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]
All the main players at the time were of the view that was it was essential that the Attorney General be able to say that the use of force would be lawful under international law. No one took the view that legality was irrelevant or that it would be right to go to war if the Attorney General came to the conclusion that it would be unlawful to do so. We cannot be sure what would have happened if the Attorney General had confirmed his original provisional view that a further Security Council resolution (after Res. 1441) was necessary. However, what we do know is the the UK military and the Cabinet Secretary were of the view that it was necessary to have the Attorney General sign off on the legality of the war [evidence of David Brummel, Jan. 26, p. 23]. It is significant that the notes of a meeting on 11 March 2003 between the Prime Minister, the Deputy Prime Minister, the Foreign Secretary, the Defence Secretary and the Chief of Defence Staff (the UK’s most senior military officer) state that:
“The Prime Minister started with the legal base for military action. The Attorney General’s advice stated that a reasonable case could be made that UNSCR 1441 is capable of reviving the authorisation of UNSCR 678, although of course a second resolution would be preferable. CDS said he would need to put a short paragraph in his directive to members of the armed forces. This should be cleared with the Attorney General.”
How International Law Mattered
So we know that international law was important in the shaping of the Iraq policy but how important was it and how did it matter. It could be argued that though international law mattered in the process of policy formation it was not decisive nor was it the main issue. We will never know whether the view of the law was decisive in making the ultimate decision as to whether to go to war or not. Some have said that a resolution of the legal issue cannot have been all that important given that military preparations were well advanced before the Attorney General came to a final decision on the legality of the use of force and given that the Attorney General’s final opinion came just before the war began. However, if Tony Blair’s testimony at the Iraq Inquiry is to believed, the UK would not have gone to war if the Attorney General had said it would be unlawful to do so. He stated that:
“we had begun military preparations even before we got the first resolution, the 1441 resolution. We had to do that, otherwise we would never have been in a position to take military action. But let me make it absolutely clear, if Peter [Lord Goldsmith] in the end had said, ‘This cannot be justified lawfully”, we would have been unable to take action.” [Blair Evidence, p. 150]
Quite apart from the whether or not the UK would have gone war if the Attorney General had ruled that it would have been unlawful to do so, we also know was that the international law regarding the use of force was absolutely crucial in the shaping of UK Iraq policy prior to the actual use of force. In particular, the international legal position was one of the key points, perhaps the key point, that led to the push to secure UN resolutions to deal with the Iraq issue. According to Tony Blair:
“one of the things that was most important in us going down the UN route was precisely the legal advice that we got. [p. 143, Jan 29, Transcript of Blair Evidence]
The UK regarded it as essential (prior to 1441) to secure a UN resolution that said Iraq was in material breach and that galvanised the UN to take action to disarm Iraq. It was essential to get a UN resolution on material breach because the legal position that was taken by all the relevant UK legal advisers was that force could only be lawful if authorised by the UN and that prior authorisations (in Res 678) would not justify military action unless the Security Council had determined that Iraq was in material breach. Tony Blair and Jack Straw also made the point that it was politically important to go down the UN route as this would demonstrate to Saddam that the international community was united and also demonstrate to the US that it was not alone. Although this was regarded as a political point, international law was again crucial in shaping the politics. The reason why a UN resolution (or resolutions) would demonstrate unity was because many countries regarded UN authorisation as necessary from a legal point of view and would therefore have found it easier to get behind the military action were it authorised.
Why International Law Matters
International law mattered and it mattered in that it shaped the way in which Iraq policy was played out. But why did it matter to UK policy makers? What were the factors which led them to give such serious consideration to international law? In the first place, one must give credit to all the legal advisers, especially those in the Foreign Office, Sir Michael Wood and Elizabeth Wilmhurst, as well the Attorney General, for continuing to keep the issue on the agenda. They would write to the relevant policy makers whenever statements were made which appeared to suggest that the UK might engage in military action on a basis which was not supported in law. This no doubt forced the relevant policy makers to confront the issue over and over again.
Secondly, international law mattered because it was seen as essential in providing legitimacy to the policy on Iraq. I think the relevant policy makers realised this themselves but just in case they didn’t the public debate and the political debate in the UK made this absolutely clear. If the government was to carry Parliament and the public and secure approval for is policy, it needed to give serious attention to the legal basis for the action. The government needed to make the best possible legal case that it could make. Thomas Franck has written about the power of legitimacy and the Iraq case is a good example of how international law influences considerations of legitimacy. Legitimacy can be important in at least two regards – the external legitimacy of the action, i.e in the views of others. In this case, the logic of Tony Blair’s reasons for using force against Saddam, to enforce UN resolutions, meant that it was important to justify the enforcement action as one which was not in itself in violation of UN rules. Also, internal legitimacy is important, i.e. domestic perceptions as to the rightness of the action. In some ways this point is circular: international law matters because it is seen to matter. But the point is important and a better way of stating it is that international law matters to States and to governments, because international law may be seen as important by the population of the state. Acting lawfully may be seen as defining the character of that State and this puts internal pressure on the government. Also international law may be important to the government because those that the government requires to carry out or support its actions (in this case, the military and the civil service) regard it as important. The point is important because it emphasises that it is erroneous to regard the State as a unitary entity and to regard it as one distinct from the individuals involved. What is classified as State interests will be what emerges from the decision making process of a group of individuals and entities internal to the State. The views of those individuals on what is legitimate is therefore of importance.
Thirdly, international law mattered because it was internalised not only in UK public consciousness but also in UK law, in this case, in UK soft law. As Michael Woods pointed out to the Foreign Secretary in Oct 2002, the Ministerial Code (Code of Conduct and Guidance on Procedures for Ministers issues by the Prime Minister, 1997 (see here)) requires Ministers to comply with the law, including international law (see p. 10) and requires Ministers not to ask civil servants to act in a way which would be contrary to the Civil Service Code. Some consideration was also given to possible prosecutions for the crime of aggression and for war crimes. As I have pointed out in an earlier comment, the House of Lords has more or less ruled out prosecutions in the UK for aggression. However, this was only done in 2006. Thus in 2002 the possibility existed but even then chances were rather slim and it is not clear that this weighed all that much on the mind of policy makers. However, enough attention was paid to the possiblity of domestic and international prosecutions that the Foreign Secretary asked, in October 2002, for:
“urgent preliminary views on the practical consequences of the UK’s acting without international legal authority in using force against Iraq, including possible legal consequences in domestic law, International Criminal Court, and in the International Court of Justice . . .”
As this memo shows, pressures to comply with international law also arise in circumstances where the rules are seen as enforceable. Enforceability is important not just externally but also internally. States will strive to comply with internationa law in circumstances where it is thought that the rule is one that can be enforced against them internally. As stated, the prospect of internal enforcement was probably slim but some attention was paid to it.
It is not yet known if the Iraq Inquiry will issue any decisions on the legality of the war. It is hard to see how a panel that that does not have a single lawyer on it, though advised by a former President of the ICJ (see here) will be regarded as having the authority to make legal decisions. However, one thing that is useful about the inquiry is that it has exposed the process by which international law was considered in the UK government’s decision making process. We always knew that international law was important in the debate about Iraq in the UK. Now we have a clearer idea of how it mattered and why it mattered. I hope that international relations/international law theorists of the realist persuasion are taking note.