Legal Advisors at the Iraq Inquiry, Part 1

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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:

I note your advice, but I do not accept it.

Let me first make a general point: in the Home Office the many legal issues in which I was involved were principally matters of domestic law. This is by its nature much more detailed and certain than almost any question of international law. We have courts sitting daily to determine outstanding question. However, even on apparently open and shut issues the originators of the advice offered to me accepted that there could be a different view, honestly and reasonably held. And so it turned out to be time and again.

I am as committed as anyone to international law and its obligations, but it is an uncertain field. There is no international court for resolving such questions in the manner of a domestic court. Moreover, in this case, the issue is an arguable one, capable of honestly and reasonably held differences of view. I hope (for political reasons) we can get a second Resolution. But there is strong case to be made that UNSCR 687, and everything which has happened since (assuming that Iraq continues not to comply), provides a sufficient basis in international law to justify military action.

These passages are I think simply extraordinary in what they reveal. First, there is the political appointee rejecting, in no uncertain terms, the advice given to him by a professional government legal advisor. Sir Michael testified that during his service it has never happened before or since that his advice was thus noted, but rejected, by the Foreign Secretary – though in this case the Secretary was also a lawyer. (Incidentally, the Inquiry Chairman asked Elizabeth Wilmshurst the following question: “Did it make a difference that Jack Straw is a qualified lawyer?” to which she responded: “He is not an international lawyer.” to much mirth from the audience and Inquiry members. Strike one for esprit de corps.)

Second, more fundamentally, there is Jack Straw’s argument that international law is ‘an uncertain field’, particularly because there is no international court for resolving outstanding issues like a domestic court would, and that therefore the FCO Legal Advisor should give advice reflecting all arguable positions. This calls for several comments.

It is simply untrue that international law is somehow by definition or inherently more indeterminate than domestic law is – indeterminacy plagues all law equally. What is true is that courts have an invaluable role to make in authoritatively settling disputes between more or less reasonable legal positions. But it is again untrue that international law has no such courts – let’s not go any further than the ICJ, or in the future once a definition of aggression is settled, the ICC. What is true is that states, particularly powerful ones, often do not wish use the courts to resolve outstanding legal disputes, precisely because they wish to exploit the underdeterminacy of the law. For them lack of determinacy is a feature, not a bug.

In other words, nothing prevented the UK from, say, going to the General Assembly, requesting it to ask the ICJ for an advisory opinion on whether an invasion of Iraq would be lawful under the Charter and applicable UNSC resolutions, with the facts as known at the time. Politically, of course, this would have been entirely fanciful – but then one can’t complain about the fact that international law does not have any courts. And, again, domestic law also suffers from in- or underdeterminacy, particularly when courts stay out of the fray. Just to take one example, there is the issue of US constitutional law as to when the US President can use force abroad without Congressional authorization, with successive presidents by an large claiming a broad authority and with Congress disputing that claim, yet with no resolution to that dispute because the courts stay out of it.

Third, there are the questions as to what the legal advisor’s proper role is, and as to how we even test the persuasiveness of a legal argument. How do we actually define the scale from an ‘arguable’, to a ‘reasonable’, ‘honestly held’, to ‘respectable’, and up to the ‘correct’, ‘strong’ , or ‘better’ legal argument, when the law itself is underdeterminate (Straw, incidentally, using the honest, reasonable, and strong, and Lord Goldsmith using the better epithet to describe the revival argument)?

In a judicial context, our calculus would be to speculate what the court or the individual judges would do, on the basis of our knowledge and experience. An arguable argument would be one which didn’t make a judge flinch or laugh out loud on the bench, a reasonable or respectable one would be able to garner the vote of one judge or more, while a strong argument should be able to persuade the majority. Or something like that. But outside the judicial context, as is the case with international law most of the time, what do we do? Do we look at how the argument would be received by a majority of states? Or by a majority of academics and other legal professionals, or indeed a combination thereof?

And, of course, bearing the underdeterminacy of law in mind, and the underdeterminacy in assessing the underdeterminacy, what should the role of law be in guiding policy, and precisely how should a legal advisor orient him- or herself? While Jack Straw’s suggestion was in essence that the legal advisor should, when possible, give the government advice that the government wants to hear, Sir Michael stated in his testimony that the general unavailability of courts that could test the various arguments and authoritatively resolve disputes should lead to precisely the opposite conclusion – that the advisor should be more, rather than less scrupulous, and should give the best possible opinion on the law that is objectively possible.

Sir Michael of course emphasized the dual nature of the legal advisor’s role – that he can provide objective advice, but also that he can be an advocate for the government’s policy and legal position once it is adopted. This is I think quite right. That by and large the various UK legal advisors tried to give the best advice possible before they went into advocacy mode is both manifest and a compliment to the UK legal profession – and this includes even Lord Goldsmith before his sudden change of heart. (Of further note is Lord Goldsmith’s reaction to Jack Straw’s letter to Michael Wood, in which he vigorously defended the FCO legal advisors’ prerogative to give what they think is objectively the best advice). This quality of legal advice given by the UK government advisors is even more apparent when it is compared to their US equivalents in the OLC, who were obviously doing nothing more than advocacy and rationalization of a policy already determined.

Finally, in that regard it is quite interesting, not to mention commendable, how international law has become internalized, as it were, in UK political and governmental culture, especially when compared to the US. In the US arguments about the legality of the Iraq war had very little practical relevance, but the UK was different, both publicly and within the government itself: (international) law mattered. Thus, for example, the government explicitly stated that it would not have acted contrary to the Attorney-General’s legal advice. On the other hand, the law still didn’t matter enough. For instance, both Michael Wood and Elizabeth Wilmshurst criticized the fact that Lord Goldsmith’s final advice was only asked for at the very last moment, when the policy itself was actually already made, and when politically it would have been very difficult for him to put a stop to the whole thing. To quote Wilmshurst from memory, it is hard to escape the impression that the view of the law of Blair’s inner circle was of “an impediment to be got over, before the policy was implemented.”

Thus, though international law was internalized in the UK far more than in the US, this was still only to an extent. Any law, be it domestic or international, can be ignored if one is willing to pay the price – see, e.g., Bush, George W.

Our coverage of the Inquiry will continue in the days to come.

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