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Danes drag the Danish state to court over war in Iraq

From Dr. Coilín ÓhAiseadha
Sendt: 12. oktober 2005 03:54
Politiken: Danes drag the Danish state to court over war in Iraq

Below is a translation of an article from the Danish centre-left daily newspaper, Politiken, about the institution of constitutional proceedings against the Danish government on Tuesday.

I chose this article as one that reflects differing views of prospects for the case even to be accepted for consideration by the Danish High Court.


10 Oct 2005 22:56
Danes drag the Danish state to court over war in Iraq

24 Danes believe that Denmark's participation in the war in Iraq is in violation of the Danish constitution, and are now summoning Prime Minister Anders Fogh Rasmussen to appear before the High Court. A professor in constitutional law is in agreement, but doubts whether the case belongs in court.

By Trine Maria Ilsøe

At 1.30 pm on Tuesday afternoon, 24 Danes delivered a 74-page writ to the High Court and summoned thereby Prime Minister Anders Fogh Rasmussen (Liberal Party) before the Court as representative for the state.

The plaintiffs are hoping to get the Court's confirmation that it was illegal that a majority in the Danish Parliament on 21 March 2003 gave its permission for Denmark's participation in an attack on Iraq.

"For the sake of posterity it is important to establish that members of parliament must comply with the Constitution. A breach of the Constitution has been committed, and the Court must rule on this. Otherwise people can pick and choose as they please from the Constitution," said Christian Harlang, who is representing the plaintiffs together with Bjørn Elmquist.

Not under attack
The identity of the 24 plaintiffs will be revealed at a press conference later today, Tuesday.

"Denmark was not under attack when the decision was taken. The argument that there were weapons of mass destruction which could hit Western Europe in 45 minutes was completely untrue," said Christian Harlang.

Only in self-defence
Constitutional cases are rare in Denmark. The last ones were in 1998 and 1999, to do with the Maastricht Treaty and the Tvind case, respectively. In this case, it is Section 19 of the Constitution that is the focus of attention.

The plaintiffs' main case is that when the Constitution was amended in 1953, this section was brought into line with the Charter of the United Nations. This means that all use of force is forbidden unless in self-defence or in accordance with a resolution of the Security Council of the United Nations. Neither of these two conditions was fulfilled, they say.

The first hurdle to be cleared is to be allowed to continue the legal process, if the State challenges the right of the 24 persons to bring the case.

Constitution in more than name
But Christian Harlang does not believe there will be a problem.

"It is important to establish that we have a Constitution, not just in word, but in deed. This was a decision of great significance for the country, so the right to bring cases is extended," he said.

Henning Koch, professor in constitutional law at the University of Copenhagen, agrees with the plaintiffs that the war in Iraq is illegal. Nevertheless, he is not certain that the courts are the right place to consider the question, because foreign policy is not just about law, but at least as much about power.

"This is the most complicated question you can ask a court to decide, because you are requesting a legal body to set aside a foreign policy decision which was not just made by the government, but also had the stamp of approval of the Danish Parliament," he said.

"You must remember that the majority believe that the military action was in accordance with the UN Convention and thereby also with the Constitution. In this sense, you are asking the Court to reject their view."


Military force
This is what the Danish constitution says:
Section 19, subsection 2. With the exception of defence against armed attack on the realm or Danish forces, the Monarch cannot use military force against a foreign state without the consent of Parliament.




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