War law and

Parliament

The legal advice that Lord Goldsmith,

the Attorney General, should have
given to Parliament prior to the wars
with Afghanistan and Iraq

Make Wars History

To: All members of both Houses of Parliament

Military action in Afghanistan and Iraq

Be advised that war, the use of violent armed force, is unlawful in international and
domestic law. The sole occasion when the use of armed force is tolerated in
international affairs occurs when a nation state has been attacked and needs to use
armed force in self-defence. In no other circumstance should you entertain the use of
armed force to solve controversies.

If one or more persons are injured or killed as a consequence of the wilful actions of
Ministers, Parliament or HM Armed Forces it renders all those involved liable to
prosecution for the most serious criminal offences in law – murder, crimes against
humanity, genocide and a crime against peace.

If Britain joins America in armed attacks on the people of Iraq or Afghanistan we will be
acting unlawfully. The use of sophisticated weapons to attack Iraqi or Afghan citizens
violates the General Treaty for the Renunciation of War, the UN Charter, the Genocide
Convention, the Geneva Conventions, the Rome Statute and the International Criminal
Court Act 2001. If anyone is injured or killed as a result of an armed attack by HM
Armed Forces it constitutes a crime of genocide, a crime against humanity, a war crime
or a crime against peace under domestic and international law.

I attach a report detailing the grounds on which this advice is based. I recommend that
every member of the Cabinet, every MP, every civil servant, judge, military officer and
taxpayer reads it and understands its implications before making decisions or publishing
statements concerning the use of armed force.

Finally, I hope that this material provides a helpful explanation of the laws of war. I
recommend that Parliament takes a lawful non-violent negotiated approach to solving
the problems posed by Al Qaeda and Saddam Hussein, and I repeat that I cannot under
any circumstances support a proposal to attack another state.

Attorney General
THE LEGAL GROUNDS AGAINST WAR

“War between nations was renounced by the signatories of the Kellogg-Briand

Treaty. This means that it has become throughout practically the entire world an
illegal thing. Hereafter, when nations engage in armed conflict, either one or
both of them must be termed violators of this general treaty law.... We denounce
them as law breakers."

Henry Stimson, USA Secretary of State 1932

It should not be possible in a democracy for a Government to deceive Parliament and

the people over such a fundamental issue as war. Having given firm undertakings to
the world that we would never wage a war of aggression1, never threaten or attack
another state2, never kill or harm human beings3, never destroy a national, ethnic, racial
or religious group4, settle all disputes peacefully, respect human rights, uphold and
enforce the rule of law and act towards one another in a spirit of brotherhood and co-
operation5 British Governments have regularly violated these binding treaties over the
past fifty years killing and injuring thousands of innocent men, women and children in
the process. This must stop now.

Citizens expect their leaders to operate lawfully at all times, especially when making life
and death decisions. The decision to take a nation to war is the most important a
leader will ever have to take. He or she is personally responsible in law for the
consequences of the decision and all the deaths and injuries that take place. With the
lives of thousands of men, women and children in their hands, members of Parliament
must be able to uphold the laws of war and explain to the families of their victims why
they had to die and what cause was so important that it overrides their right to life. It is
therefore essential that our political, civil and military leaders have a faultless
understanding of war law before they take decisions that lead to the violent deaths of
innocent men, women and children.

I hope that you find this material useful and that having read it you will do all you can to
uphold international treaties and obey the laws of war. We are all bound by war law and
have a duty to future generations to uphold, maintain and reinforce the values of justice,
equality and the rule of law espoused by the United Nations.

1
General Treaty for the Renunciation of War 1928 [Kellogg-Briand Pact]
2
United Nations Charter 1945
3
Universal Declaration of Human Rights 1948
4
Genocide Convention, [Proxmire Act in USA], Rome Statute 1998, The International Criminal Court Act 2001
5
United Nations Charter 1945
1. All war is illegal.
War was outlawed in 1928 by the Treaty for the Renunciation of War [the Kellogg-Briand
Pact]. Sixty three nations including Britain and America ratified the Pact condemning
recourse to war and agreeing to settle disputes peacefully. This treaty is still in force.

ARTICLE I The High Contracting Parties solemnly declare in the names of their
respective peoples that they condemn recourse to war for the solution of international
controversies, and renounce it, as an instrument of national policy in their relations with
one another.

ARTICLE II The High Contracting Parties agree that the settlement or solution of all
disputes or conflicts of whatever nature or of whatever origin they may be, which may
arise among them, shall never be sought except by pacific means.

If any nation state invades or occupies another state, it’s political, civil and military
leaders become personally liable for the same crime of waging a war of aggression for
which Germany’s leaders were convicted and hanged at Nuremburg in 1946.

“After the signing of the Pact, any nation resorting to war as an instrument of national
policy breaks the Pact. In the opinion of the Tribunal, the solemn renunciation of war as
an instrument of national policy necessarily involves the proposition that such war is
illegal in international law; and that those who plan and wage such a war with its
inevitable and terrible consequences are committing a crime in so doing.”

“The charges in the indictment that the defendants planned and waged aggressive wars
are charges of the utmost gravity. War is essentially an evil thing. Its consequences are
not confined to the belligerent states alone, but affect the whole world. To initiate a war of
aggression therefore, is not only an international crime, it is the supreme international
crime differing only from other war crimes in that it contains within itself the accumulated
evil of the whole.”
Nuremburg War Crimes Tribunal Judgement

2. Armed attacks on another State are illegal.

When we signed and ratified the UN Charter we made a binding agreement with all UN
Member States never to threaten or to attack them and to settle all disputes peacefully.
The terms of the treaty are laid out in the Preamble and Articles 1 and 2 of the Charter,
of which 2.3 and 2.4 outline the main agreements forbidding the use of armed force.

2.3 All members shall settle their international disputes by peaceful means in such a
manner that international peace, security and justice are not endangered.

2.4 All members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other
manner inconsistent with the Purposes of the United Nations.

Both the Kellogg-Briand Pact and the UN Charter were intended to eliminate the
slaughter which is the automatic consequence of the use of modern, indiscriminate high
explosive weapons. The main purpose of the United Nations is to ensure that all
international disputes whatever their nature or origin will be solved peacefully through
the application of the rule of law. An armed attack or the use of violence against citizens
of any member state violates this agreement, renders every one of us criminally liable to
punishment and could put our membership of the Security Council at risk.
3. Unilateral or bilateral action is illegal.
Chapter VII of the UN Charter governs the activities of the Security Council. Article 39
makes it clear that it is the Security Council that must determine the existence of a threat
to the peace, NOT its individual members; both the NATO force in Afghanistan and the
proposed Coalition to invade and occupy Iraq breach the terms of the UN Charter.

39. The Security Council shall determine the existence of any threat to the peace,
breach of the peace, or act of aggression and shall make recommendations, or decide
what measures shall be taken in accordance with Articles 41 and 42, to maintain or
restore international peace and security.

4. The Security Council cannot authorise war or the use of armed force.

The UN Security Council is a PEACEKEEPING body and it can never authorise violence
or the use of armed force. Articles 41 and 42 govern Security Council affairs and specify
the non-violent measures it can take to diffuse conflict.

41. The Security Council may decide what measures not involving the use of armed force
are to be employed to give effect to its decisions, and it may call upon members of the
United Nations to apply such measures. These may include complete or partial
interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other
means of communication, and the severance of diplomatic relations.
42. Should the Security Council consider that measures provided for in Article 41 would
be inadequate or have proved to be inadequate, it may take such action by air, sea or land
forces as may be necessary to maintain or restore international peace and security. Such
action may include demonstrations, blockade and other operations by air, sea or land
forces of Members of the United Nations.
Be advised that only the UN Security Council is authorised to decide the measures to
employ against Saddam Hussein or Al Qaeda, it is NOT for Britain, America or NATO to
decide such measures. Whatever it decides it must NOT involve armed force.

5. Individuals are criminally responsible in law for acts of state

The Nuremburg Principles were adopted as universal law by the UN in 1950.

I. Any person who commits an act which constitutes a crime under international law is
responsible therefor and liable to punishment.

II. The fact that internal law does not impose a penalty for an act which constitutes a crime
under international law does not relieve the person who committed the act from responsibility.

III. The fact that a person who committed an act which constitutes a crime under
international law acted as Head of State or responsible Government official does not relieve
him from responsibility.

IV. The fact that a person acted pursuant to an order of his Government or a superior does
not relieve him from responsibility under international law, provided a moral choice was in
fact possible to him.

V. Any person charged with a crime under international law has the right to a fair trial on the
facts and law.
 VI. The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace: (i) Planning, preparation, initiation or waging of a war of
aggression or a war in violation of international treaties, agreements or assurances; (ii)
Participation in a common plan or conspiracy for the accomplishment of any of the acts
mentioned under (i).
(b) War crimes: Violations of the laws or customs of war which include, but are not limited
to, murder, ill-treatment or deportation to slave-labor or for any other purpose of civilian
population of or in occupied territory, murder or ill treatment of prisoners of war, of persons
on the seas, killing of hostages, plunder of public or private property, wanton destruction of
cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity: Murder, extermination, enslavement, deportation and
other inhuman acts done against any civilian population, or persecutions on political, racial
or religious grounds, when such acts are done or such persecutions are carried on in
execution of or in connection with any crime against peace or any war crime.

VII. Complicity in the commission of a crime against peace, a war crime, or a crime against
humanity as set forth in Principle VI is a crime under international law.

6. Pre-emptive attacks are illegal.

Pre-emptive attacks were outlawed 150 years ago as a result of Britain’s pre-emptive
attack on an American vessel “The Caroline” at Niagara. Article 51 of the UN Charter
makes it clear that the only circumstance in which a State may use armed force is during
the period after it has been attacked and before the Security Council has implemented
its peacekeeping measures.

51. Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a Member of the United Nations, until the
Security Council has taken measures necessary to maintain international peace and
security. Measures taken by Members in the exercise of this right of self defence shall be
immediately reported to the Security Council and shall not in any way affect the authority
and responsibility of the Security Council under the present Charter to take at any time such
action as it deems necessary to maintain or restore international peace and security.

7. Killing or injuring a person is always unlawful

Wilful killing is always a crime and is never countenanced, condoned or ‘right’ in law.
The Human Rights Act 1998 makes this clear and specifies that the only exception is
when a person is convicted of an offence for which the pre-ordained sentence is death.

2.1 “Everyone’s right to life shall be protected by law. No-one shall be deprived of his
life intentionally save in the execution of a sentence of a court following his conviction of
a crime for which this penalty is provided in law.”

In a defensive war, if a serviceman is attacked and their life is threatened then they may
attempt to halt the attack and disable their attacker, but deliberately killing their attacker
is a crime, even if that person is an enemy and is attacking them. It is never lawful for
members of HM armed forces to use a weapon to kill another person. Just as it is a
crime for the IRA to set off a bomb in a pub, or for terrorists to fly planes into the World
Trade Centre, it is a criminal offence to cause the death of another human being by
ordering armed forces to fire a cruise missile, to drop a cluster bomb or shoot a
suspected suicide bomber.
 If a person dies as a result of the actions of Coalition forces, then all those responsible
for giving or transmitting the orders that caused the death commit a criminal offence and
can be prosecuted for murder, conspiracy to murder and other war crimes under the
Accessories and Abettors Act 1861, the Offences Against the Person Act 1861, the
Criminal Law Act 1977, the Criminal Attempts Act 1981 and the International Criminal
Court Act 2001. Law that applies to one applies to all even in times of war. It will be
wise for anyone involved in a decision to use or support the use of armed force, to
acquaint themselves with the criminal offences contained in these Statutes and the
punishments that can be imposed on those convicted of an offence.

“Whosoever shall aid, abet, counsel, or procure the commission of any indictable
offence, whether the same be an offence at common law or by virtue of any Act passed
or to be passed, shall be liable to be tried, indicted and punished as a principal offender.”

8. Killing a person because of their nationality is genocide.

Genocide is the most serious crime in law. In war any political or military leader who
orders a fatal attack on a nation state commits genocide. The definition of genocide is:-

For the purpose of this Statute “genocide” means any of the following acts committed
with intent to destroy in whole or in part a national, ethnical, racial or religious group, as
such: (a) killing members of the group; (b) causing serious bodily or mental harm to
members of the group; (c) deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part...

When Parliament enacted The International Criminal Court Act in 20016 it incorporated
the crimes of ‘genocide, crimes against humanity and war crimes’ into UK criminal law.

It is an offence against the law of England and Wales for a person to commit genocide,
a crime against humanity or a war crime, or to engage in conduct ancillary to such an
act. This applies to acts committed in England or Wales or outside the United
Kingdom by a UK national, resident or person subject to UK service jurisdiction 7.

Should you decide to attack Afghanistan or Iraq and cause the death of Iraqi or Afghan
nationals, all those citizens involved in making, supporting or implementing the decision
become liable for crimes of ‘genocide’ or ‘conduct ancillary to genocide’ and subject to
punishment. I must remind you that under the laws of war every resident of Britain
automatically becomes criminally liable in law for the acts of their leaders if they willingly
take even a minor part in a crime of genocide. Tax collectors and taxpayers, arms
manufacturers and suppliers, editors and journalists as well as members of the armed
forces, the police or the civil service could find themselves prosecuted for conduct
ancillary to genocide if they do anything to aid or abet a war.

The proposed attacks on Iraq and Afghanistan imply that you will commit genocide.
You may argue that you are not setting out with intent to destroy a group, but as the
legal meaning of “intent” is now clearly defined in the legislation you will find it difficult to
escape culpability. Anyone who chooses to use indiscriminate high explosive weapons
to attack others, rather than choosing any of the large number of non-violent alternatives
always available for dispute resolution, demonstrates their ‘intent to kill’.

6
In Scotland The International Criminal Court [Scotland] Act 2001
7
This is a summary. The full definition can be found in sections 50 – 80 the International Criminal Court Act 2001
 66. A person has intent in relation to ‘conduct’ where he means to engage in the conduct,
and in relation to a consequence, where he means to cause the consequence or is aware
that it will occur in the ordinary course of events.

9. The Rome Statute of the International Criminal Court

Article 25 specifies the universal crimes and individual criminal responsibility that applies
to every citizen of every State that has ratified the Rome Statute [currently 108].

1. The Court shall have jurisdiction over natural persons pursuant to this Statute.

2. A person who commits a crime within the jurisdiction of the Court [genocide, crimes
against humanity and war crimes] shall be individually responsible and liable for
punishment in accordance with this Statute.

3. In accordance with this Statute, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with another or through
another person, regardless of whether that other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which in fact occurs
or is attempted;

(c) For the purpose of facilitating the commission of such a crime, aids, abets or
otherwise assists in its commission or its attempted commission, including providing
the means for its commission;

(d) In any other way contributes to the commission or attempted commission of such
a crime by a group of persons acting with a common purpose. Such contribution shall
be intentional and shall either:

(i) Be made with the aim of furthering the criminal activity or criminal purpose of
the group, where such activity or purpose involves the commission of a crime within
the jurisdiction of the Court; or

(ii) Be made in the knowledge of the intention of the group to commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites others to commit
genocide;

(f) Attempts to commit such a crime by taking action that commences its execution
by means of a substantial step, but the crime does not occur because of circumstances
independent of the person's intentions. However, a person who abandons the effort to
commit the crime or otherwise prevents the completion of the crime shall not be liable
for punishment under this Statute for the attempt to commit that crime if that person
completely and voluntarily gave up the criminal purpose.

4. No provision in this Statute relating to individual criminal responsibility shall affect the
responsibility of States under international law.

10. Leaders, civil servants and citizens are jointly responsible for war crimes.
Article 27 of the Rome Statute makes it quite clear that we will all share criminal liability
regardless of our position in Government or Parliament.

This Statute shall apply equally to all persons without any distinction based on official
capacity. In particular, official capacity as Head of State or Government, a member of
a Government or Parliament, an elected representative or a government official shall in
no case exempt a person from criminal responsibility under this Statute, nor shall it in
and of itself, constitute a ground for reduction of sentence.
Immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from
exercising its jurisdiction over such a person.

All British residents are subject to war law. If the Queen, the Prime Minister, the Lord
Chancellor, the Lord Chief Justice, MPs, Peers, military officers, civil servants, law
enforcement officers, journalists or taxpayers do anything to condone, support or take
part in an aggressive war in which people are killed they violate the law and are subject
to the sanctions of the court.

Parliament has a duty to inform everyone in Britain of the laws of war and the terms of
international treaties. It is a prerequisite that citizens must know and understand the
prohibitions contained in legislation before they can make an informed decision on
whether or not to take part in a war causing death and injury to men, women and
children and rendering themselves liable to the sanctions of international criminal law.

Sections 65 and 78 of the International Criminal Court Act 2001 make it clear that
regardless of who launches the rockets, fires the cruise missiles, drops the cluster
bombs or deploys depleted uranium shells, the ultimate responsibility for the resulting
deaths, injuries and destruction lies with those who ordered the attack to take place.

65. Responsibility of commanders and other superiors. A military commander, or a

person effectively acting as a military commander, is responsible for offences committed
by forces under his effective command and control or his effective authority and
control… A person responsible under this section for an offence is regarded as aiding,
abetting, counselling or procuring the commission of the offence.

78. Crown Application. This Act binds the Crown and applies to persons in the public
service of the Crown.

© Chris Coverdale Make Wars History May 2009

“As a citizen I regard it not only as a right but
as a moral duty to help shape the destiny of
my country, to uncover and oppose manifest
evils. What I aimed to do was to rouse my
students to an ethical understanding of the
grave evils of our present political life; a return
to definite ethical principles, to the rule of law,
to mutual trust between man and man. This is
not illegal rather it is the re-establishment of
legality.”

Professor Huber, Munich University 1943

Shortly before he was condemned to death with five of his students for
spreading sedition

From Humanising Hell by George Delf

“I deeply believe that no individual can
experience true happiness or tranquillity until
we turn humankind away from its obsession
with war. War has held us in its irrevocable
grip throughout history; it is the source of all
evil. War normalises insanity, destroying
human beings like so many insects, tearing all
that is human and humane to shreds.”

Daisaku Ikeda - Buddhist leader