War or crime?


National legal Challenges in Europe to the war in Iraq
Elspeth Guild
Pages: 743 pages
Shipping Weight: 1600 gram
Published: 10-2009
Publisher: WLP
Language: US
ISBN (hardcover) : 9789058504357

Product Description

If terrorism is the problem and security the need, where does resort to military force fit in? Three studies included here recall that the framework of obligation is clear enough in principle. Security Council mandates may be uncertain and there are tensions between peacemaking and peace-building, but just as authority marches with the use of force, so too does responsibility. Yet in a supposedly liberal and democratic environment, that responsibility is regularly resisted by Governments. The counterweight for European States is the protection provided by the ECHR, and indirectly also by the European Court of Justice. The applicable law may be in flux, but rules and remedies can apply in moments of exception, even for those for whom an espace juridique is just wishful thinking.

Four case studies nevertheless remind us that all is not well at the front line. Denmark, the Netherlands, Poland and the United Kingdom have all had experience of combat and peace enforcement in Iraq and/or Afghanistan, and consequently have had to find answers to difficult questions when things go wrong. This valuable collection also stresses the constitutional and social challenges raised by involvement in the use of military force. Disillusion becomes democratic deficit in the face of spin and non-disclosure and the authority of government is rightly called into question. This volume steps into that gap, helps us better to understand the linkages between law in Europe and external action, and points the way to clearer constitutional control and a strengthened foundation in the rule of law.
Guy S. Goodwin-Gill, Senior Research Fellow, All Souls College, Oxford, Professor of International Refugee Law

Every war brings with it highly politicized and controversial critics and defenders. Frequently, as in the case of the second Iraq invasion, the issue is the legality under international law, of resorting to armed conflict at all. Just as frequently, the issue relates to the legality of manner in which the war was conducted. In the latter case, as in the recent Operation Cast Lead in Gaza, the issue relates to whether the international law principle of distinction has been honoured. Were civilians sufficiently protected? Was there proportionality between the military goals sought to be achieved and the number of civilian casualties? Were there other means available that would have led to less “collateral damage”? It is crucial in these debates for lawyers and politicians to keep the requirements of international law in the forefront of the debate. This series of books succeeds admirably in achieving that end.
Richard Goldstone, leader of the independent fact-finding mission on the Gaza conflict appointed by the UN Human Rights Council; former Chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda; former Justice of the Constitutional Court of South Africa.

Military interventions in the Balkans, Iraq and Afghanistan led to fierce debates about their legality. To what extend are UN Security Council Resolutions needed as a legal bases for interventions in other countries? Or, do interventions gain legitimacy by virtue of the size and ability of the “Coalition of the Willing”? During and after interventions other legal challenges emerge. In modern conflict, hostilities take the form of military operations against irregular troops. As combatants cannot be distinguished from non-combatants, there is a high risk of civilian casualties. The result is that operations against opposing forces can easily become war crimes. From a legal perspective modern warfare and stabilization operations are high risk undertakings, which are easily subject to public scrutiny. This book brings together the accounts of criminal proceedings in Member States where such interventions took place, and provides valuable insight into the legal challenges of military interventions.
Rob de Wijk, Professor of International Relations, Leiden University; director of The Hague Center for Strategic Studies.