January 31, 2010
Why the legal debates about Iraq will never end
Malcolm Shaw
What have we learnt so far from the Iraq inquiry with regard to international law? At one level, we have heard views that international law is uncertain, international lawyers dogmatic, and that lawyers who are not international lawyers are not international lawyers and thus cannot, by implication, deal with arguments in that field.
The question of the legal justification for the use of force against Iraq in March 2003 has been long and ferociously debated. Most international lawyers regard the action as illegal, but not all. All are agreed that the justifications of self-defence and humanitarian intervention (itself controversial) were not relevant at that time and that regime change as such is illegal.
So all turned on whether it could be said that the invasion was sanctioned by the United Nations security council. This involves complex questions as to the interpretation of phrases that were deliberately rendered ambiguous in the security council’s resolution 1441 in order to achieve a political consensus.
All states and the security council accepted that Iraq was in material breach of a whole series of resolutions including the key resolution (687) that ended the 1990-1 Gulf war, in which the ceasefire was subject to conditions such as the destruction of weapons of mass destruction. Resolution 1441, passed in November 2002, gave Iraq a “final opportunity” to comply, introduced an enhanced weapons inspection regime and warned of “serious consequences” for Iraq for continued violations.
But could force be used as a result of Iraq’s continuing violations without a further definitive resolution? This was a big step and it was one vigorously disputed as a matter of close interpretation of the resolution by the relevant government lawyers, taking into account pertinent background and negotiating materials.
One interesting question is whether the standard required to demonstrate a legal justification for force is that of “a reasonable case” or something higher. The use of force in Kosovo in 1999 demonstrates that while a vast majority of international lawyers regarded this at the time as unlawful (although some have since changed their minds), at no time could it really have been said that any standard higher than a reasonable or credible case was either accepted or posited.
The testimony last week by the two former most senior Foreign Office international lawyers — one of whom drolly dismissed Jack Straw, the legally trained former foreign secretary, as “not an international lawyer” — and by Lord Goldsmith, inset, the attorney-general at the time, also revealed an institutional flaw.
While the Foreign Office lawyers take the lead on issues of international law with regard to the usual run of business of government, it is the attorney-general who is the senior law officer of government. He is the person to whom the government will turn for the definitive legal view.
However, in the case of the Iraq war, Goldsmith does not appear to have been involved as of right in key activities leading up to the point at which decisions needed to be taken. He told the inquiry that, until relatively late in the day, his involvement was not requested, but it was from time to time provided as he felt necessary.
This can hardly be the most effective or indeed the correct way for international legal advice to be provided to the government at the very highest level. The attorney-general should be provided with further international law specialists, and there should be a mechanism for him to provide advice in a regular and timely fashion. In any event, once the question of legality is dealt with, the next, and perhaps equally critical issue is whether the proposed action is right.
Professor Malcolm N Shaw QC is the Sir Robert Jennings professor of international law at the University of Leicester
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