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That was the conclusion of Professor Vaughan Lowe in a mock judicial review organised by the "Today" programme. The significance of this conclusion, and how the inquiry came about, were explained in INLAP Information and Discussion sheet No 5: December 2002 CONTENTS BBC "Today" programme's mock judicial review The citizens' inquiry that preceded the BBC's Legal challenge to UK government from CND, Peacerights and Mark Thomas Professor Vaughan Lowe's conclusions
On Thursday 19 December the BBC "Today" programme organised a mock judicial review to investigate in detail whether British involvement in any war against Saddam Hussein, without further specific UN endorsement, would be legal under international law. Professor Vaughan Lowe, Chichele Professor of Public International Law, Fellow of All Souls College, and a barrister practising from Essex Court Chambers, heard opposing views from distinguished council. Professor Nicholas Grief, Head of the School of Finance & Law and Steele Raymond Professor of Law at Bournemouth University, argued that a war under these conditions would be illegal. Professor Anthony Austin, Deputy Director of the British Institute of International and Comparative Law, Visiting Professor of International Law at University College London, and formerly Deputy Legal Adviser of the Foreign and Commonwealth Office, made the case that a strike could be legal. The event took place at the Inner Temple, London. Professor Vaughan Lowe was persuaded by Professor Grief’s argument and BBC listeners had a rare opportunity to hear a legal analysis of the Iraq crisis. This did not come about by accident. In August a Steering Group, which contained members of INLAP and Peacerights, started to plan ways of putting the Iraq crisis under legal scrutiny. The Group raised nearly £8,000 pounds, much of it from INLAP members, World Court Project UK supporters, and Quaker Meetings, to help pay for a Citizens' Legal Inquiry on October 11 in Gray’s Inn, London. The Inquiry was chaired by Professor Colin Warbrick. Rabinder Singh QC of Matrix argued the case for illegality, and Julian Knowles, also of Matrix, put the case of the UK Government. Professor Warbrick concluded that the UK’s present bombing raids into Iraq are in breach of international law, and further armed force, in the absence of a clear UN Security Council mandate, would also be unlawful.Although the Legal Inquiry was weighty and impressive, it was not a real court case. So the next step was for CND, working with Peacerights lawyer Phil Shiner and comedian Mark Thomas to go to court. On 10 December the Daily Telegraph reported that "Anti-War campaigners urged the High Court yesterday to declare that it would be contrary to international law for Britain to go to war against Iraq without a fresh United Nations resolution. Rabinder Singh, QC, representing the Campaign for Nuclear Disarmament, told three senior judges that last month's UN Security Council Resolution 1441 did not authorise using force in the event of non-compliance by Iraq. He was seeking permission to bring a challenge against the Prime Minister, as well as Jack Straw, the Foreign Secretary and Geoff Hoon, the Defence Secretary. It is thought to be the first time that a government has been challenged in the domestic courts over possible military action". In the event, the High Court did not allow the case to come to trial. Lord Justice Simon Brown in his judgment on 17 December ruled that in order to decide whether war would be unlawful, the courts would have to interpret Resolution 1441, clearly not part of domestic law. Normally, he said, "English courts will not rule upon the true meaning and effect of international instruments which apply only at the level of international law." Even so, the work started by the Legal Inquiry has generated considerable media coverage and provoked serious analytical discussion of the legal aspects of what seems to be a rush to war. The BBC was certainly taking notice and its detailed coverage has rewarded the efforts of a small group of campaigners and lawyers. Extracts from Professor Vaughan Lowe’s conclusions follow. You can follow up the detailed arguments on http://www.bbc.co.uk/radio4/today/reports/international/iraq_hearings.htmlAlternatively you can be sent them by email. or, if you prefer, they can be sent by post. Write to 67 Summerheath Rd, Hailsham, Sussex, BN27 3DR, or ‘phone 01323 844 269, or email geowcpuk@gn.apc.org, and say how you want the information to be sent. SUMMARY OF PROFESSOR VAUGHAN LOWE'S JUDGEMENT This was not a real judicial hearing; but Professor Vaughan Lowe acted as an international court, summarizing the arguments on each side and identifying the central issues. The full judgement is considerably longer than this summary. To obtain it, see the bottom of the front page. The declaration sought: Professor Grief invited the tribunal to declare that: "Under present circumstances it would be contrary to international law for the United Kingdom to engage in military action against Iraq, or assist any other State in taking such action, unless it was expressly authorised to do so by the United Nations Security Council."
Use of force: The UN Charter forbids the use of armed force by States. The only exceptions are when the Security Council authorises force to safeguard the interests of the international community or by a state in self-defence. This is the cornerstone of the international security system. Professor Vaughan Lowe observed that there is no evidence of an imminent attack from Iraq on the UK which would compel it to use force. Nor has the UK cited any evidence of a link between Iraq and Al Qaeda to justify force. Armed force can certainly not be used simply because a state might attack another at some time in the future. "Pre-emptive self-defence" he said, "is an oxymoron, unknown to international law and incoherent as a concept". Neither can "humanitarian intervention" justify the use of force by a state. The concept is controversial and is by no means accepted in international law. Saddam Hussein has undoubtedly abused his own people but there is no humanitarian crisis in Iraq on the scale of Rwanda or Kosovo.
The scope of existing Security Council authorisation: All parties agree on the right of the Security Council to decide upon military action against Iraq. The disagreement is about whether states can take action unilaterally, without any further express Security Council authorisation. The argument revolves round Resolution 1441, adopted by the Security Council on 8 November 2002 and Resolution 687 adopted at the end of the 1991 after the Gulf War. Resolution 1441 stated that "false statements or omissions" made by Iraq and failures to cooperate in implementing the Resolution "shall constitute a further material breach of Iraq's obligations and will be reported to the Council for assessment ...". If a material breach is reported by the inspectors the Security Council will " convene immediately ... in order to consider the situation ...". The US, and to a lesser extent the UK, say that Resolution 1441 authorises the use of force by individual states if the Security Council cannot reach an agreed decision on how to respond to a material breach by Iraq. However, many members of the Security Council contest this. Professor Vaughan Lowe stressed that without such specific authorisation, states using force would be taking the law into their own hands. This would undermine the whole structure of international security. The US and the UK have argued that Resolution 687 can be invoked to authorise force. Professor Vaughan Lowe recognised that Resolution 687 did indeed demand "an unconditional undertaking by Iraq not to use, develop, construct or acquire chemical or biological weapons or ballistic missiles with a range exceeding 150 kilometres" and an " unconditional agreement ... not to acquire or develop nuclear missiles or nuclear-weapons-useable material". It set up the UN Special Commission (UNSCOM) to oversee this. At that time the Coalition which liberated Kuwait was still entitled to use force to ensure compliance under UN authority. However, this ad-hoc Coalition no longer exists and cannot therefore be resurrected to enforce the will of the UN. Furthermore, the Preamble to Resolution 1441 specifically recalls that Resolution 678 authorised the use of all necessary means "to restore international peace and security in the area." but that "the resolutions of the Council constitute the governing standards of Iraqi compliance." That suggests that the Council itself determines whether there is a breach by Iraq and what should be done about it. .
The Conclusion: Professor Vaughan Lowe therefore concluded that under present circumstances it would be contrary to international law for the United Kingdom to engage in military action against Iraq, or assist any other State in taking such action, unless it was expressly authorised to do so by the United Nations Security Council. The professor emphasised, however, that under the Royal Prerogative the Government can take the United Kingdom to war, without the duty even of consulting Parliament, and the courts have no power to interfere with that decision. It is very improbable indeed that any English or Scots court would order the Government to reverse that decision even if it were violating international law.
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