The Chilcot report—the report of the UK Iraq Inquiry that was released last week—includes a detailed account (more than 160 pages) of the development of the international law basis for the UK’s use of force against Iraq and participation in the Iraq War. My friend Oona Hathaway has a lengthy post at Just Security this morning in which she contrasts British Attorney General Peter Goldsmith’s “agonizing evolution” to reach the conclusion that the use of force was justifiable with “US lawyers’ apparently uncomplicated embrace of legal theories the British lawyers rejected as manifestly implausible.” Former Obama White House Counsel Bob Bauer has a more nuanced assessment of Lord Goldsmith’s role, and the role of government lawyers when they are under pressure from policymakers to justify a policy choice, in his post today at Lawfare (Bauer may be reflecting on President Obama’s decision to overrule OLC in June 2011 in order to conclude that the use of force in Libya did not constitute “hostilities” for purposes of the War Powers Resolution).
As one of the negotiators of UNSCR 1441 (the UN resolution adopted in November 2002 that served as part of the legal basis for the US, UK and other countries to use of force against Iraq), and as one of the US lawyers who met with Peter Goldsmith to discuss the US legal basis for the use of force, I would like to offer a few observations of my own on the Chilcot report and the legal basis for the Iraq war. In particular, I disagree with Oona’s conclusion that US and UK reliance on UNSCRs 678 and 687 as authorization for the use of force was novel or implausible. Australia, Spain, and Poland relied on the same legal justification. And the Clinton Administration had relied on precisely the same 678/687 rationale to use force repeatedly against Iraq from 1993-2001.
Some initial comments. Let me say two things at the outset. First, I am not providing a policy defense of the Iraq war. I personally agree with many of the criticisms of the Iraq war and its planning. And I think it would have been better policy, and would certainly have placed the US and UK on a stronger international legal footing, if the US and UK had been able to secure a new UNSCR specifically authorizing the use of force against Iraq in 2003. But in the absence of a new resolution, I believe that the US and UK use of force against Iraq was still lawful, based on the authority provided by UNSCRs 678/687. Second, it is important to note, as Bob Bauer does, that the Chilcot report does not disagree with Peter Goldsmith’s (or the US) legal conclusions. The report found that the Blair government's process for determining that a legal basis existed was “far from satisfactory” but the committee does not criticize the substance of the Attorney General's conclusions either directly or indirectly. Even if the Chilcot committee did not want to substitute its own legal conclusions for Goldsmith’s, if the Goldsmith view is as “widely repudiated” as Oona believes, surely the committee (which had former ICJ President Rosalyn Higgins as its legal adviser) would have noted this fact and provided the counter-arguments. That the committee does not criticize the substance of Goldsmith’s legal conclusions tends to indicate that the committee did not find them “manifestly implausible.” The Chilcot report also makes clear that, although then FCO Legal Adviser Michael Wood disagreed with Goldsmith’s conclusions, many other FCO lawyers and policy officials (including those who had been involved in drafting UNSCR 1441) agreed with Goldsmith.
Background on US Use of Force Against Iraq. As I have noted above, the Bush Administration’s position that the use of force against Iraq was authorized by prior UNSCRs was not new. The Clinton Administration had repeatedly bombed Iraq throughout the 1990s, including the four-day Desert Fox bombing campaign in 1998, and had cited UNSCRs 678/687 (and sometimes UNSCR 688) as the legal basis. Deputy State Department Legal Adviser Mike Matheson (a career L lawyer) explained the US legal basis for the continuing use of force against Iraq in detail at the annual meeting of the American Society of International Law in April 1998, noting that “In the US Government’s view, there is a continuing right to use force in responding to such breaches [of Iraq’s obligations under UNSCR 687 and subsequent resolutions] regardless of whether there is further authorization to respond.” Matheson went on to say that “it would be acceptable and useful to have the Security Council reiterate such authority. However, the United States did not consider that reiteration a precondition to its authority.” 92 Am. Soc. Int'l. L. Proc. 136 (1998).
The US International Law Position for the Iraq War. In a nutshell, the US position was that the use of force against Iraq in 2003 was lawful under international law because it had been authorized by UNSCRs 678 (1990) and 687 (1991). UNSCR 678 had authorized member states to use “all necessary means” to compel Iraq to comply with UNSCR 660 (which had required that Iraq withdraw from Kuwait) and “subsequent relevant resolutions.” After the first Iraq war, UNSCR 687 declared a ceasefire and imposed conditions on Iraq, including extensive obligations relating to Iraq’s possession of WMD (recall that Saddam had been using chemical weapons against the Kurds). UNSCR 1441, which I participated in drafting, specifically decided (in OP1) that Iraq was in “material breach of its obligations under relevant resolutions, including resolution 687.” This was clearly understood by Security Council members to mean that the authority provided by UNSCR 678 continued (because Iraq was in breach of the ceasefire terms of UNSCR 687). OP4 of 1441 stated that “false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations." OP12 of 1441 stated that the Council would convene if it received a report of a further Iraqi breach or non-compliance, but it did not require the Council to adopt any further resolution, or take any further action, to establish that a further material breach had occurred. The Council had in effect decided in advance that Iraq was already in material breach and would be in further material breach if it did not comply with its obligations under 1441 (which it did not), thus reaffirming the right of member states to use force pursuant to UNSCRs 678/687, as states had done through the 1990s.
Explanations by the US Government. When it initiated the Operation Iraqi Freedom on March 20, 2003, the United States notified the UN Secretary General that “The actions being taken are authorized under existing Council resolutions.” In his address to the nation on March 17, President Bush stated “Under Resolutions 678 and 687, both still in effect, the United States and our allies are authorized to use force in ridding Iraq of weapons of mass destruction.” In her Just Security post, Oona Hathaway cites several 2002 OLC memos as indicative of US government views on the use of force against Iraq. These memos were intended for internal use only; they had not been coordinated with the State Department and did not reflect the detailed negotiating history of UNSCR 1441 and prior USG positions. The more definitive public position of the U.S. Government on the international legal basis of the Iraq war was set forth in a 2003 article by then Legal Adviser Will Taft and Assistant Legal Adviser for UN Affairs Todd Buchwald in the American Journal of International Law. Taft and Buchwald explained that in adopting UNSCR1441, “The Council in effect decided that, in view of the past behavior of Iraq, the threat it posed to others, and the fact that the opportunity it was being given to remedy its breaches was a final one, any such violations by Iraq would mean that the use of force to address this threat was consistent with Resolution 678.”
Conclusion. Although many academics consider the Iraq war to have been illegal under international law, government lawyers in the US, UK, Australia, Spain, and Poland concluded that the use of force was authorized under UNSCRs 678 and 687 and refreshed and reaffirmed by UNSCR 1441. The Chilcot inquiry could have disputed this conclusion but did not. Moreover, this legal rationale was not new. The Clinton administration had relied on it, and explained it in detail, to justify its repeated bombings of Iraq during the 1990s. It can certainly be argued that it would have been better practice to obtain a new UNSCR before launching a large-scale invasion of Iraq in 2003, but this does not mean that prior authorization for UN member states to use “all necessary means” to compel Iraq to comply with its international obligations did not exist.