Citizen Letters WCL
by John Roberts, Peace rights, 11/2003
At the London School of Economics on 8 November a
panel of distinguished academic lawyers took on
the task of undertaking a Legal Inquiry and investigating "Aspects of the Military Operations against
and subsequent Occupation of Iraq during 2003". This proved to be a very successful enterprise, with
several particular points illustrating the illegality of what has gone on in Iraq during the past eleven months.
There will be a ruling issued by the panel of eight professors of international law in a few weeks
time, which will cover many issues connected with the invasion and its aftermath. However, the coming
into force of the statute of the International Criminal Court in the summer has marked a change in what
remedies may be available if law has been breached and that is mightily important.
Despite that change, the panel emphasised that there were
other, domestic, channels open to litigants
against war-crimes, for example, in the US the Proxmire Act making genocide illegal and other acts
supporting international law which date back to the Second World War and even before. The significant step
forward made by the Inquiry is to gather together a number of such remedies and assess their
particular values and opportunities, as well as indicating where there is most likelihood of law being a
suitable action to prevent or punish aggression. The fact that the post-war Nuremberg judgements were
spoken of as Victors'Justice was mentioned, but not the subsequent ratification by the United Nations and
inclusion in the body of international law.
But we need to await the findings of the Inquiry
in anticipation of useful legal argument and discussion
that will forward the moves against illegality and war-crimes. It was never a task of the Inquiry to charge
anyone, although it may forward recommendations and findings to the Prosecutor of the International
Criminal Court. However it is conceivable that that official may be inhibited by adverse political power -
the US has already spent much effort in trying to sabotage the establishment of the Court and is continuing
efforts to frustrate its working. Therefore "the interests of justice", i.e. discretion being the better part of
valour, may make it politic not to tackle the leading criminals first of all. A new-born court may need to
exercise its powers on lesser fry, such as the British, until its routines and administration are practised and
shown to be working well.
But what other work of enquiry remains to be done?
When one considers that in Britain an enormous
manhunt has been conducted recently for traces of the murder of two schoolgirls, no expense spared, it is
worth comparing the British government's lack of concern to discover its true position in international law.
The Prime Minister, tossing off the assurance in the House of Commons that Britain will always observe
international law, took the perfunctory step of ascertaining what that was from the paid government lawyer,
the Attorney-General. The lawyer, naturally enough, read the law so that it suited the PM, who
had already determined to follow the lead of George Dubya Bush, and Britain went to war. Despite
protestations that the allied aggressors had no choice but to attack, recent reports indicate that Saddam
Hussein was at the end making desperate attempts to surrender sufficient power in order to avoid any military
attack, but he was ignored. One need spare no sympathy for the fallen dictator, but the burden
of the criminal acts of the American and British forces have fallen upon his unfortunate subjects.
Peacerights, the organisers of the day, which is
headed by a committee of activists and leading academic
and practising lawyers, is already planning a further Inquiry, which may be concerned with British nuclear
weapons and, after its notable success with the LSE event, that should also be well worth following. So
what remains to be done? At Istanbul it was suggested that London might be the venue for another
Tribunal of Inquiry which would consider in detail the period up to and including the attack on Iraq, i.e. the
period before the International Criminal Court was set up. This of course is an even hotter potato, since it
concerns the biggest question that the British government, particularly fears - was the attack illegal? But a
recent request from Kofi Annan to all members of the United Nations for proposals to strengthen the
safeguards against war are a reminder that wider issues should also be addressed.
A new Tribunal of Inquiry could study the present state of
international law preventing war and international violence; including its
defects in constitution and administration; and consider framing any
possible charges of war-crimes against British ministers arising from the
years from 1992 to 2003. Particular areas of concern should be:
1. The United Nations Charter and proper functioning
from its inception.
2. NATO and the legality of military alliances under the Charter.
3. The legality of extending NATO military action beyond Europe.
4. A 'democratic deficit' in international institutions and law.
5. The legality of American and British bombing of Iraq after the first
Gulf War without continuing Security Council authorisation.
6. The legality of U.N. sanctions against Iraq without explicit Security
7. Legal meaning and implications of Security Council Resolution no.
8. Extent and legal limitations of the 'right of self-defence' for
9. The legality of the attack on Iraq by Britain and the US in 2003.
10. The rights, if any, to take 'pre-emptive action', including military
measures and the whole question of 'humanitarian intervention'.
That would be a very substantial task to be undertaken and it
goes a good
deal further then Kofi Annan has suggested. Nevertheless, the governments
that can splash out billions to wage a dangerous and illegal war could
certainly afford to pay for lawyers to determine the legality of their
actions. If, that is, they declare, as Tony Blair did, that his country
will always abide by international law.
John Roberts, Peace rights , 11/03
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