Not So Strictly Legal

International lawyers must introspect about how their partisan allegiance clouded their determination of the lawfulness of the 2003 Iraq war.

As some celebrate and others decry the upcoming 10-year anniversary of the March 19, 2003 invasion of Iraq by the United States, the United Kingdom and their Coalition partners, much attention undoubtedly turns to the ongoing Chilcot Iraq Inquiry in London. It is unclear precisely when the Inquiry’s final report will be published, but it is understood that the Inquiry is in the final stages of its deliberations.

The Inquiry has a wide-reaching mandate, and has essentially been tasked with looking at all manner of “lessons learned” related to Iraq. As then Prime Minister Gordon Brown put it in the House of Commons on June 15, 2009 when establishing the Inquiry, it would “consider the period from summer 2001, before military operations began in March 2003, and our subsequent involvement in Iraq right up to the end of July this year.”

Although this mandate does not centrally focus on assessing the lawfulness under international law of the use of force in Iraq in March 2003, the legality question has always hovered in the background, and it continues to do so. Indeed, several days of testimony before the Inquiry were devoted to the issue.

The legality debate, however, if not necessarily pointless, has been, and will ultimately remain, inconclusive, in perpetuity.

Much of the categorical insistence on the part of both sides in this debate has stemmed from a mistaken belief that it is possible, as the Foreign and Commonwealth Office’s legal adviser at the time of the invasion, Sir Michael Wood, contended in his January 26, 2010 testimony before the Inquiry, to “look[] at a text objectively.” While putting aside for the moment the question of whether the interpretation of language, perhaps particularly international legal language, can ever be conducted “objectively,” it is difficult to see how the circumstances of late-2002 and early-2003 allowed anyone, much less international lawyers, to “objectively” apply the international law related to the use of force to the facts of Iraq.

The Attorney General at the time of the invasion, Lord Goldsmith, put forward perhaps the most cogent legal case in favour of the invasion in his March 7 and March 17, 2003 opinions to then Prime Minister Tony Blair. The “revival” argument is by now well-known and need not be repeated here. The important point to note is that it provided, and continues to provide, a plausible legal case that the United Nations Security Council had authorised, to quote article 42 of the Charter of the United Nations, “such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security.” Put differently, the argument here is that the Security Council had authorised the use of force in Iraq as a matter of law. Security Council authorisation of the use of force is one of the two exceptions to the general prohibition on the threat or use of force under international law, the other exception being self-defence, with its intertwined requirements of necessity and proportionality.

The legal case against the invasion of Iraq has also been put forward, including in testimony before the Inquiry. In an opinion piece published in the London Guardian on March 7, 2003, a number of respected international lawyers also made the position clear: “[o]n the basis of the information publicly available, there is no justification under international law for the use of military force against Iraq.” Where Lord Goldsmith had concluded that international law did permit the invasion of Iraq in March 2003, other legal minds concluded otherwise, and they continue to do so.

The point in all of this is to counsel for a degree of modesty in the legality debate, to avoid the vanity of legal certainty, to recognise that, at base, we are all partisans on this issue. As George Orwell wrote in Homage to Catalonia, “consciously or unconsciously everyone writes as a partisan,” and the same can be said for the interpretation of international law, what it requires and what it forbids, who, what, when, where, why and how. The case of Iraq is no different.

Some supported the decision to use force in Iraq in March 2003 and have welcomed the benefits that a new system of democratic governance has brought to all Iraqis, Shia and Sunni, Arab and Kurd alike, and have had at their disposal the language of international law to bolster their case. These supporters of the invasion should equally acknowledge that those of a contrary disposition have also had a plausible legal case. Should they not? How could they not? And how could those of a contrary disposition not also acknowledge that there was a plausible case to be made under international law that supported the decision to use force against Saddam’s police state?

In these discussions of law, of the use of force, of what international lawyers would call the jus ad bellum, rather than straining to “look at a text objectively,” to defer to the “good judgments” of international lawyers, it would be better to recognise the wisdom and realism of a point that Lord Goldsmith made in his testimony before the Inquiry. As he put it, “Which side of the argument would you prefer to be on?”

In international law, as relates to Iraq no less, one’s partisan allegiance becomes one’s legal allegiance. Let all international lawyers at least concede this.

Dr. Robert P. Barnidge, Jr., an international law academic and licensed American attorney, is an honorary visiting fellow at O.P. Jindal Global University and an adjunct fellow at the Foundation for Defense of Democracies.