How can this government criticise Labour’s ‘illegal wars’ when it’s breaking international law itself?

A cabinet minister suggested the Iraq war was contrary to international law, but his own government has admitted it is prepared to break the EU treaty, writes John Rentoul

Ben Wallace

Ben Wallace, the defence secretary, caused a flutter in parliament yesterday when he rounded on John Healey, his mild-mannered Labour shadow, for “your illegal wars”. Healey had accused him of trying to make it harder to prosecute British troops over torture allegations, contrary to Britain’s obligations under international law. 

Wallace hit back by saying that “much of the mess we are having to come and clean up today” was caused by “illegal wars” under the Labour government. Healey, who was a junior Treasury minister in Tony Blair’s government at the time of the Iraq war, responded: “That is not worthy of the office of the secretary of state for defence.” 

He was right. It wasn’t. 

When Nick Clegg, as deputy prime minister, said from the despatch box in 2010 that the invasion of Iraq was “illegal”, his press office had to scramble a “clarification”, saying that he was “expressing his long-held view”. It didn’t clarify much, because it left us with a minister of Her Majesty’s government stating officially that her government had broken international law. 

That doesn’t seem quite so outrageous now, after Brandon Lewis, a cabinet minister, said of the UK internal market bill, from that same despatch box: “Yes, this does break international law in a very specific and limited way.” 

He was told off by Theresa May, his former prime minister, who was not impressed by the argument that the bill merely gave ministers the power to break international law later – they had not done it yet and hoped not to, depending on what the EU side got up to in the trade talks. 

However, there is a difference between the conditional intention of Boris Johnson’s government to break international law and the foreign policy of Tony Blair’s government. The main difference being that overriding the EU withdrawal agreement would break international law whereas military action in Iraq did not. 

The Johnson government intends to take the power to “disapply” parts of the withdrawal agreement, which is an international treaty. Given that international law consists of treaties, breaking one is by definition contrary to international law, even if there is no court that can stop a country doing so. 

The invasion of Iraq, on the other hand, was not explicitly contrary to any treaty; indeed the UK government argued that it was authorised by the United Nations, a treaty-based organisation. Kofi Annan, the UN secretary general, later said he took a different view, but again, there was no court that could adjudicate on the meaning of UN resolutions. 

Which raises two interesting questions about Wallace’s outburst. He entered parliament only in 2005, but he was criticising many of his Conservative colleagues, including the prime minister, who voted for military action in Iraq in 2003. 

That was partly why Clegg’s charge caused such a fuss in 2010: one party to the coalition government was accusing the other party of having supported an illegal war. 

The other question is that Wallace criticised illegal wars in the plural. Which other war did he have in mind? It is unlikely to have been the intervention in Afghanistan, which was widely accepted at the time as legitimate action in self-defence by the US under the UN charter. Perhaps he meant the action in Kosovo in 1999; that too was supported by the Conservative Party, and it saved the Kosovo Muslims from vicious persecution; but it had less of a justification in international law than the Iraq war. 

Perhaps the defence secretary will issue a “clarification” of his “long-held view”.