If you murder someone, then wander into a police station and give a full confession of what you have done, you have broken the law. Statutes says what murder is, that you shouldn’t do it and if you do, you are going to prison for life.
There is not a statute about war. No checklist or procedure exists to decide how to make a war legal (academics will be waving their UN Charters’ around at this point, please stay with me, I am simplifying to prove a point) because there is not an international law statute book that we can check to find out. International law has more in common with a darts club than criminal law. The members of the club think of the rules, keep to the rules, interpret what the rules mean and decide what to do if a member breaks the rules. Problems arise when the members disagree about what the rules mean, but no-one outside the darts club can help them interpret their own rules. The same group of people who have the standing in law to make a credible declaration that the second Iraq was (il)legal could also be prompted to writing a doctoral thesis about whether international law exists at all.
Then there are lawyers. Most professions find an answer. Two competent doctors cannot simultaneously find the same patient to be perfectly healthy and sick. However, two competent lawyers each make a living by going before a judge and arguing that the claimant is right or wrong, and the judge agrees with one or the other. In law school, you learn to remove an emotional response to a situation and find a way to argue the law fits your presentation of the facts which is favourable to your client. The Chilcot Enquiry today heard that a raft of foreign office lawyers came to one opinion, and Jack Straw (the foreign secretary at the time and a barrister before entering politics) came to another. The media are determined to spin this into some sort of absolute right or wrong answer, but it simply does not exist. In a year of studying international law I’ve read stacks of opinions and could quite contently make a case for or against the war depending on what you would like to hear, but no judge, lawyer or head of state can say I or Jack Straw is wrong with any certainty.
With hindsight, I doubt Tony Blair, Jack Straw or maybe even President Bush, if they could foresee the ending, would have been so eager for the beginning. I wonder, in Britain, if Blair and Straw’s legal training was a factor. Where anyone else would have heard a team of lawyers say “no” and stopped, did Straw and Blair think “well, that’s one argument, but we have a better one”? If Saddam Hussein’s palace had been stacked to the gills with long range biological weapons they would have been hailed as brave visionaries overruling the cautious government lawyers to protect their citizens. As it turns out, it’s the government lawyers that get vindication. There has also discussion of the idea that the FCO lawyers are specialists and Jack Straw was some over-promoted ambulance chaser. This is nonsense, as illustrated by the darts club analogy. Jack Straw and Tony Blair, as Foreign Secretary and Prime Minister, joined an elite club of international law makers and in that role, like leaders from Churchill back to Caesar, they are empowered to quite literally make international law up as they go along.
UPDATE: I thought I was being novel and thought-provoking by posting the above. It seems Jack of Kent beat me to it by three hours – at least someone might agree with me.
