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Submissions to the UK Iraq Inquiry on the Legality of the Iraq War (Updated)

Published on October 1, 2010        Author: 

As reported here, this summer the UK’s inquiry into the Iraq War (the Chilcott Inquiry) invited submissions analysing the arguments relied on by the UK government as the legal basis for the war. The deadline for making those submissions was extended from July to September 13. The inquiry reserved the right to publish submissions made to it. However, it is now nearly 3 weeks since that deadline passed and the Inquiry has not yet published any of the submissions. The other evidence given to the committee of inquiry is available on its website and one important contribution of the inquiry is the declassification and release of many documents which were previously confidential. As has been discussed on this blog before (see  here here, and here) many of those documents give fascinating insight into the process by which the government sought and received legal advice relating to the use of force. It would be anamalous if the inquiry fails to publish evidence received from international lawyers on this critical issue  and I suspect that they will be published in some form at some point.

An article in the Guardian newspaper yesterday states that over 30 submissions were received by the inquiry on the legal arguments. The article (“Blair’s case for Iraq invasion was self-serving, lawyers tell Chilcot inquiry”) begins by stating that:

“The Blair government undermined the UN, bowed to US political pressure and relied on self-serving arguments to justify its decision to invade Iraq, according to evidence to the Chilcot inquiry by international lawyers.

A key theme of the evidence, yet to be published, is that the government weakened the UN, damaging the country’s reputation in the process . . .”

The article quotes from submissions made by Ralph Zacklin (former UN Assistant-Secretary General for  Legal Affairs), by Philippe Sands and from submissions drafted by Marko Milanovic and I. The submission drafted by Marko and I was signed by 23 international lawyers from academia and private practice. The full text of that submission can be found below the fold. (UPDATE: You can find all three submissions referred to on the Guardian website here)

Given that the Inquiry made it clear that submissions were to be restricted to 3000 words we had to make choices as to the issues we wished to comment on. We decided not to attempt to revisit in full the against the use of force but did make the argument the argument put forward by the US and UK regarding the revival of previously given authorizations to use force undermines the UN collective security system. Our main focus, however, was on the arguments put forward by Lord Goldsmith (in his testimony to the committee) to justify the change in his legal advice. In our view, those arguments, even assuming that the UK’s revival argument was valid, UN Security Council Resolution 1441 would fail to satisfy that argument. In thinking that it did, Lord Goldsmith was moving from the UK’s revival argument to the US’ version of the argument which (as Lord Goldsmith himself accepted) was fundamentally different from the UK’s and which had been regarded even by the UK as an untenable legal position. Read the rest of this entry…

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UK’s Iraq Inquiry Invites Submissions on Legal Arguments Used by UK to Justify the War

Published on June 7, 2010        Author: 

As we have previously noted here, the inquiry established by the UK to examine the UK’s involvement in the Iraq War has spent some time taking evidence on the legal justification put forward by the UK for the invasion of Iraq in 2003, as well as on the manner in which legal advice on the issue was formulated and presented. [For EJIL:Talk coverage of events at the Inquiry, see here here here, and here]. The inquiry has now issued an invitation to public international lawyers to make submissions on the legal arguments relied on by the UK. The text of the inquiry’s invitation is as follows:

The legal basis for the military intervention in Iraq has been the subject of much comment.  The Inquiry has heard evidence on this point from a number of witnesses, including Lord Goldsmith the former Attorney General and Sir Michael Wood the former Foreign Office Legal Adviser.  Transcripts of such evidence can be found at: http://www.iraqinquiry.org.uk/.  In addition, a number of government documents relating to the formulation of the legal advice have been declassified and published on the Inquiry’s website.

The Inquiry is being advised on public international law by Dame Rosalyn Higgins QC.  In order further to inform the Committee’s considerations, the Inquiry would be pleased to receive from public international lawyers any legal analysis they may wish to offer of the legal arguments relied upon by the UK government as set out in: the Attorney General’s advice of 7 March 2003; his written answer to a question in the House of Lords on 17 March 2003; and the FCO Memorandum “Iraq: Legal Basis for the Use of Force” of the same date.

The inquiry does not wish to focus on grounds relied on by other states. Respondents are, therefore, invited to comment on the issues of law arising from the grounds on which the government relied for the legal basis for military action, as set out in the substantive elements of the evidence given to the Inquiry and published documents. That might include:

  • the legal effect of Operative Paragraphs 1, 4, 11 and 12 of UNSCR 1441;
  • the significance of the phrase “consider” in Operative Paragraph 12 of SCR 1441;
  • whether by virtue of UN Security Council Resolutions 678, 687 and 1441, the elements were in place for a properly authorised use of force;
  • the interpretation and effect of the statements made by the Permanent Members of the Security Council following the unanimous vote on UNSCR 1441;
  • the correct approach to the interpretation of Security Council Resolutions;
  • Lord Goldsmith’s evidence that the precedent was that a reasonable case was a sufficient lawful basis for taking military action.

I’m not quite sure what to make of this invitation. It has been my suspicion since the inquiry was set up that the committeee would consider in its final report the manner in which legal advice was formulated and presented in the lead up to the war but that it would not offer its own conclusions as to the legality of the war. Read the rest of this entry…

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The Position of British Parties on International Law Issues

Published on April 22, 2010        Author: 

As readers will know the UK will hold a general election on the 6th of May. This evening, as a part of a unprecedented three part series of debates, the leaders of the three main UK parties (Labour, Conservatives and Liberal Democrats) will hold a debate on foreign affairs. I thought it would be useful to highlight, brieftly, the position of those three parties on some issues of international law. The BBC website has a useful summary of the position of these parties on Europe and Foreign Affairs, which you can find here. However, some of the positions attributed to the parties by the BBC do not appear in their manifesto and don’ t seem to be on the parties website either. Unlike the position in the United States in recent years, and with the exception of their position on relations with the European Union, there is no radical difference between the parties on questions of foreign affairs. I don’t intend to say much on Europe, but it is worth pointing out, in brief, that the Conservatives hold the most sceptical position, including, for example, a commitment never to join the single european currency – the Euro; and amending UK law to ensure that any future transfers of powers to the EU must be approved by referendum. The Liberal Democrats , by contrast hold the most Euro friendly position (both with respect to the single currency and Europe more generally) with Labour being somewhere in the middle. On another matter related to Europe, the Conservatives have promised to replace the Human Rights Act (which incorporates the European Convention of Human Rights into UK law) with a UK Bill of Rights. I will leave it to others more knowledgeable about that issue to comment on it.

On general international law issues there is actually broad agreement among the parties on a range of issues. Let me start by pointing out the position of the parties on a number of international treaties – both exisiting treaties and those possible future treaties that the parties commit themselves to support. Labour and the Conservatives commit themselves in their manifesto to reform of the UN Security Council (which presumably means amendment of the UN Charter). Read the rest of this entry…

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Law’s Labours Lost? Comment on Dino Kritsiotis, Close Encounters of a Sovereign Kind

Published on March 25, 2010        Author: 

Nikolas Stürchler is a Diplomatic Officer at the Swiss Federal Department of Foreign Affairs, Directorate of International Law, and author of “The Threat of Force in International Law” (Cambridge University Press 2007). This text reflects the personal views of the author. It does not in any manner implicate the views of the Swiss Federal Department of Foreign Affairs.

The UN Charter is clear in demanding that all member states of the organization must not rely on threats of force in their international relations. Nonetheless, and even though there never has been a shortage of states issuing military threats in past or present, few have paid more than passing attention to the subject.  The 1996 advisory opinion of the International Court of Justice on the legality of the threat or use of nuclear weapons, for example, is agonizingly ambiguous, reflecting a clear uneasiness on the part of the Court to say anything definitive about the thorny issue of nuclear deterrence. And the opinion is, with regard to some important aspects, outright irreconcilable with earlier decisions of the same Court.

This situation has changed recently. Perhaps due to the all too visible role of threats foreshadowing military interventions in Kosovo in 1999 and in Iraq in 2003, there now may be a greater willingness on the part of international institutions and international lawyers to examine the legality of reported threats. In September 2007, an arbitration tribunal constituted under Annex VII to the UN Convention on the Law of the Sea ruled that in a dispute between Suriname and Guyana, the conduct of gunboats from the Suriname Navy against an oil rig and drill ship amounted to a threat of force in violation of the UN Charter. In its report of September 2009, the Independent International Fact-Finding Mission on the Conflict in Georgia took a closer look at threats of force in the run-up to the war between Georgia and Russia in August 2008. The report concluded that both major players, Russia and Georgia, had issued unlawful threats of force prior to the outbreak of hostilities. A series of academic publications, too, have entered the scene, easily doubling the available literature on threats of force prior to 2000.

Against this background, Professor Kritsiotis’ article (EJIL Vol. 20, No. 2, pp. 299-330) can only be welcomed as a most recent addition.  In examining article 2(4), Professor Kritsiotis’ central argument seems to be that there is a dissonance between what the UN Charter demands of states to do (“abstain from military threats!”) and a general, if reluctant, appreciation of threats of force by the international community in certain circumstances (“actually, threats are not always bad”).

Quite naturally, the demand of the UN Charter has been upheld by the International Court of Justice in 1996, with which it explained that – like the use of force – threats of force are unlawful in principle, and justification can only be obtained on an exceptional basis and within the strict confines of UN Charter law.

Conversely, appreciation for the uses of threats is voiced outside the courtroom, often in the context of an unresolved international crisis. Referring to past military threats against Iraq and the difficult attempts in gaining compliance from Saddam Hussein, even UN Secretary-General Kofi Annan may be cited as at one time, in 1998, endorsing the use of military threats and at another time, in 2003, condemning it.

Law and reality, Professor Kritsiotis concludes from this, are out of sync. Where the UN assumes black and white, the real world is all in shades of grey. Hence there is a problem in applying the Charter’s ban on threats to international politics of the day. As a remedy, Professor Kritsiotis seems to propose a case-by-case approach, along the lines of the ICJ’s Corfu Channel judgment of 1949, which holds the promise of a more flexible, less doctrinal way in giving effect to the UN Charter in practical cases.

I agree with much of this analysis, but believe that it needs to be complemented. Two points stand out. First, while the dissonance between law and reality is there, it can be readily explained, and on that basis, is not as dramatic or unique as it may first seem. Second, a dynamic interpretation of the relevant Charter provisions is available to address what dissonance there is.

With regard to the first point, it is important to take a step back and take on a historic perspective. The UN Charter’s underlying assumption is that in any military conflict between States, a useful distinction can be made between aggressor and victim. It is the aggressor state that threatens and uses force against the victim state, which, never having provoked the act of aggression, is entitled to self-defensive action. This aggressor-victim template was conceived with arms build-up and Blitzkrieg experiences of World War II in mind, and as such fit hand-to-glove with the realities of 1945.

What actually creates today’s dissonance between the UN Charter’s regime of force and contemporary military conflicts is that in most cases since 1945, reality has been a different one. It is far more frequent for states to be embroiled in protracted conflicts, where it is hard to blame exclusively one side for the commencement of hostilities. Accordingly, it is difficult to apply the UN Charter’s aggressor-victim template, be it for the threat of force or for the use of force. For threats of force, it may be added, the problem is more acute because parties to a conflict regularly threaten each other simultaneously. There is often little point in saying that state A threatened state B first, and thus the question of who was acting in self-defence is practically unanswerable. This general dissonance is often the primary underlying cause for difficulties in spelling out UN law to military conflicts of today.

But Professor Kritsiotis rather relies on another, more special case. This is the situation where it can be argued that military threats are arguably employed in the service of a common good, say, to manage an international crisis, to address a humanitarian catastrophe or even to avert a war. These are the cases of “benign threats” implicitly referred to by former UN Secretary-General Kofi Annan in 1998.

Here, what explains much of the difficulty in applying the UN Charter in a strict manner is a moral dilemma. In a situation where military pressure is deemed essential to bring a notorious norm breaker to compliance with demands of the UN Security Council, states are reluctant to condemn a threat of force issued, even if it is not authorized, whenever it holds the promise of securing compliance. The dilemma is that bystander states, if they condemned the use of military threats, at the same time would end up helping the target state, which is often undesirable because non-compliance in all likelihood would trigger military intervention. Hence the ambivalence towards threats of force in such situations. Here, too, the dissonance is not strictly unique to military threats. The debate on the lawfulness of the so-called “humanitarian intervention”, for example, evokes similar arguments with regard to the use of force.

The question then is whether international law can provide meaningful answers to what are in essence changed circumstances – the unforeseen change in the way conflicts are borne out, and the unforeseen difficulties of the UN Security Council to decide on collective action against notorious norm breakers.

The answer is Yes. Simply, what constitutes a threat of force according to the UN Charter is a matter of treaty interpretation. There is no reason why, contrary to what may be concluded from Professor Kritsiotis’ article, an attempt at interpretation must be unsuccessful. In fact, an enquiry reveals that while there is little case law, state practice is rather rich on examples where the international community has reacted in response to threats of force and that, on that basis, what amounts to a military threat and under what conditions it may lawful be put to use is not at all that elusive.

Quite to the contrary. States take a comprehensive view of article 2(4) of the UN Charter, considering any reliance on military force to influence the outcome of an international dispute as essentially incompatible with the UN Charter. Threats of force among protracted conflict parties are condemned with particular consistency, while there is a certain reluctant acknowledgement that threats may be legitimate in the context of a genuine effort at crisis management (the case of “benign threats”).

So in sum, we should not worry too much about the timeliness of the UN Charter’s demands. They are, if read in the light of post-Charter practice, quite adequate. A future judgment on a new case is not doomed to end up being either unjust or anachronistic. UN law’s labours, so to speak, are not all that lost.

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Close Encounters of A Sovereign Kind

Published on March 25, 2010        Author: 

Dino Kritsiotis is Reader in Public International Law at the University of Nottingham in the United Kingdom. He specializes in international law on the use of force and armed conflict, democracy, the United Nations, as well as the history and theory of international law.

I am delighted to accept this invitation of Dapo Akande and Nehal Bhuta of www.ejiltalk.org to open up for further discussion some of the issues raised by my article, “Close Encounters of A Sovereign Kind” (EJIL, Vol. 20, pp. 299–330 (2009)), and I am particularly looking forward to exchanges with my interlocutor Dr. Nikolas Stürchler, of the Directorate of International Law in the Swiss Federal Department of Foreign Affairs, whose important and fascinating contribution to this subject appears as The Threat of Force in International Law (2007), published by Cambridge University Press. That work very much repays fine study, and I particularly appreciated much of its methodological emphasis and preoccupations: this, as readers will know, is where a good deal of my own scholarship and sympathies lie. For this forum, then, it would be useful for me to sketch some general points and themes emanating from the article, in order to generate (and to focus) the course of our deliberations over coming days.

1.     Perhaps something should be said in the first instance of the choice of topic; it will be recalled that other articles in the second symposium issue on the use of force for the 20th anniversary volume covered the rise of international criminal law (Kenneth Anderson (American University)), the use of force by terrorists (Christian Tams (Glasgow)) and actions against piratical activities off the coast of Somalia (Tullio Treves (International Tribunal of the Law of the Sea)). All of these are obvious staples if we are thinking of contemporary challenges to, or developments of, the normative arrangements for force and security that succeeded the Second World War—and, I would argue, it is precisely where we would want to place treatment of the topic of “threats” of force; as I tried to indicate in the introduction to the article, there is a tendency not to credit the legal fact of threats of force as often we do the legal fact of the use of force, but once we start doing so, we tend to break up the world of political realities into much more discrete and interesting components (arguably as the 1945 United Nations Charter envisaged us to do).

2.     This tendency interests me—why is it there? what could possibly explain it? what ought to be the rival tendency or tendencies?—and it encourages the observer to start taking facts (at the very least, all of the known or presented facts) more seriously: enhancements of a British naval presence around the Falkland Islands have recently been reported in certain sections of the British press (though the UK Ministry of Defence has argued that this presence is not new); in November 2009, North Korea threatened to take “merciless military measures” along a disputed maritime border with South Korea; and the recent hearings of the Chilcot Inquiry on Iraq in the United Kingdom have left us in no doubt that “threats” (including threats of force!) played an integral part in the relationship of the United Kingdom and the United States with Iraq prior to the Operation Iraqi Freedom of March 2003. (I try and retrace some of these facts in the third section of my article, “The Virtue of Threats of Force: Iraq and the Perfect Peacekeepers”, at pp. 308–316).* One has the feeling that public international lawyers are not alone in failing to make these depictions: consider the innovative historical recounting of the years preceding the Second World War in Nicholas Baker’s Human Smoke: The Beginning of World War II, the End of Civilizations (which I mention in my article at p. 329), which sets its sights on the facts from the point of view of threats of war and force (broadly conceived). It makes for compelling reading, and the reader feels as if something new has emerged—but the materials has always been there for us to discern and to interpret!

3.     In some measure this is all due to the consciousness with which we approach history and historical material—but it is also to do with our own legal consciousness: for a good while, perhaps convenient to suit the practices of Cold War politics, the prohibition of the threat of force seemed to be eclipsed by other considerations—consider the turn of the literature in the first generation of the United Nations—but it always remained an integral part of the text of Article 2 (4) of the United Nations Charter. (This point, of course, matters, as it goes to the precise scope of the provision, of what is forbidden as a matter of Charter law and what is not, which is why I write in the article of “two prohibitions standing together” (p. 304); it matters, too, from the perspective of the kind of empirical evidence needed to adduce each of these propositions as customary law (see p. 328) and, of course, jus cogens). I think it is worthwhile pursuing this path, because it more appropriately maps out the full expanse of this Charter provision, and it makes quite clear that we really have one more rule to contend with than just the prohibition of the use of force!

4.     These remarks go to the point of the formal propositions of law contained in Article 2 (4) of the Charter. In terms of conceptual analysis, however, the jurisprudence of the International Court of Justice has sided with the notion of “idiomatic unity” (pace Stürchler) where, as I say at p. 304, “what goes for one manifestation of force must go for the other” (manifestation was a very helpful word here to use here, as it covers both the “threat” and the “use” of force, precisely the point of the Court in its Nuclear Weapons advisory opinion of July 1996). Building upon this jurisprudence, I came up with the concept of the application of force as a good and convenient way of making reference to the law for both the “threat” and the “use” of force: it allows us to capture the Court’s sense of parity of treatment, and presents us with new—but unified—conceptual language. However, while there is considerable sense and convenience in us adopting this position, one should avoid uncritical embraces: in the article, I detail the difficulties in its application to Operation Desert Fox in December 1998 (pp. 309–310), but one could have equally used the “threat” narrative that predated the use of force in the form of Operation Iraqi Freedom (and which I mention at p. 302): is Security Council Resolution 1441 (2002) to be regarded as a threat of force? If so, could we regard it as a lawful threat of force by virtue of the fact that it was issued by the Security Council? And how/why should our position change if we go on to regard Operation Iraqi Freedom (the use of force to which the “threat” of Security Council Resolution 1441 relates) as an unlawful use of force?

5.     Perhaps this degree of formal mechanics is not the best way of approaching the cut and thrust of political life; perhaps it is testament to the problematique of equating “threats” of force with “uses” of force, and a fair dose of the article is given over to calibrating how broadly it is that we might perceive “threats of force” as a matter of public international law and how this might affect our overall analysis: I attempt to utilize the no-fly zone policy of Operation Provide Comfort (1991) to this effect (at pp. 314–316) and in light of the “contextual analysis” promoted by the Court in July 1996 (p. 306), but, as I try to show, matters can become even more intricate when threatening language is used on a recurring or regular basis—or a relationship evolves within an entire culture of threat and counter-threat—as we see with the focus on Iran: this is “the case of the extended hand and the unclenched fist” (pp. 316–322), as President Barack Obama put it in his inaugural address of January 20, 2009. Does the Charter prohibition allow scope for rhetoric—for heightened rhetoric—and is there scope for incorporating “implied threats” in our analysis (as mentioned by Schachter at p. 306)? Some thought is given (at p. 308) to the mechanism which the Court adopted for uses of force in the Nicaragua Case (1986), where it distinguished between “grave” and “less grave” uses of force: would this help us in making sense of and deciphering “threats” of force for the purposes of legal analysis?

Yet, there are several places in the article where I consider the legal position: I dissect the practice of States piece for piece, away from treatments that tend to monumentalize “the hour, the minute, the second of [the] consummation” of force as it were (at p. 301). This might be regarded as a rather precious way of doing things, but I think it vividly exposes how complicated it is for public international lawyers to enter the fray with their analysis: at what point or points are they meant to place their normative marker/s? Indeed, this is how I spend the penultimate section of the article, hypothesizing the relevance of the prohibition on threats of force to the facts of the Corfu Channel Case (1949), at least as presented to the International Court of Justice. There is something rather comforting about taking on historical material that has a clean break with the past; note how the case study of Iraq in 2003—or in 1998—owes much of its existence to Security Council Resolution 678 of November 1990, itself resting on a threat of force (p. 302). Even so, the complexities of the law’s application are no less forbidding than the other case studies offered for consideration in these pages, especially if certain facts begin to speak for themselves. But, in time, a greater historical and legal consciousness might move us in better and more informed directions, offering us greater clarity on this proposition of law and what it means or is meant to mean.


* And, still, this is not a complete account: an excellent portrait for the New Yorkerof U.N. Secretary-General Kofi A. Annan, contains the following passage:

At the end of October, 1998, Baghdad ordered the inspectors to stop all activities. Before long, Washington told the inspectors to pack up and leave in a hurry. A few days later, a fleet of American and British heavy bombers were in the air, less than an hour from their Iraqi targets, when Annan—who had been trying once again to get the Iraqis to reverse their defiant position—received a letter from Saddam agreeing to let the inspections resume. At very nearly the last minute, the White House called the planes back, and for a few weeks the inspectors did resume their dance with the Iraqis, which in early December once again ground to a halt. On the sixteenth of that month, the bombing began.
Philip Gourevitch “The Optimist”, New Yorker, March 3, 2003 (www.newyorker.com/archive/2003/03/03/030303fa_fact1).

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Self-Defense and Non-State Actors: Indeterminacy and the Jus ad Bellum

Published on February 21, 2010        Author: 

Self-defense in response to armed attacks by non-state actors is undoubtedly one of the most interesting – and controversial – issues in modern international law. It is of great practical relevance, as for instance, with the ongoing use of drones for the targeted killings of suspected terrorists (a question I’ve discussed here), and has attracted a great deal of scholarly attention. Lindsay Moir has just published a book with Hart/Oxford that I’m sure will provide a strong contribution to the field. I would particularly like to draw our readers’ attention to the recent discussion in the EJIL provoked by Christian Tams’ excellent article on the use of force against terrorists, with responses by Federico Sperotto and Kimberley Trapp, and a rejoinder by Christian.

In this post, I would like to add a few thoughts on how the indeterminacy of state practice and opinio juris has caused an indeterminacy in the law, which I don’t think can be denied or removed by any legal analysis, no matter how exhaustive and competent.

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How and Why International Law Matters – Lessons from the UK’s Iraq Inquiry

Published on January 31, 2010        Author: 

Much of the debate in the UK regarding the Iraq war has centred on the legality of the use of force. There was much public debate on the issue in the lead up to the war in 2003 and sustained interest in it since. The appearance before the UK inquiry, this past week, of Tony Blair and of the main UK government legal advisers involved in considering the legal position has revived this debate (see Marko’s posts here and here). What last week’s proceedings have also demonstrated is that international law played a significant role in the internal deliberations of the UK government and had a role in shaping policy. In short international law mattered! In this post, I do not intend to discuss the substance of whether the legal position ultimately taken by the UK Attorney General was correct. Many (Marko included) have demonstrated the flaws in it. What I wish to consider are the ways in which international law mattered in policy formation and why did it matter to the relevant policy makers in the UK.

The first evidence to support to the claim that international law mattered in the process is that there was much discussion within government of whether the use of force would be legal or not and discussion of the conditions under which the use of force would be legal. Much of the relevant internal documents can now be found on the Inquiry’s website by scrolling to the bottom of the page for 26 January. As would be expected, the legal advisers at the Foreign Office (FCO) and the Attorney General devoted much time and paper to advising on the legality of the war. However, what is perhaps more important here is the relevant policy makers also devoted much time and attention to the question of legality of the conflict. The then Foreign Secretary, Jack Straw, debated this question both with his own legal advisers and with the Attorney General. Marko has discussed some of this correspondence  between Jack Straw and Michael Wood (the FCO Legal Adviser) in his earlier post. Readers can view the correspondence and record of meetings between Straw and the Attorney General, Lord Goldsmith here and here. Perhaps more important is the discussion of the legal question by the Prime Minister. In his own evidence before the Iraq Inquiry, Tony Blair spent quite some time dealing with the legal question.

Of course, the fact that the legal issue was discussed does not by itself indicate that the legality of the war under international law was regarded as important by policy makers. However, what is significant is not just that the matter was discussed but that senior policy makers engaged with it seriously. As it happens the two political figures in the UK that had primary responsibility for shaping the Iraq policy in 2002 were lawyers – Tony Blair and Jack Straw. Perhaps this made it easier and more natural for them to engage with the law. Jack Straw in a letter of 6 Feb. 2003 spent 6 pages on the interpretation and significance of Res. 1441. In all probability he drafted this letter himself since we know that his legal advisers took a different from the view expressed in this letter.  Not only did senior policy makers engage with international law seriously, they regarded it as a matter of importance. In his appearance before the Inquiry, Tony Blair stated that: 

 There was then the legal question, which was very important, because Peter [Lord Goldsmith] had drawn my attention to that. [p. 99 Transcript of Blair Evidence]

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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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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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Georgia’s Short-Lived Military Excursion into South Ossetia: The Use of Armed Force and Self-Defence

Published on December 9, 2009        Author: 

Dr André de Hoogh is a senior lecturer in International Law at the University of Groningen. His Ph.D. dissertation (1995) dealt with the topics of obligations erga omnes and international crimes of State.  Recent publications have focussed on the powers of the Security Council, the attribution of conduct to States, legislative powers of UN peacekeeping operations, the war against Iraq, the Bush doctrine of pre-emptive self-defence, and jurisdiction of States.

The Report of the Independent International Fact-Finding Mission on the Conflict in Georgia, solicited by the European Union, covers an impressive breadth of topics ranging, aside from factual matters, from statehood, self-determination and secession, use of force, human rights and international humanitarian law. Having read the Report with appreciation and generally agreeing with its conclusions, nevertheless various queries and concerns may be raised by the Mission’s treatment of the regulation of the use of force in international law. Some concerns relate to the treatment of sources of international law, others concern matters of substantive analysis. This comment will consecutively deal with the applicability and interpretation of the prohibition of the threat and use of force in article 2(4) of the Charter, the requirement of a report on measures of self-defence to the Security Council, and the permissible goals of self-defence under international law.

The Applicability of the Prohibition of the Use of Force

The Report concludes that the use of force, in the Georgian-South Ossetian conflict, “is ‘inconsistent with the Charter of the United Nations’, and therefore the prohibition of the use of force is applicable to the conflict, for the following reasons.” Besides putting the horse behind the cart (after all, if the prohibition is not applicable, how could force be inconsistent with the Charter?), the reasons then set forth do not quite support the applicability of the prohibition in article 2(4) Charter. First to be mentioned in the Report is a clause in the preamble of the 1992 Sochi Agreement, which reaffirms “the commitment to the UN Charter and the Helsinki Final Act”. This is said to amount to Georgian acceptance of the applicability of the prohibition, because, though South Ossetia is not a party to the Agreement, the purpose of the Agreement is to “bring about a cessation of bloodshed” and achieve a settlement of the Ossetian-Georgian conflict. The Report considers, sensibly enough, the prohibition to be included in the reference to the Charter, but fails to consider the (legal) status of a clause in a preamble and does not, as such, account for the fact that the reference may be explained by Georgia and Russia being parties to the Agreement. Read the rest of this entry…

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