From '9-11' to the 'Iraq War 2003': International Law in an Age of Complexity

by Dominic McGoldrick

Overview

This book is a tale of two towers,two wars and two visions. The two towers are those of the World Trade Center in New York, destroyed by a terrorist attack on 11 September 2001. The two wars are the War Against Terrorism and the War on Iraq. The two visions are of the international legal and political order for the twenty-first century. The issues involved in the War Against Terrorism and the War on Iraq are of fundamental importance because they may define the shape of international order for the twenty-first century.

The book has a number of themes. First, it considers the principal international law and international order issues involved in the War Against Terrorism and in the War on Iraq in 2003. Specific attention is given to the application of international humanitarian and international human rights law in the wars. Secondly it asks how the international debate on the Iraq War was conducted and why? Finally it questions whether the post-1945 system of international laws and organizations is capable of surviving, and in what form?

Chapter one outlines how the relationship between war and the international legal order has evolved and introduces the idea of 'complexity theory' as a framework for understanding the events and issues considered in this book. Chapter two considers the pattern of events from the attacks on the US on 9-11 to the Iraq War 2003. Chapter three addresses the issues of law and morality involved in the War Against Terrorism and the War on Iraq. Chapter four focuses on the moral and legal debate around the War on Iraq and chapter five considers the systemic consequences for international law doctrine and practice, giving particular weight to US policy and approaches and how other states have responded to them. Chapter six appraises the post-war situation in Iraq in terms of political and economic organisation and human rights. It also assesses the consequences of the status of post-war Iraq for the wider region. Chapter seven concludes the book by examining the possible implications of the War Against Terrorism and the War on Iraq for world order in the twenty-first century.

Product Details

ISBN-13:	9781841134963
Publisher:	Bloomsbury Academic
Publication date:	03/01/2004
Pages:	395
Product dimensions:	6.14(w) x 9.21(h) x 0.82(d)

About the Author

Dominic McGoldrick is Professor of Public International Law and Director of the International and European Law Unit, Liverpool Law School, University of Liverpool.

Table of Contents

	Acknowledgments	vii
	Introduction	1
1	War and the International Legal Order	4
1.1	The Paradoxical International Legal Order of the Twentieth Century	4
1.2	The Roles of International Law and of International Lawyers	6
1.3	An Age of Complexity?	7
1.4	'9-11': A Turning or Tipping Point?	8
2	From '9-11' to the 'Iraq War 2003'	9
2.1	The Attacks on the United States on 11 September 2001	9
2.2	The Iraw War 2003	11
2.2.1	Shifting the Focus	11
2.2.2	The Debate in the United Kingdom	12
2.2.3	'New' Europe and 'Old' Europe	13
2.2.4	Crisis in NATO	14
2.2.5	Worldwide Protests	15
2.2.6	International Lawyers	16
2.2.7	Operation Iraqi Freedom	16
2.3	The Link Between '9-11' and the 'Iraq War 2003'	17
2.3.1	Making the Link	17
2.3.2	The US Perspective	18
2.4	The Legal Categorisation of the Attacks on the US on 11 September 2001	20
2.5	'9-11' as a Turning or Tipping Point	20
2.6	'9-11' as a Turning Point for International Law?	22
3	International Law and the Wars on Terrorism and on Iraq	24
3.1	The 'War on Terrorism'	24
3.2	The Security Council's Counter-Terrorism Committee	25
3.3	Action by Regional Organisations	26
3.4	International Instruments and Institutions on Terrorism	27
3.5	The Objectives of the War on Terrorism	28
3.6	Strategies in the War on Terrorism	29
3.7	The 'Axis of Evil'	30
3.8	The Applicability of International Humanitarian Law to the War on Terror	32
3.9	Human Rights and Humanitarian Law in the War on Terrorism	33
3.9.1	Enemy Detainees	33
3.9.2	The Establishment of Military Tribunals	35
3.9.3	The Patriot Act	36
3.9.4	Extradition to Third States	37
3.10	Anti-Terrorist Laws in Other States	37
3.11	Monitoring of Human Rights in National Emergency Laws	38
3.12	International Humanitarian Law and the War on Iraq	40
3.13	International Human Rights Law and the War on Iraq	42
3.14	Interpreting Human Rights Law in Conflict Situations	45
4	International Law and the Iraq War 2003	47
4.1	The Debate on the Iraq War	47
4.1.1	Law and Morality	47
4.2	Moral and Political Arguments	52
4.2	The Legal Arguments on the War on Iraq	52
4.2.1	Context	52
4.2.2	Legal Bases	52
4.3	Legality Based on Security Council Resolutions	53
4.3.1	Security Council Authorisation	53
4.3.2	The Combination of SC Resolutions	55
4.3.3	Resolution 678	58
4.3.4	Resolution 1441	58
4.3.5	The 'Material Breach' Argument	62
4.3.6	Automaticity	64
4.3.7	The 'Second Resolution'	65
4.3.8	An Appraisal of the Legality Argument	66
4.4	Legality Based on Self-Defence	67
4.4.1	Self-Defence and the US's National Security Strategy: Pre-emptive Self-Defence	67
4.4.2	Critics of Pre-emptive Self-Defence	71
4.4.3	The UK and Pre-emptive Self-Defence	73
4.4.4	The Responses of Other States to the Idea of Pre-emptive Self-Defence	74
4.4.5	An Assessment of Pre-emptive Self-Defence	75
4.5	Legality Based on Humanitarian Intervention	77
4.6	The Legal Argument Against the War in Iraq	78
4.6.1	No Security Council Authorisation	78
4.6.2	Resolution 1441	79
4.6.3	The Absence of a Second Resolution	81
4.7	Conclusion	85
5	The United States and the International Legal System	87
5.1	The Value of International Law and International Institutions	87
5.2	State Responsibility and Rogue States	89
5.3	The Interpretation of International Law Rights: Pre-emptive Self-Defence	91
5.4	The Interpretation of Security Council Resolutions	91
5.5	The Global Responsibilities of the United States	94
5.6	Multilateralism and Institutionalism	95
5.7	The Role of Evidence and of International Inspectors	96
5.7.1	Public Discussion	96
5.7.2	The Evidence of the International Inspectors	96
5.7.3	The Evidence of the UK and the US	97
5.7.4	The Evaluation of the Evidence	98
5.7.5	The Credibility of the UK Evidence: the 'Sexed Up' Dossier?	99
5.7.6	The Hutton Inquiry	105
5.7.7	The Credibility of the US Evidence	114
5.7.8	The Importance of Evidence	116
5.8	The International Role of the European Union	116
5.9	Nation States and Foreign Policy	119
5.10	Conclusion	120
6	Winning the Peace: An Iraq For the Iraqis	122
6.1	The Responsibilities of the Victors	122
6.2	'Regime Change'--A Post-Saddam Hussein Iraq	123
6.3	Security in Iraq	126
6.4	The Future of Iraq	128
6.4.1	The New Iraq	128
6.4.2	The Coalition as Occupying Powers	129
6.4.3	SC Resolutions on Post-War Iraq	130
6.4.4	The Role of the United Nations	131
6.4.5	The Attack on the United Nations	133
6.5	Political Organisation in Iraq	134
6.5.1	De-Baathification	134
6.5.2	The Iraqi Governing Council	135
6.5.3	The New Plan for Iraq	137
6.6	Economic Organisation in Iraq	138
6.6.1	The Economic Challenges	138
6.6.2	Humanitarian Relief	139
6.6.3	Economic Reconstruction	141
6.6.4	International Economic Aid	143
6.7	Human Rights in Iraq	143
6.7.1	The United Nations and Human Rights	143
6.7.2	The UN's Model of Human Rights	144
6.8	Accountability for the Past	146
6.8.1	Dealing With The Past	146
6.8.2	The Iraqi Special Tribunal	146
6.8.3	The Capture of Saddam Hussein	148
6.8.4	Prosecutions versus Truth Commissions	150
6.9	Weapons Inspections	152
6.10	Measuring Success in Post-War Iraq	153
6.11	Conclusion	153
7	World Order(s) for the Twenty-First Century	155
7.1	Introduction	155
7.2	Challenges to the Post-1945 Legal Order	155
7.3	Complexity and World Order	157
7.4	Terrorism and World Order	158
7.5	The Clash of Civilisations	160
7.5.1	Islamic Fundamentalism	160
7.5.2	The Iraq War as a Clash of Civilisations?	160
7.5.3	Terrorism versus Liberalism	161
7.5.4	Assessing Islamic Fundamentalism	161
7.6	The Refah Partisi Case	163
7.6.1	The Position under Turkish Law	163
7.6.2	The Challenge under the European Convention on Human Rights	164
7.6.3	Democracy, Religion and the European Convention on Human Rights	165
7.6.4	A Plurality of Legal Systems	166
7.6.5	The Sharia and Democracy	167
7.6.6	Religious States and Secular States	168
7.7	Change in the Middle East	168
7.8	After Iraq, Who is Next?	169
7.9	Post-'9-11' Developments in the Middle East	170
7.10	Democratisation in the Middle East	174
7.11	The Effects of the War on Terrorism and the War on Iraq on International Security	176
7.12	The Effects of the War on Terrorism and the War on Iraq on International Legal Order	178
7.13	What Future for the United Nations?	180
7.14	Did the War on Iraq Harm the War on Terrorism?	185
7.15	The Iraq War--The Judgments of History	191
7.16	A New American Empire?	192
7.17	Did '9-11' Change the World?	196
7.18	Not Another War--The 'War of Ideas'	196
7.19	The Day the World Shook	198
	Documents	201
Appendix I	President Bush's Address to the United Nations General Assembly in 2001, 10 November 2001	203
Appendix II	The United States President's State of the Union Address 2002, 29 January 2002	207
Appendix III	The National Security Strategy of the United States of America, 17 September 2002	213
Appendix IV	Iraq's Weapons of Mass Destruction: The Assessment of the British Government, 24 September 2002	235

Editorial Reviews

McGoldrick writes with clarity and has made accessible...many of the difficult legal arguments in the area...[he] has a scholarly command of the doctrinal issues raised in the book...a valuable reference point for anyone interested in exploring international law and the two 'wars'.” —The Modern Law Review

“…an accurate, well-written summary of the legal, political, and moral issues flowing from the wars on terrorism and Iraq...would make a useful reference in a public international law course.” —Saskatchewan Law Review, Vol 68

“...a book for everyone concerned with the influence of terrorism, the Bush administration, and the War in Iraq on international institutions and international law..Alongside the fine discussion of the legal and political issues at play, the author also attempts to introduce a theoretical framework that may have broad application in social science as well as law.” —The Law and Politics Book Review

“For those that are already familiar with the legal issues involved in the military interventions in Afghanistan and Iraq, and the more broad 'war on terror', this text will add some interesting policy and theoretical perspectives. A good number of issues are raised that will trigger readers to give further thought to, and debate about, the role of international law and the UN in the maintenance of international order.” —New Zealand Law Journal

From the Publisher