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Legal Advisors before the Iraq Inquiry, Part 2

Published on January 27, 2010        Author: 

Part 1 available here.

Today’s testimony of Lord Goldsmith before the Iraq Inquiry (BBC report) was mostly focused on revisiting the revival argument for the invasion of Iraq. Lord Goldsmith gave a reasonably strong performance in defending his sudden change of position in the advent of the war, when he in the space of a few weeks or so first provisionally advised that Resolution 1441 was insufficient to revive the UNSCR 678 authorization to use force, only to come the other way around in his final advice just a few days before bombs started raining on Baghdad. Though my impression is that the Inquiry members were less impressed by his testimony than they were by the FCO legal advisors’ yesterday, it still cannot be said that the Inquiry exposed Lord Goldsmith as cravenly caving to political pressure or giving manifestly mistaken advice – he is far too good a lawyer for that to have been reasonably expected, let alone happened.

In short, his explanation of his change of position was as follows: it was the result of his combined discussions with Sir Jeremy Greenstock, the UK ambassador to the UN at the time, Jack Straw, and US legal advisors in Washington, who were all intimately involved in the drafting of Resolution 1441. Their account of the drafting history, which he took into consideration, was that the Americans had a so-called ‘red line:’ because they already thought that they had implied UNSC authorization to act and did not need Resolution 1441 for that purpose, they would have never allowed the adoption of this resolution if its terms held or implied that a further UNSC decision would be needed for the invasion to take place. Thus, because it would have been highly improbable that the resolution as adopted did this since the American negotiators were far too skilled to have allowed this, Goldsmith now thought that the better view was that the Resolution did not require a further decision, implicitly or otherwise, and that the revival of the prior authorization could properly take place.

Now, this is all extremely confusing, and both Goldsmith and his most persistent inquisitor, Sir Roderick Lyne, were running circles around each other for quite some time. Sir Roderick rightly pointed out that this argument presumes that the American negotiators could not have failed in their endeavours and that other parties did not have their own ‘red lines’, and also, as Michael Wood said yesterday, that it is somewhat odd to rely so much on essentially private accounts of the drafting history, rather than on the officially recorded public statements made by various state representatives in the UNSC after the adoption of Resolution 1441. These are all valid criticisms – but there is also a more subtle non sequitur here, which the questioning did not expose fully.

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Filed under: EJIL Analysis, Iraq, Use of Force
 

Legal Advisors at the Iraq Inquiry, Part 1

Published on January 26, 2010        Author: 

Today was the start of an extraordinary week for assessing the impact international law had on the decision of the US, the UK and their allies in going to war with Iraq in 2003. The UK Iraq Inquiry today heard the testimony of Sir Michael Wood, the Foreign and Commonwealth Office Legal Advisor from 1999 to 2006, and Elizabeth Wilmshurst, the Deputy Legal Advisor at the time of the Iraq war, who resigned from her post once the invasion began (BBC report). Tomorrow the Inquiry will hear the testimony of Lord Goldsmith, at the time the Attorney General , empowered to give authoritative legal advice to the government, who ultimately, after much procrastination and indeed after shifting his own position, ruled the invasion to be lawful. On Friday it will be Tony Blair’s turn.

The Inquiry, which is advised on legal matters by the former ICJ President Rosalyn Higgins (for more, see Dapo’s earlier post), focused on the main legal rationale for the invasion – the so-called revival argument. In brief, this argument posits that Resolution 1441’s finding that Iraq was in material breach of previous Security Council resolution, and Iraq’s failure to take the final opportunity that the UNSC gave it to comply, revived the authorization for the use of force in UNSC Res 678, that was suspended but not extinguished by UNSC Res 687. The Inquiry’s investigation also raises many issues regarding the proper role of government legal advisors, that will be the main subject of this post.

The readers might recall our previous post on declassified memoranda on the lawfulness of the Iraq war by the US Department of Justice Office of the Legal Counsel, which like the Attorney-General in the UK provides authoritative legal advice to the executive. Like Lord Goldsmith, the OLC thought the revival argument to be correct, but it did so with far less caveats than their UK counterpart. On the other hand, it now transpires that the FCO Legal Advisor’s consistent advice had been that the revival argument just does not work on the text of Resolution 1441, which if properly interpreted requires further UNSC action. The Iraq Inquiry website now has several declassified memos and other correspondence from the FCO Legal Advisor to various government officials. (Incidentally, I don’t think that the US State Department Legal Advisor’s memoranda on the Iraq war have been declassified yet, unlike the OLC ones). These documents are invaluable for assessing the decision-making process in the lead-up to the Iraq war.

As Sir Michael’s testimony began, several new documents were declassified and were contemporaneously used by the Inquiry. The one which struck me the most was a letter by Jack Straw, then the Foreign Secretary, to Sir Michael in response to his legal advice that the invasion would be unlawful without further UNSC action, stating the following:

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UK Inquiry to Consider Legality of Iraq War and Appoints Former ICJ President, Dame Rosalyn Higgins as International Law Adviser

Published on October 20, 2009        Author: 

This past summer, British Prime Minister Gordon Brown announced the establishment of an inquiry into the UK’s involvement in the Iraq War. The Iraq Inquiry, which is independent of the government, began work at the end of July.  The committee will consider events from the summer of 2001 until the end of July 2009 when all British forces left Iraq. This means that  the inquiry has a mandate to consider the lead up to the Iraq war, including the circumstances in which the decision was taken to commit the UK to the invasion, as well as the period of the conflict and the post conflict reconstruction. In establishing the inquiry, the Prime Minister stated that the

“the primary objective of the committee will be to identify lessons learned. The committee will not set out to apportion blame or consider issues of civil or criminal liability.” (see here at column 24, 2nd para)

The Inquiry will be conducted by a team of five headed by a former civil servant, Sir John Chilcot. It includes an academic (Sir Lawrence Freedman), a historian (Sir Martin Gilbert), a former diplomat (Sir Roderic Lyne) and a member of the House of Lords (Baroness Usha Prashar).

International lawyers, and indeed the general public would be interested to know, that the Chair of the Inquiry announced in its initial press conference that the inquiry would seek to

form impartial and evidence-based judgements on all aspects of the issues, including the arguments about the legality of the conflict. (see here)

Given that it is unlikely that the question of the legality of the war in Iraq will come before an international tribunal, the Iraq Inquiry may well be the most important public and formal process for the determination of the legality of the UK’s (and US’) use of force in Iraq. Last week, the Inquiry announced the appointment of  Dame Rosalyn Higgins as its international law adviser. Dame Rosalyn was Professor of International Law at the London School of Economics up until 1995 when she became a Judge of the International Court of Justice (ICJ). She was President of the ICJ from 2006 until February 2009 when she stepped down from the Court. In addition the Inquiry has engaged General Sir Roger Wheeler, the former Chief of the General Staff (i.e head of the British Army) as its military adviser.

Like the Prime Minister, Chair of the Inquiry has stressed that “the Inquiry is not a court of law and nobody is on trial” (statement at the Chair’s initial press conference). However, there remains some interest as to whether the inquiry could lead to prosecutions, if it were to find that the UK went into the war illegally. The Inquiry has announced that it will call as witnesses the Prime Minister and former Prime Minister Tony Blair. Could Tony Blair be prosecuted for taking the UK into an illegal war? Read the rest of this entry…

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Norm Conflicts and Human Rights

Published on May 13, 2009        Author: 

Consider the following scenario: the United Kingdom, together with the United States and other allies, invaded Iraq in 2003. From that point on, there was an international armed conflict between the UK and Iraq. Further, as it obtained effective control over certain parts of Iraqi territory, the UK became the occupying power of these territories. Under Art. 21 of the Third Geneva Convention, and Arts. 41-43 of the Fourth Geneva Convention, the UK had legal authority to subject enemy POWs and civilians to internment.

Yet, on the other hand, the UK is a state party to the European Convention on Human Rights. In some circumstances, the ECHR applies extraterritorially. What those circumstances are is an (overly) complex question, but the UK has conceded in the Al-Skeini case before its domestic courts that the ECHR applies to extraterritorial detention.

Unlike Article 9 ICCPR, which sets a standard by prohibiting arbitrary arrest and detention, Article 5 ECHR contains a categorical prohibition of detention, except on a limited number of grounds. Preventive detention or internment on security grounds is not one of them. Further, Article 5(4) ECHR requires judicial review of any detention, while Art. 5 GC III only provides for status tribunals if POW status is doubt, and Art. 43 GC IV expressly permits review of detention by mere administrative boards.

So, on one hand we have IHL treaties expressly authorizing preventive detention or internment. On the other we have the ECHR expressly prohibiting such detention. No amount of interpretation can bring the two rules into harmony – they are in a state of genuine norm conflict. That norm conflict could have been avoided had the UK made a derogation under Art. 15 ECHR, but it did not do so (and there is a further question whether it could have actually done so, which needs ti be clarified in the future, though in my view the answer is clearly in the affirmative).

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The OLC Memoranda on Iraq: Revisiting the Case for War

Published on January 10, 2009        Author: 

Yesterday, the Office of the Legal Counsel of the US Department of Justice released some of its secret memoranda to President Bush, several of which are of interest for international lawyers. Two of them deal with questions of IHL, that is the applicability of the Third Geneva Convention to the Taliban, and of the Fourth Geneva Convention to the occupation of Iraq. Three memos, on the other hand, provide the OLC’s advice to the President on the legality of the use of force against Iraq, both under US constitutional law and under international law.I’d like to say a few words about these three memos (authored by the same indomitable Bybee/Yoo team of torture memo fame), both on the quality of their substantive analysis and on the boundaries of the proper role of government legal advisers.

I’d also like to compare these memos of US legal advisers with those of their British counterparts, particularly the opinion of the then Attorney General, Lord Goldsmith.

The most important of the three opinions was signed by Jay Bybee on 23 October 2002 (Iraq Opinion). In its third part (at 17 ff), it gives two possible justifications for the US use of force against Iraq: (implied or implicit) UN Security Council authorization and (anticipatory or pre-emptive) self-defense. The second opinion, signed by John Yoo on 8 November 2002, deals with the impact of UNSC Resolution 1441 on the implied authorization argument made in the previous Iraq Opinion (1441 Opinion). The third opinion was also signed by Yoo, on 7 December 2002, and it addresses the issue whether false declarations on WMD by Iraq would constitute a further material breach of Resolution 1441 (Material Breach Opinion).

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Filed under: EJIL Analysis, Iraq, Use of Force