No Alternative? Inquiries into the legitimacy of war. Dialogue to find better alternatives. |
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The Case Against War A Dossier of Independent Legal Inquiries, Opinions and Judgements on the International Legality of UK Military Action against Iraq Published by the Legal Inquiry Steering Group (L.I.S.G.)Edited by Farebrother and Nick Kollerstrom February 2003 ContentsSummary of Citizens' Legal Actions Part I: A Citizens' Inquiry concerning the legality of a prospective use of force by the United Kingdom against Iraq (11 October 2002)
Part II: CND legal challenge to the Government: in the matter of the potential use of armed Force by the United Kingdom against Iraq and in the matter of reliance for that use of force on United Nations Security Council Resolution 1441
Part III: Shadow Judicial Review by the BBC "Today" programme
Part IV: War Crimes Project
Part V: Appendix
By Dr Mark Levene, Reader in Comparative History, Southampton University This dossier is a weighty legal document, full of intricate, and detailed considerations as one might expect from learned lawyers and QCs' examining a complex issue of law. But it grew out of a very simple issue that should matter to everyone who lives in Britain and which we can all grasp. "We're being told a lot about the doctrine of pre-emptive strikes... Given that our defence secretary Geoff Hoon explicitly threatened to use 'our' nuclear weapons system, Trident, against the Iraqi civilians in the defence committee of the House of Commons on 20 March would it not be essential in a democracy, given the fundamental commitment we have to the rule of law.... for a UK citizen to challenge that decision if it was in breach of international humanitarian law? As a lawyer, I say it is." Phil Shiner, 'the Future of Democracy,' Imperial College, November 2, 2002 We hear a great deal, especially from government, about the value of our much-vaunted British democracy and how our democratic parliamentary-based system of governance is founded on the rule of law. We are all supposedly participants in this system and the notion of good citizenship has even become part of our school curriculum. So, how is it that when a decision as fundamental as going to war is taken, law, parliament, citizenship and democracy all seem to be thrown out of the window? The government has repeatedly stated since the events of 11th September 2001 that any military action it undertook would be in compliance with international law. However, there was no judicial review in the High Court with regard to its participation in the war in Afghanistan, nor has one been offered with regard to further proposed military action against Iraq. Equally, there has been, and will not be, any consideration of a parliamentary vote in such a decision. In high parlance, this is what is known as a democratic deficit. For those at the grass-roots who would wish to establish a democratic credit, some mechanism had to be found to challenge the government's impunity and not least its face-value assumption that pre-emptive military action against Iraq would be lawful. In the summer of 2002 an ad-hoc group of legal experts and peace activists came together to form The Legal Inquiry Steering Group (LISG) on the proposition that the issue should not go untried. A critical component of this group was Peacerights, the national legal service that specifically deals with issues of international human rights and humanitarian law. Peacerights initiated and developed that this corpus of legal considerations against the war has been. Cumulatively however, all the arguments, opinions and judgments herein consistently demonstrate what LISG argued from the start: that there are no grounds under international law to justify Britain's pre-emptive resort to force against Iraq. From the grass-roots to the High Court the case has been unequivocally and conclusively made. It remains to be seen whether the British government will pay any heed.
Summary of Citizens’ Legal Actions A Citizens' Legal Inquiry into the Legality of use of force against Iraq on October 11 2002 at Gray’s Inn, London. The Inquiry was chaired by Professor Colin Warbrick, professor of Law at Durham University. Rabinder Singh QC of Matrix Chambers argued the case for illegality, and Julian Knowles, also of Matrix, put the case of the UK Government. Professor Warbrick concluded that the UK’s present bombing raids into Iraq are in breach of international law, and that further armed force, in the absence of a clear UN Security Council mandate, would also be unlawful. The Legal Inquiry Steering Group raised £8,000 from ordinary activists to help pay for the Legal Inquiry. A Legal Challenge to the Government initiated on 19 November 2002 when lawyers for the Campaign for Nuclear Disarmament (CND) sent a letter and Rabinder Singh QC’s Opinion to Prime Minister Tony Blair, Defence Secretary Geoff Hoon and Foreign Secretary Jack Straw. This warned that they would face a legal challenge unless a written guarantee was given within 7 days that the UK would not use armed force against Iraq without a further United Nations Security Council Resolution. By 28 November 2002 no satisfactory response had been received and the High Court was asked to carry out a judicial review to decide the matter. In the event, the court did not allow the case to come to trial. Lord Justice Simon Brown in his judgment on 17 December ruled that in order to decide whether war would be unlawful, the courts would have to interpret UN Resolution 1441; clearly this is not part of domestic law. Normally, he said, "English courts will not rule upon the true meaning and effect of international instruments which apply only at the level of international law." A Shadow Judicial Review by the BBC programme "Today" . This took place on 19 December at the Inner Temple, London and investigated whether British involvement in any war against Iraq, without further specific UN endorsement, would be legal under international law. The programme makers expressly acknowledged that it was directly inspired by LISG-initiated Citizens’ Legal Inquiry at Grays Inn. Professor Nicholas Grief, Head of the School of Finance & Law and Steele Raymond Professor of Law at Bournemouth University, argued that a war under these conditions would be illegal. Professor Anthony Austin, Deputy Director of the British Institute of International and Comparative Law, Visiting Professor of International Law at University College London, and formerly Deputy Legal Adviser of the Foreign and Commonwealth Office, made the case that a strike could be legal. Professor Vaughan Lowe, Fellow of All Souls College, and a barrister practicing from Essex Court Chambers, acting as judge, was persuaded by Professor Grief’s argument and BBC listeners had a rare opportunity to hear a legal analysis of the Iraq crisis. A War Crimes Project. The legal actions concern the legality of initiating war. However, if war does break out then a new question arises - the legality of how it is actually conducted. The principles of necessity, proportionality and humanity are enshrined in International Humanitarian Law (IHL). On 22 January 2003 Public Interest Lawyers wrote to the Prime Minister and the Secretary of State for Defence informing them that their conduct of any attack on Iraq would be carefully monitored. Any infringements of IHL will be reported to the Permanent People’s Tribunal in Italy. Here, eminent international lawyers will hear evidence from various NGOs and others. If the panel finds that there have been breaches of IHL it will present a report to the Prosecutor of the International Criminal Court (ICC) on the basis that individual members of the UK Government are responsible, at the highest level, for decisions on how force is used against Iraq and its civilian population.
Some abbreviations used in the text AC Appeal Cases AJIL American Journal of International Law ASIL American Society of International Law BYIL British Yearbook of International law CCSU Council of Civil Service Unions CLJ Cambridge Law Journal CPAG Child Poverty Action Group EuLR European Law Reports EWCA England and Wales Court of Appeal FLR Family Law Reports ICLQ International and Comparative Law Quarterly ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for former Yugoslavia JACL Journal of Armed Conflict Law PNICC Preparatory Commission for the International Criminal Court QB Queen’s Bench SIAC Special Immigration Appeals Commission UKHL United Kingdom House of Lords WLR Weekly Law Reports |
