23 Feb Does the Legality of the Iraq War Matter?
Although the legality of the Iraq War under international law has been a subject of some interest among academic international lawyers, there is not much evidence that this question troubled American decisionmakers (does anyone remember John Kerry complaining about the legality of the Iraq War?). But the U.K. is another matter.
The “illegality” of the Iraq War has been used as a defense to criminal charges by protestors who broke into a UK military base. Moreover, the legality of the Iraq War could be important to UK soldiers charged by the new ICC (to which the UK is a party). For this reason Prof. Phillippe Sands’ new book, Lawless World, which its publisher describes as a “coruscating account of how the Bush and Blair administrations are breaking the law and trying to rewrite the rules ” governing the use of military force under international law is making waves in the UK.
This excerpt in the Guardian charges that the UK’s Attorney General, Lord Goldsmith, who is supposed to give independent legal advice to the UK Government, was leaned on by the U.S. and Tony Blair’s political advisors to deem the Iraq War legal under international law. Tory opposition leaders are already calling for a release of this legal advice and a parliamentary investigation.
This is a complicated issue. So I’m generally unpersuaded by polemics (like Sands’ book seems to be) suggesting the illegality of the Iraq War was such an easy question. (see this defense of the legality of the war here in the American Journal of International Law by the ubiquitous John Yoo). I’m similarly unsure about the Kosovo intervention, despite Peggy’s attempts to justify it here. I can’t help thinking that the only reason Kosovo is uncontroversial and the Iraq War remains controversial (among international lawyers) is that most international lawyers supported Kosovo but opposed Iraq on policy grounds. Put another way, do you know anyone who wanted to go to war in Iraq but thought it was illegal, or opposed the war but thought it was legal? I don’t.
Putting all this aside, for U.S. lawyers, the most interesting tidbit from Sands’ book is about future Legal Adviser of the State Department John Bellinger. Sands writes:
On February 11 2003, Lord Goldsmith met with John Bellinger III, legal adviser to the White House’s national security council. The meeting took place in the White House. An official told me later: “I met with Mr Bellinger and he said: ‘We had trouble with your attorney; we got him there eventually.'”
Sounds like a good guy.