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Last Updated: 07/31/2003
Gilligan's Millstone
Nicholas Reader

The author, in picking up the the contentious issues surrounding the death of scientist David Kelly, argues that international law remains as strong and effective today as it did before the decision was made to invade Iraq.

There is only one good thing that can be said of the dispute between the BBC and the British Government which ended last week with the death of scientist David Kelly. The spat did nothing to improve the British public's understanding of why it was 'at war'.
It certainly did not clarify who knew what or when. But it did prove one thing for certain: the British Government is so dependent on public opinion that it will go to any length to protect itself. This conclusion provides just a glimmer of hope that we are not - yet - faced with a major international power completely benign to the norms of the international system. For this reason it is true that international law remains as strong and effective today as it did before the decision was made to invade Iraq.

        International law's primary incentive for compliance is that it can and does confer legitimacy. The importance of legitimacy and international law's ability to bestow it was articulately identified in 1832 by British jurist John Austin in Provenance of
Jurisprudence Determined. He wrote:

“The law obtaining between nations is law (improperly so called) set by general opinion. The duties which it imposes are enforced by moral sanctions: by fear on the part of
nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they shall violate maxims generally received and respected”.

          When Austin was writing the fear politicians felt could reasonably be said to have been limited. International law at that time extended to little more than pirates and other ocean users. International media coverage was non-existent compared to that in today's
interconnected world.

             More recently, in the global information age and the post-UN Charter world of 1984 US jurist Oscar Schacter wrote: 'States require a degree of legitimacy to justify their actions to their own citizens and, even more, to other states whose cooperation or
acquiescence is desired. Even if we label those claims as hypocritical ("the tribute that vice pays to virtue"), they require credibility and for that reason must be confirmed by action. Power and interest are not superseded by law, but law cannot be excluded from
the significant factors influencing the uses of power and the perception of interests'.

          The illegal invasion of Iraq is certainly not the first time since 1945 that international law's stipulates have been derogated by political, economic, or social concerns. And it is extremely unlikely that it will be the last time either as the US administration gears up to tackle post-9/11 military threats to its security, wherever and whatever they may be. Neither will Kelly be the last person to die for questioning those actions.

             What counts is that governments do continue to attempt to couch their actions in legal terms and that they acknowledge the continuing validity of those terms
even when they violate them.

              The British Government's attack on Gilligan and then Kelly was in essence an attempt at seeking an appeal in the eyes of opinion makers. Whether it won or lost,
its Achilles Heel is duly noted - and appreciated.

Andrew Gilligan’s statement 20 July 2003

Statement issued on behalf of Andrew Gilligan:

"I want to make it clear that I did not misquote or misrepresent Dr David Kelly.

"Entirely separately from my meeting with him, Dr Kelly expressed very similar concerns about Downing Street interpretation of intelligence in the dossier and the unreliability of the 45-minute point to Newsnight.

"These reports have never been questioned by Downing Street.

"Although Dr Kelly had close connections with the intelligence community none of these reports ever described him as a member of the intelligence services, but as a senior official closely involved in the preparation of the dossier."

Nicholas Reader is a freelance journalist. He can be contacted by email at