In the wake of the British parliamentary election, and as the Chilcot Inquiry continues its assessment of the decision to invade Iraq, an opportune moment arises for commentators and policymakers to reconsider how international law regulates the initial decision by states to go to war. This opportunity should be taken since, while the media has considered the question of whether the Iraq war was illegal in depth, the underlying issues of what illegality means in the context of international law, and why public officials frequently differ in their interpretation of it, are seldom addressed.  Seven years after the invasion of Iraq, the debate over its legality should be framed in these wider terms.

Concluding that the war was illegal raises more question than it answers

It is not sufficient, as has often been the practice to date, for commentators simply to submit that the war was illegal, without continuing to consider the practical implications of this claim.  It is true that most international lawyers believe that the war was unlawful, but they generally go on to note that international law is fundamentally different in nature to municipal law, due mainly to the absence of any single overarching source of judicial authority responsible for governing its interpretation.

There is indeed an entire academic literature dedicated to clarifying whether and how international law affects states’ foreign policy decisions; clearly international lawyers agree that the question of what illegality means in the context of international law is at least worth asking.  By omitting to acknowledge this point, critics of the war may hand the initiative to their opponents, who can – wrongly - accuse them of simply not understanding how international law works.

A more holistic approach

The failure of many critics of the Iraq war to address the question of what it means, in practical terms, to assert that the war was illegal may reflect an unspoken assumption that doing so weakens their claim that the invasion was unlawful.  Yet this reluctance to deepen the analysis of the invasion’s legality is a missed opportunity. By acknowledging the permissive, uncertain nature of international law, critics could link up their legal submissions with the humanitarian, political and strategic objections that surely should be at the heart of any critique of the Iraq war (see Bob Brecher, "Iraq and the fig-leaf of just war theory", 8 February 2010).  This more holistic approach would enable the war’s opponents to express their objections in a way that picks up more completely the full breadth of issues meriting concern – both what happened in Iraq, and how it happened.

The limitations of the legalistic paradigm as a foundation for criticising the Iraq war were particularly apparent in the press coverage in January this year of the dispute in 2003 between Sir Michael Wood and Jack Straw over the war’s legality.  Commentators in the press concentrated mainly on the issue of who was correct in law, yet arguably, the episode is more notable for what it reveals about how cabinet members made decisions at the time of the decision to invade Iraq.  As David Pannick QC observed, “government should not be conducting its business on the basis that it might get away with it”.  The ease with which Mr Straw set aside the advice of a senior civil servant plainly better positioned than him to come to the correct legal conclusion may reflect wider systemic problems with the institutional relationships which determine how the United Kingdom is governed today.

Institutional imbalances

The most striking aspect of this episode is how closely it matches descriptions of the Prime Minister’s Office's conduct at the time of the decision to invade Iraq.  One example is Clare Short’s critique of Downing Street in her resignation statement: "the problem is the centralisation of power into the hands of the Prime Minister and an increasingly small number of advisers who make decisions in private without proper discussion".  Another authoritative (arguably the most authoritative) voice in this chorus was the late Sir Michael Quinlan, who drew direct links between the decision to invade Iraq, the atrophy of the collective cabinet system of government, and the marginalisation of the civil service by Downing Street.  The Iraq war may have been but one outcome (albeit the most tragic outcome) of a more general shortage of thorough analysis, consultation and accountability in contemporary British government.  

Opponents of the Iraq war should make this connection more frequently: so many of the systemic problems in Whitehall which the decision to invade Iraq brought into the open have since been visible in other areas of government policy.  A current example is the ongoing row over the government’s drug policy, which shows in much the same way as the Iraq war the tendencies of ministers to overlook the advice of their advisers or to bypass them completely, and, perhaps, to prioritise achieving visible outcomes over following appropriate decision-making procedures.  Excessive reliance by critics of the war on legalistic arguments may itself be the product of a general sense of disaffection with the political process, which would seem at first instance to be a more promising arena for voicing opposition to the invasion than the courts. 

Disrupting politics as usual

Yet to date, critics of the Iraq war in the press have largely declined to connect the Iraq war with underlying systemic problems in British government.  This contrasts sharply with events in the United States after the Vietnam war, media coverage of which helped to trigger a fundamental transformation of the way in which American politics was conducted.  The conflict was framed by the press in such a way as to expose – and did expose – the difficulties that arose when the presidency was not properly held to account by Congress.  In the following decade, a new breed of younger, highly qualified and (by comparison) non-compliant congressmen took office and enacted a swath of reforms aimed at strengthening congressional oversight of the executive branch (see e.g. Arthur Schlesinger, The Imperial Presidency, Mariner Books, 2004).   On a deeper level, the war became a kind of lightning rod through which activists articulated their discontent with all the social, economic and political problems in the United States at the time.  The war’s legality was very much an afterthought for contemporaries, but its effect on the conduct of American politics was no less explosive for that.

The Vietnam war was a more deadly conflict than the war in Iraq, of course, and some of its most dramatic effects on American politics proved to be short-lived.  Nonetheless the post-Vietnam period in the United States demonstrates the potential for an unpopular war to disrupt “politics as usual”.  Comparing it with the institutional stasis in the United Kingdom today suggests that critics of the Iraq war may be selling themselves short by shaping their arguments within the legal paradigm, which is inherently backward-looking and unable to acknowledge the wider historical circumstances which give rise to armed conflicts like that in Iraq.  In these circumstances, following a seismic election, a more ambitious approach is called for.

At root, the Iraq war was at least partly a product of policymakers’ overly optimistic assumptions, very much reflections of their time, regarding the United Kingdom’s defence and intelligence capabilities, and the power of those capabilities to deliver their policy objectives (see Mary Kaldor, "Iraq: the wrong war", 8 June 2005; see also Fred Halliday, "It's time to bin the past", The Observer, 30 January 2005).   Like in the United States after the Vietnam war, it is these underlying assumptions which should now be called into question - together with the institutional characteristics which permitted them to be translated unchecked into government policy, and ultimately, the United Kingdom’s involvement in the Iraq war. 

An unreliable ally

The difficult truth may be that international law is an unreliable ally for critics of the Iraq war (or any war) when applied in isolation from political, strategic and humanitarian arguments.  The problem is not merely that the improper or incomplete application of international law often leaves key questions unanswered, inviting supporters of the war to take the initiative and invoke it in support of their position without any real basis for doing so.  The real danger is that paying too much attention to the legal position can distance opponents of the Iraq war from the political, strategic and humanitarian issues which should form the core of their argument.

What critics of the Iraq war stand to lose by focusing excessively on questions of legality is illustrated by the public response to the footage recently leaked by Wikileaks of American helicopter pilots laying waste to a street corner in Baghdad.  The video set online forums ablaze with discussions regarding not only American troops' conduct in Iraq, but also the question of whether they should have been deployed in the first place.  It is doubtful that public inquiries of a legalistic nature can ever have this kind of galvanising effect on public opinion, not least because of the often morally ambivalent nature of international law itself.  Tom Porteous of Human Rights Watch’s observation that “you can kill an awful lot of civilians without breaking international law” underlines the limitations of the law of armed conflict for those who oppose wars on moral grounds (see John Wooding, "The wrong target: air strike, legal limit, human voice", 11 May 2009).

Clearly the complications associated with invoking international law should not dissuade critics of the Iraq war from doing so; quite the contrary.  It is undeniable that most international lawyers agree that the invasion of Iraq was probably illegal, and as Rabinder Singh QC has argued, “to ask a lawyer not to care about the law is like asking a priest to become an atheist” (see Rabinder Singh QC et al, "Judging new dangers by old rules", European Lawyer, 2003, 27, 3-6).  But the law of armed conflict is only really effective as a language of protest when applied in combination with political, strategic and humanitarian perspectives.  In the absence of any international judicial authority empowered to try the crime of aggression, simply alleging the war’s illegality may not be enough to stop it happening again.