In two recent posts I put in question the widely-aired claim that the Iraq war was illegal. When the recent decision by the Law Lords was announced in the case of Rose Gentle and Beverley Clarke, the mothers of two soldiers killed in Iraq, I wondered if it might throw any light on the question. From this report it would seem not to. Their ruling is based on the judgement that the European Convention on Human Rights cannot be deemed to bind any government to establishing an independent inquiry into its decision to go to war, a judgement that didn't require the Law Lords to take a view one way or the other over the legality of the war.
That issue aside, two things puzzle me about statements attributed here to two of the Lords. Lord Bingham is reported to have asserted that '[w]hether or not a war was lawful was a matter to be resolved between states, not between individuals and a state'. I don't have his legal expertise, but nonetheless I can't help thinking that this statement severely compromises the idea that one of the functions of law, including international law, is to protect individuals. If a war has been criminal under international law, or even only arguably so, then there will have been individual victims of it, and it isn't clear to me why they should not be able to seek redress in the courts.
Then, Lady Hale is quoted in a way suggesting that she equates lawful war with just war. I don't see how this equation can be sustained. A war could be, formally, illegal but just even so: if, say, it wasn't authorized by the UN, didn't respond to any threat to the state initiating it, and was accordingly declared illegal in a series of court judgements; but had prevented a highly probable genocide, all the same. And a war could be, formally, legal but unjust: in the case, for example, that two or three great powers acting in concert at the UN and pressurizing other countries there had secured authorization for military intervention where there wasn't a good moral case for it, only a coming together of powerful national interests. Anyone who thinks neither of these discrepancies could occur lives in a world of necessary harmonies unlike the actual world.