• Robert Spicer

Employment law advice and the Iraq War

Those of us who provide employment law advice in Bristol may question the relevance of the Iraq War to their practice. My view is that all lawyers should be aware of the crucial importance of the following:

The economic implications of the Iraq War

In 2008 Joseph Stiglitz, former Chief Economist at the World Bank, and Linda Bilmes, a leading American economist, published The Three Trillion Dollar War: the true cost of the Iraq conflict. Their book examines the true financial, economic and social consequences of the Iraq war. They conclude, in summary, that the US government’s early estimate of $50 billion for the cost of the war was underestimated by sixty times. They make the following points:

  • The invasion of Iraq was a terrible mistake.

  • The decision to go to war was based on a number of false premises.

  • The total cost to the US will be $3 trillion.

  • The total cost to Britain will be £20 billion.

  • Estimates of violent deaths of Iraqi citizens are disputed. They range from 100,000 to more than 150,000, with 700,000 deaths from other causes.

  • Civilian casualties in Iraq since the invasion have been estimated at between 68,796 (Iraq Body Count) and 650,000 (Lancet October 2006). More bombs were dropped in the initial ‘shock and awe’ attack on Iraq than in the whole of the first Gulf War.

  • The main alleged “benefit” of the War – the destruction of weapons of mass destruction – had no validity.

  • The Iraq War has resulted in a humanitarian catastrophe.

  • 2 million Iraqis have left their country.

Stiglitz and Bilmes do not deal with the legality of the War. Their economic analysis confirms the apocalyptic nature of the war in human and economic terms. In the light of a humanitarian and economic disaster of this magnitude, the legal implications have less significance for those who have suffered as a direct result of the invasion of their country. The projected cost of the War can, of course, be compared with the cost of providing a nationwide network of fully staffed and resourced law centres.

It can be argued that British lawyers have an overwhelming professional duty to examine and analyse the legal aspects of the War and to express their views on its implications for the UK legal system.

For example, in 2007 a leading international lawyer, a Cambridge University professor with outstanding expertise in his field, was asked if it was true that most international lawyers thought that the invasion of Iraq was illegal. He replied that he only knew one lawyer who thought that it was legal.

The prohibition of the use of force by one state against another is one of the most fundamental principles of international law. Article 2 of the United Nations Charter states that war is unlawful. This is so basic a principle that the burden is on those seeking to show authorisation to use force, to show that it has in fact been authorised.

Legality of the War

First, war is illegal under international law. Second, the British government’s case for war was fatally flawed, from legal, practical and humanitarian points of view. Third, there are allegations of war crimes on the part of political leaders who planned and ordered the invasion of Iraq. If English lawyers believe, as they so often declare, in justice and the rule of law, then they have an overriding duty to speak out loudly and often against the War in Iraq and to take action in accordance with the principles of justice and the rule of law.

In terms of the legality of the War, which is not a fundamental issue in humanitarian terms, but is the most significant for lawyers, it is clear that the great majority of international lawyers – practising and academic – are of the opinion that there was no justification in law for the invasion of Iraq.

In the light of the overwhelming legal and humanitarian disaster which resulted from the War, lawyers should treat the Iraq War as their first priority.

Not all lawyers share these views. For example, recent comments by academics on the legality of the Iraq War have included the following:

  • Even if the War was illegal, there are few if any legal implications.

  • The War was lawful under UK law because its legality has not been successfully challenged in any UK court.

  • To claim that the War was a serious violation of the rule of law should not be taken at face value.

  • The legality of the War could be tested by litigation brought by a state to the International Court of Justice. This process would be deeply affected by politics.

  • Even if the War was illegal, this does not necessarily mean that it was a crime in itself.

  • There is no prospect of anyone ever standing trial for the Iraq War in any national or international court.

In response to these views, the following points should be noted:

  • Senior members of the UK judiciary have made it clear that they regard the War as illegal and that this is a significant issue.

  • For example, Lord Bingham commented that the issue of legality has enhanced the importance of international law in the public mind. It is perhaps unlikely that states chastened by their experience in Iraq will be eager to repeat it. Although they have not been brought before any court, they have been arraigned at the bar of world opinion with resulting damage to their standing and influence.

Leading opinions on the legality of the War

In October 2003 Robert Alexander QC, Chairman of Justice, published an article in The Times headed Scrutiny by the courts could put a stop to this military adventurism.The article, in summary, made the following points:

  • Article 2 (4) of the United Nations Charter specifically prohibits an armed attack on another country unless it is either in self-defence or under the aegis of the United Nations.

  • UN Security Council Resolution 1441 did not authorise war and stated that the UN was to remain in control. This was recognised by the British and US governments when they promoted a second resolution in March 2003.

  • The UK government invoked the sophistry of arguing that UN Security Council Resolution 678, passed in 1990 for the express and limited purpose of expelling Iraq from Kuwait, had “revived” to permit an invasion.

  • The Attorney-General published his advice in summary form in a parliamentary answer in March 2003. Essentially, this relied on Resolution 678.

  • The Attorney-General refused requests to disclose the details of his advice on the basis that there was a convention that law officers were not obliged to disclose advice which they had provided to the government.

  • This meant that the following questions had not been answered in public:

1. What were the factual assumptions upon which the Attorney-General’s advice relied?

2. How did he deal with the clear wording of Resolution 1441?

3. What arguments were used to deal with those of the majority of international lawyers who took the view that an invasion would be unlawful?

4. Did the Attorney-General consider the doctrines of proportionality and necessity under international law?

5. What was the legal basis for asserting that an old UN Resolution could “revive”?

6. Legal advice supplied to the government should be open to challenge in the courts. It was logical that the courts should give a ruling on the legality of action as important as any which the government would take for years to come.

Lord Bingham

In November 2008 Lord Bingham, England’s former Lord Chief Justice and senior Law Lord, gave a speech on the rule of law to the British Institute of International and Comparative Law. His comments were reported to include the following:

  • The invasion of Iraq by the UK and the US had been a serious violation of international law.

  • The Attorney-General’s advice failed to acknowledge the lack of hard evidence of Iraq’s non-compliance. Hans Blix and his team of weapons inspectors found no weapons of mass destruction, were making progress and expected to complete their work in a matter of months.

  • The invasion of Iraq was not authorised by the Security Council and there had been a serious violation of international law and the rule of law.

Lord Steyn

In November 2003 Lord Steyn, a South African/English former Law Lord, made the following points:

  • The treatment by the US government of 660 prisoners in Guantanamo Bay had been a monstrous failure of justice.

  • Judges have a duty, in times of crisis, to guard against an unprincipled and exorbitant executive response.

  • As a lawyer brought up to admire the ideals of American democracy and justice, he regarded Guantanamo as a monstrous failure of justice.

  • The military would act as interrogators, prosecutors, defence counsel and judges, and when death sentences were imposed, as executioners. None of the guarantees of a fair trial need be observed.

In October 19, 2005 he stated:

  • The War with Iraq had made the world a more dangerous place and London a target for terrorist attack.

  • The invasion of Iraq was military folly and the government scraped the legal barrel in trying to justify it.

  • It was wrong of the Prime Minister to have called the rule of law a “game”. The maintenance of the rule of law is not a game. It is about access to justice, fundamental human rights and democratic values.

  • After the recent dreadful bombings in London we were asked to believe that the Iraq War did not make London and the world a more dangerous place. Surely, on top of everything else, we do not have to listen to a fairy tale.

In a speech to the Bar Council in November 2006, Lord Steyn put forward the following views:

  • President Bush was guilty of high crimes under international law. Blair backed Bush, however lawless and outrageous the means adopted.

  • Members of the British government who were consciously involved in the decision to invade Iraq were subject to the universal criminal jurisdiction of international law.

  • The Attorney-General’s advice of March 2003 had paved the way for a disastrous war. It had been a black day for the rule of law.

  • Examples of illegality were the Guantanamo prison camp, secret CIA prison camps, CIA extraordinary rendition flights of prisoners and the invasion of Iraq.

  • The Bush administration had set out to undermine international institutions and refashion international law.

  • The record of British troops in Iraq was far from unblemished.

  • Long after the Prime Minister and his Cabinet had gone, the UK would pay the price for an abdication by our government of independent responsibility in foreign affairs and for playing a part with the Bush administration in undermining the international rule of law.

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