Advertisement

Between a Rock and a Hard Place: Providing Legal Advice on Military Action Against Iraq

  • Kenneth M. Manusama
Chapter
Part of the Netherlands Yearbook of International Law book series (NYIL, volume 42)

Abstract

This article describes the role of legal advice and legal advisers in the policy-making process toward the 2003 invasion of Iraq, on the basis of the report of the Davids Committee in the Netherlands and the documents declassified in the course of the UK’s Chilcot Inquiry. The controversial nature and seemingly weak legal basis for the 2003 invasion of Iraq prompted much public and academic discussion, even leading to the leaking of otherwise confidential legal memoranda from government lawyers to the media. Unprecedented and (semi)public inquiries were carried out into the policy-making processes and motives for resorting to the use of armed force, including the role of legal advice and legal advisers. In the Netherlands, legal advisers were at a disadvantage because of the hierarchical structure in which they are placed, and because the basic policy was set at a very early stage. The legal advice rendered in the United Kingdom was given far more consideration and prominence. Yet, when advice and policy started to diverge, the formal structure in which legal advice had to be requested from the Attorney General became subject to manipulation as to timing and, perhaps, substance. This description and analysis reveal common and familiar themes regarding the role, responsibilities, and perceptions of legal advice in foreign policy.

Keywords

Iraq Legal adviser United Kingdom The Netherlands Use of force Resolution 1441 (2002) Revival argument Security Council Davids Committee Chilcot Inquiry 

References

  1. AJIL (1991) Current developments: the role of the legal adviser of the Department of State—a report of the Joint Committee established by the American Society of International Law and the American Branch of the International Law Association. Am J Int L 85:366–367Google Scholar
  2. Attorney General Lord Goldsmith’s legal advice, ‘Iraq: Resolution 1441’, 7 Mar 2003, http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/28_04_05_attorney_general.pdf
  3. Berman FD (1994) The international lawyer, inside and outside Foreign Ministries. In: Hill C, Beshoff P (eds) Two worlds of international relations. Routledge, London, pp 79–92Google Scholar
  4. Bilder RB (1962) The Office of the Legal Adviser: the State Department Lawyer and Foreign Affairs. Am J Int L 56:633–684CrossRefGoogle Scholar
  5. Butler Report (2004) Review of intelligence on weapons of mass destruction report of a committee of Privy Counsellors, Chairman: The Rt Hon The Lord Butler of Brockwell KG GCB CVO (hereafter ‘Butler Report’). http://www.butlerreview.org/
  6. Carty A, Smith R (2000) Sir Gerald Fitzmaurice and the world crisis: a legal adviser in the Foreign Office, 1932–1945. Kluwer Law International, The HagueGoogle Scholar
  7. Corell H (1991) Current development: legal advisers meet at UN headquarters in New York. Am J Int L 85:371–373Google Scholar
  8. Corell H (1992) Second legal advisers’ meeting at UN headquarters in New York. Nordic J Int L 61/62:3–6Google Scholar
  9. Corell H (1999) Cooperation among legal advisers on public international law. In: Collection of essays by legal advisers of states, legal advisers of international organizations and practitioners in the field of international law. United Nations, New York, pp 97–119Google Scholar
  10. Crawford J et al (2003) Letters: war would be illegal. In: The Guardian, 7 March 2003, http://www.guardian.co.uk/politics/2003/mar/07/highereducation.iraq. Accessed 18 Sept 2011
  11. Davids Committee (2010) Rapport: Commissie van onderzoek besluitvorming Irak. Boom, AmsterdamGoogle Scholar
  12. Gray C (2004) International law and the use of force, 2nd edn. Oxford University Press, OxfordGoogle Scholar
  13. Koskenniemi M (1999) Between commitment and cynicism: outline for a theory of international law as practice. In: Collection of essays by legal advisers of states, legal advisers of international organizations and practitioners in the field of international law. United Nations, New York, pp 495–523Google Scholar
  14. Lammers JG (2009) The role of the legal adviser of the Ministry of Foreign Affairs: the Dutch approach and experience. Tulane J Int Comp L 18:177–205Google Scholar
  15. Macdonald RStJ (1977) The role of the legal adviser in Ministries of Foreign Affairs in 156 Recueil des Cours. In: Collected courses of the Hague Academy of International Law, 1977-III. Martinus Nijhoff Publishers, The Hague, pp 377–482Google Scholar
  16. Manusama K (2006) The United Nations Security Council in the post-cold war era: applying the principle of legality. Brill, LeidenCrossRefGoogle Scholar
  17. Merillat HCL (1964) The legal adviser’s place in government. In: Merillat HCL (ed) Legal advisers and Foreign Affairs. Oceana Publications, Dobbs Ferry, New York, pp 1–14Google Scholar
  18. Murphy SD (2004) Assessing the legality of invading Iraq. Georgetown L J 92:173–257Google Scholar
  19. NILR (2010) Report of the Dutch committee of inquiry on the war in Iraq—Chapter 8: The basis in international law for the military intervention in Iraq. Netherlands Int L Rev 57:81–137CrossRefGoogle Scholar
  20. Parry C (1964) United Kingdom—background paper. In: Merillat HCL (ed) Legal advisers and Foreign Affairs. Oceana Publications, Dobbs Ferry, New York, pp 101–152Google Scholar
  21. Riphagen W (1964) The Netherlands—background paper. In: Merillat HCL (ed) Legal advisers and Foreign Affairs. Oceana Publications, Dobbs Ferry, New York, pp 79–83Google Scholar
  22. Scharf MP, Williams PR (2009) International law in crisis: a qualitative empirical contribution to the compliance debate. Cardozo L Rev 31:45–97Google Scholar
  23. Scharf MP, Williams PR (2010) Shaping foreign policy in times of crisis—the role of international law and the State Department legal adviser. Cambridge University Press, New YorkCrossRefGoogle Scholar
  24. Warbrick C, McGoldrick D (2003) The use of force against Iraq. ICLQ 52:811–814CrossRefGoogle Scholar
  25. Watson G (1988) Armed intervention in the 1956 Suez Canal Crisis: the legal advice tendered to the British Government. Int Comp L Q 37:773–817CrossRefGoogle Scholar
  26. Weller M (2010) Iraq and the use of force in international law. Oxford University Press, OxfordCrossRefGoogle Scholar

Copyright information

© Stichting T.M.C. Asser Instituut, The Hague, and the authors 2012

Authors and Affiliations

  1. 1.Department of Transnational Legal Studies, Faculty of Law Vrije Universiteit AmsterdamAmsterdamThe Netherlands
  2. 2.Vitoria Institute for International Law and PolicyAmsterdamThe Netherlands

Personalised recommendations