The supposed reasons the government decided not to go ahead with the prosecution of whistle-blower Katherine Gun and the subsequent calls to publish the full Legal Opinion of Lord Goldsmith on whether the use of force against Iraq could be justified have brought the issue of the Iraq war’s legality back into the spotlight.
We all saw the placards on the demonstrations protesting against “this illegal war” but how much truth is there in the Stoppers claim that the war was in breach of international law ? There are certainly large numbers of people up and down the country who seem to believe the UK acted contrary to international law in deposing Sadddam Hussein. Not least of these is Katherine Gun who based an entire defence on the supposed illegality of the war.
There is an important question to ask those who attempt to argue that the war was illegal. It is this
“Which international law do you say has been breached ?”
An answer to that question is likely to prove difficult for the good reason that there is no international law the UK is subject to which governs the decision to declare war on any other country. A state may invade any other state it chooses and no lawyer or judge can stop it. The fact that various bodies and individuals say they will take legal action against the UK or the USA only goes to prove that
a fool and his money are easily parted
It is a simple point but it needs to be stressed – there is no court in existence which has competent jurisdiction to hear cases of this kind never mind impose sanctions.
Why do so many believe the war was illegal then ? Part of the answer may be found at the Lawyers Against the War website. Amongst the usual ill thought out Chomsky, Pilger and Meacher mulch there is something which appears at first sight to be a little more substantial.
It’s a Legal Opinion commissioned by the Campaign for Nuclear Disarmament from a senior barrister in Cherie Blair’s chambers. He is, like Lord Goldsmith was until he was appointed Attorney General, a respected commercial silk and someone whose Opinion is worth reading because it is a good example of a succinct and well-drafted document which attempts to challenge Lord Goldsmith’s legal advice to the government about the justification for war.
The author, Rabinder Singh QC, has, like all of us only seen Lord Goldman’s outline conclusions which he sets out helpfully and which I quote in full below.
1. In resolution 678 the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area.
2. In resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under resolution 678.
3. A material breach of resolution 687 revives the authority to use force under resolution 678.
4. In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of resolution 687, because it has not fully complied with its obligations to disarm under that resolution.
5. The Security Council in resolution 1441 gave Iraq “a final opportunity to comply with its disarmament obligations” and warned Iraq of the “serious consequences” if it did not.
6. The Security Council also decided in resolution 1441 that, if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution 1441, that would constitute a further material breach.
7. It is plain that Iraq has failed so to comply and therefore Iraq was at the time of resolution 1441 and continues to be in material breach.
8. Thus, the authority to use force under resolution 678 has revived and so continues today.
Those of you who resist the temptation to read all of Singh’s argument might not be too surprised, considering who he was taking instructions from, that he concludes that because of the apparant absence of WMD’s there is a case for a judicial enquiry into
the basis in international law for the Government’s participation in the invasion of Iraq and the use of force to effect regime change there
At first it appears a logical argument and that the passage of time since the Opinion was drafted (June 2003) strengthens Singh’s conclusion.
Until that is one realises that the emphasis on UN resolutions is an elaborate smokescreen. Singh uses the term international law throughout his Opinion but does so under false pretences.
The decision by the US and UK to attempt to obtain a further resolution from the UN security council has nothing to do with international law. Gaining a further resolution would have been good PR but a failure to obtain one did NOT mean there had been a breach of international law merely a failure to persuade all of the security council members to agree.
In my opinion the fact that the Stoppers best legal argument relies on such seeming confusion does not bode well for them in successfully arguing the war was illegal.
I don’t claim to know whether Lord Goldsmith’s full Opinion will be published but I am willing to bet that it will, like the Hutton Enquiry be a major disappointment to those, like Clare Short, who seem to think that ,if published in full, it will vindicate their view that the war was illegal.
The Stoppers should stop clutching at straws and admit to themselves, if no-one else, that this is an argument they are not going to win.
