The Legality of the Iraq War: The UK Lawsuits

I wasn’t around last week to note these potentially interesting international law-based challenges to the UK’s involvement in the Iraq War.

First, a group representing the families of UK soldiers has filed a claim against the UK government (timed no doubt in an attempt to further influence the UK elections on Friday) under Article 2 of the European Convention of Human Rights. This is a very clever way to shoehorn the “illegality” of the Iraq War under international law into European law. Still, based on the plain text of Article 2, this seems like a fanciful claim at best:

Article 2
Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law.

Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

a in defence of any person from unlawful violence;
b in order to effect a lawful arrest or to prevent the escape of a person lawfully
detained;
c in action lawfully taken for the purpose of quelling a riot or
insurrection.

I’m no expert in European law, but it doesn’t strike me that ordering UK military troops into combat in violation of international prohibitions on the use of force. But this is certainly a creative way to get the legality of the Iraq War before the UK courts and possibly the European Court of Human Rights.

On another front, UK anti-war groups have also filed a complaint with the International Criminal Court alleging UK military officials have engaged in war crimes in the conduct of the Iraq War (this actually follows up an earlier complaint filed in December). The text of the complaint is not public, and the ICC (interestingly) has not announced this complaint on its website. But according to the UK press, the ICC will seriously consider opening an investigation.

Although the ICC’s jurisdiction apparently does not include the crime of “aggression”, the UK complaint here appears to charge not only disproportionate use of force in violation of the laws of war, but also the use of force at all given the lack of weapons of mass destruction.

All of this should remind U.S. observers that a collision between U.S. foreign policy (endorsed by both political branches and via proper constitutional processes) and the ICC is not the overblown fears of right-wing crazies. It is a very real possibility, as the ICC proceedings here with the UK demonstrate. Now it may be a good thing to have the ICC supervise the legality of the U.S. conduct of war (and not just the conduct of the war, but the actual decision to go to war). But defenders of the ICC in the U.S. can no longer claim that the ICC poses no serious challenge to the conduct of U.S. foreign policy.