Legality and Legitimacy: Ukraine and lessons from Iraq
Europeans have taken for granted that memories of interstate war and the possibility of a full-scale invasion of a sovereign country on our continent were to remain relegated to eighty years ago or some distant place in the world. As it turns out, Putin’s invasion of Ukraine reveals how even in Europe peace is not a constant anymore.
The Charter of the United Nations instructs member states in Article 2.4 to ‘refrain … from the threat or use of force against the territorial integrity or political independence of any state’. The Charter was a pivotal staging-post in the history of international relations and international law, comprising groundbreaking principles revolutionising the way states interact with each other, in peacetime and wartime. Despite this peace-oriented regime, war and aggression remain a fact of life; although deaths resulting from conflict between states have steadily declined, violence has evolved and increased in unpredictable ways.
Chapter VII outlines the duties of the Security Council (UNSC), whose resolutions are the only binding ones among the six principal organs of the UN and is alone vested with the decisional power to mandate the use of force in the event of ‘any threat to the peace, breach of the peace, or act of aggression’ (Art. 39).
The rift between legality and legitimacy had already been widened during the NATO bombing in Yugoslavia in 1999, a campaign which may have precluded further mass killings of Kosovars and yet was not authorised by the UNSC.
Four years later, a US-led coalition decided to invade Iraq and oust Saddam Hussein. It was one of the most controversial military operations of the contemporary era, from which several lessons can be drawn as Russian tanks roll towards Kyiv. Are there parallels between the two invasions? With little doubt that both are illegal, is there basis for their legitimacy?
Legality
In 2003 the debate surrounding the legality of the invasion rested on three UNSC binding resolutions, numbered 678, 687 and 1441. The resolutions communicated the increasing frustration of the international community vis-à-vis the actions of the Baathist regime and its failure to abide by international norms for over a decade.
One side would espouse a more complex hermeneutic of the resolutions, while the other would relegate the role of judgement to a literal reading: British Attorney-General, Lord Goldsmith QC, put forward a farfetched argument contending that Saddam’s material breaches of the latter resolutions revived the consent given by the Security Council in 1991 prior to the intervention in. This was the rationale behind the apparent legality of the American-led invasion.
Although UNSC resolutions tend to be contrived and appear rigidly ceremonial, interpreting them is not a work of exegesis. Even so, the Security Council had yet to mandate the use of force.
Russian officials hardly concerned themselves with justifying their invasion via legal means. These are devices used by democratic nations, and they serve no purpose when those in power can act with impunity and dissent can be dealt with propaganda or coercion.
On the international arena, legality matters to the extent that international bodies can designate the aggressors accountable. Kenya’s ambassador to the UN gave an impassioned speech on the benefits that the current system bestows on minor powers by upholding the “sovereign equality of states.” Nevertheless, the only motions or resolutions carrying any authority are the Security Council’s, in which both the United States and Russia have veto power. A new avenue may soon be opened: as pressure to hold Putin responsible is gaining momentum, the International Criminal Court has already initiated an active investigation into war crimes. It is only the second time a Western country finds itself in the crosshairs of an ICC probe — the first was in the context of an eerily similar Russo-Georgian War in 2008. Notwithstanding the likely fruitlessness of the investigation, it conveys an irrefutable affirmation of the illegality of the Russian invasion.
Both invasions had no legal basis. Twice in twenty years a permanent member of the UN Security Council with veto power has infringed on fundamental articles of the Charter they are supposed to safeguard. Two unlawful invasions which the international legal apparatus and the UN have been powerless to prevent or end.
Legitimacy
Contemporary commentators could be drawn to depict moral equivalences between Putin’s invasion of Ukraine and the American invasion of Iraq in 2003. It would be a grave fallacy, a product of Russian propaganda, strong anti-American sentiment, or a simple lack of knowledge of the circumstances around the two events.
Equating Iraq and Ukraine is as much a mistake as overlooking the motives and goals of the Western and Russian invasions.
Initial legitimacy of the invasion of Iraq was granted by the claims that Saddam producing and storing weapons of mass destruction (WMDs).
Despite Hussein’s indisputable record of developing and capably concealing chemical and biological weapons, we today know that Bush and Blair lied to millions of citizens. Hans Blix and his team, leading the UN Monitoring, Verification and Inspection Commission, did not find any evidence of WMDs despite hundreds of inspections.
Concerns over serious violations of human rights violations under Saddam Hussein, possibly one of the most brutal tyrants in the latter half of the century, should at least beget calls for a regime change in the country. Protection of minorities and civilians in Iraq from Baathist despotism lent legitimacy to the Coalition intervention and their ultimate goal of toppling the regime.
Undoubtedly, Saddam committed grave crimes in contravention of the Rome Statute, including a genocide against Kurds in 1988.
Reprisals following the Sadr uprisings resulted in the killing of tens of thousands of Shi’a and Marsh Arabs. The persecution of the Feylis, a Shiite-Kurdish tribe, did not end until Iraq had been occupied. After 1991, amid a UN embargo and continuous UNSC resolutions against Iraq, thousands of Kurdish families were forcibly deported from Kirkuk, while the establishment of no-fly zones after the Gulf War may have prevented a second Anfal campaign. Once again, lawfulness and justifiability were opposed, as this measure was deemed illegal by the then UN Secretary-General Boutros-Ghali, yet few Kurds in Arbil would regard it as illegitimate.
Such persistent breaches of erga omnes obligations invite the legitimate involvement of foreign countries, for it would be in the interests of humanity to take appropriate actions.
As neither moral condemnations nor economic sanctions and embargoes were successful, only the use of force as a last resort was left.
The legitimacy acquired from the intended protection of human rights, of the lives of Iraqi civilians, and of security in the region has certainly been eroded by the American neglect of the rule of law. The Bush administration’s reservations to the Geneva Conventions and the abuses at the Abu Ghraib prison erased most of the perceived legitimacy obtained from the aspirations to remove Saddam from power. The hopes that the invasion would end human suffering in the country were spoilt by subsequent events, including the rupture of a civil war and the rise of Daesh, partially brought about by the occupying powers’ failure to stabilise the country and draw up coherent plans for what to do once the war was won.
The goal of the Russian invasion parallels the Coalition’s: remove a sovereign country’s leader from power. As far as resemblances go, they end there.
Saddam Hussein ruled as an illegitimate tyrant for more than two decades, while witnessing numerous popular uprisings. It is important to state that Iraqis, despite their resentment towards the government, neither expected nor embraced the destruction brought by the American attacks. Volodymyr Zelenskyj won the presidency by a landslide in a rapidly democratising country, whose population heavily favours warmer relations with European partners and breaking away from the Russian sphere of influence.
Putin has attempted to justify the assault on Russia’s sovereign neighbour by perverting the language of human rights.
The carnages caused by Saddam is widely substantiated by the discovery of mass graves and the reports of chemical attacks on Kurdish minorities. The claims made by Russian leaders that Kyiv is committing a genocide against Russian speakers in Ukraine are completely unfounded. A report published by the UN High Commissioner for Human Rights has refuted these assertions.
Putin’s intention to ‘denazify’ Ukraine, a term reminiscent of Soviet purges, disclose his grotesque narrative and complete lack of legitimacy for the invasion. A Pew Research Center poll showed Ukraine as the most open towards Jews among its Central and Eastern European neighbours. The country’s Jewish President has become a symbol of patriotism and is at the forefront of the fighting.
Conventions regulating the right to war are clear on the legality of an armed conflict: the sovereign and territorial integrity of a country is not to be infringed on. The US-led invasion of Iraq and Russia’s aggression against Ukraine have violated these basic laws. Neither has been endorsed by the UNSC, even though American and British representatives have fiercely argued in support of the legality of their actions. Putin has done nothing of the sorts. Instead, he resorted to a brittle façade of legitimacy to advance his geopolitical objectives.
Americans went to Iraq on the false premise that Saddam Hussein still possessed weapons of mass destruction. The legitimacy of the military operation should not rest on a lie, but on the just cause of enforcing universal human rights and bringing Saddam’s tyranny to an end. The criticism should be instead focused on the short-sightedness and incompetence of the occupying powers, who neglected the ensuing humanitarian disasters.
In the case of Ukraine, Putin’s attempts to advance a casus belli rest on fabricated narratives. The roles are reversed: Putin is the tyrant, his regime the one threatening the world with weapons of mass destruction.
Sources for the references can be found here.
