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Monday, September 20, 2004

1441 and Matthew Yglesias

Yglesias takes a pause from his usual brilliant blogging to present an absurd argument that the coalition invasion of Iraq was allowed under international law. This is obvioulsy false. A tip off should be that Bush argued that a new policy on when to invade countries was needed rather suggesting that he did not intend to stick to precendent. Amazingly Yglesias judges oltre petitio making a claim stronger than that made by an interested party -- Her Royal Majesties chief legal advisor lord something or other. Yglesias claims that UN security council resolution 1441 amounted to authorization to invade. This is absurd. Yglesias defends his interpertation of 1441 with no quotations of the text of 1441 none zero nada. This is easy to understand, since 1441 clearly was written so that it could not be interpreted as authorizing invasion if it were violated by Iraq.

The legal reasoning is, as follows, " By the same token, however, Saddam Hussein really was in violation of Resolution 1441 and by the terms of 1441 under the circumstances either no second resolution was necessary to make invasion legal, or else the factual situation obligated the Security Council to pass the necessary second resolution. As there isn't a great deal of (or necessarily any) precedent existing in this realm, the war had, if not the firmest legal basis imaginable, a pretty darn firm one as far as these things go. The reason no second resolution was passed, of course, is that the Security Council is not really a legal body like a court, but rather a policymaking body, and a majority of the council believed (correctly) that war was a bad policy under the circumstances."

IIRC the references to enforcement in 1441 are two (I am quoting form memory). First, as noted by Ygleisas, 1441 called for a report on hypothetical future violations to be submitted to the security council, which would then decide what to do. As noted by Yglesias, The Security council is not a court. It is not bound by earlier resolutions. Yglesias ignores this simple fact to suggest that it was possible that 1441 required the security council to do something. This is silly. If it had the security council could have resolved 1442 cancelling it. A legislature can bind a court to do something the judge would choose not to do. A council can not bind itself. This is obvious and Yglesias knows it. He also hints that 1441 might have made a further resolution unnecessary. This is clearly false. 1441 explicely declared that the next step would be a further referral to the security council. This was not a slip. The Bush administration and Blair government proposed a resolution with automatic enforcement and withdrew it because it would not have passed. There was a huge debate over this issue and Bush and Blair conceded. It is not possible to claim that, according to the intent of the security council or the plain meaning of words, this concession made no difference.

The second reference to enforcement, and the one to which Colin Powell appealed was IIRC "The Security council reminds the goverment of Iraq that it has been warned that non compliance could lead to serious consequences". Absurd of me to debate a text without looking it up, but I'm sure this clause of 1441 was grammatically incapable of creating a new authorization to invade as it was explicitely a reminder of existing conditional threats of serious consequences. The official UK analysis by lord whatshisname (IIRC Goldstone) was that 1441 *combined* with earlier resolutions and the cease fire agreement, constituted authorisation.

I think that according to every serious analysis of the text, 1441 added slightly less than nothing to the authorisation to invade that might have been there already. So why did the Bush amdinistratino vote for 1441 ? It is obvious, they made every possible concession on the text, because they planned to lie about what it said. They have done so and no one bothers to call them on it. I, for example, am not willing to bother looking up the text again. Niether, clearly, is Yglesias.

Yglesias makes other bold claims without any apparent foundation. He argues that Annan should not express an opinion on the issue, that is, if the secretary general concludes that some member countries have illegally invaded another member country, he should keep his mouth shut. I wonder, what exactly, the secretary general is supposed to do, if he is not supposed to mention what he perceives as a gross breach of the UN charter.

Also recall he claims that "Saddam Hussein really was in violation of Resolution 1441 " . Unsurprisingly, he presents no evidence to support this claim. I believe this is because the alleged violations of 1441 are trivial, clearly insufficient to amount to material breach. IIRC they are two nerve gas shells used in a roadside bomb set by people who clearly didn't know what was in the shell. There is no evidence that anyone in 2003 knew what was in the shells, so failure to surrender them would be a mistake not a deliberate violation. Someone had a test tube full of b. botulinus (a common soil bacterium) in his refrigerator. Someone had plans for and pieces of an old gas centrifuge burried under a rose bush. Both technically should have been reported, but might have been forgotten and neither is anymore a causus bellus than I know the plural of causus bellus.

The claim that Saddam Hussein was in violation of Resolution 1441 was that he had kept stocks of WMD hidden from UN inspectors. This is the basis for the interested UK legal judgement that the invasion was legal. A sincere belief that he had stocks of WMD does not, of course, amount to a violation of 1441. We now know he did not have such hidden stocks. Thus we now know that the invasion was not authorised implicitely by the cease fire agreement or by any security council resolution and was a violation of international law.

This is all obvious. I can't believe this is not clear to Matthew Yglesias.

Update 1: I forgot to link to the post here.

Update 2: Matthew Yglesias has a new post on this. However, he is not convinced the invasion was illegal. Also he doesn't link to any of his critics and I was really hoping for a link. There are 4 issues
1) did 1441 authorise invasion without a further resolution ?
2) Did the Saddam Hussein regime violate 1441 ?
3) is it bad politics to argue that the invasion was illegal ?
4) Is arguing that the invasion is illegal equivalent to arguing that the victims of this illegality are named Saddam Hussein ?

I note first and (and will note last) that points 3 and 4 are unrelated to points 1 and 2. The link in Yglesias' mind between claim 3 and claims 1 & 2 is very very typical of moderate liberals irritated with radicals (including me). It is not logical.

On 1 Yglesias has moved from a strong claim "by the terms of 1441 under the circumstances either no second resolution was necessary to make invasion legal, or else the factual situation obligated the Security Council to pass the necessary second resolution." to an actual quotation
"Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations." He doesn't concede explicitely that the quote proves the claim wrong. This is simple grammer. Recalling an previous threat can not be the establishment of new terms. If the invasion was authorised, it was authorised before 1441. He now writes "At any rate, one could make out an argument that the war was illegal, but such an argument would need to rest on the construal of "serious consequences"" This is very close to a concession. I think it safe to say that, in ordinary usage, serious consequences are considerably short of war. The history of negotiotion of 1441 makes it very clear that the vague "serious consequences" was used not a threat to invade, because a resolution with such a threat would have been vetoed by 3 permanent members.

Matthew Yglesias (may I call you Matt ?) argues "Nevertheless, under the circumstances, and in light of SCR 687 and other earlier Iraq resolutions (which, per Paragraph 1 Iraq was in material breach of, thus percipitating SCR 1441) which were adopted as part of a cease-fire agreement to halt an ongoing war, it's not at all implausible to regard this as authorizing the use of force unless SCR 1441 were to be superceded by another Iraq resolution, which it was not."
Here noting that any authorisation would have to be based on earlier resolutions. I don't see how Iraqs not doing what it promised in exchange for a cease fire agreement would imply authorisation to invade Iraq. The resolution authorising desert storm authorised all means necessary to liberate Kuwait. It did not authorise the desert storm coalition to invade Iraq unless Iraq disarmed. I would consider failure to disarm to authorise UN member countries to decide if further fighting was needed to free Kuwait. Clearly it wasn't.

2. Was Iraq in violation of 1441 ? Here Yglesias does not argue exactly. Instead he quotes from a report by Blix. This quotation is supposed to support the claim that Iraq was in violation. It is hard to argue against this interpretatin, because it makes no sense at all. I edit down the quotation

"In my earlier briefings, I have noted that significant outstanding issues of substance were listed ... The declaration submitted by Iraq on 7 December last year, despite its large volume, missed the opportunity to provide the fresh material and evidence needed to respond to the open questions. "

How the existence of "open questions" can be construed as closing the question is beyond me. More importantly, the question is no longer open. At the time, Blix clearly suspected that Iraq had hidden stocks of Anthrax and VX and had undeclared long range missiles. After the invasion, a very thorough investigation has demonstrated that Iraq did not. What Blix was saying is that Iraq had not proven that it was in compliance, not that it wasn't.

Yglesias quotes a lot from 1441. Oddly most of the quotes remind us of how Iraq complied with 1441 in particular by allowing inspections whithout interference (for the first time) and by surrendering weapons which were banned or arguable banned (two anthrax bombs found undestroyed at the site where the others were destroyed and the Al Samoud missiles).

Honestly trying to reproduce Yglesias' thought, I can imagine that the missing proof of destruction of Anthrax and VX might be interpreted as constituting an "omission" as in false statements and omissions. I think it is clear that the word "omission" in 1441 means "knowing omission". Surely the resolution can not be interpreted as meaning Iraq may be invaded if they do not know everything related to past weapons of mass destruction in Iraq. I mean sloppy record keeping is bad but it is not a causus bellus. However, this is, in fact, the cause of Iraq's "omissions". They had destroyed the weapons but they did not keep detailed records. It now appears that Iraq destroyed its biological weapons before the rest of the world knew they existed, so they had no reason to know that they would need records of the destruction.

I really think that Yglesias concluded at the time of the invasion that it was legal but bad policy and didn't reconsider the issue in light of the absence of WMD stocks. At the time of the invasion, I believed that Iraq had violated 1441 by keeping WMD. Only later did I realise that the invasion was not allowed under intarnational law. Honestly believing that another country has done something which would make it legal to invade them is not a justification. If it were allowed that would be the end of international law.

I also think that part of the casualness of the original post is due to the fact that, like me, Yglesias doesn't think the end of international law would such a huge loss given how little international law has accomplished so far.

3. Is this bad politics? It sure is. Any sign of respect for international law is political poison in the US. The vast majority of Americans want a president who is willing to violate international law. However, the fact that, if Kerry made a claim then Bush would win the election does not imply the claim is false.

4. Yes I know the claim as written is grammatically incorrect. The argument that saying the invasion was illegal means saying the victim is Saddam Hussein makes no sense at all. International law does not exist to protect the power of heads of state. It exists mainly to reduce the number of wars, since wars are, in general, bad. Consider an analogy. I decide to shoot a ruthless criminal but, since I can't aim, I kill an innocent bystander. If my action is treated as a crime, does this mean that the prosecuter must prosecute me only for attempted murder of the criminal ? This is not the way the ordinary law operates and there is no reason to claim that, if international law operated at all, it would have to operate that way. Again it is hard to respond to an argument which makes absolutely no sense.

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