Legal Advisors before the Iraq Inquiry, Part 2

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.

Let me first elaborate a bit on the two basic varieties of the so-called revival argument. First, there is the US version: Resolution 678 authorized the use of force; Resolution 687 suspended it by a cease-fire, but it did not terminate it. If Iraq is in material breach of the obligations imposed on it by 687, 678 can be reactivated. Crucially, the US standpoint is that the existence of a material breach is an objective fact. The determination of whether a material breach exists or not, and what the consequences of such a breach should be, is a matter for individual states, and is not exclusive to the Security Council. In other words, the United States could determine that Iraq was in material breach, and could immediately engage in hostilities without any further ado. (See, in that regard, the OLC memoranda we discussed before).

Now, this argument is not obviously wrong, but it is still quite unpalatable, I would say, to the overwhelming majority of international lawyers. Purely speculatively, were it brought before the ICJ, I don’t think it would garner a single vote. This is so not because it is logically incoherent or manifestly wrong as a matter of textual interpretation or what have you, but because it simply ignores the basic idea of the UN system – one of collective security, not one of unilateral decision-making. It relegates the Security Council to nothing more than a passive spectator once it has authorized the use of force, even though more than ten years have passed after that authorization and the war that it brought about ended.

The UK variation of the revival argument tries to address some of these concerns by being a bit less blunt. Rather than saying that the existence of a material breach is a question of objective fact capable of determination by any individual state, the UK position is that this determination must be made collectively by the Security Council (see, e.g., Lord Goldsmith’s 7 March 2003 memo, para. 9). However, says the UK, the Council need not do anything further than that for the authorization to use force to be revived – the finding of a breach is enough, and no explicit reauthorization is necessary.

These are thus the two varieties of the revival argument – the extreme US one, and the more moderate, ‘revival plus’, of the UK. Bearing this in mind, it was the UK, not the US, which needed Resolution 1441 in order for the Council to determine a material breach and for the authorization to be revived. All the US needed in the negotiations was for the Council NOT to say that further action, subject to a veto, would be needed before force could be used against Iraq. Of course, explicit authorization would have been preferable, but the US did not consider it necessary.

The preliminary and most fundamental question is of course whether either the stronger US or the weaker UK revival argument has any validity in international law. It is obviously the UK version which is more acceptable since it takes into at least some account the foundations of the UN regime of collective security. But even the UK version would be rejected by most international lawyers, who would argue that the decision to use force against a sovereign state is so monumental and can lead to such grave consequences for human lives, security and property that it can only be taken explicitly by the Security Council, whose members would thereby assume political responsibility for their actions. And were the UK revival argument to come before the ICJ, I think it is fair to say that it would be hard pressed to garner more than one vote. Indeed, Lord Goldsmith acknowledged as much, stating that the ‘revival argument is controversial. It is not widely accepted among academic commentators’ (para. 10), and that though a ‘reasonable case’ could be made for it, this ‘does not mean that if the matter ever came before a court I would be confident that the court would agree with this view’ (para. 30 of his 7 March 2003 opinion).

Thus, if the revival argument is flawed even in its weaker variant, as I think it is, the invasion of Iraq would have been unlawful no matter what Resolution 1441 says, because it does not provide an explicit authorization. However, because the UK has relied on the revival argument on at least two previous occasions, in 1993 and in 1998, and the legal advice at the time was that this use of force was lawful, Lord Goldsmith in principle took it as a given (paras. 10 & 11 of his opinion). On the other hand, he obviously regarded the broader US argument as unfounded, stating inter alia that he was ‘not aware of any other state which supports this view’ (para. 9).

Okay – so let us now accept, arguendo, the UK’s weaker version of the revival argument as the correct statement of the jus ad bellum. Do the terms of Resolution 1441 satisfy it? If all the Resolution did was to say that Iraq was in material breach, and that serious consequences will follow from that, as it does in op. paras. 1 & 13 , then one might as well say yes. The UK would have had what it wanted. But this is NOT all that it says, since op. para. 2 gives Iraq ‘one final opportunity’ to comply; op. para 4 states that Iraq’s further material breaches ‘will be reported to the Council for assessment’; while in op. para. 12 the Council decided ‘to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.’

What is to be made of these provisions, particularly op. paras. 2, 4 and 12, and the official statements by several Council members that the Resolution allows for ‘no automaticity’? Lord Goldsmith acknowledges that the Council has created a two-stage process – 1441 would not revive the authorization immediately, but only once Iraq has failed to take advantage of the final opportunity given to it for compliance. The question is what the second stage of this process is, and only two answers are possible: (1) either the Council should do no more than meet, discuss and ‘consider’ (but not ‘decide’ on) Iraq’s non-compliance without taking any further action, and the authorization would thereby be revived; or (2) the Council needs to adopt a decision which would state the consequences of Iraq’s non-compliance.

The FCO legal advisors and Lord Goldsmith up until his 7 March opinion both thought that the right answer was (2). But then Lord Goldsmith changed his mind. The principal stated reason he did so was that the UK and US negotiators during the drafting of Resolution 1441 persuaded him that the Resolution did not in any way cross the US ‘red line’, i.e. that it did not implicitly or explicitly require further authorization for the use of force against Iraq. Thus he stated in para. 28 of his opinion that ‘having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.’

At the Inquiry today he likewise stated that he ‘was told by the State Department, legal adviser, the only red line that the negotiators had was that they must not concede a further decision of the Security Council because they took the view they could move in any event. … if they had agreed a decision which said the Security Council must decide, they would have then lost that freedom.’ (transcript, p. 87) ‘They were all very, very clear that was the most important point to them and that they hadn’t conceded that’ (transcript, p. 111; see also pp. 128, 241, 242).

Lord Goldsmith’s argument thus works like this: (1) the text of Resolution 1441 is ambiguous and supports both readings; (2) the Americans had a red line – that 1441 could not impose a requirement for a further decision that would modify the authority they already thought they had; (3) the Americans were very, very smart, and it is unlikely in the extreme that they conceded their red line; (4) therefore, 1441 imposed no requirement for a further decision.

Let’s play ‘spot the non sequitur’ – the ‘therefore’ is as always a dead giveaway. (1)-(2) are certainly true; (3) is probably true; but (4) does not follow from (3). I think that it is manifest that the Americans managed to avoid any limitation in the resolution of their pre-existing authority. Nothing in Resolution 1443 is even remotely like, say, op. para. 8 of Resolution 1696 (‘Expresses its intention, in the event that Iran has not by that date complied with this resolution, then to adopt appropriate measures under Article 41 of Chapter VII of the Charter of the United Nations to persuade Iran to comply with this resolution and the requirements of the IAEA, and underlines that further decisions will be required should such additional measures be necessary’) or op. para. 16 of Resolution 1718 (‘Underlines that further decisions will be required, should additional measures be necessary’). It can be quite reasonably said that Resolution 1441 is essentially neutral on any pre-existing authority to use force.

But notice Lord Goldsmith’s shift in perspective from the UK revival argument to the US revival argument. That Resolution 1441 is neutral on prior authorization only works for the US because it thinks such an authorization exists in the first place – but Goldsmith himself actually does not believe so, and neither does anybody else. It is the UK which needs 1441, and the question is precisely whether 1441’s finding of a material breach is canceled-out, as it were, by other provisions in the Resolution, particularly op. para. 12, without further Council action. And whether op. para. 12 touches on any previous authority to use force (it does not) is essentially irrelevant for assessing whether it has an impact on the material breach finding in 1441 itself. In other words, there is nothing contradictory in saying that the United States got all that it wanted from 1441 (nothing, really), while the United Kingdom failed to get what it wanted.

Tremendously smart as he is, Lord Goldsmith is fully aware of this, and of the fundamental difference between the US and the UK revival arguments. Though this did not come up during his testimony, in para. 22 of his 7 March opinion he thus says that he has

‘considered whether this difference in the underlying legal view means that the effect of the resolution might be different for the US than for the UK, but I have concluded that it does not affect the position. If OP12 of the resolution, properly interpreted, were to mean that a further Council decision was required before force was authorised, this would constrain the US just as much as the UK. It was therefore an essential negotiating point for the US that the resolution should not concede the need for a second resolution. They are convinced that they succeeded.’

This reasoning is patently false. The question is not whether the Resolution would have a different legal effect for the US and the UK, but rather how it fits into their different revival arguments. Again, there is nothing contradictory in saying that the Resolution had no effect on the authority the US already had before it was adopted (none), and in saying that action pursuant to Resolution 1441 and its finding of a material breach would indeed require a further decision by the Council. US success simply does not equal a UK one. The US does not need 1441 to revive anything, while the UK does.

If the readers have survived so far, here’s a little cherry on top. When asked by the Inquiry chairman whether he had to offer any remarks for lessons learned, Lord Goldsmith said the following, without the slightest hint of self-irony (transcript, p. 244):

[T]his is a big topic, which is whether or not the United Nations structure, international procedures and law really is as effective as it should be to deal with these critical questions of international peace and security, and indeed one could extend it to and human rights as well, and therefore what can one do about that. To end up having a debate about language in the way that we have done doesn’t ultimately show the institution to the greatest credit.

It is simply breathtaking to assert that all this language parsing is somehow the fault of the United Nations and international law, both supposedly ineffective as institutions in addressing critical questions of international peace and security – as if this was not entirely the product of the ably advised US and UK governments and their invention of extravagant arguments in support of their use of force against the wishes of the Security Council and contrary to the Charter. There is a very precise legal term for this – chutzpah. I don’t think that it can be denied that his Lordship has it in abundance.