I am intrigued by the postings of BH, suggesting that we, the military, should not be concerned about the legality or otherwise of the war. The military chiefs of staff here in the UK were so concerned that with 10 days to go to war they demanded from the Attorney General a clear statement that the war was not illegal. I am also surprised by the naivity of some of the postings. The reason the chiefs demanded legal advice was simply because they were concerned their men could end up appearing before war crimes tribunal. US did not sign up to this but the UK Govt (Blair) did. As a serviceman you should take a view on the legality of war especially with the likes of Blair running the show.
Goldsmith famously changed his mind at the last moment. I have been trying to piece together the threads of evidence. IMO the only reason that Goldsmith could have come to that conclusion was because of the content of the dodgy dossier. It stated that Iraq was planning to use WMD at 45 minutes notice and that a base such as Cyprus could be hit. I laughed at hearing this at the time. In the original advice provided by John Scarlett it was suggested that Iraq had chemical weapons but that these would be used for defensive purposes. The word defensive was taken out at the request of Blair's Govt and so was born the politicisation of the UK Intelligence Service.
I apologise for reposting this legal advice but it has been requested by SASless. This legal advice was issued before the dodgy dossier. The whole basis for war again IMO was a sham. The military chiefs did all they could to challenge the legality and I do not blame them at all. I do blame Blair for ordering the UK to fight a war that was probably illegal in International Law because of a failure to prove a capability and intention to use WMD. As for the US, the President never used WMD as a premise for war and let's face it who is going to take the US to an International Court? Of course no evidence of WMD was ever found even though Special Forces assets were used in a desperate attempt to find them after the war.
I am not saying Kendall Smith should not have been sent down, neither am I saying the US Officer should not be sent down. The legality of the war was not part of the remit of the court that tried Kendall Smith. If it had have been the result could have been very different. Ask a lawyer in the Hague......
Legality of use of force against Iraq
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OPINION
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Introduction and Summary of Advice
We are instructed by ********* to give an opinion on the legality of the use of force by the United Kingdom against Iraq. In particular, we are asked to consider whether:
the right of self-defence would justify the use of force against Iraq by the United Kingdom;
Iraq’s alleged failure to comply with all or any of the existing 23 UN Security Council resolutions would justify the use of force by the United Kingdom; and
a further UN Security Council resolution would be required.
In summary, our opinion is that:
The use of force against Iraq would not be justified under international law unless:
Iraq mounted a direct attack on the United Kingdom or one of its allies and that ally requested the United Kingdom’s assistance; or
an attack by Iraq on the United Kingdom or one of its allies was imminent and could be averted in no way other than by the use of force; or
the United Nations Security Council authorised the use of force in clear terms.
Iraq has not attacked the United Kingdom, and no evidence is currently available to the public that any attack is imminent.
Our view is that current Security Council resolutions do not authorise the use of force against Iraq. Such force would require further authorisation from the Security Council.
At present the United Kingdom is therefore not entitled, in international law, to use force against Iraq.
Factual Background
The factual background can be outlined briefly. The United States is publicly considering the use of force against Iraq. This use of force would appear to have the aims of (1) destroying such stores of nuclear, chemical, biological and other weapons of mass destruction as Iraq may have; and (2) bringing about a change of leadership. The United States appears to consider such action to be justified on the basis of the right to carry out a pre-emptive strike in self-defence, the right to respond in self-defence against an armed attack, (in this case the attacks on 11 September 2001), and/or on the basis of current resolutions of the United Nations Security Council.
The United Kingdom Government is currently considering whether to support any such action by itself joining in the use of force against Iraq but,according to Government statements, no decision has yet been taken. The Prime Minister, speaking on 3 September 2002, stated that he plans to publish a dossier in the next few weeks. This would set out the evidence against Iraq and the arguments in favour of intervention. The Prime Minister relies strongly on the fact that Iraq has breached resolutions of the UN Security Council, which he appears to consider justifies military action.
The factual background to these decisions is unclear to the public. Such information as the United Kingdom has about Iraq’s military capabilities and Saddam Hussein’s intentions is not available to the public. Iraq is known to have chemical weapons, which it first used against Iran during the Iran-Iraq war. Iraq may also have the technology to build nuclear weapons. It appears to have persistently failed to co-operate with the UN weapons inspection programme, violating a large number of resolutions of the UN Security Council, so that the weapons inspection team was eventually withdrawn.1 However, it has recently asked the UN for more technical talks, with a view to resuming the inspection programme. The UN has not yet responded.2...........
.......Is anticipatory self-defence justified in this case?
Although it is not clear that international law recognises the right to use anticipatory force in self-defence, we have concluded above that, if there is such a right, it only exists in situations of great emergency, as set out by Oppenheim.
The evidence about the level and nature of threat presented by Iraq to other countries is not clear. There may well be evidence which is not in the public domain. The United Kingdom Government has not so far made clear the extent of the risk posed by Iraq, making it difficult for the public to engage in informed debate on the issue. The burden of proof is on the Government to demonstrate the existence of a pressing and direct threat. It would also need to show that there is no effective alternative to the use of force. The lack of any effective alternative to force is difficult to demonstrate while Iraq offers to negotiate with the weapons inspectorate.
It is clear from the above discussion of the law of self-defence that the capacity to attack, combined with an unspecified intention to do so in the future, is not sufficiently pressing to justify the pre-emptive use of force. The threat must at least be imminent. However, the degree of proximity required must also, we consider, be proportionate to the severity of the threat. A threat to use very serious weapons – nuclear weapons being the obvious example – could justify an earlier use of defensive force than might be justified in the case of a less serious threat. However, the existence of the threat, regardless of how serious that threat may be, must still be supported by credible evidence. Such evidence has not so far been made available, although some evidence may be provided when the United Kingdom government publishes its dossier..........
Last edited by nigegilb; 5th Jan 2007 at 06:38.