MISHCON LECTURE 2005
PROFESSOR PHILIPPE SANDS QCUniversity College London and Matrix Chambers
LAWLESS WORLD: INTERNATIONAL LAW AFTER 9/11 AND IRAQ1. My Lord Mishcon, My Lord Chairman, Ladies and Gentlemen, I feel greatly privileged to have been invited to speak this evening on the subject of international law after 9/11 and Iraq. Not long ago the subject of international law remained in the margins. It would not have been an area of law which would have detained Lord Mishcon in his day-to-say practise, although I do know he has long had an interest in the subject, and has made his own very distinct contribution, in the treaty on peace between Israel and Jordan which was signed in the early 1990’s. That treaty was binding in international law, and it is the system of rules of international law that I shall address this evening.
2. When I was invited to give this year’s Mishcon lecture, last October, I doubt that those who chose to invite me could have imagined that the run up to last week’s General Election would be defined by arcane issues of international law: did the authorisation to use force against Iraq under Security Council resolution 678 of 1991 “revive” in March 2003? Was the British Prime Minister entitled to determine that Iraq was in material breach of its Security Council obligations? Did the Prime Minister mislead the Cabinet and Parliament by failing to make available the Attorney-General’s legal advice of 7 March 2003?
. For many, the defining and iconic moment in the recent election may well be the eloquent concession speech given by Reg Keys, whose son was killed on active duty in Iraq. With the Prime Minister standing directly behind him, Mr Keys explained what had caused him to engage in active politics:
“If the war has been justified by international law, I would have grieved and not campaigned; if weapons of mass destruction had been found in Iraq, I would have grieved and not campaigned.”
4. Who would have imagined that The Guardian newspaper would send a reporter off to Fishpool Street in St Albans to enquire of each resident whether the publication of the Attorney General’s advice would affect his or her vote? Or that the Mail on Sunday – which I am pleased to see has rediscovered with relish its commitment to exposing international illegality – would commission and then publish opinion polls on the legality of the war and the public’s views as to the likely reasons for the Attorney General’s apparent change of mind?
5. Yet it now seems clear that Iraq and issues of legality – both the substance and the circumstances in which advice was given – did have a significant impact on the outcome of the election. Not necessarily because of a great attachment to the legal issues themselves, but because of the manner in which political and legal issues became interwoven with the question of integrity and trust.
6. How did this come about? No doubt the full story will take time to emerge. There will be twists and turns. Surprises will emerge. Final judgment will have to be suspended. What we do know is that Iraq and international law became an issue because of an unlikely conjunction of circumstances and individuals: the election of an American President with an abiding scepticism of global rules; the extraordinary and awful events of September 11 2001 in New York and Washington; the supposed “special relationship” between the United States and Britain; and, in this country, the replacement of Cabinet Government with anew quasi-presidential form of decision-making. And the consequences of all this? Is the international legal order weakened or strengthened? I will come to that by way of conclusion.
7. Before I do so, like every story this one needs some background. In this case it begins in August 1941, on a warship off the coast of Newfoundland, at a meeting between US President Franklin Delano Roosevelt and British Prime Minister Winston Churchill. It is a time of great challenge for Britain and the United States, yet these two men decide that what they need to do is draw up a blueprint for the new international order once the Nazis have been vanquished. What is needed is a new rules-based system, to replace the then-existing arrangements that allowed a state do whatever was not expressly prohibited by international law. And since not much was prohibited, there was a great deal states could do. They could wage war without restriction. They could commit genocide against their own populations. They could torture detainees. That was the world of the 1930’s.
8. Roosevelt and Churchill set out to change that. They drafted a one page document – the Atlantic Charter – by which they intended to make known, as they put it, “certain common principles in the national policies of their respective countries on which they base their hopes for a better future for the world”.1 The Atlantic Charter was short and visionary and identified eight principles, revolving around three key pillars reflected in the UN Charter: a general obligation on states to refrain from the use of force, except in self-defence or where the UN Security Council or a regional body has authorised them to use force; a commitment to human rights, to maintain the ‘inherent dignity’ and the ‘equal and inalienable rights’ of all members of the human family; and an undertaking to promote economic liberalisation through the adoption of free trade rules and related international obligations in the fields of foreign investment and intellectual property.
9. These are the three pillars that have remained in place for the last sixty years. Overarching them was a commitment to the international rule of law. Roosevelt 1 14 August 1941, reproduced in Lawless World (Allen Lane, 2005), p. 240. and Churchill committed themselves to recasting the eight principles of the Atlantic Charter into binding legal instruments. And this they did, with later assistance from Truman and Attlee. In a remarkable period between 1941 and 1949 the modern system of international law was put in place through a series of far-reaching treaties which have now received very broad acceptance. In the spring of 1945 fifty-one states agreed on the creation of the United Nations at San Francisco, crystallising in law the modern rules governing the use of force and promoting human rights. That was followed by the UN General Assembly’s Universal Declaration of Human Rights - Eleanor Roosevelt’s baby - which in turn led to the covenants on civil and political rights and on economic and social rights, to regional treaties like the European Convention on Human Rights, and to the Human Right Act 1998, a singular achievement of the Prime Minister’s first government.
10. The day after the Universal Declaration was adopted, the General Assembly agreed on the world’s first human rights treaty, the 1948 Convention on the prohibition of genocide. It was followed by other specialised human rights treaties, such as the 1984 Torture Convention, which obliged its parties to prosecute or extradite torturers and which did away with Senator Pinochet’s right to claim immunity before the English courts (also in 1998, it turns out that was a big year for international law). By then also the Allies had agreed on other new rules to stop individuals doing nasty things in the name of the state: the Statute of the Nuremburg Military Tribunal gave birth to a new field of international criminal law. This would eventually lead to the Yugoslav and Rwanda tribunals and then (also in 1998) to the Rome Statute of the International Criminal Court. And in the same post-war period, the US and Britain led international efforts to negotiate the four Geneva Conventions on the law of armed conflict, including Geneva Convention 3 on the treatment of prisoners of war. This is the same instrument that was to become the centre of so much attention in relation to events at Guantanamo, Afghanistan and Abu Ghraib.
11. Developments in international law were no less far-reaching in the economic field: the Bretton Woods Agreement created the World Bank and the International Monetary Fund, in 1944. And in 1948 agreement was reached on the General Agreement on Tariffs and Trade – the GATT – the world’s first global free trade rules and the parent of today’s World Trade organisation, the WTO.
12. By any standard, these were remarkable achievements in a very short period of time.
13. The new rules-based system initiated by the Atlantic Charter was not altruism at play. It reflected a view that international rules would promote Anglo-American interests, serve as a bulwark against the Soviet model, and emphasise values to be marshalled against Nazi and fascist threats. But the simple point is that international rules were seen as creating opportunities, not imposing constraints. The Atlantic Charter had an immediate and far-reaching impact. Writing in his autobiography, Nelson Mandela describes the Atlantic Charter as reaffirming his faith in human dignity: “some in the west saw the Charter as empty promises”, he wrote, “but not those of us in Africa. Inspired by the Atlantic Charter and the fight of the Allies against tyranny and aggression, the ANC created its own charter … which called for full citizenship for all Africans, the right to buy land and the repeal of all discriminating legislation.”
14. Over the next 60 years the principles set forth in the Atlantic Charter defined a new international order. A great number of international agreements have been adopted since then, touching on issues that affect ach and every one of us very directly. Trade. Investment. Commerce. Air transport. Oceans. Boundaries. Human rights. The great majority of these rules are not controversial. They work efficiently and well. They establish the minimum standards necessary for cooperation in an increasingly interdependent world. The emergence of this great body of rules reflects a silent global revolution, and most people are blissfully unaware quite how much international law there is. This does raise serious issues about accountability and legitimacy in international law-making – it is a matter of real concern that in this country treaties are generally not debated by Parliament, unless they address an issue of EC law. By all accounts there was no parliamentary debate about the WTO agreements. But that is for another time, and not this evening.
15. Nor would I wish to leave you with the impression that I am starry-eyed about international rules, to suggest that global rules can sort out all the wrongs of the world. Plainly they cannot. Events over the last sixty years demonstrate that. There are a great number of rules which require attention.
16. And certainly the world has changed greatly in the period since the UN was created. The number of states has grown from around 50 to around 200, a result of decolonisation. The range of issues requiring international cooperation – and hence international legislation – has also grown, to include issues like the environment, tourism and consumer safety. New international actors have emerged: the monopoly of states has diminished and international organisations, NGOs, corporations, individuals are demanding a role in ways that presents profound challenges for an international legal order constructed on the assumption that the global order revolved around states alone. Failed states, peripatetic travellers, permeable national borders, malign non-governmental actors like Al Qaeda and other terrorist groups, and the proliferation of weapons of mass destruction are but some of the issues that pose very real challenges to the established international legal order. Do they require us to revisit the basis of the post World War 2 legal settlement? President Bush has made the argument, so has the Prime Minister, most recently at a speech he gave in Sedgefield in march 2004, which some have seen as an endorsement of Bush’s call for a right to preemptive strike.
17. Are the existing rules adequate? That question has been asked with increasing frequency since 9/11. It is said by some that the international legal order is no longer up to the task it was designed to address in the period after WW2, in the face of current challenges. It is said that the rules governing terrorism, wars and rogue states are inadequate. And it is said that the international rules threaten American security and sovereignty.
18. To be sure, those who make this claim most frequently and loudly are often associated with the neo-conservative elements that dominated the agenda of George W. Bush’s first Administration. In the months before 9/11 it was clear that the Bush Administration was committed to remaking the international rules, to limiting or killing off the rules that were seen to be too constraining. Many members of this group had been in office in the first Bush Presidency, and they regrouped during the Clinton Administration. Plans were set out in various manifestos. I commend to you in particular the Statement of Principles of the Project for a New American Century, to get a flavour of what was being proposed in the late 1990s (although you may also want to take a look at www.bushcountry.org). Tapping on a rich vein of American exceptionalism, the key targets include international law and the rules which had allowed the detention of Senator Pinochet, the Statute of the new International Criminal Court, the Kyoto Protocol on global warming (1997), and various arms control treaties. Each of these treaties would, it was argued, constrain America, undermine sovereignty, and threaten US national security.
19. Within weeks of taking office in January 2001 President Bush had set a new agenda: Kyoto and the ICC statute was “unsigned”, a protocol on biological weapons scuppered, and a new policy of ‘a la carte multilateralism’ put in place: you pick and choose the bits of international law you like and get rid of the rest. John Bolton was appointed as one of President Bush’s senior foreign policy advisers as Under Secretary for Arms Control and International Security at the US Department of State. He would oversee Iran’s compliance with its nuclear obligations under the Non Proliferation Treaty. This is the same John Bolton who had, a little earlier, declared that treaties were only political and “not legally binding”. And very early on a small group of neo-con lawyers were parachuted into key positions at the US Justice Department and the Pentagon. Although their views were not widely shared, particularly among career civil servants and the military, they would come to dominate decision-making.
20. The point I make is a simple one: even before 9/11 the conditions were in place for an assault on Roosevelt’s vision of international order based on new rules. From this perspective, 9/11 presented a terrific opportunity to promote the “antiinternational law” project. Little time was lost. Within days of the attacks on the World Trade Centre and the Pentagon lawyers in the Bush administration had been charged with putting in place the new legal rules which were necessary to prosecute the response. On the key legal issues there was no consultation with allies, not even Britain.
21. An early decision was taken to characterise the response to Al-Qaeda and international terrorism as a “war on terrorism”. This had the effect of taking it outside the scope of the ordinary criminal law and into the rules of armed conflict. But these rules placed limits on what you could do to detainees. POWs could not be questioned. Acting unilaterally in a manner that was wholly inconsistent with the requirements of the Geneva Conventions, the Administration determined that individual detainees would be placed outside the constraints of the law. The Guantanamo detention facility on land leased from Cuba was chosen because Administration lawyers had advised that it’s location outside US territory would provide a means of redress under US constitutional law and international law. Guantanamo was created as a “legal black hole”, as the English Court of Appeal later described it.
22. It is striking that those lawyers in the Administration who conjured up this scheme were conscious that international rules placed constraints on what could be done, not least in relation to conditions of detention and interrogation. The legal advices that have come into the public domain recognise the existence of the international rules but not their well-established consequences. The country that had done more than any other to put in place a new rules-based system was using 9/11 to ditch some of those rules. International law was now part of the problem, not the solution. 2002 was not a good year for international law, although quite how bad it was did not become clear until much later, when the legal advice started leaking out into the public domain.
23. The neo-con lawyers who ventured to speak publicly did not pull their punches. White House General Counsel Alberto Gonzales determined that the Geneva Convention on the treatment of POWs simply did not apply to Al-Qaeda or Taliban because their members were unlawful combatants. The ICRC – guardian of the rules – has consistently refused to accept this claim. The Administration’s view is novel and ditches past US practice, generating a sharp response from US military lawyers who saw straight away that abandoning the rules would leave the US military highly exposed. The new US view was based on the belief that international terrorism had created a new paradigm. Gonzales famously declared that this new paradigm “renders obsolete Geneva’s strict limitations on questioning of enemy prisoners and renders quaint some of its provisions”.2 Over at the Justice Depoartment, Jay Bybee, a political appointee as Assistant Attorney General, was asked to advise on the standards of conduct required by the 1984 Convention against Torture, as implemented by US federal law. His memorandum of 1 October 2002 is probably the very worst piece of legal advice (if it can be called that) that I have ever seen. It was apparently prompted by CIA questions about what to do with captives alleged to be top-ranking al-Qaeda terrorists who had turned “uncooperative”. Dispensing with all known canons of treaty interpretation, Mr. Bybee concluded that the concept of “torture” covers only the most extreme acts, limited to severe pain which is difficult for the victim to endure: “Where the pain is physical”, he writes in his legal memorandum, it must 2 Ibid., p. 154.
be of an intensity akin to that which accompanies serious physical injury such as death or organ failure”. Anything less will not be torture. It is therefore allowed. Where the pain is mental, then it “requires suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stress disorder”.3 There is no support whatsoever in international law for such an interpretation. John Yoo was a US Deputy Assistant Attorney General to Attorney General John Ashcroft, charged with advising on the effect of rules such as the Geneva Conventions, the 1984 Convention prohibiting torture, and the ICC Statute. He could not have been clearer in May 2002: “What the Administration is trying to do is create a new legal regime”.4
24. Indeed. But it was doing so unilaterally, without consultation, and without regard to what the treaties required. It goes against the very essence of the collective, rules-based arrangements that the US and Britain wanted to put in place in the 1940’s. The period between 9/11 and the summer of 2004 will, I expect, come to be seen as a low-point for America’s engagement with international law. Within the US the media went to sleep, so did the Democrats, so did most international lawyers. Anyone who was willing to speak out could not find a platform. Anyone within Government – and there were many – who tried to speak up for the established rules was overridden. The argument that the rules served American interests got short shrift.
25. The tide only began to turn in the spring of 2004, after a diligent group of journalists uncovered pictures of abuse at Abu Ghraib. With those discoveries there emerged into daylight a series of legal opinions – including the Bybee memorandum – which showed how far some of the lawyers in the Administration –at the very highest levels – were willing to go to override US and international rules. A quiescent Congress began a series of hearings, grilling Paul Wolfowitz, who after much dissembling accepted that putting a bag over someone’s head for
3 Ibid., p. 213.
4 Ibid., p. 153.
72 hours was not humane. And later on that summer the US Supreme Court stepped in to open the door to legal rights for the detainees at Guantanamo. Gunatanamo Bay was, wrote Justice Scalia, “a foolish place to have housed alien wartime detainees”.
26. By the autumn of 2004 it had become apparent that ignoring international law was not a cost-free exercise. US authority had been undermined. Other States were beginning to rely on US arguments. Is the damage irreversible?
27. Allow me to park that question for a moment, and say something about the effect on this country of American thinking on international law. In a certain sense there is a direct line linking the new American approach to international law and Reg Keys speech at Sedgfield last week. I say this because it now appears that it was American legal arguments that helped to convince the Attorney General to conclude that a reasonable case could be made to proceed to war in Iraq without an explicit resolution by the Security Council.
28. Whereas the United States media was largely silent about international legal issues in the period between 9/11 and the summer of 2004, the British media had given a great deal of attention to international law issues. As early as January 2002 – as soon as it was known that a number of the Guantanamo detainees were British nationals – media attention focused on the interplay of rights under the Geneva Conventions and human rights law. Further attention was generated by the Abbassi case brought by some of the British detainees to the English courts, challenging the failure of the British Government to take sufficient steps to ensure that the US respected the detainees’ rights under international law. The English Court of Appeal rejected the Government’s argument that these issues were not justiciable. Although the Court was not willing to order the British Government to take any particular steps, its invocation of international law and criticism of the US actions were direct and unambiguous:
“What appears to us objectionable is that Mr Abbassi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal.”5
29. The Court concluded that Mr Abbassi was being detained arbitrarily in a ‘legal black hole’ in breach of fundamental human rights and basic principles recognised in English law and international law. The judgment added to political pressure. It reaffirmed the central importance of international law. And it gave a green light to those who considered that the British Government should be held to account by reference to the very standards of international law which it had done so much to put in place. Two years later, of course, the House of Lords gave judgment on the Government’s derogation from the Human Rights Act, adopted shortly after 9/11. The UK was the only one of 44 Council of Europe members to enter a derogation, a matter for which it has been criticised in some quarters. But at least it did so, unlike the US which simply ignored the requirement of the Inter- American Convention on Human Rights and the ICCPR in relation to Guantanamo and did not bother putting in a derogation. In the Belmarsh case the Law Lords relied on a number of principles of international law in ruling that the indefinite detention without charge of non-UK nationals at Belmarsh was discriminatory and unlawful.
30. The judicial decision in the Guantanamo and Belmarsh cases signalled the courts’ commitment to ensure that Britain respected its international obligations. They also reflected a rejection of the Al Qaeda and 9/11 had given rise to a new paradigm. And they indicated a high level of interest by the media in international law issues. Even as political debate was raging over the treatment of detainees at Guantanamo and Belmarsh, the Prime Minister was grappling with the hurdles 5 Sands, p.166.
13 that international law had put before his objective of removing Saddam Hussein from power. A great deal of material is now in the public domain. No doubt more will come. The picture that emerges indicates that from the earliest days after 9/11, the planning for the war was focused on the very issues of international law that became so central in the closing days of the election campaign. Interest in the international law issues was not, however, universal. Elements across the political spectrum joined in declaiming the chattering classes obsession with the niceties of international law. An editorial in the Sunday Telegraph did not mince words: “the ‘legality’ or otherwise of the war is a non-subject … the whole of issue ‘international legality’ is a giant irrelevance”.6 And at the other end of the spectrum, in the Observer, David Aaronovitch in a commendable critique of my book Lawless World argued that I was focusing on the wrong question: “We should not ask whether the Iraq invasion was ‘legal’ – we should ask whether it was ‘good’”.7 What is clear is that issues of legality in relation to Iraq have catalysed a debate on the proper function of international law. That cannot be a bad thing.
31. The British Government did not adopt the position that international law was irrelevant in deciding whether to go to war. In the US, the general view was that if war was legal under the US Constitution then that was good enough. “International law? … I don’t know what you’re talking about by international law”, President Bush said in December 2003. From the earliest days, however, the British Prime Minister was plainly concerned to ensure that any actions taken against Iraq would have to be consistent with the United Kingdom’s international obligations.
32. It is now clear that as early as March 2002 the Prime Minister had committed himself to support President Bush’s military adventure. On the 18th of that month Sir David Manning, Blair’s foreign policy adviser, had written to the Prime 6 Sands p.180. 7 The Observer, 6 March 2005; http://www.guardian.co.uk/Columnists/Column/0,5673,1431571,00.html
Minister confirming that he had told Condoleeza Rice: “you would not budge in your support for regime change”. The minute of a key meeting chaired by the Prime Minister on 23 July 2002 – published for the first time in full by the Sunday Times two weeks ago - reports the PM as saying: “If the political context were right, people would support regime change.”8 The document will make it difficult to counter the claim that regime change was the object.
33. However, the meeting of 23 July 2002 was told by the Attorney General that “the desire for regime change was not a legal base for military action”. He added that self-defence and humanitarian intervention – the use of force to stop a massive and systematic violation of fundamental rights – “could not be the base in this case”.9 On established principles of international law that left just one possible option: to argue that war was authorised by the UN Security Council. The minute recording the July 2002 meeting concluded with the following statement: “We must not ignore the legal issues […]”. And it added: “the Attorney-General would consider legal advice with FCO/MOD legal advisers.” That was July 2002. The process of consideration took nearly nine months, with many twists and turns. 34. The impending legal difficulties had already been spotted: amongst the papers before the participants at the meeting on 23 July 2002 – who included the Defence Secretary, Foreign Secretary, Attorney-General, Sally Morgan and Alastair Campbell – was a legal memorandum which had been prepared by the Foreign Office lawyers three months earlier, in March 2002. This identified the one possible justification in international law for using force against Iraq. In January 1991 Security Council Resolution 678 had authorised the use of force against Saddam, to get his forces out of Kuwait. A few weeks later, with that objective achieved, resolution 687 suspended the authorisation to use force, and the SC imposed a cease-fire. By Resolution 687 the SC also imposed on Iraq an obligation to disarm. The Foreign Office memorandum of March 2002 raised the
8 Memorandum from Matthew Rycroft to David Manning, 23 July 2002, reproduced in the Sunday Times on 1 May 2005: http://www.timesonline.co.uk/article/0,,2087-1593607,00.html 9 Ibid. possibility that the authorisation to use force under resolution 678 could “revive” if Saddam’s Iraq was determined to be in material breach of its disarmament obligations under resolution 687. Assuming the authorisation to use force could “revive”, the key question was: who decides that Iraq is in material breach so as to allow the original authorisation to revive? Is material breach to be determined by the Security Council? Or, if the Council fails to act, or chooses not to act, can one or more States determine the existence of a material breach by Iraq? The question goes to the heart of the international legal order: is decision-making collective, or can states act unilaterally?
35. The Foreign Office memorandum was crystal clear in its conclusion: “In the UK’s view … it is for the Council to assess whether any such breach of [the SC] obligations has occurred”. And it went on: “The US has a rather different view: they maintain that assessment of breach is for individual member States. We are not aware of any other state which supports this view.”
36. Against that background, in November 2002 the Security Council adopted the now famous resolution 1441. This gave Saddam Hussein a final opportunity to meet his disarmament obligations under resolution 687. It sent the UN inspectors back to Iraq, under the direction of Hans Blix. But it left open the question of what precisely would happen once Mr Blix had reported. There were two views. On one view – adhered to by the great majority of States - a further Security Council resolution would be required to determine that Saddam was in further material breach of his obligations under 1441 and to authorise force. On another view – the minority view - the Security Council was only required to discuss the issue, so that UN members would be free to decide for themselves whether a material breach had occurred so as to justify the use of force.
37. Even after 1441 the Foreign Office lawyers agreed that a second and explicit SC resolution was needed. 1441 was not enough. The Foreign Secretary, Jack Straw, disagreed. The matter went to the Attorney General. For reasons that are not clear, he did not give the Prime Minister his advice until 7 March 2003, even though the Ministerial Code of Conduct requires that the AG be consulted “in good time before the Government is committed to critical decisions involving legal considerations”. Why the advice was left it so late is not known, although some suspect that the Prime Minister would have known that early advice may not have been entirely helpful. In any event, the passage of time allowed the Attorney to make an important trip to Washington, in February 2003, to ascertain the views of that country’s legal advisers. The fact that such a trip was made is interesting. I have been asked whether he also made trips to Beijing or Moscow or Paris, and if not why not. In any event, the trip to the US seems to have had a certain effect. The advice of 7 March makes a number of reference to the views of the US Administration, and also to “the strength and sincerity” of those views. On the crucial issue – whether resolution 1441 can revive the authorisation in 678 without a further resolution – the Attorney accepts that reasonable case can be made “having regard to … the arguments of the US Administration which I heard in Washington”.
38. The advice of 7 March is the only formal written advice produced by the Attorney General. It runs to 13 pages. It was sent to the Prime Minister, and then passed on to the Foreign Secretary and Defence Secretary. It was not shown to the Cabinet. That too is curious, and apparently inconsistent with the Ministerial Code of Conduct. What the Cabinet was given instead – on the morning of 17 March 2003, just 3 days before the war began - was a much shorter document of just 337 words. That is the document that was published later that same day by the Attorney General as an answer to a parliamentary question.
39. It is the differences between the two documents – the advice of 7 March and the answer to the parliamentary question of 17 March – that raise serious questions, questions which have not yet been answered
40. The 7 March advice was highly equivocal. It accepts that in principle the authorisation to use force under 678 could revive, but concludes that a lawful war without explicit Security Council authorisation would be no more than “reasonably arguable”. And that “reasonably arguable” case would only be sustainable “if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity”. The advice is certainly not a green light for war: as the Attorney put it “a ‘reasonable case’ does not mean that if the matter ever came before a court I would be confident that the court would agree with the view”. Those words speak very powerfully.
41. I do not share even that equivocal conclusion, and I do not know of many outside the US who do. I have always thought that the war was illegal. Resolution 678 was limited to removing Saddam’s forces from Kuwait. It was never considered to be a basis for his overthrow. That was the view of Colin Powell and John Major. Putting it at its simplest, the dominant view amongst States and international lawyers is that since the ceasefire was adopted by the Security Council then it must be for the Security Council to bring the ceasefire to an end. It is a view with which the Attorney appears (in an introductory part of his 7 March advice) to agree: adopting the language of the Foreign Office he says early on his advice that “I am not aware of any other state” which supports the US view that the assessment of an Iraqi breach is a matter for individual states. Yet later, in his summary, he appears to reach a different view, through a process of reasoning which seems to be not entirely clear. The conclusion is problematic, not least because it seems to signal the death of collective security and will make Security Council members far more wary in the future. I find it difficult to imagine that the Attorney would necessarily have come to the same conclusion if he had been asked a different question: could Turkey or Iran decide that on their own that Saddam was in breach of his obligations and then decide unilaterally to use force?
42. But even if I disagree even with so equivocal a conclusion, I accept entirely that the 7 March advice is a careful, balanced and reasonable document. It sets out the issues in a proper and fair way and considers the arguments for and against. It reaches a plausible conclusion to the question: what is the best possible argument you can come up with to justify the war in law?
43. That said, I can quite see why the military would have taken a look at the 7 March advice and concluded that it was not a sufficient basis for war. Presumably that is the reason why the document was not shown to Cabinet, or to Parliament. And why the Government did not want the document to be put into the public domain, even if it knew that the claim to confidentiality or privilege was weak (if it existed at all) in the face of overwhelming public interest in publication. The Prime Minister knew that it would obtain the same reaction as that of Sir Michael Boyce.
44. Following the military’s apparent rejection of the equivocal advice, a new document was prepared. The catalytic event seems to have been a meeting on 13 March at 10 Downing Street between the Attorney and Lord Falconer and Baroness Morgan, neither of whom had responsibilities for the obtaining of government legal advice. Four days later a clear and unequivocal document supporting the legality of the war miraculously appeared before the Cabinet. The second document cannot be said to be a summary of the first. An ambiguous and equivocal 13 page advice became an unambiguous and clear one page “view” in favour of legality without further SC resolution and without reservation. How did that happen?
45. The two documents merit careful comparison. On 17 March the Attorney unequivocally tells the cabinet and the House of Lords that “A material breach of Resolution 687 revives the authority to use force under Resolution 678”. No hesitation there. But just ten days earlier the Attorney was unable to go beyond arguing that a “reasonable case” could be made that resolution 1441 could “in principle” revive the authorisation to attack Iraq. For any Minister to say – as has been said at the very highest levels of government – that this does not amount to a change of view takes us into Orwellian territory. There was a change of view. The crucial question is: why did it occur? On the answer to that question hinges the reputations of the Attorney General and the Prime Minister.
46. There are three possible reasons for a change of view. It could be because the views on the law had become that much clearer, or because some new fact emerged, or because of extraneous pressures.
47. No new legal argument emerged in the 10 day period. It is established that the legal issues addressed by the Attorney had been fully aired a year earlier, by the Foreign Office legal advisers. No lawyer I have spoken with in the past few days believes it likely that the reservations of 7 March could all simply disappear to reveal a final view of so high a degree of certainty.
48. What possible new fact might have emerged? In Parliament last month the Foreign Secretary argued that the crucial new fact was the collapse of the negotiations for a second resolution. This is a bootstraps argument of stunning audacity: it says, in effect, that a second resolution was not needed because it could not be obtained. Happily that argument has not been revived.
49. A second possible new fact is the emergence of new evidence on WMD that would allow the government to conclude unequivocally that Iraq was not complying with its obligations under 1441 or cooperating with the UN weapons inspectors. On this issue the change as between the two documents is very great indeed. Not surprisingly it has been the subject of considerable attention. In his 17 March answer the Attorney says that it is “plain” that Iraq has failed to comply. But just ten days earlier he had cautioned the Prime Minister “to consider very carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling”. This seems to suggest that the Attorney did not consider that the material then available was “sufficiently compelling”. Yet on the 15th March the Prime Minister wrote to the Attorney: “it is indeed the Prime Minister’s unequivocal view that Iraq is in further material breach of its obligations”. No supporting evidence was provided.
50. What new evidence emerged between 7 and 17 March? As far as we know there was none which could support the case for war. To the contrary. Coincidentally, also on 7 March Hans Blix provided his third and final report, to the effect that although Iraqi cooperation was not complete it was accelerating. In his 7 March advice the Attorney rightly describes Mr Blix’s views as “highly significant”, yet it seems that those views were not given proper (if any) weight by the Prime Minister. Mr Blix told us last week that it could not be said that the evidence of Iraqi non-compliance was “compelling”, even if it existed at all. And we know from the Butler Report – which was highly critical on the point – that the Joint Intelligence Committee was not asked by the Prime Minister to provide a further assessment of Iraqi WMD or cooperation after 18 December 2002. On 15 April 2003 the Prime Minister certified that Iraq was in material breach of its WMD obligations. It would be helpful if the PM could explain on what basis he came to that conclusion.
51. The Attorney himself has identified a further - third - possible new fact, after the summary of his 7 March advice was leaked, a week before the election. He said that the military and the civil service “needed me to express a clear and simple view whether military action was lawful or not”. Faced with this request the Attorney could have declined to go any further. It would have been entirely proper for him to respond by saying that the issues raised were, from his perspective, complex and not capable of being refined by stripping out the essential caveats. Hence his thirteen page advice. Yet he chose another route.
52. It is this second document which has raised so many questions. In my view the public is entitled to know the full story about the chain of events which occurred between 7 and 17 March. The parliamentary answer was not legal advice, at least in the usual sense. It has the appearance of being an instrument of persuasion, in the same category as the dossiers on weapons of mass destruction. Without a proper explanation the answer to the Parliamentary question is bound to be seen as misleading, in the sense that it aimed to create the impression that war was clearly and unambiguously lawful.
53. So why does all this matter, and where does it leave us and international law, for now and for the future? It is time to move on, many will say.
54. The events of the last three years matter, first and foremost, because they have significant consequences for international governance. We live in a complex, interdependent world in which social, political, economic and religious values and interests collide with increasing frequency over an ever greater set of issues. International law sets minimum standards of behaviour. Outside of bullying and force it is all we have to provide a framework for resolving those differences. Without international law we are back to the law of the jungle, the very world which Roosevelt and Churchill committed to change when they met off the coast of Newfoundland in August 1941. I want Britain and the US batting for international law, not against it.
55. There will be occasions where the international rules are wholly inadequate, occasions when States may justifiably feel the need to dispense with the rules and go it alone. 9/11 and the threat posed by Al Qaeda is not, for the time being at least, such an occasion. Nor was the situation in Iraq in March 2003 such an occasion. The rules set forth in the Geneva Convention, in human rights treaties and in the UN Charter in relation to the use of force did not need the treatment they have received.
56. It is dangerous indeed to begin to imagine a system of international governance in which some States – the large and powerful ones - feel that they can you pick and choose the international rules they like and discard those which they don’t. Yet that has been the approach adopted by the Bush Administration, reflected in the notion of a la carte multilateralism. And it is an approach for which the British Government has provided some support, maintaining a public silence on the excesses of Guantanamo and buying into a legal argument for war in Iraq which was denuded of any international support.
57. The approach degrades international law, and it makes it more difficult to rely on rules when others violate them. If you begin to tinker unilaterally with the international rules you don’t like – on human rights, on the Geneva Conventions, on the use of force – then others may be begin to tinker with the rules they don’t like – on trade, on intellectual property, on the rights of foreign investors. If you send out a message that you consider the rules to be obsolete and incapable of meeting new paradigms, you prevent yourself from challenging others who then act in the same way. That is a serious problem right now many areas, for example nuclear proliferation. Imagine how easy it is for those in Teheran to respond to allegations from the US and Britain that they are not complying with the requirements of the NPT.
58. The British and American Governments would do well to bear in mind the words of George Kennan, the great American diplomat (and not known for a strong attachment to international rules), in his famous telegram from Moscow in 1947, anonymously signed X. He ended his warning of the Soviet threat with these words: “[W]e must have courage and self-confidence to cling to our own methods and conceptions of human society. [T]he greatest danger that can befall us in coping with this problem of Soviet communism, is that we shall allow ourselves to become like those with whom we are coping.”
59. Recent events matter for a second reason, governance at the national level. No doubt the full story is yet to emerge about the circumstances in which the legal advice on Iraq came late, and then given, and then replaced by a new view is yet to be told. But there is enough out there now to raise serious questions about the manner in which the Prime Minister went about obtaining legal advice on the use of force and then presenting it to his colleagues in Cabinet.
60. After last week’s election, the Prime Minister has urged that a line be drawn on the issue of Iraq, that the time has come on for all of us to move on. At one level he is right. The issue has been hugely divisive. There remain many challenges in post-conflict Iraq, irrespective of the rights or wrongs of what has happened in the run up to March 2003. But Iraq was not a minor matter. It was a war in which tens of thousands of people died for an outcome which remains, to put it at its most generous, of uncertain consequence against a background of decisions taken in Washington and London on the basis dubious intelligence and legal reasoning. I find it difficult not to share the sentiment expressed by Robin Cook in The Guardian last Saturday:
“The reason why Iraq remains a livid wound .. is that there has been no catharsis to close the account on an unpopular war based on false intelligence and lunched with doubtful legality. No one who shared in the decisions ever took responsibility by resigning and some were even promoted […] It is difficult to understand what government figures mean when they say that we must listen to the message of the election if yet again there is no practical consequence to the verdict of the voters on Iraq.”
61. The Prime Minister has not taken any practical steps to help people move on. Important questions remain unanswered. Maybe there are good explanations of which we are unaware. In the meantime the principal architects of an illegal war – including the Prime Minister, the Foreign Secretary and the Attorney General – remain in precisely the same posts they occupied during those crucial 10 days in March 2003.
62. With that state of affairs it is a little fanciful to hope that everyone can move on. The issues are bound to persist. Little surprise that there will be calls for enquiries, or that there will be renewed efforts at impeachment, or that there will be complaints to the Bar Council. Little surprise that there will be legal proceedings before the English courts initiated on behalf of the families of servicemen who have lost their lives. And little surprise if, at some point in the future, those most directly responsible for waging the war find themselves subject to Pinochet-style proceedings in foreign lands as they go about their travels, well after they are out of office.
63. That some of these scenarios is possible as a feature of modern international life, reflects the effectiveness and success of the rules that Britain and America put in place in the 1940’s. We now have a system of international rules, and breaking them has consequences, domestically and internationally.
64. This brings me to my concluding remarks. It may be thought, listening to me this evening, that you might divine that I would be pessimistic about what is to come, and the future of international law. But I do not feel that way. Why not? Because the rules of international law which have been the subject of so unremitting an assault in the aftermath of 9/11 have shown themselves to be remarkably robust. They have not crumbled or been washed away. They have their detractors, but in far larger numbers they have their supporters.
65. In the US, there remains much which is of serious concern. But it is striking that the Bush Administration has not succeeded in killing off Kyoto or the ICC, or rewriting the Geneva Conventions or the Torture Convention, or building any sort of consensus to support its revised approach to the international rules governing the use of force. Quite the contrary. There are signs that the Bush Administration is rethinking its strategies and its policies. Last month it reversed position and dropped its outright opposition to the ICC, deciding not to veto a Security Council resolution referring the situation in Darfur to the ICC. And privately, a number of senior Administration officials have recognised that the Administration may have made serious mistakes in its so-called “war on terrorism” and in respect of Guantanamo, and that a more consensual and rules-based approach is needed if necessary cooperation from other states is going to be engaged.
66. And in Britain? There is a great deal more knowledge and debate about the rules of international law. The courts have gone very far in invoking international rules to protect fundamental rights in the aftermath of 9/11. The election and the focus on Iraq have generated an important public debate. Even the Sunday Telegraph seems to have abandoned the line that international law is a gigantic irrelevance: the author of that editorial wrote a most entertaining piece a few days ago, dissecting the Attorney’s advice of 7 March and the surrounding spin, to the effect that abusing arguments of international law is seen a useful stick for attacking governmental integrity.
67. So against this background, it seems to me that the spirit of the Atlantic Charter still abounds, that Britain and the US are bound to re-engage with their commitment to a rules-based system, that international law is alive and kicking, and that the world is not quite as lawless as some may wish. And although it may not be the only question to ask, the election showed that the question - is it legal under international law? – resonates for a great number of people in this country. That is why the iconic image of Reg Keys’ brave speech in the early hours of the morning last Friday will come to be seen as enduringly emblematic of this most recent election, and also of a great deal more.