War in Iraq by Mark Littman QC

by Mark · 8 December, 2004

MARK LITTMAN Q.C.

On 19^th March, 2003, the UK joined the USA in an attack on Iraq, by land, sea, and air.

Six weeks later, on the 1^st May 2003,  President Bush declared the war over.

Now, 18 months later, the fighting continues.

The Human Cost

Allied Casualties[1]

Between 19^th March 2003 and 22 November  2004  US and UK military forces and their civilian contractors suffered  10,508 casualties, killed and wounded.

Military killed                                               1370

Military wounded                                         8956

Contractors killed                                          182

Contractors wounded^[2] ..?.

Total  casualties                                          10508[3]

87.5% of these casualties of 10,508 were suffered after the war was declared over on 1 May, 2003.

Of the total military killed of 1370, 74 were British and 1224 were US.

Iraqi Casualties : Military

No detailed figures are available.   However, at Fallujah the Allies reported that the ratio of Iraqi military casualties to Allied military casualties was about 10:1.  If this ratio is applicable to the whole period of hostilities the Iraqi military casualties to date are of the order of 100,000[4].

Iraqi Casualties : Civilian

All estimates place the number of civilian deaths in the tens of thousands.[5] The lowest is that of the Foreign Secretary at  ?> 10,000?.  The highest is  that produced by the Center for International Emergency Disaster and Refugee Studies, Johns Hopkins Bloomberg School of Public Health, Baltimore USA.  It relates to the period March 2003 to September 2004 and has now been  published by ?The Lancet?.  The report concludes :

Making conservative assumptions, we think that about 100,000 excess deaths, or more, have happened since the 2003 invasion of Iraq.  Violence accounted for most of the excess deaths and air strikes from coalition forces accounted for most violent deaths.

There are no figures available for non-fatal casualties.

Material Cost of the War

The financial cost to the USA

To date has been estimated at approximately $146 billion.   This could have paid for fully-funded worldwide anti-hunger efforts for 6 years;  fully-funded worldwide AIDS programmes for 14 years; or worldwide child immunisation programmes for 48 years.[6]

It has also been estimated that the total cost to the USA of the Iraq war, including the future cost of hostilities and reconstruction, may well exceed $500 billion.  A well-informed source has said that if such support were available for medical research, instead of being spent on the Iraq war,  it could rid the world of several of the world`s worst diseases, including AIDS and malaria.

The cost to the UK

It has been estimated that the war costs  the British tax payer ?1.5 billion a year and that this sum could pay for the building of  9 new hospitals every year. Mr. Vincent Cable M.P., Treasury spokesman for the Liberal Democrats, has also estimated that by the end  of 2005 the cost to the UK of the war and occupation will have risen to ?5 bn.[7]

The total military fatalities for UK forces up to the middle of November 2004 were 72.[8]

The cost to Iraq

This material cost, past and future, to Iraq  cannot yet be estimated.  Nor can we yet say who is going to bear such cost.

The reason why

Weapons of Mass Destruction

The reason given by USA and the UK for the attack upon Iraq was that world peace was threatened by Iraq?s possession of weapons of mass destruction, nuclear, chemical and biological.

Statements on behalf of US and UK Governments citing WMDs as the reason why war was necessary

5 Feb 2003	During his U.N. presentation, Secretary of State Colin Powell declares: “Our conservative estimate is that Iraq today has a stockpile of between 100 and 500 tons of chemical weapons agent. That is enough agent to fill 16,000 battlefield rockets.”
8 Feb 2003	During a radio address, President George W Bush declares: “We have sources that tell us that Saddam Hussein recently authorized Iraqi field commanders to use chemical weapons — the very weapons the dictator tells us he does not have.”
6 Mar 2003	During a press conference, President George W Bush declares: “Saddam Hussein and his weapons are a direct threat to this country, to our people, and to all free people…. I will not leave the American people at the mercy of the Iraqi dictator and his weapons.”
16 Mar 2003	In an op-ed piece published in the Washington Post, Senate majority leader Bill Frist declares: “Getting rid of Saddam Hussein’s regime is our best inoculation. Destroying once and for all his weapons of disease and death is a vaccination for the world.”
16 Mar 2003	Vice President Dick Cheney tells Meet the Press: “Let’s talk about the nuclear proposition for a minute. We know that based on intelligence, that he has been very, very good at hiding these kinds of efforts. He’s had years to get good at it and we know he has been absolutely devoted to trying to acquire nuclear weapons. And we believe he has, in fact, reconstituted nuclear weapons.”
17 Mar 2003	During an address to the nation, President George W Bush declares: “Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised.”
18 Mar 2003	British Prime Minister Tony Blair tells the House of Commons: “We are asked now seriously to accept that in the last few years — contrary to all history, contrary to all intelligence — Saddam decided unilaterally to destroy those weapons. I say that such a claim is palpably absurd.”
19 Mar 2003	During an address to the nation, President George W Bush declares: “The people of the United States and our friends and allies will not live at the mercy of an outlaw regime that threatens the peace with weapons of mass murder.”
21 Mar 2003	White House spokesman Ari Fleischer declares: “Well, there is no question that we have evidence and information that Iraq has weapons of mass destruction, biological and chemical particularly.”
22 Mar 2003	General Tommy Franks declares: “There is no doubt that the regime of Saddam Hussein possesses weapons of mass destruction. And… as this operation continues, those weapons will be identified, found, along with the people who have produced them and who guard them.”
23 Mar 2003	Kenneth Adelman of the Defense Policy Board declares: “I have no doubt we’re going to find big stores of weapons of mass destruction.”
24 Mar 2003	Defense Secretary Donald Rumsfeld tells Face the Nation: “We have seen intelligence over many months that they have chemical and biological weapons, and that they have dispersed them and that they’re weaponized and that, in one case at least, the command and control arrangements have been established.”
25 Mar 2003	British Prime Minister Tony Blair declares: “I have always said to people throughout that our aim has not been regime change, our aim has been the elimination of weapons of mass destruction.”
30 Mar 2003	Defense Secretary Donald Rumsfeld tells This Week with George Stephanopoulos: “the area… that coalition forces control… happens not to be the area where weapons of mass destruction were dispersed. We know where they are. They’re in the area around Tikrit and Baghdad and east, west, south and north somewhat.”
4 Apr 2003	British Prime Minister Tony Blair declares: “I have no doubt that we will [find WMD]. We have got absolutely no doubt that these weapons exist. But there has been a campaign of concealment by Saddam ever since he knew that UN inspectors were coming back into the country, and I have got absolutely no doubt that those weapons are there.”
8 Apr 2003	British Prime Minister Tony Blair declares: “On weapons of mass destruction, we know that the regime has them, we know that as the regime collapses we will be led to them. We pledged to disarm Iraq of weapons of mass destruction and we will keep that commitment.”
10 Apr 2003	In a message to the Iraqi people, President George W Bush declares: “The goals of our coalition are clear and limited. We will end a brutal regime, whose aggression and weapons of mass destruction make it a unique threat to the world.”
10 Apr 2003	White House spokesman Ari Fleischer declares: “We have high confidence that they have weapons of mass destruction. That is what this war was about and it is about. And we have high confidence it will be found.”
3 May 2003	President George W Bush declares: “We’ll find them. It’ll be a matter of time to do so.”
27 May 2003	Defense Secretary Donald Rumsfeld tells the Council on Foreign Relations: “Now what happened? Why weren’t they [the WMDs] used? I don?t know. There are several possible reasons for that… it may very well be that they didn?t have time to… use chemical weapons. It is also possible that they decided that they would destroy them prior to a conflict.”
28 May 2003	Paul Wolfowitz declares: “For bureaucratic reasons, we settled on one issue — weapons of mass destruction — because it was the one reason everyone could agree on.”
13 Jul 2003	National Security Adviser Condoleezza Rice tells Fox News Sunday: “I believe that we will find the truth, and I believe that Saddam Hussein had weapons of mass destruction.”

Statements showing that Iraq had no such weapons.

23 Jan 2004	In an interview with Reuters, former weapons inspector David Kay is asked about the WMDs. He opines: “I don’t think they existed. I think there were stockpiles at the end of the first Gulf War and those were a combination of U.N. inspectors and unilateral Iraqi action got rid of them.”
3 Feb 2004	Secretary of State Colin Powell tells the Washington Post he’s unsure whether he would have recommended invading Iraq if he had known there were no WMDs there. “I don’t know, because it was the stockpile that presented the final little piece that made it more of a real and present danger and threat to the region and to the world… [the] absence of a stockpile changes the political calculus; it changes the answer you get.”
5 Feb 2004	Former weapons inspector David Kay tells CNN “If the administration had laid out a case based solely on the intentions of the Iraqi regime, I doubt you would have had massive public support or any international support for that. The argument last year was one not only of intentions but of capability and actual possession of weapons of mass destruction.”
24 Mar 2004	At the annual Radio and Television News Correspondents Association dinner, George W Bush shows slides of himself searching clumsily behind furniture in the Oval Office, joking: “Those weapons of mass destruction have got to be somewhere … nope, no weapons over there … maybe under here?”
2 Apr 2004	Secretary of State Colin Powell concedes that the two mobile biological weapon labs he identified at his UN presentation might not have been WMD-related. “Now it appears not to be the case that it was that solid… But at the time I was preparing that presentation it was presented to me as being solid.”
16 May 2004	Secretary of State Colin Powell tells Meet the Press: “When I made that presentation in February 2003, it was based on the best information that the Central Intelligence Agency made available to me. We studied it carefully; we looked at the sourcing in the case of the mobile trucks and trains. There was multiple sourcing for that. Unfortunately, that multiple sourcing over time has turned out to be not accurate. And so I’m deeply disappointed… it turned out that the sourcing was inaccurate and wrong and in some cases, deliberately misleading. And for that, I am disappointed and I regret it.”
6 Jul 2004	British Prime Minister Tony Blair finally concedes: “I have to accept we haven’t found them and we may never find them. We don’t know what has happened to them. They could have been removed. They could have been hidden. They could have been destroyed.”
14 Jul 2004	Lord Butler states in his ?Review of Intelligence of Weapons of Mass Destruction? that ??from the evidence which has been found and de-briefing of Iraqi personnel it appears that prior to the war the Iraqi regime?did not?have significant ? if any ? stocks of chemical or  biological weapons in a state fit for deployment, or developed plans for using them.”

The absence of WMD`s and consequently the non-existence of the reason given for the war only became clear after several thousand casualties had resulted from the war.

Legality

The question of legality in relation to this matter is not simply a technicality.    Thus the Prime Minister assured the House of Commons on 12^th March 2003 :

We would not do anything as a country that did not have a proper legal basis to it.

The ?proper legal basis? upon which HMG relies is that specified in documents sent by the Foreign Secretary to the Foreign Affairs Committee under cover of a letter dated the 17^th March 2003.   This contains an opinion of the Attorney General which states:

Authority to use force against Iraq exists from the combined effect of resolutions 678, 687 and 1441.  All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security:

From this it will be seen that the only authority claimed is that said to be derived from these three resolutions of the Security Council.

So all one has to do to ascertain if the war has any proper legal basis is to examine these three resolutions to see if they contain an authority from the Security Council to the US and the UK to invade and occupy Iraq in March 2003.

One must expect any such authority to be  expressed in clear language. For the Charter makes it clear that the dominant purpose of the  creation of the United Nations was ? to save  succeeding generations from the scourge of war?  (Charter First Recital and Article 1) and to  achieve such objective by ?effective collective  measures?(Charter Article 1).    The fearful and  unpredictable consequences of war are such that  nothing short of extreme certainty and clarity  will suffice to legitimise the use of force.

Did these resolutions give a clear and certain mandate to the USA and the U.K. to invade and occupy Iraq ?  The following people have thought not.

Kofi Annan, Secretary-General of the UN said in an interview with the BBC on 16 September  2004:

Q:?Do you think that the resolution that was passed on Iraq before the war did actually give legal authority to do what was done?
A:  Well, I?m one of those who believe that there should have been a second resolution because the Security Council indicated that if Iraq did not comply there will be consequences.  But then it was up to the Security Council to approve or determine what those consequences should be.
Q: So you don?t think there was legal authority for the war?
A: I have stated clearly that it was not in conformity with the Security Council with the UN Charter.
Q: It was illegal?
A: Yes, if you wish.
Q: It was illegal?
A: Yes, I have indicated it is not in conformity  with the UN Charter, from our point of view, and from the Charter point of view, it was illegal.

17 Professors and Senior Lecturers in Public International Law at the Universities of Oxford, Cambridge, London and Paris in a letter to ?The Guardian? dated 7 March 2003, stated their unanimous view that neither resolution 1441 nor any prior resolution authorised the proposed use of force in the circumstances then prevailing.

Mr. Rabinder Singh QC (Visiting Professor of Public International Law at the London School of Economic and Political Science) and Ms. Alison Macdonald on 10 September 2002 gave their opinion that none of the Security Council resolutions then current (which included the first two of the three resolutions relied upon by the Attorney General, i.e.: resolutions 678 and 687) authorised the use of force against Iraq, otherwise than for the purpose of securing Iraq?s retreat from Kuwait.

Mr. Singh and Ms. Charlotte Kilroy on 23 January 2003, advised that UK could not, as a justification for an attack upon Iraq, rely on resolution 678, which Resolution had not been reactivated by resolution 1441 or at all.

Lord Alexander of Weedon QC in a lecture to ?Justice? on 14 October 2003described as ?risible? the Attorney General?s contention that the authority to use force contained in resolution 678 could have been effectively revived 12 years later in entirely different circumstances, for a different purpose and contrary to the wishes of the Security Council.

Analysis of Legal Argument

The view on both sides are laid out in the references quoted above.  Briefly, the point is as follows:

The most recent of the attorney general?s three resolutions is number 1441 of the 8^th November, 2002.  It is not in dispute that this resolution did not contain any authorization to use force.

If there were any doubt about this it should be dispelled by a quotation from the speech of Sir Jeremy Greenstock, UK Ambassador to the UN, at the meeting of the Security Council on the 8^th November 2002, the day resolution 1441 was passed.  Sir Jeremy said:

?We heard loud and clear during the negotiations the concerns about ?automaticity? and ?hidden triggers?- the concerns that on a decision so crucial we should not rush into military action, that on a decision so crucial any Iraqi violations should be discussed by the Council.  Let me be equally clear in response, as a co-sponsor with the United States of the text we have adopted. There is no ?automaticity? in this Resolution.  If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in Operational Paragraph 12.  We should expect the Security Council then to meet its responsibilities.? (Emphasis added.)

There was in fact no further resolution authorising the use of force, so HMG goes back 14 years to the resolution 678 of the 29^th November, 1990.  This was the resolution passed by the Security Council authorising the US and UK to use force in resisting the attack by Iraq upon Kuwait.  There was nothing in it to authorise an invasion of Iraq.  It was solely concerned with the use of force for the purpose of making Iraq comply with resolution 660 by the withdrawal of its forces out of Kuwait to the position on the 1^st August, 1990.  It was expressly concerned with ?the breach of international peace and security as regards the Iraqi invasion of Kuwait.?

HMG?s argument is, therefore, essentially based on its interpretation of the 3^rd of the resolution sites: namely, resolution 687 of the 3^rd of April, 1991.  This was the resolution which was made after Iraq had been driven out of Kuwait.  It contained a large number of demands made upon Iraq on a variety of matters.  It provided that upon an official notification by Iraq to the UN of its acceptance of such demands a formal cease-fire would become effective. It confirmed the commitment of all member states of the UN to the sovereignty, independence, and territorial integrity of Iraq, and noted the intention of the USA and the UK to bring their military presence in Iraq to an end as soon as possible.

Iraq gave the notification required and accordingly a formal cease-fire became effective.  The agreement resulting was an agreement between Iraq and the Security Council.  It was made quite clear that the Security Council would remain seized of the matter and would take such further steps as might be required for the implementation of Resolution 687, and to protect peace and security in the area.

It is submitted that the obvious and correct construction of these provisions that if any question arose in the future of the possible resumption of force (eg: because Iraq had breached its obligations), the matter would come back for fresh investigation by the Security Council in the light of the facts then prevailing.[9]

Lord Alexander was right when he said that ?the suggestion that the authority to use force revives like spring flowers in the desert after rain to be invoked by the US and UK, contrary to the wishes of the Security Council, is risible, nor does it find any support in international law.?

Lord Alexander?s further comment is also persuasive:

It is hard to see how a resolution passed 12 years ago can validate military action that was actively opposed and would have been vetoed by at least one, probably three, members of the permanent five in the Security Council, and whose legitimacy has been questioned by the Secretary General.

R?ime Change ?

It is unnecesssary to consider the argument that the invasion can be justified by the removal of Saddam Hussein and the displacement of his regime since any such justification has been expressly disowned by the Prime Minister, who said on the 25^th March 2003:

I have always said to people throughout that our aim has not been regime change.

Hopes For The Future?

There are some who hope that in time, with the assistance of a large army of occupation, things will get better.  However,  anyone who entertains such hopes would be well advised to read the article by Prof.  Stanley Hoffman (Harvard)  in the issue of the New York Review of Books for the 21st October 2004, page 4, where Prof Hoffman says:

Such hopes are being demolished by the realities of Iraqi hostility to the US and its  prot??? As a recent study  convincingly argues, the prolonged occupation is ?an open invitation for a steady build up of  grassroots Muslim anger,? and a breeding ground for terrorism.  Much of the insurgency,  moreover, has been aimed not only at American forces but also at oil pipelines and ordinary technicians, foreign private  contractors, and Iraqis working for and with  the Americans.   It may well be that many Iraqis  currently opposed to the occupation will be  increasingly revolted by the killings of fellow  Iraqis by the insurgents? But as  long as such a policy depends on  intervention by US forces, it is unlikely to crush the rebellion? the Financial Times^[10] recently commented, [Iraqis] ?…cannot stand alongside a US military that daily rains thousands of tons of projectiles and high explosives on their compatriots.? (Emphasis added)

Out of Iraq?

The war was unlawful.  It was launched upon an incorrect premise.  It was and remains a high cost operation in both human and material terms.  It has undermined the authority of the United Nations.  It has increased the threat from terrorism.  The immediate question is whether we should stay or go.

?Mark Littman
8^th December 2004