[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).]
In the past few weeks we have learned, though we have suspected for quite some time, that the Chilcot Inquiry will not be in a position to publish its final, wide-ranging, ‘lessons learned’ report until after the next General Election, in June 2015. Media commentators and numerous Members of Parliament have decried the “scandalous” delays that have plagued publication, blaming at turns the civil service, Tony Blair, and/or the American Administration.
But this drama over publication delay – the latest in the saga of producing an official history of the Iraq War that has played out in the media – is something of a distraction from the real value of the Chilcot Inquiry, at least for scholars and students of international law. I argue that through its process of declassifying previously secret documents, holding public, oral hearings and receiving written testimony, the Inquiry has already informed our understanding of the operation of international law in the justification to use force.
During the course of oral evidence between 2009 and 2011 we heard more international legal debate than ever before, certainly than during the original debates of 2002/2003. We also heard about what I have come to think of as the ‘inner life’ of international law: revelations of back room disagreements – jousting, even – between figures such as Sir Michael Wood, then Senior Legal Adviser at the Foreign & Commonwealth Office and Jack Straw, then Foreign Secretary, over the “vagueness” and consequent interpretive latitude of international law. We also saw the careful, self-conscious production of numerous memos between the Foreign Office, Attorney General’s Office, Ministry of Defence and No 10. And of course memos within those departments, documenting and recording for history the disagreements amongst officials and politicians. In addition we saw how law, evidence and intelligence related to policy demands.
The production and accessibility of this rich textual and testimonial archive has already generated a map for us to navigate how international law and its users – including advisers, government policy-makers, and politicians – actually work. How did people such as Sir Michael Wood conceive of their role as expert authority on the interpretation of the prohibition on the use of force? How did politicians such as Jack Straw or Tony Blair view and use international law as a body of rules to justify their commitment to military action? And how did these politicians and their policy officials interact with in-house experts such as Wood, or his deputy Elizabeth Wilmshurst, not to mention the government’s chief legal adviser, the Attorney General ,Lord Goldsmith?
The rich archive – all available at http://www.iraqinquiry.org.uk/ – fleshes out a detailed map of how international legal rules are navigated, are traced into routes for action or inaction, or demarcate the boundaries of certain policy decisions. This map allows us to traverse beyond the restrictive self-imposed boundaries of strict doctrine or bare textual analysis of the prohibition on the use of force, and instead navigate the extent of international law’s scope, impact on and relationship with domestic and international politics.
As scholars and students of international law we ought not be deterred from engaging with an already rich archive created by the Inquiry simply because there will be yet more delay in the publication of the final report. Indeed, we ought to revel in the exploratory freedom that delay provides: there is yet to be a final word on the Iraq War, evidence is yet to be marshaled to support the drawing of particular conclusions or interpretations. This continued delay is, therefore, a prime opportunity to read and digest the current raw material produced through the inquiry process. Two examples from the oral and documentary evidence illustrate the richness of the existing archive.
Lawyers and International Law
To give a fuller sense of some of the rich detail of the ‘inner life’ of international law the following links detail an extract from Sir Michael Wood’s evidence to the Inquiry:
First off, Wood’s comments are so interesting for a range of reasons which are not necessarily limited to international law. For instance, the comment that Jack Straw was used to pushing the boundaries of law whilst at the Home Office, even when faced with clear legal advice that what he was doing went against existing legal opinion and precedent domestically, tells an intriguing, partial tale of the political relationship to law, to courts and to cases more generally. This tells us something incredibly rich and perhaps disturbing about the way law works, stripping away the mythologised notion of a separation of powers, and making us think more about the institutional deference manifest in courts faced with government policies and actions that run counter to existing law. And that is just an example from the domestic realm.
For scholars and students of international law, Wood’s comments are particularly revealing when we consider the role of a government legal adviser – acting much in the way that Harold Koh and the transnational legal process school might envisage – as a benign (or enlightened) adviser to princes. Wood considers his overriding duty to international law in the absence of a court. Wood expresses a deep commitment to international law precisely because of its horizontal interpretive nature; it is for government legal advisers to demarcate the acceptable boundaries of policy versus international law, providing apparent ‘clear bright lines’ beyond which policy cannot traverse without incurring international illegality.
Not so, according to the government, if instructing Independent Counsel. In a document declassified and released by the Attorney General’s Office dated 13 March 2003 (ie on the eve of formal invasion) the legal secretary to the Attorney General, David Brummell, considered the difficulty with the government’s legal position – in particular highlighting the position vis à vis revival in the absence of a further resolution and therefore on the sole basis of Security Council Resolution 1441 – and advised that the position would have to be bolstered by obtaining formal legal opinion of Christopher Greenwood, David (he meant Daniel) Bethlehem, and Sam Wordsworth – three of the leading international lawyers at the English bar. (Bethlehem was to go on to be Wood’s successor at the FCO.) It seems that faced with intransigence from in-house Counsel, the government wanted to turn to the independence of senior international lawyers who they felt, given their lack of ties to government policy-making, might have been more able to express an opinion, if asked, in support of the government legal position (in the event none of the three were in fact approached to provide a legal opinion).
In these contrasting roles we see the distinction between advisory capacities and advocating positions: Wood was clearly deeply uncomfortable with the prospect of advocating on behalf of government in relation to a legal position he could not support, because he held a special position as expert adviser to government, acutely aware of the need to police the boundary of forceful intervention. Whereas independent Counsel could more freely take on the role of advocate for government as would be taken on for any other client looking for a legal position to support its policy choices.
Interestingly, we also learn from Wood’s evidence that the Attorney General appeared to take on both of these distinct roles at different times: he adopted an advisory role very early, though was careful to avoid documenting this in the immediate run up to war in the Autumn of 2002 (presumably to avoid hamstringing any later need to justify government policy in legal terms); but when war became inevitable, in around February 2003, he moved to advocate’s role, documenting the possible legal justifications that could be made in support of the government’s use of force.
In addition, the disagreement evidenced in the oral testimony between Sir Michael Wood and Jack Straw is particularly enlightening for us if we are to try to interpret an archive that is already self-consciously (re)constructed. We learn from Wood that Straw was careful to document his insistence on the ambiguity of international law and that reasonable difference of opinion could be had on the issue of the using force, even where opinion emanated from the apparent government expert, the Senior Legal Adviser’s office in the FCO. This recording of, and thereby justification of, an opposing legal view is significant from at least two perspectives.
The first is as an articulated understanding of what international law means to a politician in government such as Jack Straw. We learn that there is a high degree of self-awareness as to the power – and latitude – afforded to state actors in international legal doctrine. This self-awareness appears to translate as authority to speak to what international law actually is, or could be as interpreted by such a state actor. In a sense, this gives a behind-the-scenes affirmation of what scholars and students of international law already superficially recognize as ‘custom’ formation. Here, we learn that state actors know the force they command over international law, even in an area that is apparently so black and white: the prohibition on the use of force.
Secondly, we see the self-conscious fashioning of an archive; the production of official documentation that will, it is known by its author(s), represent government decision-making once it is categorized into the various filing systems of the National Archives (filed under ‘Iraq War’ within the FCO Ministerial and Legal Adviser’s records as sender and recipient respectively).