Legal question

Discussion in 'Current Affairs, News and Analysis' started by Zaphodski, Mar 4, 2004.

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  1. First quote taken from the Guardian, 1 March 04:

    Doubts about the legality of the war could lead to a flood of compensation claims against the government from servicemen injured in Iraq, according to a leading international lawyer.
    Such a claim would require the courts to decide whether the war was lawful and force disclosure of the attorney general's full advice, said Jeremy Carver, head of public international law at the City law firm Clifford Chance.
    Battlefield immunity, which protects the government from claims for soldiers' injuries or death during military operations, might not be effective in the case of an unlawful war.
    Mr Carver, who represents governments and has helped them draft alternative UN resolutions, said he had initially formed no view on the war's legality.
    "I didn't know then whether there was any sufficient basis on which to say the war was lawful," he said.
    "From everything we have learned since then, it has become obvious there was no valid basis for the war and therefore the war was illegal

    Logic – someone is bound to try this. Wouldn’t you want something better than a war pension?

    What if…he wins?

    That requires the courts to have found the war unlawful.

    What if…it is found unlawful?

    Enter International Criminal Court (ICC): This is quoted from Human Rights Watch’s website and was originally written to explain just how INOFFENSIVE the ICC is to the US military – who’s government (unlike ours) has refused to join. I have changed terms like “US citizen” to reflect UK Servicemen:

    The Prosecutor will not be able to begin an investigation without authorization from a Pre-Trial Chamber of Judges. At that point, if a U.K. serviceman were accused of a crime, the court's judges would be obliged, upon request, to defer to U.K. justice, standing down for at least six months while the United Kingdom pursued its own investigation and, if appropriate, prosecution. After that period, the judges would be able to authorize investigations only if they decided that the U.K. judicial system was wilfully obstructing justice.

    Let’s say Syria and Iran, both ICC members, filed a complaint with ICC that UK troops had launched a criminal war – as determined by the UK court case this posting anticipates. The Crown would have to launch an investigation within 6 months or ICC would prosecute anyway. But how can the Crown be seen as doing anything other than “wilfully obstructing justice” unless it finds all HMF participants guilty, given that the Crown would have already determined the war unlawful? Considering too that Nuremburg rejected “following orders”, it is hard to see how the whole of Op Telic and all but one GCHQ worker could be found anything but guilty. I hope we have some very serious lawyers on side…
  2. It could only be considered "wilfully obstructing justice" if it didn't bother to investigate. To repeat, an "illegal war" or (using correct terminology) a war of aggression is an "international crime", not a "crime against humanity" or "war crime". The distinction is that it can only be committed by a state, not by individuals - the only people who could be tried would the political leadership under the doctrine of command responsibility. (BTW, I consulted an international lawyer who was also until recently a Commander, RN about this)
  4. Is that right? You know, all of a sudden I'm getting interested in lawyers....very good lawyers. What is the name of that really good one? You know, the one that fought the pension case for the Ghurkas. Cherie something or other. On second thoughts, she can't be that good - she lost!!!!