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Sovereign Exceptionalism

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On Friday Tony Blair returned, orange and varnished, to the Chilcot Inquiry to clarify his doctrine of sovereign exceptionalism. As his deposition to the inquiry explains, after 9/11 ‘the calculus of risk on global security had radically and fundamentally changed.’ Blair did not mean that it had changed because after 9/11 the global police got more trigger-happy. It changed because al-Qaida had shown that random sets of hoodlums could hook up and wreak mayhem. Hence the 2003 coalition of the willing. The US was going anyway, and Blair was with them.

Blair took pains to distinguish the prelude to Iraq from the 1999 Kosovo action, which bypassed UN authorisation because everyone knew Russia would veto attacking the Serbs. UK diplomatic efforts in 2002-3 centred on a second UN resolution to give the mandate for war that Security Council Resolution 1441 lacked: it did not, for instance, echo Resolution 678’s formula, during the Kuwait crisis in 1990, of using ‘all necessary means’, under Chapter VII of the UN Charter, to bring Saddam into compliance. As Chilcot’s declassified documents show, in October 2002 the Foreign Office political director, Peter Ricketts, warned that without the formula, the attorney general, Peter Goldsmith, would advise that the UK government ‘did not have a legal base for military action [and] failure to get a second resolution would leave us with no plausible legal basis’. The ‘all necessary means’ formula appeared in a draft of 1441 shown to the French on 25 September 2002, but was absent from the final version of 8 November. If it hadn’t been taken out, 1441 wouldn’t have passed.

Even if the ‘material breach’ mentioned by 1441 could be thought to authorise war without a further resolution, its ‘firewall’ clauses meant that the Security Council had to determine whether such a breach had occurred. UNMOVIC’s tortuous fact-gathering on the ground about Iraqi WMD programmes would delay the self-confessed ‘gung ho’ approach Blair had settled on. So he tried to get a second resolution – but pre-empted the outcome, as his deposition states. ‘I was not suggesting that we, subjectively and without more could say, this is unreasonable, but that a veto in circumstances where breach was accepted, surely could not override the consequences of such a breach set out in 1441 i.e. they could not make a bad faith assessment [sic, passim].’ His meaning, obscured by the breathless syntax, is that if Chirac had vetoed a new resolution, Blair would have treated it as invalid. France ought to have accepted that Saddam had breached 1441, and so couldn’t then veto a resolution explicitly mandating force.

Blair accepts that the government ‘knew we would not ever get a resolution explicitly authorising force’. He thought that a new resolution might win a majority of the 15-member Security Council, the procedural snag being that any of the five permanent members could veto it. In fact, a majority of the permanent members – China, Russia and France – opposed a resolution for war, and Chile’s opposition buried any hope of an overall majority on the Security Council. In a speech on 15 January 2003, Blair made it clear that if he didn’t win by that route, he’d switch games. A casus belli had to be fashioned from 1441 alone, and Blair deployed Lord Goldsmith, who testified last year that he was kept out of the loop on negotiations over 1441. We now know that Goldsmith had already told Blair on 14 January that 1441 wouldn’t cut it.

In the end, the force of reason or the reason of force induced Goldsmith to endorse the war’s legality. A decision had been made, and it only remained to find grounds for making it. Blair now says that fears about Iraqi WMD stockpiles and/or research programmes were a proxy for regime change (Bush never bothered to maintain the front). This at least explains why Blair’s view of the war didn’t flinch when WMD failed to surface after the invasion. In his memoir he suggests that only naive people would think that, as grounds for war, regime-change and WMD were really distinct. One reason they may have thought so was that Blair had told Parliament just that.

The former PM suspects himself of a statesman’s acumen. Like his memoir, his evidence to Chilcot comes flagged with hard-won aperçus. ‘In my experience the more disputed the politics, the more disputed the law.’ And, apparently, the muddier these things get, the more incontrovertible are the edicts of one’s inner pontiff.

Comments on “Sovereign Exceptionalism”

  1. Phil says:

    A decision had been made, and it only remained to find grounds for making it.

    This is an only slightly unfavourable summary of Goldsmith’s stated reasoning:

    “Having spoken to those who negotiated the terms of the resolution, Lord Goldsmith was sure that the need for a further determination had been deliberately omitted. US diplomats would not have agreed to resolution 1441 if they thought it allowed other members of the Security Council to block military action by requiring a second resolution that might be vetoed.”

    In other words:

    “Goldsmith’s interpretation of the crucial resolution 1441 isn’t based on a natural-language reading; it’s not based on precedent, either, or even on the lawyer’s standby, the appeal to the interpretation of a ‘reasonable person’. Goldsmith arrives at a borderline perverse reading of 1441 – one which the text of the resolution barely supports at all – on the basis that, if the Americans had subscribed to any other reading, they wouldn’t have let the resolution pass. In short, Goldsmith’s reading was driven by his knowledge of what the US government wanted. … Goldsmith’s approach, on his own admission, was not to bring the law to bear on the drive to war, but to take the drive to war as read and interpret the law so as to fit it.”

  2. loxhore says:

    it’s amazing. the legal justification for war hinges on what the security council -didn’t- do – they didn’t resolve to ‘decide’ what to do in the event that iraq was found in material breach of its obligations, they resolved only to ‘consider the situation’. it was the sceptical & uninterested members (especially france) caving to america but seeking deniability in return. so they set up a legal tripwire. and the only determinant of material breach turns out to be (says goldsmith) ‘the facts’ about whether iraq has cooperated or complied, something on which he must defer to ‘the client’ because it is, he insists, outside his remit. in practice, then, blair adjudicates the legal question: that is, blair decides whether iraq’s behaviour constitutes a ‘material breach’ and so (by magic) renders the war legal within the architecture 1441 set up. the security council’s passing the buck enables goldsmith to pass the buck to blair’s ‘political judgement’. and remember, the obligation of which iraq would be in breach was to demonstrate to the security council’s satisfaction that it had disarmed, and the legal -point- of the war, once iraq was found unable so to demonstrate, was disarmament. the justification – the ‘legal basis’ – in goldsmith’s telling is thus that iraq was in breach of an obligation to show it did not possess weapons it didn’t possess,* triggering ‘serious consequences’ the security council had implicitly assured the coalition they would neither veto nor determine further.

    *we learnt this later, just as we learnt for certain what the french really intended by ‘consider’ long after the fact.

  3. loxhore says:

    and plus, Dear Prof Newey: you are superb when you write like this, please do it all the time, and quit the .. antics

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