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Update 12 December 2002: The Judges will be making their decision
at the beginning of next week.
CND will on 9 December challenge the legality of the UK Government’s
decision to go to war against Iraq. The case, in the High Court, as judicial review will
proceed against Tony Blair, Jack Straw and Geoff Hoon. The case will be argued by Rabinder
Singh QC and Charlotte Kilroy of Matrix and Michael Fordham of Blackstone Chambers. It will
be heard by a three judge Divisional Court[1]. The judges will be Lord Justices Simon Brown,
Maurice Kay and Richards.
CND’s case is that the government will be acting illegally if it
uses armed force against Iraq without a fresh Security Council Resolution. It argues also
that the present resolutions, including UN Security Council Resolution 1441 (adopted on 8
November 2002) do not impliedly or explicitly contain an authorisation of the use of force.
More detail of CNDs argument can be obtained from an opinion of Rabinder Singh QC
and Charlotte Kilroy
This case is historic for a number of reasons:
- because no individual or group has ever (successfully)
challenged a decision of its own government to declare war or use force;
- because lawyers have always assumed that the declaration
of war was entirely a political decision beyond the control of the judiciary. However,
in this case, CND will argue that as the UK Government have said they will be bound
by international law, because they have got the law wrong means that this is a matter
for judicial intervention; 3, because if CND are right, in the future matters of foreign
and defence policy will, in some circumstances, be capable of being scrutinised by the courts.
The case has already made history by a decision of the Divisional
Court on 5 December 2002 that, even if CND lose, its liability to pay the Government’s costs
should be limited to £25,000. There has never been such a pre-emptive costs order made before
in the UK.
Phil Shiner of Public Interest Lawyers said today:
“There is no doubt that we are right in saying that international law does not permit
the government to go to war unless there is a fresh Security Council Resolution. Even
then there are strict limits on the use of that force in accordance with principles of
necessity and proportionality. The question today is whether CND will be barred from
arguing their case simply because of the political context.”
Carol Naughton, the Chair of CND said today: “This war is illegal,
immoral and illogical and this deals with the first of those questions. It is vitally
important that the government should be made to comply with international law rather than
undermine the Security Council by acting unilateral. If the UK is forced to await a fresh
Security Council Resolution it gives all concerned the continuing opportunity to obey the
law which requires that all peaceful means be used to resolve this dispute over Iraq’s
weapons.”
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