I don't usually go in for this international law stuff, since it's always seemed a bit irrelevant to me. But unaccountably, the government do take it seriously, and 10 Downing Street has finally been provoked by various leaks into publishing the advice given by the Attorney General to the Prime Minister over the legality, or otherwise, of the war. Here is the last paragraph, which I found interesting:
36. Finally, I must stress that the lawfulness of military action depends not only on the existence of a legal basis, but also on the question of proportionality. Any force used pursuant to the authorisation in resolution 678 (whether or not there is a second resolution):
- must have as its objective the enforcement [of] the terms of the cease-fire contained in resolution 687 (1990) and subsequent relevant resolutions;
- be limited to what is necessary to achieve that objective;
- must be a proportionate response to that objective, i.e. securing compliance with Iraq's disarmament obligations.
That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objecting of military action. This should be borne in mind in considering the list of military targets and in making public statements about the campaign.
The first part of the document argues that there were (subject to caveats) reasonable grounds to think that the war could be prosecuted legally. This last section describes what could be done. Specifically, only actions which were `proportionate' to achieving the disarmament of Iraq (of chemical, biological and nuclear weapons, and the means to produce them, and some categories of ballistic missiles) would be allowed.
Now, as I recall, nobody sensible thought that there were any `weapons of mass destruction' (see rants passim for explanation behind scare quotes) in Iraq. It is hard, therefore, to see the action taken as being `proportionate', especially given the number of civilians we have apparently killed.
Is it possible, then, that starting the war was legal, but our conduct of it was not? Perhaps there is an international-law-believing, pro-war person out there who could enlighten me.
(Update: I had mistakenly labelled the quote above as paragraph 35 of the memo. In fact it is paragraph 36. Mea culpa.)
Comments
Posted by David Boothroyd, Thursday, 28 April 2005 18:29 (link):
What on earth do you mean by "nobody thought there were WMD in Iraq"? Before the war pretty much everybody did, and especially the intelligence agencies.
Posted by Chris Lightfoot, Thursday, 28 April 2005 18:34 (link):
I've addressed this point before, but basically use in seriousness of the term `weapons of mass destruction' is an immediate and almost one-hundred-percent-accurate indicator that the person using it either (a) does not know what they are talking about, or (b) is lying. Specifically, if these people seriously believed that there were (say) chemical weapons in Iraq, they would have said, ``we believe that there are chemical weapons of the following types in the following amounts in Iraq, and they could be delivered by the following means...'', rather than ``we have evidence of a clear and imminent threat from WEAPONS OF MASS DESTRUCTION!! 45 MINUTES!! BE FRIGHTENED!! (Don't mention the oil.)''
Posted by Francis Davey, Thursday, 28 April 2005 22:46 (link):
Nonsense (a strong remark for me), "weapons of mass destruction" is a term of art. In particular it is the phrase used in UN Resolution 687 as an umbrella term (having used more specific terms). A lawyer would be careful to use the terminology of whatever legal instrument they were addressing, as Lord Goldsmith and Tony Blair did here.
Your dichotomy -- roughly put fool vs liar -- for anyone who uses the phrase cannot stand so easily.
Posted by Chris Lightfoot, Friday, 29 April 2005 00:48 (link):
Well, Goldsmith only uses the phrase once in his memo, and that is in quoting resolution 687, which is probably reasonable; he isn't, after all, claiming that it actually means anything. More generally, it may well be a term of art, but that doesn't mean that it isn't nonsense. As a wise man once wrote,
Posted by Chris Lightfoot, Thursday, 28 April 2005 18:39 (link):
Oh, sorry, I should also have pointed out that I did not claim that `nobody' thought that there were WMD in Iraq; as you say, lots of people did. I said `nobody sensible', which is correct.
Posted by Francis Davey, Thursday, 28 April 2005 22:49 (link):
I am not an international law believing person -- hence my irritation at a lot of people praying it in aid in the current debate. Its a pretty nasty set of rules from some perspectives.
However, as a lawyer, I would suggest that the answer to your question is "yes", the prosecution of the war (or parts of it) could easily be disproportionate to whatever ends the war was fought.
Posted by dsquared, Friday, 29 April 2005 07:31 (link):
This question was asked on Newsnight last night and as far as I can see their tame legal expert went hands-up on it; in principle there is a case here although it is difficult to see who would bring it as Saddam's Iraq was the injured party and the new government of Iraq doesn't really appear to be all that interested.
Posted by Chris Lightfoot, Saturday, 30 April 2005 02:44 (link):
Though note paragraph 34 of the memo in which the Attorney General notes that,
I assume he knows his stuff, which leaves open the question of why nobody has tried to bring a private prosecution against Blair et al. (That would, of course, be an utterly reprehensible thing to do, hardly conducive of good governance, an abuse of process etc. etc. It would also be bloody funny and I for one would pay cash money to watch.)
Posted by libellum, Saturday, 30 April 2005 10:04 (link):
The problem with Iraq is that no-one's asking the right questions. Blair is going to continue to get away with it until people start challenging him on the issues that matter, rather than allowing themselves to be distracted by whatever minor point the media are currently choosing to focus on.
I'd like to point you (and everyone else for that matter) towards this article - it's rational, well-written, factually interesting, and asks a lot of questions that I'd love to see Blair try to answer.
Posted by Roy Badami, Saturday, 30 April 2005 12:40 (link):
Actually, I disagree. IMHO the question as to whether the Prime Minister can be trusted is of the utmost importance; more important than any single issue, including Iraq...
I find it astonishing to hear the Prime Minister trying to argue his way out of this by saying that we should stop arguing about the process that took us to war, and concentrate on the real issue, the decision to go to war. But the process is paramount... Without trust in the process, how can we trust the govenment not to do this again -- perhaps joining the US in an invasion of Iran?
The decision to go to war with Iraq is in the past, and can't be changed, however unfortunate it might be. However if Tony Blair is vindicated by a large majority in the House of Commons, the process which allowed us to go to war will remain, quite possibly resulting in British involvement in another war during the next parliament...
-roy
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