How I Learned to Stop Worrying About International Law and Love Toothless Inquiries

Increasingly in recent history, it has been the case that when egregious violations of international law occur resulting in thousands of deaths, the Western world will (afterwards) act to see justice done. Prominent examples include the activities of the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia, and, to an extent, the International Criminal Tribunal for Rwanda. But what is the proper response when it is Westerners who egregiously violate international law, resulting in thousands of deaths? If you answered “something similar”, then you are wrong. Shame on you.

No, an example of the proper response can be seen in Britain today, where an inquiry into the decisions leading up to the Iraq war, headed by Sir John Chilcot, has been underway since July. As the inquiry’s website makes clear, this is not a criminal tribunal, and it is not placing anyone on trial. Rather its purpose is to accurately establish what happened, and to identify lessons that can be learned (though have no fear: if the inquiry finds that mistakes were made, “it will say so”).

Britain’s Iraq inquiry is a nice, typical piece of theatre, with a colourful cast of characters. Those gaining the most attention include Jack Straw, Foreign Minister in 2003; Lord Goldsmith, the former Attorney General; Sir Michael Wood, the Foreign Office’s most senior legal advisor; Wood’s deputy Elizabeth Wilmshurst; as well as good old Tony – and his sidekick Gordon, the soon-to-be-former Prime Minister, will even make an appearance.

The plot is certainly no Lost, but it’s been interesting. In 2002 the UN Security Council passed Resolution 1441, which called on Iraq to comply with weapons inspections. Paragraph 12 is clear that a failure to do so on Iraq’s part would result in the Security Council immediately reconvening to discuss further action. After the resolution was unanimously passed, both the US and UK representatives made it explicitly clear that there was no “hidden trigger” to allow the automatic use of military force in the event of a violation. In the words of the UK representative: “There is no ‘automaticity’ in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion.”

A few months later in 2003, the Bush administration had decided that the British government had decided that military action against Saddam Hussein was necessary. To the extent that they needed justification, the UK government wanted to use Resolution 1441 as the basis for its action. Sir Michael and Ms. Wilmshurst advised Jack Straw that this course of action was illegal. Mr. Straw insists he did not ignore this advice – he merely “did not accept” it. Meanwhile, Lord Goldsmith likewise advised Mr. Blair that the war would be illegal. He later changed his mind based on the legal principle of “I got a letter from Jack Straw” and “American lawyers said it was okay”. Even then however, he warned that although the case for war was “reasonable”, silly old “courts” could disagree. After military leaders and civil servants demanded a yes or no answer, Lord Goldsmith decided military action was legal after all – three days before the invasion commenced. Ms. Wilmshurst resigned in protest, telling her superiors that the invasion was a “crime of aggression.”

Clearly, the above situation is nothing like other examples of leaders who ignored international law and were held to account, such as Slobodan Milosevic or Charles Taylor. For example, Britain’s leaders come from a rich, white country. Nevertheless, there are some kooks out there – such as Lord Bingham, the former Senior Law Lord of the UK – who believe that if international law was breached, then legal redress would be desirable. They couldn’t be more wrong.

International criminal law isn’t like domestic criminal law, except that they both disproportionately affect poor people (or countries). International law has the additional guiding principle that those who break the law need not be charged for their crimes if it would offend the sensibilities of the court to do so. This means that Western-run courts such as the ICC won’t prosecute British or American leaders because it would be undignified to subject such esteemed individuals to the ordeal. Underlying this sentiment is the knowledge that countries like Britain created the ICC, so Western exemption from its remit is implied.

More importantly, there are policy reasons why our (the Western world’s) leaders can’t be subjected to prosecution for violations of international law. Firstly, leaders like Mr. Blair and Mr. Straw have the duty to protect their countries. But to protect us from those who pose a threat to us, our leaders must be free to attack those who don’t. Put another way, our leaders shouldn’t have to worry about being prosecuted every time they make a decision to take action in self defence. That’s the problem with domestic criminal law. You know how if you were about to be attacked by someone on the street you’d be helpless because a crippling fear of prosecution would prevent you from defending yourself? No? Well I’m sorry but the whole argument relies on this logic.

The outcome of Britain’s Iraq inquiry is almost a foregone conclusion. Despite overwhelming evidence, the committee will likely not conclude that there was a decisive breach of international law. Rather, it will find that, although errors were made, British leaders made their difficult decisions in good faith. Such a conclusion is for the best, and should be more than enough justice for the thousands of Iraqis, Americans, and British who have died as a result of the Iraq war. Anything more could risk the dangerous precedent that the West, in addition to creating international criminal law, must be subject to it as well.

Blair and Straw Man

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