From: Brett Paatsch (paatschb@ocean.com.au)
Date: Wed Feb 19 2003 - 02:49:14 MST
> > Emlyn wrote:
> >
> > > Why isn't the US going to war with Iceland, immediately?
> > > I don't think that the doves [hawks?] on this list have
> > > provided any solid reasons for not going to war with Iceland.
> > > And who is any of us to say what the terrible implications of
> > > not going to war with Iceland might be? Iceland says it doesn't
> > > have any WMD, but is there proof?
> >
> Brett Paasch replied...
> > This looks a bit like a sentiment I used to share. My view had
> > <snip>
>
> Brett, just to clarify, is your position that the US should invade
> Iraq? Or are you merely saying that they do have a justification if
> they decided to do so?
Neither necessarily. First, it's not my *position* that I would encourage
anyone to be concerned with, but rather my line of argument which
most people are capable of checking for themselves.
I did outline some of the factors I had considered in getting to my
current position because I hoped that some others might check my
reasoning for errors.
Since you ask, this is my current position.
Should the US invade Iraq with Security Council approval if it can
get it?
- Yes. (If the Security Council will give it. I'm satisfied that this
body
would only actually make the decision to invade if it was
clearly warranted. ie. It will err on the side of not
invading)
Can the Security Council invade Iraq WITHOUT Security Council
approval in the form of a new resolution releasing them from their
commitments under 1441 and the UN Charter?
- No. I don't think so.
I think the US NEEDS another resolution UNLESS it is willing to
invalidate its commitment to the UN under the Charter and the terms
of 1441.
Can the US do this? It can. But it REALLY doesn't want to.
As to do it WITHOUT a new Security Council resolution given the
existence of the Charter which it signed and 1441 which it signed
would amount to the US breaching ITS OWN agreements with the UN.
This is very serious and would wreck the UN.
In this circumstance the US would (as a matter of foreign policy not law)
need to give some justification for such a breach as the US is not going
to just become a rouge state. In my opinion the *only* justification the
US could give for not keeping its agreement with the UN would be to
argue that the UN itself had proven to be a flawed body incapable of
carrying out its purpose as described in Article 1. That is, the US would
have to argue that the Security Council had effectively refused to accept
the responsibility for *effectively* maintaining international peace and
security, generally, as a result of the Security Council specifically
failing
to decide that "serious consequences" under 1441 amount to an invasion.
The argument by the US would be that the new global circumstances
of post-September 11 constitute a new type of threat and that the
Security Council was failing to effectively respond to that new type
of threat as per the Charter. That new type of threat would be the
coupling of a rouge State like Iraq's with its assumed capacity to
produce weapons of mass destruction and its assumed willingness to
arm terrorists of the sort of organisational skill and efficiency of the
September 11 group.
Now if you are asking me if I think the US would be justified in making
such a tough call (which amounts to a wholesale negation of the UN
Charter) due to say intransigence on the part of other Security Council
members then I would have to say its IS possible but it depends.
It depends on what the standard of proof should be in practice for
deciding to go to war. And here at last (imo) is the real problem. No
*practical* standard of proof for deciding when to go to war has ever
been agreed to.
Consider. In a murder trial the standard of proof is beyond reasonable
doubt. That's quite a high standard but it is certainly not beyond *all*
doubt. To say beyond *all* doubt it to set the standard infinitely high
as who could ever say with confidence that absolutely all doubt had
been removed.
In a civil trial the standard is on the balance of probabilities. This
lower standard is appropriate because the lower standard recognizes
that in matters such as torts, if a wrong decision is made the
consequences are less likely to be devastating. A wrongful conviction
for murder has high downside risk. This is not ultimately about the
downside risk to the individual wrongly convicted rather it is ultimately
about the downside risk to society of people seeing that someone like
them, an innocent, was wrongly convicted.
Now consider the standard of proof that is being held up as necessary
in order to justify the decision to go to war. There is none. There is NO
serious *practical* standard of proof and this is *precisely* the problem.
Everybody says War is bad and everybody is right.
Everyone talks about war being the last option and many people agree
with that too. But such is not an operationalisable standard it is mere
rhetoric and idealism. It fails as a standard because it puts all the risk
on one side and effectively means no war can ever be launched in
practice for any reason. Sound nice only if you are willing to forget that
this means that terrorist attacks on civilians would not be able to be
pre-empted they would only be able to be "avenged" after the fact.
Let me give an example. I am not aiming at a moral argument I am
aiming to diagnose and resolve a problem.
Consider this quote from Jacques Chirac from today's Australian.
(http://www.theaustralian.news.com.au/common/story_page/0,5744,6007022%255E2
703,00.html - EU unites to warn Iraq. )
"'We consider that war is always, always, the worst solution....
which leads us to conclude that it is not necessary today to have a
second resolution, which France could only oppose,' Mr Chirac
said."
Exactly. Chirac is starting from the axiom that war is always (x2) the
worst solution and then reasoning from it.
Well that's pretty idealist and in practise it puts all the risk on the
side of not going to War even when it is almost definitely justified.
(This point would be true irrespective of the particular case of Iraq).
Operationally the standard for going to War that Chirac is using
is an *infinitely* high one. It can never in practice be reached.
So leave aside considerations of the actual risk of a go-to-war
don't-go-to-war as it relates to Iraq. The problem is that there
is no practical standard in place and that the worlds leaders do all
have very real pressures and very real constituents to satisfy.
It serves no purpose to blame the French or the American's the
solution imo is.
1) First recognize that the Security Council needs to have
a general standard of proof for going to war that is practical in
terms of managing the absolute risks not just the one side risk or the
unoperationaliseable "war is always a last resort". If the Security
Council can't agree to this in principle than it is never going to be
able to solve a particular case satisfactorily and so imo any nation
would be entitled to walk away from the UN as its irrelevance
as a body for maintaining security would be conclusive..
2) Only once it is clear that a general practical standard for deciding
when to go to war is in place (and this need not be made public
- Saddam for instance doesn't need to see it), only then should
the Security Council move on to the question of applying the specific
risks (including the risks of too-early-action and late-action)
to the general standard.
My point is that step 1 should be relatively easy and the US would
be smart to get moving on it as a failure by the Security Council to
agree to the principle of formulating a practical standard would itself
imo simplify and crystallise the US position. If they have no choice but
walk away from the Security Council and the UN it is best that they
be able to show fair minded serious people why. Hence the prudence
of decoupling the steps..
- Brett Paatsch
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