Select Committee on Foreign Affairs Minutes of Evidence

Examination of Witnesses (Questions 100-106)



  100. If one simply looks at disarmament, that is covered by a Security Council resolution of which they are in breach.
  (Professor Greenwood) I think there is a danger of over-complicating the issues if we are not careful. The Security Council authorised action to remove Iraq's threat to peace and security in 1990. In 1991 it said, "Alright, the fighting will cease on the condition that you remove all ballistic missiles with a capacity of more than 150 km; you remove all chemical and biological weapons and all the means of manufacturing them; and you remove any nuclear capability; and that you submit yourself to independent verification that you have done all these things." We know that Iraq has not complied with that so the question becomes: if disarmament of this character—and it is only a partial disarmament, it still leaves Iraq with vast armed forces—is what the international community has decided is necessary for international peace and security, how are we going to achieve it? I do not think it can reasonably be said that the international community has not been patient with Iraq over this. This dispute has now been going on for eleven and a half years.

  101. Can one state take on itself the role of the enforcer?
  (Professor Greenwood) As a general proposition, I think no. In this case, provided the Security Council on behalf of the international community determines that there is a continuing threat to international peace posed by Iraq's violations, then those states that were given the authorisation in 1990 still have that authorisation. It would require some kind of Security Council determination on that.

Mr Maples

  102. I want to take a parallel point, the British, French and United States intervention in Kosovo was not only without a UN Security Council resolution but in circumstances which it would have been impossible to have obtained a UN Security Council resolution and we, it seems to me, invented a doctrine on humanitarian intervention, which I think has been dealt with in the same international way by Nicaragua—am I wrong? The point I was getting at that seemed to me to be an interesting new piece of international law, an interesting development, whether or not you think it is sound or legally based perhaps you have different opinions. It does seem to me to be strange that if we are to have a liberal interpretation of the right humanitarian intervention and a restricted determination of some sort of pre-emptive or anticipatory self-defence you end with a situation where it is okay for Britain and the United States to bomb Serbia in the interests of protecting the human rights of some of the people in that country but it is not all right for Britain and the United States to take military action against Iraq in circumstances in which they see the very basis and fundamental rights of their own citizens and those of their allies directly treated?
  (Professor Greenwood) I take that point entirely. It would be fair to say we would disagree for a lot longer than the time allotted if we get on to the subject of humanitarian intervention. Professor Brownlie and I have been on opposite sides of that debate for some time. The point about humanitarian intervention as it was espoused in the Kosovo case and indeed in earlier cases, including two interventions in Iraq, was that it was to be used only in the most extreme case where there was an immediate pressing humanitarian emergency. Of course, self-defence already gives you, on the analysis I suggested, the right to use force where there is an immediate, pressing threat to your own people. I do not see the dichotomy between the view of humanitarian intervention that the government took in 1999 over Kosovo and the view of self-defence which the government has always taken, namely that it includes the right of anticipatory self-defence but limited to cases of iminent armed attack.

  103. I was suggesting that the dichotomy would arise if one took a more restrictive view.
  (Professor Brownlie) I had to be somewhere in Africa at the time but I did burden the Committee with a very extensive opinion on the question at the time. Occasionally lawyers should be dogmatic. I think it was clearly illegal.

  104. What, the action in Kosovo?
  (Professor Brownlie) The action in Kosovo. I think the ultimate Foreign Office position was a very straight forward work one, they said they would work in the future to establish the legality of humanitarian intervention, which seemed to me to be some kind of an admission that perhaps it had been questionable at the time.
  (Professor Greenwood) I do not read it that way at all.

Sir John Stanley

  105. We have raised some very, very important but also some extremely complex legal issues with Professor Greenwood and Professor Brownlie and if they felt they wished to submit supplementary written memorandum to us when they have had time to consider the transcript of the exchanges it would be very helpful to the Committee.
  (Professor Brownlie) There is a small paper from myself[1].

(Professor Greenwood) And one from me[2]


  106. One final thought, international law, the law between nations. We are now getting to the point where law which were relevant to sovereign nations appear less relevant because of the appearance on the international stage of so many irregulars, non-sovereign states. Is there any prospect of international law moving in areas like this? You think of the Geneva Convention and the problems posed in Guantanoma Bay, to what extent is international law sufficiently flexible to move to encompass these new non-state actors?
  (Professor Brownlie) The first point I would make is that international law is often, as it were, treated as though it is going to be a source of solutions, it is not always a source of solutions, no more than national law. After the September 11 disaster Michael Howard wrote in the Times—he is a man of great common sense as well as being a leading historian. Michael Howard said the main answer to the problem of terrorism was better criminal investigation. That is a matter both for national law and international law. I do not think international law has any easy answers in this area as it does not on other matters, like drug enforcement, and so forth. I would point out that international law is now in two gears, there is the geo-political catastrophe gear but there is also the gear in which I spend much of my time, and so does Christopher, settling disputes peacefully. There is another gear and because that is boring and involves lawyers and diplomats, people who wear ties, the press are not really interested in that side of things. Thank you.
  (Professor Greenwood) I could never concede that what lawyers do is boring. I agree there are no easy answers. I do think, however, in respect of international terrorism the existing framework of international law on the use of force and international humanitarian law is capable of adapting to the change in circumstances. I do not think it is necessary that we throw up our hands in horror and say that after 11 September we need a wholly new legal system. We cannot have a wholly new legal system; therefore we have to work within the realms of what we have. That is perfectly capable of delivering an effective solution.

  Chairman: I reach two key conclusions, one the Committee, as before, is extremely grateful to you both. Secondly, when we come to an International crisis we must choose our professor carefully. Thank you very much indeed.

1   Ev 21-23. Back

2   Ev 17-21. Back

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