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The Iraq War and International Law THE IRAQ WAR AND INTERNATIONAL LAW The decision by the US and UK governments to use military force against Iraq in 2003 and the subsequent occupation and administration of that State have brought into sharp focus fundamental fault lines in international law. The deci- sion to invade, the conduct of the war and occupation, and the mechanisms used to administer the country all challenge the international legal community, placing it at a crossroads. When can the use of force be justified? What are the limits of military operations? What strength does international criminal law possess in the face of such interventions? How effective is the international regime of human rights in these circumstances? What role does domestic law have to play? How the law now responds and develops in the light of these matters will be of fundamen- tal global importance for the 21st century, and an issue of considerable political and legal concern. This book explores this legal territory by examining a number of issues fundamental to the future direction of international law in the war’s aftermath. Consideration is also given to the impact on UK law. Both practical and academic perspectives are taken in order to scrutinise key questions and consider the possible trajectories that international law might now follow. The Iraq War and International Law Edited by PHIL SHINER AND ANDREW WILLIAMS OXFORD AND PORTLAND, OREGON 2008 Published in North America (US and Canada) by Hart Publishing c/o International Specialized Book Services 920 NE 58th Avenue, Suite 300 Portland, OR 97213-3786 USA Tel: +1 503 287 3093 or toll-free: (1) 800 944 6190 Fax: +1 503 280 8832 E-mail: [email protected] Website: http://www.isbs.com © The editors and contributors severally 2008 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988, to be identified as the authors of this work. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Hart Publishing at the address below. Hart Publishing, 16C Worcester Place, Oxford, OX1 2JW Telephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710 E-mail: [email protected] Website: http://www.hartpub.co.uk British Library Cataloguing in Publication Data Data Available ISBN: 978-1-84113-669-1 Typeset by Compuscript Ltd, Shannon, Ireland Printed and bound in Great Britain by TJ International Ltd, Padstow, Cornwall PREFACE Even before it commenced, the Iraq War of 2003 provoked unparalleled legal attention. For many, the role and applicability of international law became the focus of comment and indeed resistance. Whether the war was legal or not was the basis for heated and protracted political and social debate. After the conflict ended and the occupation of Iraq began, the legal questions did not cease. If anything they increased significantly. Not only was the use of force still in issue (and made more acute through the failure to uncover any weapons of mass destruction hid- den by the Saddam Hussein regime) but matters relating to the conduct of warfare and occupation, the treatment of civilians, the role of private security contractors, the awarding of commercial contracts for the reconstruction of the country, the trials of members of the Baa’thist regime, all engaged critical analysis. They also incited legal actions that challenged the behaviour and decisions of governments through domestic law. In the UK, fundamental matters relating to human rights and international humanitarian law, as well as international law more generally, began to be tested in the courts. Many remain unresolved. The multifaceted nature of this extraordinary legal upheaval was the inspira- tion for this book. Its specific genesis can be traced to a legal inquiry organised by Peacerights, a non-governmental organisation concerned with these issues, in 2003 that brought together a number of the present contributors to analyse the conduct of the war from a legal perspective. Since then, several of the authors have been engaged in cases that have created legal shockwaves which are continuing to be felt. Some actions have yet to be concluded as UK law confronts crucial questions of interna- tional law and its varied dimensions. As a result the legal environment is developing at a fast pace. Those chapters which address some of the issues arising could already be supplemented by further analyses of judgments. But the commentary provided, which generally reflects the position as at the end of 2007, remains acutely relevant. As with all books of this kind, thanks are due to numerous people who have assisted in the process of editing and reviewing the various contributions that are included here. In particular, we would like to thank the Joseph Rowntree Charitable Trust for providing generous assistance to the editors (in association with Professor Christine Chinkin) in respect of a research project entitled ‘Law for Peace’ of which this book represents an important part. We would also like to thank Peacerights for their continued support. Finally, thanks are due to Richard Hart and Mel Hamill at Hart Publishing for their encouragement and profession- alism in bringing this book to life. Phil Shiner Andrew Williams ACKNOWLEDGEMENTS Chapter 4, ‘How will the European Court of Human Rights deal with the UK in Iraq?’, by Bill Bowring, appeared in his previously published work The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (Abingdon, Routledge Cavendish, 2008) and Chapter 10, ‘Responsibility for Troops abroad: UN mandated forces and issues of human rights accountability,’ by Keir Starmer, appeared in (2008) 3 European Human Rights Law Review, 318. We gratefully acknowledge the permission that the previous publishers have granted us to reprint these chapters. CONTENTS Preface .........................................................................................................................v Acknowledgements ................................................................................................... vii List of Contributors ................................................................................................... xi Table of Cases .......................................................................................................... xiii Table of Legislation ................................................................................................. xxi 1 The Iraq War and International Law: By Way of an Introduction ............... 1 Andrew Williams 2 The Iraq War, International Law and the Search for Legal Accountability ........................................................................................ 17 Phil Shiner 3 The Challenges of Counter-proliferation: Law and Policy of the Iraq Intervention ............................................................................................. 55 Daniel H Joyner 4 The Iraq War: Issues of International Humanitarian Law and International Criminal Law .................................................................... 95 Nicholas Grief 5 International Criminal Law and Iraq .......................................................... 117 Andrew Williams 6 Complicity before the International Criminal Tribunals and Jurisdiction over Iraq ............................................................................. 145 William A Schabas 7 The Continuing Occupation? Issues of Joint and Several Liability and Effective Control ........................................................ 161 Christine Chinkin 8 A Plurality of Responsible Actors: International Responsibility for Acts of the Coalition Provisional Authority in Iraq ............................ 185 Stefan Talmon 9 Justiciability in the Areas of Foreign Relations and Defence .................... 231 Rabinder Singh Contents 10 Responsibility for Troops Abroad: UN-Mandated Forces and Issues of Human Rights Accountability ............................................... 265 Keir Starmer 11 How will the European Court of Human Rights deal with the UK in Iraq? Lessons from Turkey and Russia ............................................. 285 Bill Bowring 12 The Future for International Law after Iraq ............................................... 313 Sir Nigel Rodley 13 Between Hope and Despair: The Iraq War and International Law Futures? ................................................................................................... 329 Jayan Nayar Index .......................................................................................................................349 x LIST OF CONTRIBUTORS Bill Bowring is Professor of Law in the School of Law, Birkbeck, University of London. He is a practising barrister at Field Court Chambers, Gray’s Inn. He is currently a Fellow of the Human Rights Centre at the University of Essex. Christine Chinkin is Professor of International Law at the LSE and a barrister, a member of Matrix Chambers. Together with H. Charlesworth, she won the American Society of International Law, 2005 Goler T. Butcher Medal ‘for out- standing contributions to the development or effective realization of international human rights law’. Nicholas Grief is Head of the Law Department and
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