Thursday, July 27, 2006
THE LEGAL AUTHORITY?
The Guardian, yesterday:
Indeed, considering the way the Guardian reports this it does seem "stunning" . . . but upon closer examination, as usual, it isn't really:
The substance of the families' case is apparently that:
If that is indeed the main basis, this will be a useful court case. However, if based upon "international law", upon closer inspection the families of only two of the four slain soldiers -- Shaun Brierley; David Clarke; Gordon Gentle, Phillip Hewett -- who brought the action have any sort of reasonable case. Why? Because only David Clarke (killed March 25, 2003) and Shaun Brierley (killed March 30, 2003) died before May 22, 2003.
What's the significance of May 22? That was the day the UN Security Council UN endorsed the international coalition's presence in Iraq. From that moment right down to the present day (if one considers the UN to be THE fount of all "international law", of course; and that is another issue altogether), the war in Iraq has been absolutely perfectly "legal". Indeed, it is as "legal" as the presence of UN "peacekeepers" and observers in south Lebanon, and elsewhere in the world. (Actually, Clare Short "dramatically" resigned over "illegality" and the lack of the UN presence only some 10 days before those issues were pretty much resolved: "...The crucial role for the UN people have very muddled on this. For humanitarian aid, which they are now moving in and will start feeding people and doing a better job than what's being done now, the UN needs no mandate...")
Therefore, it would seem that out of hand Gentle's and Hewett's families have no substantive case they can readily argue. The British government's deploying them there was perfectly "legal". From an "international law" standpoint at least, only deaths prior to May 22 are those which might be questionable -- and in court undoubtedly the government will produce piles of paper and UN resolutions supporting its view that the war was "legal".
This is new. Nation-states have waged wars for centuries. But it is only since the end of World War I and particularly with the creation of the UN and various covenants on "defensive war" after World War II that there have been considered "legal restrictions" on states waging war. However, "international law" is a bad misnomer; it is not "law" so much as merely another way to describe interstate agreements, and states for centuries have ripped up such treaties and covenants when they no longer served their interests, or they just chose to observe them differently . . . and there is, as of yet, no true "super-arching" authority above nation-states to demand that states' ability to independently function be reduced to that of counties in England.
Misnomer or not, the gallop by many towards a belief in "international law" overriding nation-state decision-making really began in the 1990s and early 2000s, and particularly in European governments. As John Keegan has written:
Essentially, only if the UK parliament had passed a law banning an attack on Iraq, but the Blair government went ahead and launched the war anyway, would THAT war definitely have been illegal in domestic British legal terms. But during that two month "window" from March to May 2003, which entity was it that was truly empowered with the "legal authority" to oversee British foreign policy decisions? Was it the elected UK government? Or was it the "Olympian" UN Security Council -- itself a body composed of nation-states, all acting in their own interests anyway? It is a very important issue, so it will be good to read what a UK court finally thinks of the matter. ¶ by Robert, Thursday, July 27, 2006
The Guardian, yesterday:
The families of four British soldiers killed in Iraq won the right today to challenge the government's refusal to hold a public inquiry into why Britain joined the war, a ruling their lawyers described as a "stunning victory".
The decision by the court of appeal overturned an earlier high court ruling denying the relatives the right to apply for judicial review of the government's decision...
The decision by the court of appeal overturned an earlier high court ruling denying the relatives the right to apply for judicial review of the government's decision...
Indeed, considering the way the Guardian reports this it does seem "stunning" . . . but upon closer examination, as usual, it isn't really:
...the appeal judges said it was "at least arguable that the question whether the invasion was lawful - or reasonably thought to have been lawful - as a matter of international law is worthy of investigation"...
..."We stress that, although we have decided to grant permission, we see formidable hurdles in the way of the applicants and do not wish to encourage them to think that they will succeed," the ruling read, adding: "We are doubtful whether it would be appropriate to order a public inquiry of the kind sought."...
..."We stress that, although we have decided to grant permission, we see formidable hurdles in the way of the applicants and do not wish to encourage them to think that they will succeed," the ruling read, adding: "We are doubtful whether it would be appropriate to order a public inquiry of the kind sought."...
The substance of the families' case is apparently that:
...the government ought "to be held accountable" for a war which "breached international law and was based on a series of lies"...
If that is indeed the main basis, this will be a useful court case. However, if based upon "international law", upon closer inspection the families of only two of the four slain soldiers -- Shaun Brierley; David Clarke; Gordon Gentle, Phillip Hewett -- who brought the action have any sort of reasonable case. Why? Because only David Clarke (killed March 25, 2003) and Shaun Brierley (killed March 30, 2003) died before May 22, 2003.
What's the significance of May 22? That was the day the UN Security Council UN endorsed the international coalition's presence in Iraq. From that moment right down to the present day (if one considers the UN to be THE fount of all "international law", of course; and that is another issue altogether), the war in Iraq has been absolutely perfectly "legal". Indeed, it is as "legal" as the presence of UN "peacekeepers" and observers in south Lebanon, and elsewhere in the world. (Actually, Clare Short "dramatically" resigned over "illegality" and the lack of the UN presence only some 10 days before those issues were pretty much resolved: "...The crucial role for the UN people have very muddled on this. For humanitarian aid, which they are now moving in and will start feeding people and doing a better job than what's being done now, the UN needs no mandate...")
Therefore, it would seem that out of hand Gentle's and Hewett's families have no substantive case they can readily argue. The British government's deploying them there was perfectly "legal". From an "international law" standpoint at least, only deaths prior to May 22 are those which might be questionable -- and in court undoubtedly the government will produce piles of paper and UN resolutions supporting its view that the war was "legal".
This is new. Nation-states have waged wars for centuries. But it is only since the end of World War I and particularly with the creation of the UN and various covenants on "defensive war" after World War II that there have been considered "legal restrictions" on states waging war. However, "international law" is a bad misnomer; it is not "law" so much as merely another way to describe interstate agreements, and states for centuries have ripped up such treaties and covenants when they no longer served their interests, or they just chose to observe them differently . . . and there is, as of yet, no true "super-arching" authority above nation-states to demand that states' ability to independently function be reduced to that of counties in England.
Misnomer or not, the gallop by many towards a belief in "international law" overriding nation-state decision-making really began in the 1990s and early 2000s, and particularly in European governments. As John Keegan has written:
...The mood was not one of pacifism but of a changed outlook on the world which may be defined, in a term chosen by Professor Kenneth Minogue, as 'Olympianism'. Olympianism is by definition supranational -- the European Union is in essence supranational, not intergovernmental -- and seeks to influence and eventually control the behaviour of states not by the traditional means of resorting to force as a last resort, but by supplanting force by rational procedures, exercised through supranational bureaucracy and supranational legal systems and institutions ... The United Nations, deficient as its powers are, is the most obvious; the Hague Tribunal ... and the European Court of Human Rights are others. The most notable, however, is the European Union, a truly Olympian body, since it seeks to supersede the governments of its constituent member states but to do so while lacking any ultimate means to enforce its decisions. Treaties, laws and regulations -- millions of regulations -- are the media of its power.
To many Europeans the Union provides an example and a vision of how the whole of the world might one day be governed. They are able to believe what they do because, thus far in its existence and development, none of its major decisions have ever been rejected by a member state. The workings of the Union do seem to lend credence to the idea in which Olympians most want to trust: that laws will be obeyed by the mere promulgation and that treaties can be self-enforcing.
The idea is, of course, illusory. 'Covenants without swords are but words' judged the supreme realist Thomas Hobbes and nothing that has happened since the seventeenth century gives reason to expect otherwise. Olympians, and particularly those who live within and are committed to the supranationalism of the European Union, have persuaded themselves differently. As long as 'Europe' continues to make apparent progress towards 'ever closer union' they can persist in the belief that civil servants will eventually displace soldiers and that judges can be supreme commanders...
...All European governments, those recently liberated from Communist oppression excepted, were run by men affected to some degree by Olympianism. The American government, by contrast, was run by men who were emphatically not so influenced...
To many Europeans the Union provides an example and a vision of how the whole of the world might one day be governed. They are able to believe what they do because, thus far in its existence and development, none of its major decisions have ever been rejected by a member state. The workings of the Union do seem to lend credence to the idea in which Olympians most want to trust: that laws will be obeyed by the mere promulgation and that treaties can be self-enforcing.
The idea is, of course, illusory. 'Covenants without swords are but words' judged the supreme realist Thomas Hobbes and nothing that has happened since the seventeenth century gives reason to expect otherwise. Olympians, and particularly those who live within and are committed to the supranationalism of the European Union, have persuaded themselves differently. As long as 'Europe' continues to make apparent progress towards 'ever closer union' they can persist in the belief that civil servants will eventually displace soldiers and that judges can be supreme commanders...
...All European governments, those recently liberated from Communist oppression excepted, were run by men affected to some degree by Olympianism. The American government, by contrast, was run by men who were emphatically not so influenced...
Essentially, only if the UK parliament had passed a law banning an attack on Iraq, but the Blair government went ahead and launched the war anyway, would THAT war definitely have been illegal in domestic British legal terms. But during that two month "window" from March to May 2003, which entity was it that was truly empowered with the "legal authority" to oversee British foreign policy decisions? Was it the elected UK government? Or was it the "Olympian" UN Security Council -- itself a body composed of nation-states, all acting in their own interests anyway? It is a very important issue, so it will be good to read what a UK court finally thinks of the matter. ¶ by Robert, Thursday, July 27, 2006
