The Lincoln Plawg

Wednesday, November 20, 2002 12:43 p.m.

UK 'Anti-war' case a non-starter, more's the pity

Just before people get too excited about the prospect of the English courts stymie-ing Tony Blair's war plans.....

The opinion obtained by CND from learned counsel at Mrs Tony Blair's chambers is here. I haven't had a chance to read it through - but its conclusions (para 2) are merely

Security Council Resolution 1441 doesn't authorise the use of force; and
an attack on Iraq based on UNSCR 1441 alone would be in breach of international law.

What it does not conclude (because, I'm sure, the guy was carefully not asked the question) is that legal action could be taken by CND or others to get the English courts to stop Blair aiding such an attack. In the jargon, the issue is not justiciable.

Coincidentally, we have a recent decision of the English Court of Appeal in the Abbasi case (a UK national and Guantanamo detainee who tried to force the UK government to take action on his behalf).

In the opinion (para 85), the Court quotes an earlier judgement:

matters of high policy....making treaties, making war.....mobilising the armed forces.....those matters and no doubt a number of others are not justiciable.

A similar rule applies in the US, I believe, and something of the sort obtains in both civil and common law systems around the world.

I'm no expert, though. Perhaps Mrs Blair's colleague has found a way through. If he has, so far as I can see, he's very sensibly keeping shtum!