Friday, 12 February 2010

Military Force in Iraq: Some Technical Considerations / Speculations

If you're new to this site I suggest you skip this post since it's simply a brief (if I can keep it brief) summary of some academic or technical issues of legal conceptual framework. A kind of shared notepad for the (meant in a nice way) obsessives. Sensible people would move on.

I'm having some fun legal discussion "off piste" as it were with a lawyer or two and among the questions/issues/perspectives are the following.

Nothing I've heard/discussed so far has led me to change my views expressed in other posts. But it has helped me sharpen up my thinking re issues that need to be dealt with (i.e. examined and dismissed, then communicated effectively) to convince the legally literate sceptics. Including challenging some of their (so I assess them) false assumptions.

The purpose of doing this more theoretical legal stuff, is for me to continue to keep under review the accuracy / credibility of my views about the implications of the Terrorism Act 2000 etc for Iraq and to explore the range of other assumptions and perspectives (including some vividly red herrings) that need to be addressed.

One thing that is very clear is that it is an area (at least in the arguably unique circumstances that applied in the time periods relative to the Iraq war) that not enough detailed consideration of some issues has taken place.

Some very sloppy judicial thinking is evident (a need for more posts when I can express the limitations of some individual judgements in a clear way and propose a better analysis for the issues under consideration in them). And, I think, some very sloppy (even more sloppy?) thinking went into the pre-war assessment by Peter Goldsmith.

Later I'm going to attempt to produce an article to attempt to communicate "A Theory of Law re the Use of Military Force in Iraq [time period to be decided]" (taking into account interactions of which I can trace no previous consideration). Not a 10 volume job, though (I sincerely hope!!). I'll leave that to the relevant judges.

1. The implications of whether Tony Blair gave parliament an accurate description of the legal position.

2. Ditto for the factual position.

3. If one were to accept that "all necessary means" was thought to be allowed (a la Goldsmith advice), what is the position when it was found NOT to be necessary - since there were no WMD.

4. Put it another way, if the pre-war assessment of a "need" for armed force proved to be wrong, and there were in fact no "necessary" means, does that mean that the use of armed force was unlawful? In practice that may not matter (the "might is right" anti-principle) but in theory if the authorisation is limited to "necessary" means (and nothing was actually "necessary") does it mean that the variation of the background prohibition against using armed force was invalid. In other words, the prohibition was still in place and the war was unlawful (in international law). I haven't been able to trace any consideration of that question.

5. We haven't seen in the public domain the AG's "it's ok to use force" letter (of 13th March). If he didn't caution the CDS about the need for the cause to be "correct" would his advice be negligent? Would that matter? The letter will probably emerge at Chilcot in time. I can't see how they can continue to withold something so pivotal. Chilcot will look even more feeble than currently.

6. In the situation pre-Iraq War how did international law (e.g. UN), the Royal Prerogative and UK criminal law (specifically the Terrorism Act 2000 and the International Criminal Court Act 2001 and the Scottish equivalent) apply / interact at various time points.

7. Would a formal declaration of war have changed the legal position?

8. Scope of the Royal Prerogative

9. Royal Family personally can have criminal record (Princess Royal). Relevance to Prince Harry and likely offences under section 57 of the Terrorism Act 2000 when he was in Afghanistan.

10. Distinction between the lawfulness of the consideration by HoC and whether military force is still terrorism (Terrorism Act 2000 etc) and the issue of individual criminal liability of military personnel.

11. Effects (if any such relevant) of UNSCR 1483, 1500 and 1511.

12. Implications (if any) of occupying power status re Terrorism Act 2000.

13. Scope / validity of Royal Prerogative variously among Civil and Criminal UK Law.

14. Malcolm Kendall-Smith miscarriage of justice. Jack Bayliss pronouncements. Scope of the arguments put forward by the defence.

15. Skeleton defences for upcoming possible court martials (issues depend on time when order(s) were disobeyed etc)

16. CND v PM 2002. Scope of Singh's arguments. Note scope on which Court refused to go along with Singh. Note too what they didn't consider. What they weren't asked to consider.

17. HoC 18/03/2003 - UK "should use all means necessary" - but time told otherwise. There was NO need.

[More later/tomorrow]

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