A Rejoinder to John Bellinger on the Chilcot Report

Over on Lawfare, John Bellinger has an interesting post on the Iraq Inquiry which is well worth a read, responding partly to Oona Hathaway’s recent post on Just Security. However, there are a couple of points in Bellinger’s post that I think are highly problematic and would like to address here.

First of all, Bellinger notes that the Inquiry did not expressly criticize the UK (and the US) legal argument for intervening in Iraq, and draws from that the following conclusion:

Even if the Chilcot committee did not want to substitute its own legal conclusions for Goldsmith’s, if the Goldsmith view is as “widely repudiated” as Oona believes, surely the committee (which had former ICJ President Rosalyn Higgins as its legal adviser) would have noted this fact and provided the counter-arguments.  That the committee does not criticize the substance of Goldsmith’s legal conclusions tends to indicate that the committee did not find them “manifestly implausible.”

I don’t think this inference is correct, i.e. that from Chilcot’s silence we can infer anything about the commissioners’ views on the legality of the war. Chilcot expressly said that the legality of the war was outside the Inquiry’s mandate. This would include any judgments about the plausibility (as opposed to correctness) of any particular argument. And he moreover noted that the war was not one of last resort AND that in the Inquiry’s view the UK (and implicitly the US) undermined the authority of the Security Council.  Since the UK/US argument was based on implied Security Council authorization, the Inquiry’s finding is if anything directly contrary to the overall thrust of that argument, at the very least politically so.

Second, Bellinger notes (correctly) that, as a matter of principle, the 678/687 revival argument was not new, i.e. it was used before to justify several bombing campaigns in Iraq. But that the revival argument was not new has little bearing on whether it is plausible or correct, the political optics aside. It was always highly controversial, and received a lot of criticism in the legal literature even when it was used on a vastly smaller scale than the full invasion and regime change of 2003.

Nor does the fact that the government lawyers of five states (US, UK, Australia, Poland, Spain) endorsed that argument inherently make it plausible. I suppose a lot depends on the exact criterion by which we judge plausibility. I am reminded in that regard of a panel discussion on the Ukraine crisis that I chaired at last year’s ESIL conference in Oslo. There were a couple of hundred people in the room, and at one point I asked for a show of hands on how many of the international lawyers in that room thought that that Russia’s intervention in Ukraine was lawful – only one person did so. I then asked the same question about the US intervention in Iraq, and again only one person did so (it was not the same guy!). That is obviously just an unscientific data point, but it still aligns with my anecdotal impression that 99% of international lawyers outside the US (and even there the percentage is not much smaller) think that the Iraq war violated the UN Charter. That (some of) the government lawyers of five states thought otherwise doesn’t change much, I think, about the judgment that the profession as a whole has passed on the Iraq war, which I admit is also inevitably influenced by the unmitigated disaster it eventually turned out to be.

Thirdly, and most importantly, I think Bellinger doesn’t take into account that even among these five states there were significant differences in how they actually approached the revival argument. In particular, even the UK, the US closest ally, per the advice of Lord Goldsmith, considered that the US version of the revival argument was legally wrong. Just as a reminder, under both versions of the revival argument the authority to use force under SC res 678 was suspended but not extinguished by 687, and could be revived by a material breach of the conditions imposed on Iraq by 678 and subsequent resolutions. However, under the US version of this argument it was for individual states (i.e. the United States, i.e. President George W. Bush) to decide whether Iraq was in material breach, but under the UK version that judgment had to be made collectively, by the Security Council. This is why, under its legal view, the US had no need of resolution 1441, but on the UK view that resolution was indispensable, i.e. without it the 678 authority could not be revived.  This is also why, in his 7 March formal legal advice , at para. 9, Lord Goldsmith noted that he ‘was not aware of any other state which supports [the US] view.’

Finally, this is also why, as Dapo and I argued in our submission to the Iraq Inquiry, which was joined by many other scholars, Lord Goldsmith’s last-hour change of heart about the interpretation of 1441 could not be justified by discussions with US interlocutors and by reference to US ‘red lines’ that US negotiators could not possibly have conceded, since the US red lines were predicated upon the US version of the revival argument and not the UK one. In other words, the US may well have succeeded in upholding its red lines, but this would not automatically have meant that the UK succeeded in getting from 1441 what it needed to get to invade Iraq. (Notwithstanding the point of principle Richard Gardiner and Michael Wood have made before on whether UNSC resolutions can be interpreted by reference to what some of the negotiators privately thought they had or had not achieved).