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. 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.”