Examination of Witnesses (Questions 100-106)
PROFESSOR CHRISTOPHER
GREENWOOD AND
PROFESSOR IAN
BROWNLIE
THURSDAY 24 OCTOBER 2002
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]
Chairman
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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