The Case Against War
Reviewed in World Disarm!
by Lord (Peter) Archer of Sandwell, QC WDC President
For any law student seeking a model on researching, arranging and presenting legal arguments, this book should be required reading. For readers without legal training it is an example of clear jargon-free English, which should enable them to appreciate the issues and arguments.
Its major concern is with the legality in international law of the invasion of Iraq, and sets out the legal opinions, submissions and conclusions relating, first, to an unofficial inquiry conducted before Professor Colin Warbrick, Professor of Law at the University of Durham. The respective arguments are stated with admirable clarity by Radinder Singh QC and barrister Julian Knowles. Professor Warbrick concludes that authorization by the Security Council, which was the only arguable basis for military action, was not established.
For good measure, there is also included an adjudication by Professor Vaughan Lowe in a review by the Today Programme, reaching a similar conclusion. With that judgement this reviewer, for one, is wholly in agreement, and it is useful to have the question presented in so convenient a form.
But CND sought an opinion on the question from the High Court, and much of the book is dedicated to setting out the arguments and judgements in those proceedings. The claim, against the Prime Minister and the Foreign Secretary, was for an "advisory declaration", that is, a ruling simply for guidance and which is not intended to lead to any sanction. The argument focused not upon the legality of the invasion, but upon the preliminary question whether it would be appropriate for the Court to give a ruling.
The Court agreed that there are circumstances in which the Judiciary will intervene in actions of the Executive, but in a case such as the present it would not be in the public interest to require that the Government give publicly its reasons for a particular conclusion of international law while engaged in negotiations with other states. It was clear from the judgements that, while the Courts are admirably qualified to form conclusions as to questions of pure law, they recognize the expertise of other branches of government as to the advisability in any specific circumstances of publicizing their opinions.
However frustrating this may be for those of us who believe the Government to have been wrong, the Courts cannot provide a short cut to policy-making. We must argue our case in the political arena. In a democracy, there is no substitute for persuading the public.
Published September 2004
ISBN: 978 0 85124 692 5
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