The Duck of Minerva

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The UK Iraq Inquiry: The Agony and the Ecstasy or International Law and Deja Vu

February 7, 2010

The legality of the 2003 Iraq War has been back in a big way in the UK over the last few weeks. This, no doubt, is the result of several high-profile figures who were involved in the decision as to use force testifying in front of the Iraq Inquiry.
For the uninitiated, the Iraq Inquiry is an independent panel of figures set up “identify lessons that can be learned from the Iraq conflict.” It is often referred to as the Chilcot Inquiry, so named for the chairperson, Sir John Chilcot, and the panel of experts also includes such notable IR/War Studies-type figures as Sir Lawrence Freedman.

Last week we saw the testimony of Elizabeth Wilmshurst, a former Foreign Office (FCO) legal advisor and the only senior level government official to resign over the war. (She now heads the International Law Program at Chatham House.) In addition, there was Lord Goldsmith, the then-Attorney General who, it has been suggested, had advised that such a war would be illegal but subsequently changed his legal opinion under apparent political pressure; Sir Michael Wood, who was the Foreign Office’s chief legal adviser and apparently also advised that a second resolution would be necessary; and this week there was Clare Short, the then Minister for International Development who agreed to support the war, but then resigned in protest when she felt that she had been lied to by the Prime Minister.

But the biggest fireworks certainly came when former Prime Minister Tony Blair was called to testify to the Inquiry. He was grilled on all sorts of fronts, and was, I suspect, quite determined to rescue his reputation for being George W. Bush’s poodle.

I’m not certain as to how much publicity the Inquiry has generated overseas. It might be that the subtleties of UK politics are too much for American audiences to really grasp? (Note: I see that Jon Stewart discussed the issue on the Daily Show, but as videos are now blocked in the UK, I have no idea what was said. DAMN YOU CHANNEL 4!!!)

But there are all kinds of issues that one could raise. Given my interests in international law, I will just mention a few.

My first thought is just trying to imagine this happening in the United States. Sure there was the 9/11 Commission, but this is really on a whole new level. Like George W. Bush being grilled by IR-academics on live TV kind of level.

If I’m perfectly honest, I can think of perfectly solid reasons for NOT having a similar inquiry in the US that could compel a former president to testify – namely that the US is still in Iraq whereas the British have pretty much left. Additionally, the spectacle of it all would be an unwelcome distraction for Obama who has enough on his plate between a sputtering economy, healthcare, Guantanamo, etc.

Yet if there is something both satisfying and incredibly horrifying about having watched Tony answer questions for a full day in front of a relatively demanding panel, (it was a bit like witnessing a train wreck in the atmosphere of the British Library) how would this have looked in Washington, with George standing in for Tony? I suspect this will have be left to playwrights.
The second major issue is the relative importance of international law at the Inquiry. It was a bit of 2002-2003 all over again. Was the invasion illegal? What was it that persuaded Lord Goldsmith to change his mind? Was Resolution 1441 ambiguous or clear permission to carry out an enforcement operation? That these continue to haunt the Labour Government and to be very much at the centre of the debate over Iraq says much about the British (if not European) attitude towards war and law.

Yet, despite my own interests in international law, I have to wonder why do we pay so much attention to this question – particularly seven years after the fact? Would it have made a difference if the war was “legal”? Would it have made it right? Certainly there is no doubt in the mind of Tony Blair that it was both, but would we have seen the same kind of outcry if, as I once saw Professor Philip Allott tell a crowd of LSE students, (and I’m paraphrasing here)“15 men in New York could have agreed to raise their hands”.

(Allot, incidentally, stated his most recent comments on international law, role of legal advisers (rather than advocates) and Iraq here.)

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Stephanie Carvin is an Associate Professor of International Relations at the Norman Paterson School of International Affairs. Her research interests are in the area of international law, security, terrorism and technology. Currently, she is teaching in the areas of critical infrastructure protection, technology and warfare and foreign policy.

Stephanie holds a PhD from the London School of Economics and published her thesis as Prisoners of America’s Wars: From the Early Republic to Guantanamo (Columbia/Hurst, 2010). Her most recent book is Science, Law, Liberalism and the American Way of Warfare: The Quest for Humanity in Conflict” (Cambridge, 2015) co-authored with Michael J. Williams. In 2009 Carvin was a Visiting Scholar at George Washington University Law School and worked as a consultant to the US Department of Defense Law of War Working Group. From 2012-2015, she was an analyst with the Government of Canada focusing on national security issues.
Stacie Goddard