[Charlotte Peevers is a Lecturer in Law at the University of Technology, Sydney and author of ‘The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law‘ (Oxford University Press: 2013). Part one of this guest post can be found here.]
Legal-Political Authority and International Law
Any review of the inquiry hearings would be incomplete without a word from Tony Blair. In this extract from his so-called ‘recall’ to the inquiry on 21 January 2011 Sir Roderick Lyne asks him about his statement to the House of Commons in February 2003. The statement referred to the apparent exercise of an “unreasonable veto” in relation to a second resolution – that is, beyond 1441 – a subject upon which Lord Goldsmith had already advised was not a justifiable legal position to take against the French or Russian postures within the Security Council.
In this extract, Blair’s rather tortured distinction between legal and political arguments highlights a particularly interesting aspect of the relationship between international law and politics. His is an attempt to parse political and legal authority, to justify his deployment of legalistic language as a pure political exercise that was not only permissible, but that his audience would have appreciated and known was not premised upon legal authority. This parsing of authority highlights the difficulty faced by those who might oppose government policy or at least question its bases: without the contemporary knowledge as to the legal advice proffered by government experts, there is no way of holding statements such as Blair’s to account. The ambiguity of his articulation – that encompasses the possibility of legal justification, but not necessarily being explicit about it – leaves him able to claim ex post facto that he was merely making a political point. If this was interpreted the ‘wrong way’ by his audience, or indeed by Sir Roderick Lyne in his questioning, that that was not his fault, nor was it his intention.
In addition, this parsing can be seen as an attempt at making a representation of legal authority in the absence of having political authority. In other words, in the absence of majority public support – a democratic mandate – for using force without UN backing. And this is particularly problematic when, as Roderick Lyne seeks to point out, the government had been advised explicitly that there was no legal authority for such a claim. Blair’s evidence therefore seeks to claim an excessive sovereign right to wage war on the premise of an internationalized legal authority, avoiding the strictures of democratic mandates, or indeed international authority vested in the UN Security Council’s authorization of force. The boundaries of that legal authority were, at the time, entirely subject to secrecy and could therefore be publicly represented in any way deemed justifiable by the government; and then later as merely a political argument that did not in fact rely upon legal authority!
The Chilcot Inquiry as International Legal Archive
These two brief extracts from the present Chilcot Inquiry archive illustrate the wealth of material that can be analysed now, regardless of when the final report will be published together with the promised publication alongside it of 1,500 or so declassified documents. (See the video of Sir John Chilcot’s evidence before the Foreign Affairs Committee on 4 February 2015 at 27.05 where he discusses the publication of declassified material alongside the final report, available here.) Perhaps the most important thing we have learnt is that there is still a huge amount to learn from secrecy. Secrecy as a structural, structuring force on the generation of public policy and the place of law – not just international law – in the exercise of sovereign power.
In addition, we have learnt more of the ‘inner life’ of international law – how international law actually works in policy-making. It exists not just in formal sources, or texts, but behind closed doors, in corridors of extreme power. It is given life in memoranda, letters and meeting records. In order to understand how international law works, we need to consider the processes of advice-giving, the means by which decisions are taken in government – sofa government, ad hocism, inner war cabinets, limited disclosures to Cabinet and to Parliament, and the like – and the production of a government archive.
The archive disclosed through the Chilcot Inquiry, like any archive, is already constructed, is incomplete and partial. Reflecting, by way of comparison, on the Suez Crisis archive is particularly instructive (see Charlotte Peevers The Politics of Justifying Force: the Suez Crisis, the Iraq War, and International Law (OUP: 2013): despite the existence of an Israeli copy of the Protocol of Sèvres – the document proving collusion and that the Anglo-French occupation of the Suez Canal in late October 1956 was a pretext for invading Egypt following the nationalization of the Suez Canal Company – it has never surfaced in the British archive, in any form. Collusion was suspected for many years before the Israeli copy finally surfaced, but was always denied by the British government and no amount of archival material could have resolved the question of collusion one way or another – evidence had been destroyed and all reference to it expunged from the records (including presumably the direction that all reference be expunged!).
Despite the ‘constructedness’ of any archive, the ability to rake back over documents and oral evidence in relation to the Iraq War ought to be considered a hugely rich potential source for us as international lawyers, and of course as historians and political scientists. The danger with the saga generated over the publication of the Chilcot Inquiry report is that in all the dramatic distraction we miss the opportunity for reading the current archive for ourselves. An official history, however critical or otherwise, will act as the final word over the Iraq Affair, framing our future treatment of the archive and guiding our interpretations of it, whether in opposition or affirmation of the Inquiry’s final conclusions.
Again, the Suez Affair gives pause for thought. There was never an official inquiry into or official history of the Suez Crisis, its scandalous nature rumbling on in Parliament, behind-closed-doors in Whitehall, and in the public imagination without any final word being drafted. Whilst the absence of any holding to account of Anthony Eden’s government is not necessarily something to celebrate, one lesson that might be learned is this: an official history would not have been able to substantiate collusion – which went to the very heart of the question of accountability. In the absence of an official accounting, Suez has become the mythologized nail in the coffin of the British Empire, a supreme act of folly that was, unquestionably, illegal. We can continue to discover the lessons to be learned from Suez, particularly in relation to how international law was used to justify military action, by reading the archive for ourselves. I hope we will continue to quarry the mine of material produced by the Inquiry process, going beyond the limiting – and limited – question of whether the Iraq War was legal or illegal, instead proposing unofficial histories of the place of international law in domestic and international politics.