As we have previously noted here, the inquiry established by the UK to examine the UK’s involvement in the Iraq War has spent some time taking evidence on the legal justification put forward by the UK for the invasion of Iraq in 2003, as well as on the manner in which legal advice on the issue was formulated and presented. [For EJIL:Talk coverage of events at the Inquiry, see here here here, and here]. The inquiry has now issued an invitation to public international lawyers to make submissions on the legal arguments relied on by the UK. The full text of the inquiry’s invitation is as follows:
The legal basis for the military intervention in Iraq has been the subject of much comment. The Inquiry has heard evidence on this point from a number of witnesses, including Lord Goldsmith the former Attorney General and Sir Michael Wood the former Foreign Office Legal Adviser. Transcripts of such evidence can be found at: http://www.iraqinquiry.org.uk/. In addition, a number of government documents relating to the formulation of the legal advice have been declassified and published on the Inquiry’s website.
The Inquiry is being advised on public international law by Dame Rosalyn Higgins QC. In order further to inform the Committee’s considerations, the Inquiry would be pleased to receive from public international lawyers any legal analysis they may wish to offer of the legal arguments relied upon by the UK government as set out in: the Attorney General’s advice of 7 March 2003; his written answer to a question in the House of Lords on 17 March 2003; and the FCO Memorandum “Iraq: Legal Basis for the Use of Force” of the same date.
The inquiry does not wish to focus on grounds relied on by other states. Respondents are, therefore, invited to comment on the issues of law arising from the grounds on which the government relied for the legal basis for military action, as set out in the substantive elements of the evidence given to the Inquiry and published documents. That might include:
- the legal effect of Operative Paragraphs 1, 4, 11 and 12 of UNSCR 1441;
- the significance of the phrase “consider” in Operative Paragraph 12 of SCR 1441;
- whether by virtue of UN Security Council Resolutions 678, 687 and 1441, the elements were in place for a properly authorised use of force;
- the interpretation and effect of the statements made by the Permanent Members of the Security Council following the unanimous vote on UNSCR 1441;
- the correct approach to the interpretation of Security Council Resolutions;
- Lord Goldsmith’s evidence that the precedent was that a reasonable case was a sufficient lawful basis for taking military action.
I’m not quite sure what to make of this invitation. It has always been my suspicion that the inquiry would consider in its final report the manner in which legal advice was formulated and presented in the lead up to the war but that it would not offer its own conclusions as to the legality of the war. Although the Committee is advised by Dame Rosalyn, a former President of the International Court of Justice, none of its members are lawyers let alone international lawyers. That fact would surely call into question any conclusions the committee might reach on the legality of the war. Indeed the manner in which the part of the inquiry dealing with legal advice was concluded did not suggest that the committee was seeking to form a view on the legality of the war itself. There were no particularly searching questions on this and given the membership one could not have expected that there would be. So a call for submissions from international lawyers is perplexing as it might suggest that the committee does intend to examine the question of the legality of the war. But it is perhaps significant that the committee says it wants analysis of the legal justifications offered by the UK alone. It does not wish to focus on the legal arguments presented by other States. If the committee does intend to reach conclusions on the legality of the war then it would make sense not just to examine the arguments put forward by the UK but also by others. So, this may be a clue that the committee is not, afterall, going to tell us whether it thinks the war was lawful or not but simply tell us whether the UK’s arguments withstand scrutiny and whether the way in which the UK government reached its legal conlusions were appropriate. That may of course amount to the same thing – for example if one comes to the conclusion that the UK’s argument were reasonable and even correct. But if one says the UK’s arguments were not correct but does not comment on other arguments, that would not itself lead to the conclusion that the war was not lawful.
There is one other issue that I find intriguing in the call for submissions. The call asks for views on the interpretation and effect of statements by permanent members of the UN Security Council on the adoption of Res. 1444. Readers may recall from previous EJIL:Talk coverage of the inquiry that when the former Attorney General Lord Goldsmith attended the inquiry he had much to say about meetings with the US and the impression this made on him in considering the meaning of Res. 1444. But I’m surprised that the inquiry seems to think that the intention of just the permanent members of the Council is relevant. Why is there no invitation to consider the intention and views of non-permanent members. I think this takes the distinction between permanent and non-permanent members too far. Whatever role the intention of members of the Council plays in interpreting a Security Council resolution I can see no reason in law for privileging the views of permament members over the others. If the statements of the members of the Council is to play any role at all in interpretation it would be to examine the intention of those who were involved in the adoption of it. In considering intention, it ought to be an examination of all those involved in the process of adoption as only that can shed light on what the Council as a whole thought it was doing. Sure, a resolution must have the support of permanent members but at the same time a resolution cannot pass with just the support of permament members. At least four non-permament members must support it.
One final thing to comes to mind with regard to this invitation. There is a call for expression of views on the correct approach to the interpretation of UN Security Council resolutions. There has been some literature on this since the controversy caused by the Iraq War regarding the interpretation of Res. 678, 687 & 1441. However, the leading article on this matter prior to 2003 (and perhaps still) was an article by one Michael Wood, “The Interpretation of Security Council Resolutions”, (1998) 2 Max Planck Yearbook of United Nations Law 73. Yes that same Michael Wood, later Sir Michael Wood, Legal Adviser to the UK’s Foreign and Commonwealth Office whose advice on the matter was rejected by the UK Attorney General !