Published on Thursday, December 5, 2002 by the Inter Press Service
Legal Challenge against War Filed in British Court
by Sanjay Suri
LONDON - The Campaign for Nuclear Disarmament (CND) has filed a case in the High Court in London to stop the British government from going to war with Iraq.
A petition filed by the CND is due to be argued in court on Monday December 9. The court will decide then whether this unprecedented action is justifiable.
The case for the CND is being prepared by the Matrix chamber of barristers of which Cherie Blair, wife of Prime Minister Tony Blair, is a member. A CND spokesman told IPS Wednesday, however, that Cherie Blair is not personally involved in the case.
The case rests on the text of the United Nations Resolution 1441. The CND argues that it is normal to use the expression "any necessary means" to denote sanction of military action. "No such expression appears in the resolution," Tony Myers, campaigns officer with CND told IPS Wednesday. "We are arguing that military action would be unlawful without going back to the UN and seeking express approval for it."
Myers acknowledged that "there is no precedent for a small organization going to court to stop a government going to war." But he said the CND is hopeful that the court will admit the case at the preliminary hearing on Monday.
A petition has been filed in the High Court against Prime Minister Tony Blair, Foreign Secretary Jack Straw, and Defense Secretary Geoff Hoon. The CND case will be argued by Rabinder Singh and Charlotte Kilroy of Matrix, and Michael Fordham of Blackstone Chambers.
The hearing will take place the day after December 8, which is the date for Iraq to comply with the requirement to list all the sites and programs relevant to weapons of mass destruction.
"If war on Iraq is unleashed, 500,000 could die," says Carol Naughton, chair of CND. "We face the real possibility of a first use of a nuclear weapon, which could be British, American or Israeli. We are acting on behalf of all the citizens of the world who want to stop war on Iraq."
The CND campaign is being supported by several MPs.
The petition filed in the court says: "Security Council Resolution 1441 does not authorize the use of force by member states of the UN. The UK would be in breach of international law if it were to use force against Iraq in reliance on Resolution 1441 without a further Security Council Resolution."
The petition points out that the UN Security Council resolution offers Iraq a "final opportunity to comply with its disarmament obligations". The petition points out that paragraphs 4, 11 and 12 of Resolution 1441 deal with the event of non-compliance by Iraq with the terms of the resolution.
The petition points out that the resolution says noncompliance"shall constitute a further material breach of Iraq's obligations and will be reported to the Council for assessment." The resolution therefore fully respects the competence of the Security Council in the maintenance of international peace and security, in conformity with the Charter of the United Nations, the petition says.
"But despite these clear statements on the meaning of SCR 1441, several ministers of the UK government and United States officials have indicated that, in the event of noncompliance with SCR 1441 by Iraq, the UK and the U.S. would be entitled to take military action against Iraq even without a further Security Council resolution," the petition says.
The petition argues that the use of force by Britain against Iraq would not be justified under international law unless: (a) Iraq mounted a direct attack on the United Kingdom or one of its allies and that ally requested the United Kingdom's assistance; or (b) an attack by Iraq on the United Kingdom or one of its allies was imminent and could be averted in no way other than by the use of force; or (c) the United Nations Security Council authorized the use of force in clear terms.
The petition says: "It would be extraordinary if, having failed to obtain an express authorization for the use of force, having incorporated minute changes to the final draft whose sole purpose was to exclude the possibility of 'automaticity' and 'hidden triggers' and to preserve the role of the Security Council, and having publicly agreed in their explanation of the vote for adoption of SCR 1441 that there was no such implied authorization for force, the UK and the U.S. were to be able to use SCR 1441 as authority for the use of force without a further Security Council Resolution."
The petition adds: "In our view the implied authorization arguments put forward by the UK and the U.S. Would undermine the control exercised by the Security Council which is an essential feature of lawful delegation under the Chapter VII. These arguments would effectively allow member states to take unilateral decisions on the interpretation of resolutions, reading into them authorization to take action which does not appear clearly on the face of the resolution."
Government solicitor Diana Babar said in reply to the petition that it seeks an assurance from the British government that it will not attack Iraq without a further resolution from the UN Security Council, but that "there is no legal obligation upon the proposed defendants to provide any such assurance, and they do not consider it appropriate to provide such an assurance."
The government solicitor said in reply: "There is no legal obligation upon the proposed defendants to engage in a debate about legal analysis...and they decline to do so." The statement added: "There are a number of legal reasons why any attempt by your client to claim relief in the courts in relation to these matters should not succeed, and would be strongly resisted by my clients."
The government solicitor said "the matter is non-justifiable and the courts will not intervene to dictate the conduct of foreign policy, especially, we would add, in a matter of high policy relating to a decision as to whether and when the United Kingdom would engage in military action against another state."
Copyright 2002 IPS