I don't usually go in for this international law stuff, since it's always seemed a bit irrelevant to me. But unaccountably, the government do take it seriously, and 10 Downing Street has finally been provoked by various leaks into publishing the advice given by the Attorney General to the Prime Minister over the legality, or otherwise, of the war. Here is the last paragraph, which I found interesting:
36. Finally, I must stress that the lawfulness of military action depends not only on the existence of a legal basis, but also on the question of proportionality. Any force used pursuant to the authorisation in resolution 678 (whether or not there is a second resolution):
- must have as its objective the enforcement [of] the terms of the cease-fire contained in resolution 687 (1990) and subsequent relevant resolutions;
- be limited to what is necessary to achieve that objective;
- must be a proportionate response to that objective, i.e. securing compliance with Iraq's disarmament obligations.
That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objecting of military action. This should be borne in mind in considering the list of military targets and in making public statements about the campaign.
The first part of the document argues that there were (subject to caveats) reasonable grounds to think that the war could be prosecuted legally. This last section describes what could be done. Specifically, only actions which were `proportionate' to achieving the disarmament of Iraq (of chemical, biological and nuclear weapons, and the means to produce them, and some categories of ballistic missiles) would be allowed.
Now, as I recall, nobody sensible thought that there were any `weapons of mass destruction' (see rants passim for explanation behind scare quotes) in Iraq. It is hard, therefore, to see the action taken as being `proportionate', especially given the number of civilians we have apparently killed.
Is it possible, then, that starting the war was legal, but our conduct of it was not? Perhaps there is an international-law-believing, pro-war person out there who could enlighten me.
(Update: I had mistakenly labelled the quote above as paragraph 35 of the memo. In fact it is paragraph 36. Mea culpa.)