chapter  15
More and more lawyers but still no judges
ByCHARLES SAMPFORD
Pages 8

As we saw in the previous chapter, at the time of the Kosovo war, I argued that before a democracy went to war, the Attorney General (or equivalent official) should declare in parliament that, in his independent judgment, the war was legal and that the government be prepared to defend that view in the ICJ. In the Kosovo war,1 neither occurred, although there were some statements by Robin Cook and others that the war was legal. One of the most pressing issues raised therein was whether the inability to have the legality of a war tested in a court of competent jurisdiction might provide a temptation for governments to seek, and some lawyers to give, convenient but untenable advice. In the Iraq war, the British and Australian governments did provide parliament with legal advice (though not, of course, in response to any of my musings). This chapter discusses some parallels and contrasts between the legal roads to war and suggest that the case is stronger than ever for adjudication of the matter before an independent tribunal where the competing views can be tested.