War correspondence

A host of questions has been thrown up by the war in Iraq, leading to much brow-scratching among the legal community


Bearing in mind the fact that there are probably enough questions to fill an entire copy of Lawyer 2B, we have asked a handful of leading legal experts to identify the fundamental issues that they think should be addressed before Iraq can get back on its feet again.

Professor Mark Findlay, professor in international and comparative criminal law, Nottingham Law School
“The central issue to the restoration of the rule of law in Iraq is whose rule of law? Are we going to see the Americans impose some hybrid of their own system as they did with Japan after World War II?

“With Islamic law being the legal tradition in Iraq, will it be an American notion of due process and human rights which will be imposed as a measure of the effectiveness of the new rule of law? Will the US let the international criminal justice institutions have any say in this? And particularly when it comes to punishing war criminals, will the US prefer to ignore these institutions in favour of its own military tribunals, as is the case with post-Afghanistan? Another interesting twist is that as the US (and the UK) continue to fail to find the chemical weapons that were their reason for defying the UN and invading Iraq in the first place, their invasion is looking more like it is without the justification of international law. If the coalition can be viewed as violators of international law, how can they claim to champion the rule of law in the occupied country or expect to indict their enemies as war criminals? Because the coalition does not have a direct line of legitimacy to international and criminal justice, either through the UN or the International Criminal Court, they are very much out on a limb when it comes to imposing credible systems on Iraq.”

An open letter to 10 Downing Street, sent on 7 March by 16 law professors, including Professors James Crawford and Philippe Sands (now a QC) of Matrix Chambers
“We are teachers of international law. On the basis of the information publicly available, there is no justification under international law for the use of military force against Iraq.

The UN charter outlaws the use of force with only two exceptions: individual or collective self-defence in response to an armed attack and action authorised by the security council as a collective response to a threat to the peace, breach of the peace or act of aggression.

There are currently no grounds for a claim to use such force in self-defence.

The doctrine of pre-emptive self-defence against an attack that might arise at some hypothetical future time has no basis in international law.

Neither Security Council Resolution 1441 nor any prior resolution authorises the proposed use of force in the present circumstances.

Before military action can lawfully be undertaken against Iraq, the Security Council must have indicated its clearly expressed assent.

It has not yet done so.

A vetoed resolution could provide no such assent.

The Prime Minister’s assertion that in certain circumstances a veto becomes “unreasonable” and may be disregarded has no basis in international law.

The UK has used its Security Council veto on 32 occasions since 1945. Any attempt to disregard these votes on the ground that they were “unreasonable” would have been deplored as an unacceptable infringement of the UK’s right to exercise a veto under UN Charter Article 27.

A decision to undertake military action in Iraq without proper Security Council authorisation will seriously undermine the international rule of law. Of course, even with that authorisation, serious questions would remain.

A lawful war is not necessarily a just, prudent or humanitarian war.”

Nick Booth, senior adviser to the deputy head of police and justice, United Nations Mission in Kosovo
“One of my top 10 principles would be to make sure you understand the local legal and political cultures. One thing I’ve observed in Kosovo is that some countries send across consultants with prepackaged solutions. They come with a version of what they have at home, but this doesn’t fit in with the local culture. In my experience this tends to lead to a mess.

“Of course, you’re not hidebound by what’s been in place before, and may need to bring human rights law or an independent system of justice into a country for the first time. You need to be quite bold, but will have to get the trust of the local people.

“There are also bound to be some serious questions raised about organised crime in Iraq. The fact that there’s a power vacuum will allow the criminals to consolidate their grip. In Kosovo, we didn’t address this issue forcefully enough at the start. But unless you attack organised crime, you have no hope of establishing the rule of law, a stable economy or democracy.

“If we could start again in Kosovo, I’m sure we’d have brought in international judges and prosecutors from the beginning. Working with the local judiciary, you’ll find that some of them were part of the old regime, while others were repressed by it and all of them are vulnerable to threats from mobsters. So, in politically senstitive and gangland cases you can’t count on a fair trial. And what’s the point in having an international police force unless you have judges who can take tough decisions and be respected for them?”

Robert Volterra, partner, litigation and arbitration division, Herbert Smith
“One of the most interesting practical public international law issues that arises out of the situation in Iraq is the question of the legality of the contracts entered into by the foreign oil companies and the Iraqi government… due to take place once the sanctions were lifted.

“It also shows in a very real way how public international law has rapidly gone to the forefront of relevance on the world stage on a commercial level as well as political. Something that even 10 years ago it lacked.”