Lawfare and the decision to go to war

Times of London:

When selective extracts of the advice that Lord Goldsmith provided to Tony Blair on the legal status of any war in Iraq were first leaked, a number of observers argued that the Attorney-General’s cautious and balanced thoughts were proof positive that the Prime Minister had “lied”. Lawyers are supposed to weigh the arguments for and against, a fact that was lost on those fighting an entirely different war. The release of the full memorandum that he sent to the Prime Minister on March 7, 2003, suggests that much of what has been said about his alleged position on the war has been exaggerated or distorted. His text helps to settle at least some of these matters.

The first of these is that the Attorney-General was hardly dealing with “typical” legal material. The debate as to the relationship between armed conflict and the concept of international law is complicated and fluid. It is not in any sense comparable with, for instance, domestic legislation against assault or murder. The notion that there was or is a securely established consensus on when intervention is legitimate is mistaken. As Lord Goldsmith put it,discussing how paragraphs of UN Resolution 1441 might be interpreted: “My view is that different considerations apply in different circumstances.” He was right, even if that ambiguity makes us instinctively uncomfortable.


The claim of the anti-war camp is that there is such an entity as absolute international law and that the UN Security Council is the supreme court that stands in judgment on it. This is a profoundly misguided assertion. The Security Council is not a legal tribunal; it consists of politicians and civil servants representing such models of democracy as China and Russia, as well as sometime members whose deeds mock the very idea of the rule of law. Lord Goldsmith was correct to insist that there was “a reasonable case” for war. It is, by contrast, unreasonable to charge, as is charged, that Mr Blair lied time and again in taking the country into a war he knew to be illegal.

The claim of the antiwar camp is irrational. Why would any country turn qauestions of national security over to someone who may not be effected by the decision. In matters of war and peace why would you give a veto to any of five countries on the security counsel. Does the UK want France, Russia and China deciding whether its national security is at issue or whether it can defend itself against perceived threats?


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