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A Legal Fiction
The legality of the invasion of Iraq is yet again in the spotlight. The critics of the war insist that it was illegal under international law. The lawyers for Katharine Gun, the GCHQ translator who leaked the contents of secret documents to the press, planned to defend her on the grounds that, since the war was "illegal", she was within her legal rights when she broke the Official Secrets Act. The Government responded by dropping the case against her - while the Prime Minister insisted angrily that "everything we do is in accordance with international law". The Attorney Generalâs advice that the invasion was legal under international law has become the focus of furious debate, with Clare Short, among others, insisting that he was coerced into giving his pro-war opinion, and that the flimsiness of his case is the reason why the full text of his advice has not been released. The most striking thing about this debate is its pointlessness. The "legality" or otherwise of the war is a non-subject, for the simple reason that there is no binding body of international law which compels obedience, either in morality or in fact, from the sovereign nations of the globe. The United Nations is not - yet - a world government. The international treaties which the British Government has signed do not determine the precise circumstances in which it is, or is not, permitted to declare war on another country which it believes represents a threat to its national security. "International law", in so far as it ventures beyond the law of the sea, is almost entirely bogus. The "principles of international law", allegedly held in such reverence by their advocates, have never been mandated by the peoples of the nations to whom they are meant to apply. They do not flow from the will of the citizens of any nation. In the absence of a duly constituted international government, vindicated and authorised by the people whose actions its laws are intended to curtail, there is no explanation why those principles are supposed to compel obedience from anyone. The best answer to the question "What is the source of the authority of the principles of international?" is: Nothing. There isnât even substantial agreement as to what the principles of international law actually are. Their content varies wildly according to which lawyer is consulted. The most plausible view to take about the bulk of international law is that it is a very successful con-trick: a forged coin which many people have been duped into thinking is the real thing. The Americans have seen through the forgery, and wisely refused to sign up to the creation of The International Criminal court in 1998, judging that its procedures would almost certainly include an attempt by countries who resent American power to frustrate it. The current British Government is largely composed of lawyers. They have got themselves into serious trouble by regrettably treating the forgery as if it were the real thing. New Labourâs rhetoric has been permeated by expressions of deference to the principles of international law. There is a strong tradition within the Labour movement which sees international law as "progressive", on the grounds that it is a defence against the depredations of international capital. Ministers in the present Government have signed up to practically every international tribunal available. One result is that, if a group of judges on The International Court decide that an action in which commissioned British troops were involved was "illegal under international law", those troops could end up being prosecuted for murder, even if their conduct was perfectly in accord with the highest standards of the Army. Yet the strength of Tony Blairâs own convictions on the rightness of his favoured international interventions, irrespective of whether they are endorsed by the officials of the various organisations that claim to be the repository of "international law", has meant that the Government has also shown itself quite ready to act in ways which many international lawyers insist are illegal. For instance, the war against Milosevic was not sanctioned by the United Nations. There was no "legal authority" either sought or given by any international organisation beyond Nato. That, however, did not stop Mr Blair getting involved - nor did it create political problems for him at home. The invasion of Iraq may or may not have been "illegal" under international law. The point, however, is that the whole issue of "international legality" is a gigantic irrelevance. The only thing that counts in a democracy - and the only functioning democracies that exist are nation-states - is whether the people who elected the government support the war which their government has declared. The Prime Ministerâs problem is not that the war on Iraq was dubious under international law (if it was), but that the nation was, and is, deeply divided about whether it was right to fight it. If a solid majority of the British people can be persuaded that the Iraq war was right and just, then Mr Blairâs problems with it will be at an end. If they cannot be so persuaded, he will pay a price at the next general election. Either way, the opinions of any group of international lawyers, however well-intentioned, are otiose. Posted by: tipper 2004-02-29 |
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