Britain and America faced legal challenges over their part in the conflict in Kosovo, writes Robert Verkaik. Will they find themselves back in the courts over Iraq? The Russian Premier, Vladimir Putin, put it succinctly when he said: "If we install the rule of force in place of international security structures, no country in the world will feel secure."

Britain and America faced legal challenges over their part in the conflict in Kosovo, writes Robert Verkaik. Will they find themselves back in the courts over Iraq? 

25 March 2003

Lord Goldsmith's worst moment as a lawyer, he says, was when he represented the Iraqi Central Bank days after Saddam Hussein's army was bombed out of Kuwait. In 1991, under the Bar's code of conduct, Peter Goldsmith QC, a leading commercial barrister, could not refuse to take a case because he found the client or subject matter objectionable.

Last week, his career turned full circle when he advised the Government on the legality of going to war with Iraq. His Parliamentary submission on the reasons British military action could be defended was enough to silence political contentions on the legal status of the war.

But what about the weight of expert legal opinion taking issue with Lord Goldsmith's reasoning? Will anti-war lawyers have a chance to argue the counter position? Or has all the talk about the legality of war been just that – talk?

Similar questions were posed after the conflict in Kosovo when America and Britain went to war without the backing of the United Nations. This led to a number of attempts to hold Bill Clinton and Tony Blair to account for deaths of civilians in Belgrade. The Prime Minister, Tony Blair, and Robin Cook, Britain's then Foreign Secretary, defended the action. "It is not enough for us simply to disrupt the poisonous propaganda of Milosevic," Mr Cook said. "It is just as important that we enable his people to learn the truth."

Neither the Yugoslavia War Crimes Tribunal at the Hague nor the European Court of Human Rights in Strasbourg upheld the claims against Britain and America.

Four years on, coalition forces face a very different international legal landscape. A new International Criminal Court sits in judgment on the military of 89 different nations – but not America, which has yet to ratify the treaty establishing the court. The lessons of Kosovo mean that both British and US forces are being advised by lawyers on what is and isn't a legitimate target. For the first time in a major conflict, lawyers have the power to veto the war planners when they believe a target's military value is outweighed by the risk the attack poses to civilian life. After the fighting in Iraq is over, the issue of whether the war was a legal one may yet be tested in court along with the Attorney General's assessment of this question.

As the first missiles fell on Baghdad last week, the leaders of Russia and China called the US-led military action a violation of the UN Charter. They were joined by many other countries as well as a myriad of human rights groups and international charities. The first casualty of this war was not Mr Cook, it was the rule of law. The Russian Premier, Vladimir Putin, put it succinctly when he said: "If we install the rule of force in place of international security structures, no country in the world will feel secure."

This feeling has been repeated by Germany, France and China. Only after the war will we know the true damage done to the UN Charter and integrity of international law. Will Britain and the US ever be able to use the rule of law to confront China and Russia if they use excessive force to crush a minor irritant nation? To sideline international law is to risk creating a world order without a moral or legal basis. The greater good may be achieved in the short term, but long-term dangers are unknown.

Such reasoning can be used to expose the shortcomings of David Blunkett's recent threat to emasculate the judiciary by bringing in laws to stop them invoking the Human Rights Act to block government policy. Thankfully we have an independent judiciary that can hold its own in the face of a bullying executive.

But, on the world stage, the judges have been silenced. Last year, the Campaign for Nuclear Disarmament brought judicial review proceedings against Mr Blair, the Foreign Secretary and the Secretary of State for Defence, seeking a declaration that the Government would be in breach of international law were it to carry out its threat of action against Iraq in the absence of a second UN resolution that authorised such an attack.

The Divisional Court found it had no jurisdiction to consider the issue of international law. But would Mr Blair not sleep easier if he knew he was not only waging a just war but also a legal one? The most appropriate forum for this issue to be resolved is the International Court of Justice, set up in 1946 as the UN's principal judicial organ.

The ICJ has the dual role of settling legal disputes between states and to give advisory opinions on legal questions referred to it by recognised international agencies. The court is already considering the 1999 Kosovo case brought by the former Yugoslavia against Britain, the US and other Nato countries alleging illegal use of force in the bombing of Belgrade. The case will have important consequences for any action arising out of the attack on Iraq.

There is good reason why the US and Britain are rushing to the ICJ for clarification of the legal position. A retrospective declaration of illegal use of force will be academic if they can justify that what they did was for the good of the Iraqi people.

In the meantime Mr Blair must hope that lawyers fall into line with the politicians opposing military force who have come to believe that any criticism of the war represents a betrayal of the soldiers. Perhaps they, too, would sleep easier if they knew they were acting not only on the side of the angels but also on the side of the law.

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