UN mandate would still remain because the destruction had not been under UN supervision. Thus the whole world is exposed to serious insecurity and danger of mass damage and destruction at the whim and caprice of a ruthless dictator with alarming credentials and a streak of insane cruelty in his character.

The Attorney General then argued that because Resolution 1441 does not in terms provide that a further decision of Security Council to sanction force would be required for any future punitive action, none was required.

The opponents of this view argue that Article 2(4) of the Charter peremptorily outlaws use of all force and the only exception is Article 51 which preserves the right of individual or collective self-defence against armed attack. That right of self-defence, however, is only against an imminent aggressive attack and no pre-emptive military action can legitimately be resorted to. In my opinion each of the three steps in this argument are fallacious.

Article 2(4) must be read in the context of Article 1 and other parts of Article 2 itself. Article 1 lays down the purposes of the UN:

(i) To maintain international peace and security, and to that end, to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

(ii) To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

(iii) To achieve international co-operation in solving problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;

(iv) To be a centre for harmonising the actions of nations in the attainment of these common ends.

Article 2 states that the organisation and its members, in pursuit of the purposes stated in Article 1, shall act in accordance with the following principles:

(i) The organisation is based on the principle of the sovereign equality of all its members.

(ii) All members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter.

(iii) All members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

(iv) All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

(v) All members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the UN is taking preventive or enforcement action.

(vi) The organisation shall ensure that states which are not members of the United Nations act in accordance with these principles so far as may be necessary for the maintenance of international peace and security.

(vii) Nothing contained in the present Charter shall authorise UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement under the present Charter, but this principle shall not prejudice the application of enforcement measures under Chapter VII.

Article 2 (4) prohibits the use of force only when it’s directed against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the UN. Neither President Bush nor British Prime Minister Tony Blair want to capture Iraqi territory. Their purpose is only elimination of a ruthless ruler.

That Saddam is a person totally devoid of compassion, that he cut the tongues and ears of his critics, that he killed children in front of their parents, that he decapitated prostitutes and displayed their heads in the streets, that he kept his prisoners in cells as small as coffins and that he carried out biological and chemical experiments on them are facts of Iraqi history. There is no reason to stretch the law in his favour.

Saddam is not even a friend of the Muslims. A million innocent lives were lost in a frivolous and yet strangely tragic war against Iran.

The present war is for rescuing the people of Iraq from their megalomaniac persecutor. It will restore their human rights and dignity. In other words, this is a war to further the purposes of the UN enumerated in Article 1. Article 2(4) does not prohibit such a war and it is not necessary to resort to Article 51.

But even the construction put on Article 51 is wrong. It is true that this right can be exercised against an armed attack, but that it must be an imminent armed attack is not the requirement of the Article. It is some body’s ipse dixit.

Unilateralism to preserve the values of the Charter is not only a right but a duty. When Indian forces marched into Goa or into Hyderabad to displace the Portuguese or the despotic Nizam, India did not countenance any argument that we were in breach of the Charter. When the Israelis landed their commandos at Entebbe Airport in 1976 to free the passengers of a hijacked aircraft, no one made the argument that this use of force was unlawful and violation of the Charter.

It was argued once that the manner in which a Government treats its citizens is its own business and no other State can intervene. But today there is a substantial body of opinion that when a state commits cruelties and persecution of its own nationals in such a way as to deny their fundamental rights and to shock the conscience of mankind, intervention in the interest of humanity is legally permissible.

Four million Iraqis are living as refugees in the West today to escape from the horrors of Saddam Hussein. They met last month in London and passed resolutions that Saddam must go and a democratic pluralistic dispensation be established. If humanitarian intervention is recognised by international law, it is clear that the US-British action is plainly in the interest of humanity and must be supported by all nations.

By the 51st Article of the Indian Constitution, India is obliged to act in accordance with international law. India must therefore support what is being done in Iraq.

(The writer is a former law minister)