Was the Iraq war illegal?

In a landmark case, two peace activists who tried to stop B-52 bombers taking off will argue that the conflict breached international law

Was the war in Iraq legal or not? Lord Hutton won't tell us: that ultimate question does not come within the terms of his inquiry into the death of weapons expert David Kelly. The high court was asked to decide but demurred, declaring it had no jurisdiction to interpret UN resolution 1441, the basis on which Britain went to war.

But the question persists, becoming, if anything, more insistent as any sign of the weapons of mass destruction with which we were threatened continues to prove elusive four and a half months after the end of the war. We learned at the weekend that Jack Straw, the foreign secretary, had urged the prime minister in a private memo just four days before the hostilities broke out to keep Britain out of the conflict.

This week the question will take centre stage again in a court of law. On Friday, in the unlikely setting of Gloucester crown court, a hearing will take place in a criminal case that could mean that 12 ordinary citizens - an English jury - will get to decide whether or not the conflict was legal.

Last December, the Campaign for Nuclear Disarmament sought a high court declaration that the war was not authorised by international law. The judges, describing CND's claim as "novel and ambitious", held that the courts had no jurisdiction to interpret UN resolution 1441 as it was not part of domestic law.

The court also said it was unwilling to consider the issue if it would damage the public interest in the field of international relations, national security or defence. CND's claim was "non-justiciable".

Now, two peace activists, Margaret Jones and Paul Milling, will make a fresh attempt to question the legality of the conflict before a court. This time, the issue arises as part of their defence to criminal charges. The pair, who were arrested on March 13 inside the airbase at RAF Fairford in Gloucestershire, are charged with conspiracy to cause criminal damage to a refuelling truck and tractor units used for loading bombs on to B-52s. Jones and Milling will argue that their actions were justified given the "illegality" of the Iraq war. On Friday, Judge Jamie Tabor will decide at a preliminary hearing the procedure for putting the defence forward. Will the judge hear the argument and decide himself, or will the question of the war's legality or illegality be left to the jury?

One defence to a criminal charge is that the accused was acting to prevent a crime. Hugo Charlton, the barrister defending Jones and Milling, concedes that his clients' arguments are rarely used. They will say they were acting to prevent the commission of a crime because the B-52s were about to take off from RAF Fairford to take part in an illegal armed conflict, the result of which would be large-scale loss of life and destruction of property in Iraq.

Louise James, their solicitor, says: "We are struggling to find any precedents. It's a bit of an uncharted territory for us and the judge."

Her clients will be putting forward testimony from an expert in international law. "We have retained Professor Nick Grief from Bournemouth University, who has a track record in this area, and will be using expert evidence to show that the bombing campaign against Iraq systematically targeted water and power supplies, was disproportionate and amounted to a crime under international law. We hope that Judge Tabor will allow these questions to be determined during the trial, before the jury."

Judge Tabor has some unusual arguments to consider. Jones and Milling are relying on three defences: necessity, which is founded on precedents set by earlier cases; the defence of lawful excuse under the Criminal Damage Act 1971; and the defence of acting to prevent a crime, under the Criminal Law Act 1967.

These are seldom visited waters of the criminal law, though the defence of necessity has come before the courts in recent years in other incidents where protesters have damaged military installations and equipment.

Necessity can be relied upon as a defence to all criminal charges other than murder, and often arises as duress, defined in a 1989 case as "pressure upon an accused's will from the wrongful threats or violence of another". The classic example would be where a person is forced to commit a crime at gunpoint. But equally, if more unusually, it can be used as a defence where the accused reasonably apprehended a danger threatening others, and acted - in a way that is proportionate to that perceived danger - to avoid the possibility of death or serious injury.

For those who have called upon it in recent years, necessity has proved a mixed bag. In a case in 2000 at Newbury magistrates court, the accused had damaged the perimeter fence of the atomic weapons establishment at Aldermaston. The court decided that the lack of any immediate threat meant that the defence did not apply. In 1999 in Greenock, Sheriff Margaret Gimblett accepted the argument of three women peace activists that nuclear weapons were illegal under international law and that they had a right to commit crimes to prevent their use. The women were acquitted of criminal damage to a laboratory at Coulport, part of the Trident nuclear submarine installation at Faslane naval base on the Clyde. But the court of session in Edinburgh overturned the ruling in March 2001, deciding that Britain's nuclear deterrent was not illegal.

Jones and Milling say that at the time of their actions, there were objective dangers threatening the lives and physical safety of the Iraqi people. The coalition's bombing campaign started on March 20, five days after the two were arrested. Jones, a former senior lecturer in American literature, says: "I often think of a person in Baghdad trying to escape the city. Our actions were intended to cut the line of support for the B-52s and give that person a little more time to get away. Perhaps we saved a few lives by causing delays."

They also argue that they had a lawful excuse, a defence available where a person destroys or damages property in order to protect property belonging to another. Jones puts it vividly: "No one would accuse a firefighter breaking down a door with an axe to rescue someone trapped in a burning house of criminal damage. We acted as we did because we believed the impending war in Iraq was illegal, and we acted to prevent a greater crime being committed. The real criminals aren't us - they're in Whitehall and Washington."

The outcome will hinge on the success of their argument that they were acting to prevent a crime - the use of force against Iraq, contrary to international and English law. So the wording of resolution 1441 - relied upon by the government as justifying aggression against Iraq - is about to come back to haunt Blair and his government. Its language, so the defence will go, required the question of further action to revert to the UN security council once the weapons inspectors found that Iraq had made false statements or omissions in its own declaration under the resolution. But, the defendants claim, government rhetoric and theirwork as peace activists made it clear that the commission of a criminal offence was imminent.

It is difficult to predict how Gloucester crown court will treat the defendants' arguments. As Owen Davies QC, an expert in judicial review and human rights law, says: "The verdict of the jury - if the judge lets the matter go to them - is not determinative of the legality or otherwise of the conflict. But an acquittal could cause a great deal of embarrassment for the government, with anti-war campaigners saying it is a ringing endorsement of their condemnation of the war."

Meanwhile, perhaps, we should recall the words of Martin Luther King on civil disobedience: "In no sense do I advocate evading or defying the law - that would lead to anarchy. An individual who breaks the law that his conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the community over its injustice, is in reality expressing the highest respect for law."

[Source: By Alex Wade, The Guardian(UK), 16Sep03]

War in Iraq and Glabal State of exception

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This document has been published on 22sep03 by the Equipo Nizkor and Derechos Human Rights, in accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.