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Iraq - Why New Zealand Should Be Part Of The Coalition

Iraq: Why New Zealand Should Be Part Of The Coalition

The war in Iraq's thrown up basic questions that demand answers. Is it legal?

Should we be there?

LEGALITY OF THE WAR

One of the most profound questions any democratic country must be able to answer is whether or not war is legal. For western countries that have been built on the foundation of law and ethics, the moral case for war depends on its legality.

As a former professor of law specialising in international law, I have thought deeply about this issue, and have been asked by many people for my comment.

There are three reasons why war against Iraq is legal and just. The first and most important is self-defence. The second is the enforcement of UN resolutions requiring Iraq to disarm. The third is a developing doctrine of international law known as "humanitarian intervention".

Article 51 of the United Nations Charter confirms every nation has the inherent right of self-defence. This covers actual attacks and imminent attacks. Iraq fits the latter case. Since the United States has not actually been attacked by Iraq, the case of self-defence rests on the threat of imminent attack. This was defined in 1837 by United States Secretary of State Donald Webster following a British attack on the Caroline - an American ship in a United States port that was used for attacks on Canada. He said that an imminent attack had to be "instant, overwhelming, leaving no choice of means and no moment of deliberation". The British accepted that attacking a ship in port did not meet the test. So why does Iraq meet the "imminent" attack threshold?

The United States can justifiably point to the challenge Iraq poses. Firstly, the Iraqi dictator has biological and chemical weapons. These are generally illegal, and in Iraq's case the Security Council has specifically required Iraq to rid itself of these weapons. They have been used against the Iranian army and Iraqi civilians. Secondly, he has links to terrorists, including paying $25,000 to the families of Palestinian suicide bombers. Thirdly, there is now a clear understanding of the risks of terrorist attacks. September 11 showed the extraordinary vulnerability of western cities to terrorism, and an insight into the risks of biological or chemical weapons being used. The prospect of Iraqi terror weapons being used by terrorists cannot be contemplated. In the Caroline case the ship was merely transporting insurgents and gunpowder. They posed a low level of risk. If Ira

A contemporary and pertinent example of self defence against imminent attack is the Israeli attack on Iraq's Osriak nuclear reactor in 1981, to stop their nuclear weapons programme. Israel could not contemplate Iraq's possession of nuclear weapons, given Hussein's declared aim to destroy Israel and his previous record of attacking Iran.

The United States can rely on self defence under Article 51 to remove Hussein since he has continued his ambitions to obtain weapons of mass destruction.

The second justification for military action against Iraq rests on the failure of the UN Security Council to enforce its own resolutions requiring Iraq to disarm. There is no doubt that Iraq is in breach of Security Council Chapter 7 resolutions, including 678 of 1990, 687 of 1991, and most importantly 1441 of last November. These require Iraq to disarm in order to restore international peace and security in the region. Failure to comply with Chapter 7 resolutions can result in military enforcement. In contrast Chapter 6 resolutions, such as apply to Israel, require the peaceful resolution of disputes. Chapter 7 military forces can only be supplied by nation states, given that there is no UN military force. The present force, and in fact the only military force actually capable of disarming Iraq, is largely from the United States, along with the United Kingdom. Naturally the

The key question is whether the Security Council has already authorised force or if it has to further authorise force. Both the United States and Britain have argued that existing resolutions already authorise force, since Article 1441 says Iraq will face "serious consequences" if it fails to co-operate and disarm. There is of course the difficulty that the Security Council is split on this issue. The countries that will actually be doing the disarming - the United States and Britain - have said Iraq is in breach and the inspection system has failed. On the other hand France, Russia and China say the inspection system is working. The Security Council is therefore paralysed.

What this really shows is the imperfection of the UN system. It relies on consensus for action. Those who say, such as the Labour Government, that unless there is consensus, then no nation can act to enforce a UN resolution, end up surrendering to the imperfections of the UN system.

A coalition of nations able to act should be able to enforce Chapter 7 resolutions when the Security Council is paralysed. It also clearly points to a need to reform the United Nations system, both in respect of the use of the veto, and to give proper weighting to the countries that actually provide military forces.

The third justification rests on a developing principle of international law known as "humanitarian intervention". It allows countries to intervene against the worst dictators who are committing genocide or who pose a grave threat to international peace. Thus India removed Pakistan from Bangladesh in 1971; Tanzania overthrew Idi Amin in 1973; and Vietnam removed Pol Pot in 1978. Most recently NATO removed Serbia from Kosovo. In all cases these were accepted as lawful, given the appalling nature of the regimes that were being removed. Hussein fits neatly into this category, having invaded two countries, gassed his own people and continues to develop weapons of mass destruction.

Australia, Britain, and the United States derive their moral authority from the rule of law. Military force has to be justified on the basis that it is both moral and just.

The use of force as an instrument of real politic will quickly undermine the moral authority of Western nations. Iraq's possession of weapons of mass destruction and its proven propensity to use them means it has to be disarmed. This now has to be done by force, especially by the United States, who is also at greatest threat of direct attack. That is why it is both legal and just.

WHY NEW ZEALAND SHOULD BE IN IRA

q If the war is justified, why aren't we there? National's answer is very clear - we should be there, and the reason is that it is right and it is in our interests to do so.

Contrast our situation to Australia's. They have made a very clear decision to be an active part of the coalition. For Australia, the relationship with the United States was decisive. Alliances count most when the hard choices have to be made. It is obvious to everyone that this war is demanding. Although the coalition is about to defeat Baghdad, this war has been difficult, as all wars are. The sheer difficulty of the war means that friends will be remembered, much more than if the war had been easy and Iraq had collapsed in a few days.

Opting out from mutual obligations is the surest way to wreck an alliance. So Australia said yes when asked to help, knowing that if they ever have to ask for help, there will be a reciprocal obligation. New Zealand was asked to help, and said no.

That decision by Helen Clark will be remembered, probably more acutely than the nuclear ships decision. When a country asks for help on the hard tasks, a refusal will rankle, and has consequences.

What is at stake is the fundamental nature of the relationship we want with the United States?

This matters more than it did in the 1990's, the immediate post-Cold War era. There has been a shakeout of relationships since the common foe of the Soviet Union has been defeated. Over the last few years we have seen three major groupings of nations emerge: the Anglo-American group, the Continental European group and the East Asian grouping. An Indian sub-continental grouping may also evolve in the next two decades.

The importance of these groupings is that they are not only security relationships; they embody a fabric of relationships including investment and dialogue. Within each grouping there are those nations who are tightly bound, and those on the periphery. Those nations who are tightly bound share obligations, but they also share benefits. Nations on the periphery can become marginalised - literally drop out of sight.

The Iraq war demonstrates this. The United States, Britain and Australia are at the centre of the coalition. Canada, New Zealand and Ireland are not. But Canada and Ireland have options that New Zealand does not. They are both key players in large free trade agreements. In Ireland's case, not just with Britain and the United States, but also with Europe. So New Zealand is actually the most vulnerable - not in a sense of being invaded, but in not having the benefit of a network of strong security, trade and investment linkages, especially with the United States.

Last month the United States issued its trade agenda for 2003. Australia has already started its free trade negotiations with the United States - and they will succeed. The United States' Trade Representative, Robert Zoellick, specifically said that Australia's commitment as an ally is appreciated and valued. It will be rewarded. Last November, Robert Zoellick wrote to Congress asking whether New Zealand should be included in free trade negotiations. There is now no such consideration. Why the change?

It is because the Labour government has turned its back on the United States at the very time it has asked for assistance. The Prime Minister's foolish criticism of United States actions has been noticed. Her clumsy apology, where she can't even apologise for what she actually said, will compound the problem. Her refusal even to allow humanitarian and peacekeeping assistance to the coalition is seen as spiteful. Her actions are writing New Zealand out of consideration for better relations with the Unites States; for an improved security relationship, for better trade relations and for a generally closer and more fruitful relationship. This has been done at a time when the costs of not being in the inner group are higher than ever before.

Sure, Australia will work with us on issues affecting the South Pacific and near Asia, such as East Timor. But beyond our immediate interests in the South Pacific and with Australia, we don't count.

We will be regarded as just another small country without influence.

That will be a new experience for New Zealand, and it will be a bad one.

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