The Politics of Justifying Force: The Suez Crisis, the Iraq War, and International Law 2013940018, 9780199686957

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T H E P O LI TI C S O F J U S T I F Y I N G FO R C E

The Politics of Justifying Force The Suez Crisis, the Iraq War, and International Law

CHARLOTTE PEEVERS

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Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © Charlotte Peevers 2013 The moral rights of the author have been asserted First Edition published in 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2013940018 ISBN 978–0–19–968695–7 Printed in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

Afterwards, of course, there were endless discussions about the shooting of the elephant. The owner was furious, but he was only an Indian and could do nothing. Besides, legally I had done the right thing, for a mad elephant has to be killed, like a mad dog, if its owner fails to control it. Among the Europeans opinion was divided. The older men said I was right, the younger men said it was a damn shame to shoot an elephant for killing a coolie, because an elephant was worth more than any damn Coringhee coolie. And afterwards I was very glad that the coolie had been killed; it put me legally in the right and it gave me a sufficient pretext for shooting the elephant. I often wondered whether any of the others grasped that I had done it solely to avoid looking a fool. George Orwell, ‘Shooting an Elephant’ in Orwell Shooting an Elephant and Other Essays. (Secker and Warburg, 1950)

Acknowledgements This book began life first as an intuition and then as a doctoral thesis. For guiding me through those early stages of discovery, frustration, and experimentation I thank my supervisors at the London School of Economics: Christopher Greenwood, Nico Krisch and Andrew Lang. As a doctoral candidate and Fellow at the LSE I benefited immensely from a vibrant research culture and stimulating peers. I gratefully acknowledge the generous funding from the following: the Judge Higgins Scholarship, the Morris Finer Memorial Scholarship, the Wedderburn Grant, and the Law Research Studentship. I thank the following research archives for their invaluable assistance and patience: the Churchill Archives, Cambridge (papers of Selwyn Lloyd and Lord Kilmuir); the Conservative Party Archive, Oxford University; the Labour Party Archives, Manchester; the Gaitskell Papers at University College, London; the British Library Newspaper Archive (Colindale); and a special thanks to the Public Records Office, Kew. I thank my doctoral examiners Susan Marks and Ralph Wilde for giving me the confidence to publish, and guidance in making the journey from doctoral thesis to book manuscript. I also thank the commissioning, production, and marketing teams at Oxford University Press, and the generous reviewers who showed such enthusiasm for the project. I have had the good fortune of friends who have challenged, supported, and inspired in equal measure the various manifestations of my ideas. To my ever-available and ever-patient readers I am especially grateful, to Akbar Rasulov, Jacqui Mowbray, Luis Eslava, Nikolas Rajkovic, Rose Parfitt, Shaunnagh Dorsett, Usha Natarajan, and in particular to Olivia Barr. I am also grateful to Flordeliz Bonifacio for careful and timely research assistance on the final manuscript. I pay particular tribute to my mother who listened to draft after draft with such grace and care. Needless to say, all errors, omissions, and opinions remain my own. Having travelled 10,000 miles during the journey to publication I thank my colleagues at the University of Technology, Sydney for helping me find my feet in a foreign land, and to my friends and family who have stayed so close despite our distance. My greatest thanks go to Neil for sharing these journeys with me. To our newborn son Julian, who laboured with me during the final stages of writing, thank you for giving us the prospect of yet more journeys to share. This book is for Neil. Charlotte Peevers Sydney, September 2013

Cast of Characters The Suez Crisis Sir Anthony Eden Hugh Gaitskell Harold Macmillan Selwyn Lloyd Sir Harold Caccia Sir Ivone Kirkpatrick William Clark Sir Alexander Cadogan David Maxwell Fyfe, Lord Kilmuir George Coldstream Sir Gerald Fitzmaurice Francis Vallat Reginald Manningham-Buller Sir Harry Hylton-Foster Sir Pierson Dixon Robert Makins Dwight Eisenhower John Foster Dulles Gamal Abdel Nasser Mahmoud Fawzi Dag Hammerskjöld Robert Menzies

British Prime Minister Leader of the Opposition, Labour Party Chancellor Foreign Secretary Foreign Office Under-Secretary Prime Minister’s Private Secretary Prime Minister’s Press Officer Chairman of the Board of Governors, BBC Lord Chancellor Permanent Secretary to the Lord Chancellor Foreign Office Legal Adviser Foreign Office Deputy Legal Adviser Attorney-General Solicitor-General British Ambassador to the United Nations British Ambassador to the United States US President US Secretary of State for Foreign Affairs Egyptian Leader (referred to as Colonel or President) Egyptian Foreign Minister Secretary General of the United Nations Australian Prime Minister

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The 2003 Iraq War Tony Blair Alastair Campbell Jack Straw Robin Cook Iain Duncan-Smith Charles Kennedy Menzies Campbell Lord Goldsmith Sir Michael Wood Elisabeth Wilmshurst George W Bush Dick Cheney Condoleezza Rice John Bellinger Donald Rumsfeld Colin Powell John Ashcroft John Negroponte Kofi Annan

British Prime Minister Prime Minister’s Press Secretary Foreign Secretary Leader of the House of Commons Leader of the Opposition, Conservatives Liberal Democrat Leader Liberal Democrat Foreign Affairs spokesman Attorney-General Foreign Office Legal Adviser Foreign Office Deputy Legal Adviser US President US Vice President US Security Adviser Legal Adviser to Condoleezza Rice US Secretary of Defense US Secretary of State US Attorney-General US Ambassador to the United Nations Secretary General of the United Nations

List of Abbreviations COW ESF FCO FO IAEA IR JIC NAM NATO PLP PM POJ PR SIS TUC UNEF UNMOVIC UNSCOM WMD

Correlates of War European Social Forum Foreign and Commonwealth Office Foreign Office International Atomic Energy Agency international relations Joint Intelligence Committee Non-Aligned Movement North Atlantic Treaty Organization Parliamentary Labour Party Prime Minister policy-oriented jurisprudence public relations Secret Intelligence Service (MI6) Trades Union Congress UN Emergency Force United Nations Monitoring, Verification, and Inspection Commission United Nations Special Commission weapons of mass destruction

1 Prohibiting Force/Justifying Force This book examines the politics of justifying force. Governments rarely go to war without justifying publicly their policy and their actions. Some writers claim that by invoking international law in such justifications, governments can become trapped by their own arguments, by the heavy burden that law places on their policy-making.1 Indeed, several writers contend further, that such legal justifications not only raise the burden on government, but also embed international legal norms into domestic political processes.2 In other words, arguing over such legal norms socializes the state to comply with international law because these norms become part of the structure of domestic politics.3 In focusing on British domestic discourse during the Suez Crisis of 1956 and the lead-up to the invasion of Iraq in March 2003, this book has two purposes. The first is to interrogate existing theoretical explanations of the domestic impact of international law and the apparent constraining effects of the politics of justification. The second purpose is to produce a thicker description than is available in the existing literature producing a legal history of justification in each case study, and juxtaposing the cases to reflect upon how they relate to each other. The mapping of discourse takes account of how international law operates in politics as a language, with a grammar and lexicon that reconstitutes discourse, and impacts upon those

1 For example, Oscar Schachter, ‘In Defense of International Rules on the Use of Force’ University of Chicago Law Review 53 (1986) 113; Ryan Goodman, ‘Humanitarian Intervention and Pretexts for War’ American Journal of International Law 100 (2006) 107–41; Martha Finnemore, The Purpose of Intervention: Changing Beliefs about the Use of Force (Cornell University Press, 2003). 2 Andrew Cortell and James Davis, ‘How Do International Institutions Matter? The Domestic Impact of International Rules and Norms’ International Studies Quarterly 40 (1996) 451–78. They suggest new directions for research in Cortell and Davis, ‘Understanding the Domestic Impact of International Norms: A Research Agenda’ The International Studies Review 2(1) (spring 2000) 65–87; see also Jeffrey Checkel, ‘Norms, Institutions and National Identity in Contemporary Europe’ International Studies Quarterly 43 (1999) 83–114. 3 Ryan Goodman and Derek Jinks, ‘International Law and State Socialization: Conceptual, Empirical, and Normative Challenges’ 54 Duke Law Journal (2005) 983. See also numerous writings by Harold Koh on internalization and socialization, ‘The 1994 Roscoe Pound Lecture: Transnational Legal Process’ Nebraska Law Review 75 (1996) 181; ‘Why do Nations Obey International Law?’ Yale Law Journal 106 (1997) 2599; ‘The 1998 Frankel Lecture: Bringing International Law Home’ Houston Law Review (1998) 623; ‘Jefferson Memorial Lecture: Transnational Legal Process After September 11th’ Berkeley Journal of International Law 22 (2004) 337.

The Politics of Justifying Force. Charlotte Peevers. © Oxford University Press 2013. Published 2013 by Oxford University Press.

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deemed able to claim the authority of ‘speaking the law’. The book raises a number of questions to be posed to existing accounts which seek to describe the politics of justifying force. It asks what significance is to be attached to the fact of legal justification? What kind of politics emerges? What are the processes which may lead to constraint through international law? Does international legal argument have an inherently constraining effect on government decision-making? In order to construct a foundation on which to build an examination of justificatory politics, consideration needs to be given to the conceptualization of the regime for ‘prohibiting force’ in international law. Despite an apparently ‘clear’ prohibition, the contemporary world continues to face the question of military action and its justification. Whether argument rages over Iran, Libya, Syria, or North Korea, we can be sure that armed conflict and its justification will not exit the stage of international affairs any time soon. This chapter argues that part of the impetus for contestation has to do with the very structure of the prohibitory framework. Whilst it can, of course, be seen as a system of obligation designed to limit the use of force, it can also be seen as a system of rights formalizing certain powers which states, and the UN collective security regime, retain in their international relations. To see the framework in this way allows us to move beyond the idea of prohibition and exception, and instead focus on the idea of authority and its justification. By concentrating on justification, the emphasis moves away from distinguishing between war and peace towards an examination of the relationship between law and politics. Whilst the book is not an exhaustive examination of this relationship, it sets up certain basic assumptions that are pursued in the study. The most important of these is that the distinction between law and politics is, in myriad ways, an artificial one which closes off the potential for analysing argument—that is, justification—as a site for assessing the operations and practices of international law. Having considered the structure of the prohibition and the consequent relation between law, politics, and justification, the chapter considers what it means for international law ‘to matter’. It seems that for some writers, mattering is tied to significance, and significance in turn is premised upon identifying compliance with law. So, for such writers, tracing the influence of international law is about working out when and how it constrains political processes. They seek to explain international law’s pull towards complying with legal obligations. Instead, this book adopts a more circumspect analysis of influence, by mapping the processes through which international law can have a structuring effect on political processes, which exert both a pull towards obligations, and an exercise of powers (or rights). This attention to law’s influence draws on three further concepts, namely legitimacy, authority, and discourse and allows for the fleshing out of international law’s ‘domestic face’. In other words, how international law is used in the arena articulated as ‘the domestic’ and how this is related to the imagined plane of ‘the international’.

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1.1 The prohibition on the use of force, politics, and justification It has become something of a truism to say that the contemporary international legal system is founded upon the prohibition on the use of force. This ‘peaceloving’4 foundation is said to represent a significant shift in the way states order themselves in international society. The UN Charter system, in particular, is often described as representing humanity’s greatest achievement in preventing the scourge of war for future generations, closing the door on the global conflicts of the past. From this perspective the UN Charter can be seen as embodying a symbolic act of distinguishing between war and peace. Such symbolism and the significance of distinguishing between war and peace is hardly novel, or necessarily unique to the UN Charter. The Roman Temple of Janus reminds us of the power of such symbolism in distinguishing between periods of war and peace. The Janualis gate of the Temple of Janus was kept open in times of war and closed during times of peace. According to the ancient chronicler Varro, the practice up until the time of Emperor Augustus had been to keep the gates always open, and closed only ‘when Rome was entirely free from war’.5 The gates had been closed only two times prior to Augustus’ reign. However, Augustus was said to have closed the gates ceremoniously on a number of occasions, deploying the ritual as a means of entrenching his claim to enlightened governance. In other words, his recording of these acts of closure—three during his principate—acted to signify the new era of peaceful rule brought about by his leadership. With this imagery in mind, we might perceive the UN Charter and its foundation as such a ceremonious act signalling an era of peace, with the Great Powers acting as guardians of the closed gates. To be sure, war on the staged scale of the Second World War has indeed been avoided, but ought this observation serve to occlude other observations, which challenge the idealized, progressive symbolism of systemic change and legal innovation? In other words, should we leave unquestioned the closed status of the gates? Or indeed, should we take the guardians’ distinction as fact? The prohibitive framework of international law on the use of force similiarly contains the symbolism of ‘closed gates’ exceptionally opened, with its orientation towards distinction and boundaries. Traditional accounts of the use of force define the prohibition in terms of a general interdiction coupled with limited exceptions. This evokes the imagery of peace being the norm, except at moments of war. The traditional account considers the form of international law to be found in the UN Charter text. But we might also think of these legal forms finding expression, and thereby operation and practice, in speech. Every articulation of international law represents a claim to authority.

4 Gerry Simpson, Great Powers and Outlaw States: Unequal Sovereigns in the International Legal Order (Cambridge University Press, 2004) 255, 273. 5 Jeri Blair DeBrohun, ‘The Gates of War (and Peace): Roman Literary Perspectives’ in Kurt A Rauflaub (ed), War and Peace in the Ancient World (Blackwell Publishing, 2007) 256–79 at 257.

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Whilst using the vocabulary of international law, such claims are part of the fabric of politics. Indeed, even the written form of international law remains premised upon political considerations. There is, in many ways, nothing unique about this nexus between law and politics. But when we address international law, somehow its political foundations become a foil with which to attack it as either not really law or epiphenomenal to power politics; or a deficiency to idealists committed to the spread of liberal values, expressed as a deep commitment to international law.6 What we need, however, is to examine these political foundations to understand better the operation of the prohibition, both in its texts and its spoken articulations. Such an examination requires us to ask how much we can accept the characterization of the ‘prohibitory’ framework (or system) as exclusively reflective of an interdiction against using military force. We might instead see, or simultaneously hold in view, the framework as a political compromise which embeds Great Power ‘management’ of international security politics, whilst at the same time acknowledging formal equality of states by gesturing towards sovereignty and the inherent right of self-defence. We might call this compromise imperial or hegemonic: either way politics lies at the heart of the system. What also lies at the heart of this system is a set of rules that embody powers as much as they represent obligations: the right to protect oneself, or others, and the right to act to protect international peace and security through the Security Council. Indeed the thrust of Chapter VII of the Charter, as Dino Kritsiotis observes, is ‘to confer a broad discretion’, a ‘magnificent latitude’ on the Security Council.7 The invocation of exceptions as an expression of a right, or the imposition of the prohibition as an obligation relies upon the hailing of law through speech. The authority to speak the law is often determined by the status of the speaker of the invocation or imposition. Some actors appear to hold greater legitimacy in claiming powers, than others. Likewise, actors who articulate the prohibition’s obligations hold greater legitimacy in imposing such obligations over others. This hierarchy in the prohibition’s operation may come down to the differentials of power in the international system. In the international legal system some speakers hold, by way of a structural inheritance, more authority to speak the law than others.8 The claims to authority vest in the symbolic founders as the gate-closers and guardians of the reluctantly opened gate, ever-vigilant to close it again. These guardians clearly also hold power through authority. In light of this, how are we to conceive of the relationship between legality and illegality, the distinction entailed by the prohibitory framework and its attendant symbolic power? Many writers assume a polar distinction between the right of 6 Martti Koskenniemi discusses this ‘commitment’ to international law in ‘Between Commitment and Cynicism: Outline of a Theory of International Law as Practice’ in The Politics of International Law (Hart, 2011) 271–93. 7 Dino Kritsiotis, ‘When States Use Armed Force’ in Christian Reus-Smit (ed), The Politics of International Law (Cambridge Studies in International Relations) (Cambridge University Press, 2004) 45–79 at 74. 8 On legalized hierarchies and legalized hegemony, see further Simpson (2004).

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self-defence or collective security and the ‘clear illegality’ of regime change. Even when we turn to humanitarian intervention a sharp distinction is drawn between this act, and the act of regime change. Yet, such a positioning of legality versus illegality—embodied in these polar opposites of self-defence, collective security, or humanitarian intervention, and regime change—is not only artificial, but misleading. Indeed, regime change is often the necessary outcome of the use of force and that outcome is often premised in law and its operations.9 In making this claim about outcomes it is useful to reflect upon the phrase ‘polar opposites’ as perhaps absent-mindedly reflecting the artificiality of distinguishing the legal from the illegal. Whilst the phrase is used to refer to those things which are ‘conspicuously different in most important respects’10 and are therefore seen as being at ‘two poles apart’,11 geographically or globally, we can think of this polar distinction operating on a continuum or a curve. And this continuum in fact leads us to places of strikingly similar physical description. Further, to think about polar opposites as a curve gestures to the prospect of reaching each pole during the course of a journey along that curve. The opposite can become the required destination, producing a corresponding ending to a journey’s beginning. Instead of describing the prohibition as a set of rules characterized by interdiction and exception, it is arguably more productive to see international law—and in this case the prohibitory framework—as a process. To do so does not necessarily tie us to a policy-oriented jurisprudential account of law.12 Seeing international law as a process recognizes, as do many constructivists, that ‘international law lives in the way in which [actors] reason argumentatively about the form of these rules, what they prescribe or proscribe, what their jurisdictional reach is . . . and whether certain action or inaction is covered by a given rule’.13 Such reasoning is rhetorical in nature and interpretations no longer need to make the claim of ‘truth’: rather they have to be ‘acceptable’.14 Part of their acceptability will refer not just to their interpretation, but the relationship to wider questions of jurisdictional reach. In other words, acceptability bears a relation to the authority and legitimacy to interpret, to engage in the technology of speaking law’s authority.15 These observations scrape away at the mythologized construction of the prohibitory framework that is premised upon distinction, and allow us to consider the politics of the prohibition. Further, if we reconsider the formation of the current international

9 On challenging the traditional accounts of international law ‘outsides’, see Fleur Johns NonLegality in International Law: Unruly Law (Cambridge University Press, 2013). 10 Cambridge Advanced Learner’s Dictionary and Thesaurus (online). 11 Cambridge Advanced Learner’s Dictionary and Thesaurus (online). 12 Chapter 2 discusses policy-oriented jurisprudence in more detail. 13 Christian Reus-Smit, ‘The Politics of International Law’ in Reus-Smit (ed) (2004) 14–44 at 41. 14 Friedrich Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge University Press, 1989) 42. 15 Shaun McVeigh and Sundhya Pahuja ‘Rival jurisdictions: the promise and loss of sovereignty’ in C Barbour, G Pavlich (eds.), After Sovereignty: On the Question of Political Beginnings (Rouledge, 2009) 97–114, esp. 98–99. On jurisdiction and authority see Shaunnagh Dorsett and Shaun McVeigh, Jurisdiction (Critical Approaches to Law Series) (Routledge, 2012).

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system embodied in the UN Charter we might identify at least two ‘foundational’ political principles that lie at the heart of the use of force system. These are principles of containment and deterrence. These do not equate neatly with the general ‘pacifism’ that is often accorded to the UN system, because they recognize the potential for splits and the need for compromise amongst Great Powers. There is no general interdiction against using force according to these principles, but any use of force can only be rationalized as cohering with the UN system if its underlying premise is to avoid greater conflict. So, for instance, we come to see the interdiction against military action as relating to a specific form of force; what might be described as explicit, large-scale, deployment of armed forces. What the framework appears to permit is less overt forceful action, or at the very least force that can either be justified or whose source can be denied. Further, if we consider the Charter’s purposes and principles,16 rather than just its stance on military action, we see that it is premised on a commitment to liberal values. Although latent, requiring speech to hail, to interpret, and to enact it, this includes the theory of democratic peace. The written form reads as a commitment to promoting the spread of democracy as a corollary of executive management of security, reducing conflict by stabilizing (and enforcing) compliance.17 Though the Charter reads as protecting the sovereignty and territorial integrity of equal members, it is already obvious that this cannot, in fact, be guaranteed because of the very structures of governance embedded in the Charter ‘management’ framework.18 And, if this reading is one interpretation of the foundational premises of the Charter, what kind of reading might be articulated of the system today? During the post-Cold War 1990s there emerged previously latent ideas challenging the political consensus of containment and deterrence. The Gulf War of 1991 suggested the continued relevance of the Cold War paradigm, particularly in the limitation of the Security Council mandate which stopped short of removing Saddam Hussein from power. But there were already signs that the political consensus might no longer present a coherent rationale or be considered necessary in light of changes in the balance of power between the United States and the former Soviet Union. Indeed, containment and deterrence seemed utterly incapable of meeting the challenges of conflicts such as the Balkans and Rwanda and, of course, the later invocation of the ‘War on Terror’. In the wake of this period, it seemed that liberalism was unbound through hegemonic leadership.19 On this view, the United States and its smaller allies 16

Chapter I, UN Charter. See, in particular, Art 1(1) which provides for maintaining peace by removal of threats to and breaches of peace through effective collective measures. The development of ‘friendly relations’ (Art 1(2)), the achievement of ‘international co-operation’ (Art 1(3)), and the harmonization of state actions towards ‘common ends’ (Art 1(4)) articulate a sufficient degree of ambiguity and interpretive latitude, in the context of ‘legalized hierarchy’ (Simpson (2004) to produce an authoritative source for articulating power as legitimate authority. 18 See further, Simpson (2004) on ‘legalized hierarchy’ and ‘legalized hegemony’. On the framework providing the basis for claiming international executive authority of the UN itself, see Anne Orford, International Authority and the Responsibility to Protect (Cambridge University Press, 2011). 19 What Simpson refers to as ‘liberal anti-pluralism’: Simpson (2004). 17

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began to articulate an increasingly forceful conceptualization of sovereignty and of ‘international community’. The explicit references to ‘outlaw states’ entered centre stage, having lain somewhat at the sidelines of Cold War realpolitik. This polarization of community meant re-invoking notions of guiding towards responsible sovereignty, or in other words civilizing those states seemingly incapable of becoming members of a responsible, international community. It is not as if this remaking of the world had disappeared during the Cold War but proxy wars served to maintain the principles of containment and deterrence, managing bipolarity, and avoiding publicity through a commitment to clandestine, deniable operations and assistance to armed groups throughout the world. The shift today is that there is no such political basis to the legal system of ‘prohibition’. Instead, containment and deterrence have made way for hegemonic liberalism (also referred to as ‘crusading’ liberalism) and ‘protection’. This is in much the same mould, though using distinct modalities, as ‘high’ imperialism. The ideological compromise has transformed and if we do not acknowledge this we are led to two unsatisfactory modes of critique in relation to the prohibition on the use of force. Either we become stuck in the misperception of a lawless world, in which political actors eschew the concrete forms of doctrinal prohibitions; or we demand that doctrine adapt to meet the so-called challenges of ‘today’s realities’.20 This commitment to international law finds itself in the position of either apology or utopia, either decrying doctrine as outdated and in need of updating, or decrying justifications as ‘incorrect’ in law and demanding adherence to existing doctrine. The problem is that both these perspectives find a solution through law without acknowledging or analysing its operative role in contemporary political change. The notion of law as power21 leads us to examine the invocation of rights, thereby allowing for the analysis of the justification of such invocations as operations of law, not outside law or in defiance of the prohibition. Further, by reorienting our appraisal of the function of the prohibition—as a gateway to using force on justified grounds—we can begin to see law less as simply a constraining factor, and instead appreciate it as a ‘vital discursive medium’.22 Analysing legal justifications can, therefore, reveal how international law works. 20 See the polar positions this form of critique takes: Philippe Sands Lawless World: America and the Making and Breaking of Global Rules (Penguin, 2005) which demands political adherence to unambiguous international legal rules. For the alternative see, for example, Daniel Bethlehem, ‘Self-Defence Against an Imminent or Actual Armed Attack by Nonstate Actors’ American Journal of International Law 106(4) (October 2012) 769–77 in which he argues that if doctrine is going to remain relevant to politics, it must take account of ‘present realities’ and adapt to the political environment. As with the polar positions noted above, both accounts lead back to the concreteness of law (the formalist account of law) versus the malleability of politics. 21 See HLA Hart, The Concept of Law (2nd edn) (Oxford University Press, 1994) 27–9. 22 Kritsiotis (2004) 79 referring to Abram Chayes, The Cuban Missile Crisis (Oxford University Press, 1974) 7.

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Through the process of seeking to reveal how international law works, we are drawn towards thinking about the ‘inward’ and ‘outward’ aspects of such workings, or operations. We tend to think of war outside ‘the domestic’ in which it is justified and debated, taking place in ‘other spaces’ on the international ‘plane’. But this study seeks to reveal precisely this domestic face of international law. In doing so, it seeks to break down the distinction between ‘the international’ and ‘the domestic’ to reveal the interrelatedness of these two sites of legal and political contestation. Through this ‘interpretive activity’,23 it puts the whole system of distinction, between war and peace, and between the international and the domestic borders of international law, into question.

1.2 What does it mean to ‘matter’? The stimulus for writing this book arose from the intuition that international law appeared to matter to the British debates of 2002–3 about using force against Iraq. As argument raged over the impending invasion of Iraq, the government’s legal justification became a central subject of public discourse. Instead of asking the question ‘is the war justified’, as in debate over the bombing of Afghanistan in 2001, one central question became whether it was ‘legal’ or ‘illegal’. It remains a striking quality of the British discourse over intervention that ‘illegality’ featured so prominently. The intuition was that international law mattered; that the government had had to justify itself in legal terms and that domestic actors appeared to be using international law as a resource to constrain government decision-making. Yet, immediately this intuition raised the prospect of unpacking what it means for law to ‘matter’. Is this a useful way of framing the significance of international law for domestic political debate? In much of the literature that seeks to understand the relationship between international law and politics, the question of ‘mattering’ is asked.24 Yet, it is often unclear what exactly these writers mean by using the term ‘matter’. For something to ‘matter’ is for that something to have significance, but we are then led to ask the question: significance in relation to what, both in time and place, and to what ends? What both international relations and international legal

23 Susan Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (Oxford University Press, 2000) 143. 24 See, for example, Anthony Clark Arend, ‘Do Legal Rules Matter? International Law and International Politics’ Virginia Journal of International Law 38 (1998) 107; Friedrich Kratochwil, ‘How do Norms Matter?’ in Michael Byers (ed), The Role of Law in International Politics: Essays in International Relations and International Law (Oxford University Press, 2000); Peter Haas, ‘Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control’ International Organization 43 (1989) 377–403; Andrew Cortell and James Davis, ‘How Do International Institutions Matter? The Domestic Impact of International Rules and Norms’ International Studies Quarterly 40 (1996) 451–78.

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theorists seem to be getting at is a compound of two concerns: one relates to explaining the role of norms, rules, and legal process in decision-making, mainly by governments; the other relates to explaining obedience to international law in the absence of formal enforcement mechanisms, or in other words, the question of compliance. This latter concern is steeped in a liberal inheritance that, whilst not necessarily explicitly acknowledged by such writers, underpins their conceptualization both of law and of politics. If we assume that mattering refers to significance we might reformulate the question of mattering as one that queries the extent to which international law plays a part in whatever is the outcome of the processes of justification. So, if we are examining the justification of military action, we might say that international law is significant if it affects both the process and the outcome of the politics which emerges in response to justification. Now we face the problem of how to measure this contribution, which necessarily involves us in deconstructing what we mean when we refer to law. For it cannot be that we consider solely formal rules, as embodied in particular authoritative forms,25 whether in custom or the UN Charter. We must now be considering the forms that those rules take in the processes of justification. The first form is surely the justification itself. The second might involve tracing the influence of formal advice on international law, which is filtered—or is perhaps ignored—by the justifications publicized. When we think about these practices of international law, these operations, we are bound to question what their relation is to other practices. What is the relationship between these legal articulations and other concepts and operations such as legitimacy or authority? What about the context within which such articulations are made? In order to reach an understanding of this significance, therefore, we are called towards a rich description of the politics of justifying force. We are drawn towards mapping this politics to chart the flows and routes of international law as justification. In addition, however, some assumptions about international law necessarily surface in the attempt to unpack significance. If we say that significance is about affecting the outcome of the politics of justification, are we not attributing certain qualities to international law? In these existing projects of mattering, international law necessarily acts as a constraint on government action. International law therefore draws its users towards compliance with its obligations. Yet, it is already clear that this is only one aspect of international law as it operates through justificatory politics. What are we to make of the pull of this conceptualization of international law as compliance? Such a view speaks to a progress narrative of international ordering, a move from anarchy towards order through law and legal obligation premised on the ability to measure compliance through behaviour. Yet, this is a partial account, even leaving aside the wider critique that it is an illusion.26

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On forms of authority as forms of jurisdiction, see Dorsett and McVeigh (2012) Ch 2. For an account of international law’s progress narrative, see David Kennedy, ‘International Law and the Nineteenth Century: History of an Illusion’ Quinnipiac Law Review 17 (1998) 99–138. 26

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Chapter 2 returns to the theoretical accounts of compliance by interrogating the claims made by liberal international relations theory. At this stage, it is worth simply noting the influence of this view of international law, and recognizing that this book suggests an alternative account of international law which rejects the centrality of the compliance model. By attending to international law’s usages and articulations, the book pushes back against this model of order, to reveal both a darker side27 to compliance and the facilitative authority of international law as it is practised through speech. This account of international law draws us away from the pull of pre-determined meanings and opens up the possibility of transformative potential, even as it focuses on the usages of international law that seek to determine authoritative meaning. If such potential is to be actualized, we need to recognize that international law ‘is not a unity, but [operates] on a number of dimensions at the same time’.28 This brings us back to the prospect of engaging international law’s domestic dimensions, opening up for debate a primary distinguishing feature of the politics of justification: how rulers govern through law, meeting challenges to authority with claims to excesses in sovereign power that seek, thereby, to reify the borders of ‘the international’ and ‘the domestic’.

1.3 Authority, legitimacy, discourse Studying the domestic face of international law through justification asks us to consider the context within which justification takes place. This consideration of context does not merely relate to the institutional structures of domestic politics, but also to wider concepts which are embedded in politics. Justification at times makes implicit and explicit reference to legitimacy and to authority. These concepts are, further, crucial to unpacking the nature of discourse. Legitimacy29 and authority are intimately connected through the process of legitimation: ‘the process by which authority comes to be seen as valid and appropriate’.30 The two concepts are themselves inherent to an account of power: how it is that rulers are able to exercise power over others without constant recourse to coercive power. Discourse gives an indication of articulations not just of authority but also of power. According to Max Weber, ‘the basis of every system of authority, and correspondingly of every kind of willingness to obey, is a belief, a belief by virtue of which persons exercising authority are lent prestige’.31 Weber’s three sources of legitimacy 27 David Kennedy, The Dark Sides of Virtue: Reassessing International Humanitarianism (Princeton University Press, 2005). 28 Marks (2000), 145 citing Carol Smart, ‘Feminism and Law: Some Problems of Analysis and Strategy’ International Journal of Sociology of Law 14 (1986) 109 at 117. 29 The account of legitimacy here does not consider the interrelated question of international legitimacy as explored by Thomas Franck, The Power of Legitimacy Among Nations (Oxford University Press, 1990). 30 Marks (2000) 19. 31 Max Weber, The Theory of Social and Economic Organization (Free Press, 1964) 382.

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which resulted in the transference of authority and agreement to be bound by that authority are ‘tradition’, ‘charisma’, and ‘rational-legal’ authority. The first two are self-explanatory. The last refers to the trust accorded to processes of legality, on the basis of the rationality of the rule of law.32 These three sources of legitimacy find expression through articulations, and so the mapping of discourse will reflect something of each of these sources. This mapping might therefore tell us something about this wider context within which international law operates. In the longer frame of conceptualizing legitimacy and authority three themes emerge from the wider literature. The first is the notion of consent, that people being ruled by an authority have undertaken to be bound by exercising their free will. Despite the support for this foundation to political authority from writers such as Locke, Grotius, and Hobbes, David Hume provides an arresting corrective. He states that Locke’s account of consent is simply not realistic, as most states have emerged as a consequence of widespread political violence.33 It is arresting because, as we trace the themes of legitimation, starting with consent we can already see a mirror-imaging of the legitimation for the rule of international law. Translated onto ‘the international’ the consent of states can be seen as being ruled by (sometimes violent) hierarchy, which in any case has a violent history, despite the formalist account of exercising free will in being bound through consent. The second theme is that of utility, or in other words the benefits of ruler and ruled expressed through legitimation practices. If the claim to authority fails to make the case for being exercised in the ‘common good’, such a claim will lack legitimacy. Again, we find this utilitarian framework expressed on the ‘international plane’ as international law’s account of itself as generative of peace and order.34 In the domestic sphere of the politics of justification, this might manifest as the claim to authority which promises to secure the common good of the ‘national interest’, itself premised on access to ‘secret knowledge’, too sensitive to share with the ruled. Finally, authority must be ‘claimed’, that is, it needs to be rationalized to obtain consent, to make the case for utility, and to achieve representative legitimacy. In other words, all three themes arise in the process of justifying authority. Whilst this theme has, as with the previous two themes, a long theoretical inheritance, for the purposes of this book the claim to authority through justification is of primary interest. So whilst accounts of legitimacy remain rather elusive or abstract, exercises of authority can be seen in the concrete practices of justifying authority. In other words, in the ways that law speaks, literally as juris-diction.35 The explicit claim to authority made in the politics of justifying force has the purpose of securing the practice of jurisdiction over foreign policy, military forces, and in assessing the national interest. This matter of jurisdiction raises 32

Weber (1964) 64. See David Hume, ‘Of the Original Contract’ in Alasdair MacIntyre (ed), Hume’s Ethical Writings (University of Notre Dame, 1979). 34 Intriguingly, the premises of authority appear to reflect many of the same legitimations of authority exercised through the rule of international law: consent, utilitarian progress, and ideological coherence with domestic liberal values. 35 McVeigh and Pahuja (2009) 98–99. 33

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questions as to a state’s authority to wage war when a majority of its public might be opposed to military action, particularly in the absence of institutional accountability. This matter of jurisdiction raises the prospect that a lack in domestic authority can be fulfilled by an excess in international authority. Here we are not dealing with the classically maligned deficiencies of international law, but instead with the deficiencies of liberal democracy. And there is a rather perverse way in which the deficiencies in liberal democracy are apparently perfected by a claim to legitimacy and authority through international law! In other words, this is sovereignty versus sovereignty: one concept premised on the traditional practices of sovereignty within the domestic trumped by another concept of sovereignty practised outside the domestic yet justified and exercised within. There are alternative means of perfecting the lack, familiar ones including the access to secret intelligence or appeals to the trust embodied in charismatic leadership. But it is significant that in existing accounts of justifying force, this perfection of authority through international law over domestic politics has been unexamined. The attention to the operations of this lack and excess ask us to consider, more deeply, the contestations over jurisdiction that take place in the politics of justification. This is a far richer account of jurisdiction than the traditional, doctrinal account of international law and invites us to reconsider not only those exercises of authority—or technologies of jurisdiction36—but also the artificially bordered map produced by such doctrine of ‘the international’ and ‘the domestic’. This account opens up to contest the practices of authority which operate to entrench that distinction. Whilst this brief account of legitimacy and authority cannot do justice to the deeper questions of the normative qualities of legitimacy, or other theoretical perspectives on legitimacy, already we can see that practices of justification might function in particular ways in the domestic arena due to the structures—both institutional and discursive—of legitimacy and authority. In other words, the ‘ruled’ might already be accustomed to the justification of authority, and through that, power, by the rulers: justification is itself an everyday of political life. Justification involves a claim to authority, which itself represents a claim to speak the law, bringing it into being and manifesting itself as lawful authority. This study seeks to bear in mind this architecture of justification to the structural foundation of ruling and being ruled. The significance of justification brings us, finally, to the question of discourse. The means of exercising justification is through speech, requiring the adoption of a language of justification. In the cases studied in this book, that language is international law. Yet, as Foucault points out, the term language does not fully capture what the term ‘discourse’ can: that language is a way of representing knowledge.37 The process of justifying is itself a discourse and the question here is what effects can be traced on this discourse when joined by discourses of international law? There are perhaps at least two ways of representing the discourse 36

On which, see further, Dorsett and McVeigh (2012) Ch 4. See Stuart Hall, ‘The Work of Representation’ in Stuart Hall (ed), Representation: Cultural Representations and Signifying Practices (Sage/Open University, 1997). 37

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of international law. One view is that international legal discourse relates to a specialized field of knowledge in which relevant actors employ the same language to communicate their ideas. This specialized field is populated, in the main, by international lawyers and, as Oscar Schachter put it, can be conceived as an ‘invisible college’.38 Another view, however, might suggest that the discourse of international law is in fact peopled by far more actors and can be seen as encompassing both ‘specialized’ knowledge, and wider interpretations. The important point, from the case study perspective, is to suggest that legal justification does more than simply generate debate. It generates a discourse, a way of understanding and articulating international law, thereby constructing knowledge about its practices, operations and principles. Yet, some distinction of discourses is retained in the case studies, by the separation between ‘policy discourse’ and ‘public discourse’. The rationale for this distinction lies in the spaces in which this discourse is practised, the forms that discourse takes, and the actors engaged in the discourse. Policy discourse takes place in private, and in the case of justificatory politics rarely ‘spills out’ into the public arena. It is conducted in secret and through official channels of communication, which include formal and informal meetings between government and their officials, and written correspondence and memoranda. Public discourse on the other hand can be conceived as taking place in public spaces, through published means such as Parliamentary debate, polling, protest and media reporting. Yet, this image of public discourse is problematic. For what is it, other than a tautology: discourse conducted in public? What other characteristics does it have? It engages different actors than those involved in policy discourse. It involves the recording of opinion, formal statements in particular institutional contexts such as Parliament, commentary in the press, interviews, formal debates, protests. And it is reliant on the role of media in generating and sustaining the public politics of justification. The distinction between policy and the public is explored in this study as co-productive of justificatory politics.

1.4 Defining terms: elites, expertise, and ‘the public’ Many of the terms used in this book carry with them ‘disciplinary inheritances’. For instance, international relations literature is replete with examples of contests over the meaning of the term ‘norms’. Sometimes this term is used in an ironic sense to refer to law, as if the word ‘norms’ conveys a lack at the heart of questions of legality. When international relations theorists are referred to in this study, particularly in Chapter 2, no attempt is made to seek ‘translations’ of their usage. Instead, such theories are discussed in their own terms, whether they refer to ‘norms’, ‘mattering’, or ‘discourse’. Yet, there are certain terms that do require some definition, if only to clarify their meaning in this study of justificatory politics. A focus on media and on policy discourse raises the question of elites and elite 38 Oscar Schachter, ‘The Invisible College of International Lawyers’ Northwestern University Law Review 72(2) (1977) 217–26.

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power. This, in turn, raises the issue of expertise. In considering the categorizations of elites and of expertise the study also makes reference to ‘the public’. The term ‘elites’ is often referred to in the singular, as an ‘elite’, and is defined as ‘a group of people considered to be superior in a particular society or organization’.39 Traditionally, elites have been described as intimately connected with the machinery of government.40 More recent work emphasizes that elites hold power because of their positions of authority in economics or policy-planning.41 These positions of authority manifest in the institutional hierarchies and organization of society, and power is exerted through the authority to make decisions of national and international significance.42 Writers such as G William Domhoff go slightly further, by arguing that elites (or in Domhoff ’s terminology ‘the ruling class’) are those intimately connected through organizations such as government bureaucracy, corporations, and other institutions of society and the state, working actively to promote their class interests.43 Whilst this study does not interrogate further the notion of elites, it recognizes the explanatory potential of the above approaches in seeking to trace how public discourse operates. Recognizing that government, politicians, and political officials, and powerful institutions such as media organizations, can be classed as elites brings into sharper focus their influence over discourse. The reference to elites, therefore, allows us to consider how some actors are able to claim greater legitimacy and authority in discourse, including discourse that engages legal justifications. By explicitly identifying the media as an elite institution, we gain a more nuanced appreciation of the relationship between ‘the public’ and media, and between media and ‘the state’, issues which are considered further in Chapter 2. Contemplation on elites leads rather neatly to the question of expertise. This study is not about the ‘rule of experts’.44 Yet, it nevertheless traces the ‘turn to expertise’, in one way or another. By mapping discourse, it charts the influence of private policy advisers—often lawyers—over public justificatory stances by governments. It also charts the influence of experts—often lawyers, sometimes diplomats, academics, technocrats—over public discourses that challenge government’s legal justification. Through this tracing of influence, it becomes apparent that experts exercise and claim a particular authority in the politics of justifying force, and their public role is emphasized by the ‘turn’ to expertise demonstrated in media 39

Oxford English Dictionary (online). Classical elite theorists of the early 20th century include Vilfredo Pareto, Gaetano Mosca, and Robert Michels. See Berch Berberoglu, An Introduction to Classical and Contemporary Social Theory: A Critical Perspective (3rd edn) (Rowman & Littlefield, 2005) Ch 4. 41 For instance, C Wright Mills, whose work on the ‘power elite’ is examined in Berberoglu (2005) Ch 11. 42 Berberoglu (2005) 88. 43 G William Domhoff, The Power Elite and the State: How Policy is Made in America (Aldine de Gruyter, 1990); G William Domhoff, Who Rules America? Power, Politics, and Social Change (5th edn) (McGraw-Hill, 2006). 44 On which, see David Kennedy, ‘Challenging Expert Rule: The Politics of Global Governance’ Sydney Law Review 27 (2005) 5; ‘Law and the Political Economy of the World’ Leiden Journal of International Law 26 (2013) 7–48; see also ‘The Mystery of Global Governance’ Ohio Northern University Law Review 34 (2008) 827–60. 40

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reporting. Indeed, the very presence of technical, legal arguments justifying force is evidence of the turn to expertise, as a claim to legitimacy and authority to ‘speak the law’. In public discourse, the media often refer to experts when reporting on challenges to legal justification. The case studies explore how and why this occurs. Finally, the study uses the language of ‘the public’ and, as has already been discussed, the notion of ‘public discourse’. The reference to public discourse is interrogated further in Chapter 2. Both terms are rather problematic if the claim is made as to their facticity, in other words a claim that they exist as descriptors of a reality. Yet, this study hopes to make clear that the reference to ‘the public’ is rather a reflection, or an echo, of the descriptor used by domestic actors during justificatory politics. In that sense, the study refers to the public because other discursive actors do so. Such a descriptor appears to be deployed as a resource itself in articulating challenges to government justifications. Just as experts and expertise can be deployed in these contests over policy and action, so too can the public. Crucial to all these usages are those actors who use such resources, invariably the media but often also government, policy officials, and experts or ‘the public’.

1.5 A note on method, on history and its uses Whilst this chapter has so far noted the significance of law and politics, and concepts such as legitimacy, authority, and discourse, a note needs also to be made of the method adopted in this study. What is perhaps already obvious from the reference to mapping and contextualization, is that this study in engaged in a ‘thick’ description of the politics of justification. What does this mean? Most researchers who deploy a ‘thick’ description methodology cite the anthropologist Glifford Geertz as the originator of the term,45 though it originated with Gilbert Ryle, a British metaphysical philosopher at the University of Oxford.46 As Ponterotto points out, for Ryle ‘thick’ description ‘involved ascribing intentionality to observed behaviour’.47 Ryle used the example of watching a golfer hitting a series of golf balls towards the same green, collecting the balls, and then beginning the process all over again. A ‘thin’ description would look very much like that already given, whereas a ‘thick’ description would seek to interpret the golfer’s behaviour. In this case, therefore, the golfer is practising shots in anticipation of some future competitive game of golf, perfecting his technique to use at some future time.48 Ryle’s approach was later picked up by Geertz, and subsequently others, as a method through which anthropologists would be better equipped to produce ethnographies. Reflecting upon the practice of ethnography he argued that the practice was engaged in producing ‘our own constructions of other people’s 45

Clifford Geertz, The Interpretation of Cultures: Selected Essays (Basic Books, 1973). Joseph G Ponterotto, ‘Brief Note on the Origins, Evolution, and Meaning of the Qualitative Research Concept “Thick Description” ’ The Qualitative Report 11(3) (September 2006) 538–49 at 539, referring to Gilbert Ryle, Concept of the Mind (Hutchinson & Co, 1949). 47 Ponterotto (2006) 539. 48 Ponterotto (2006) 539. 46

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constructions of what they and their compatriots are up to’.49 This interpretation of ‘thick’ description carried with it a kind of double reflexivity in relation to observation and explanation. The book’s approach is, instead, informed by Ryle’s less ethnographically directed reflection. By seeking to interpret the politics generated by legal justification, the book challenges the ‘thin’ description of that politics which emanates from the theoretical approaches interrogated in Chapter 2. This ‘thin’ description makes visible only some aspects of international legal enquiry, whilst leaving others unaccounted for, as somehow undeserving of closer analysis. Such an approach to enquiry can reflect ideological choices that underpin the methodological approach of ‘thin’ description. A ‘thick’ description recognizes that international legal enquiry is an inescapably interpretive activity,50 which can in turn reveal the ideological moves of traditional theory.51 In order to produce a thicker description of this politics another critical tool— that of mapping—is used. Producing maps and the politics of geography has a particular resonance for critical scholarship. Yet, this study refers not to the critical questions of place and space that exercise critical legal geographers.52 Instead, it refers to the method of mapping as a process of revising images of the terrain of political and social engagement. In other words, mapping makes visible the processes of legal justification, challenging the borders previously drawn onto such maps as there already are, navigating routes through these maps to trace the influences on discourses of war. The challenges of mapping this politics are discussed in the following chapter. The study does not address the spatial politics of justification—though that certainly deserves its own enquiry. Instead, the mapping of discourse refers to time and place, rather than space.53 Situating the politics of justification in a rich context and telling the story of justification as a history that self-consciously references history, seeking to ‘make’ history, has important consequences for the map produced. As with any history, the window onto the past is always partial and reflects the observational position of both the narrator and the reader. And there is always the tendency to interpret the picture that emerges in the light of that position, from that perspective, producing meaning for today. Yet, this is precisely the use of history, and in some sense what lies behind all telling of history. Whilst many historians claim that this verges on anachronism, they often fail to consider how participants in that window consistently deploy history as a resource themselves. Further, the historicists’ concern with showing things ‘as they actually were’ can never be realized; it is a fantasy of interpretive ‘honesty’ that no map can ever reflect as if an unplaced, unimagined window on a fixed past. The meaning of events is repeatedly re-interpreted,

49

50 Marks (2000) 143. 51 Marks (2000) 126. Geertz (1973) 9. For an example, see Chris Butler, ‘Critical Legal Studies and the Politics of Space’ Social and Legal Studies 18(3) (2009) 313–32. 53 On ‘space’, see Doreen Massey, For Space (Sage, 2005). 52

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re-invigorated and re-deployed at moments of rupture that challenge the notion of the continuity of time.54 Take the Iraq War as a classic example of this use of history. The Suez Crisis was invoked as a ‘lesson from history’, not just in public discourse, but also in the private policy sphere. Policy-makers and advisers referred to the dangers of repeating Suez, of the potential for catastrophe should this ‘warning from history’ not be heeded. How had this imagining of the Suez Crisis and its meaning emerged, developed, or erupted at this very moment? And during the Suez Crisis what danger lurked in the past that found expression in the ‘now’ of discourse? Hitler’s rise to power and the cataclysm of appeasement. That frame of reference not only infused and structured justificatory politics during the Suez Crisis, but also during the Iraq War discourse. This historical framing gestures towards the enduring legacy of the Second World War and its structuring force on discourse and politics. In many ways this ultimate event—of good versus evil—has become mythologized as the end point of historical reference; the foundation point to every ‘now’ that emerges; and the unquestionable trump that justifies recourse to force. So, if history is deployed by actors in justificatory politics, ought not international lawyers consider these uses of history, and seek to tell their own histories of these politics? In fact, international law as a discipline has already embarked on such a ‘turn to history’.55 The move to history can also be seen as a move towards interpretive description that highlights contingency and questions the narrative of progress.56 It challenges the ‘evolutionary premise’ and mapping of ‘destiny’57 which colours conventional histories of international law’s past. In 54 This study is heavily indebted to Walter Benjamin’s conception of historical time, constellations, and the production of past and present. It seeks to demonstrate, through a structured account of the meaning of the Suez Crisis and the Iraq War for eachother, the uses of history, the shifting meaning of events, and thereby disrupt the premise of much historicist work—in a Benjaminian vein—that is premised upon ‘progress’, and ‘progressive development’. See Walter Benjamin ‘On the Concept of History’ (1940) in Selected Writings, Vol. 4 Howard Eiland and Michael W. Jennings (eds) (trans. Edmund Jephcott et al.) (Harvard University Press, 2003); see also Benjamin The Arcades Project (trans.) Eiland and Kevin McLaughlin (Belknap Press, 1999) and Susan Buck-Morss’s reading of Benjamin’s Arcades Project, The Dialectics of Seeing (MIT Press, 1989) especially 78–96. 55 For substantive examples of this turn to history, see David Kennedy, ‘The Move to Institutions’ Cardozo Law Review 8 (1987) 841; Nathaniel Berman, ‘A Perilous Ambivalence: Nationalist Desire, Legal Autonomy, and the Limits of the Interwar Framework’ Harvard International Law Journal 33 (1992) 353; ‘ “But the Alternative Is Despair”: European Nationalism and the Modernist Renewal of International Law’ Harvard Law Review 106 (1993) 1792; ‘ “The Appeals of the Orient”: Colonized Desire and the War of the Riff ’ in Karen Knop (ed), Gender and Human Rights (Oxford University Press, 2004); Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge University Press, 2002); Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2004); Simpson (2004); Matthew Craven, The Decolonization of International Law: State Succession and the Law of Treaties (Oxford University Press, 2007); ‘The Invention of a Tradition: Westlake, The Berlin Conference and the Historicisation of International Law’ in Luigi Nuzzo and Milos Vec (eds), Constructing International Law: The Birth of a Discipline (Klosterman, 2012), 363–403; Orford (2011). 56 For a classic examination of the legitimating function of the progress narrative for contemporary international legal scholarship, see Kennedy (1998); see also Nathaniel Berman, ‘In the Wake of Empire’ American University International Law Review 14 (1999) 1521–69. 57 Paul Rabinow (ed), The Foucault Reader (Penguin, 1984) 76 and 81.

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seeking to give an account of the politics of justification, this study attempts to do that which Anne Orford has recently advocated: take this politics on its own terms, describe this politics and explore the implications of such a description.58 This kind of description is precisely what is lacking in existing accounts of the politics of justification, and indeed in so many accounts of international law’s relation to politics. Yet this telling of history remains a legal practice. The drawing of analogies between the case studies, and the tracing of the uses of such analogies by actors engaged in the politics of justification draws upon a well-established mode of legal analysis. After all, as Kratochwil points out, ‘[l]egal reasoning is also analogical’. Law looks at analogies to establish its rules, drawing on similarities, or distinguishing differences.59 Tracing such an historical map draws upon a range of tools. Whilst archives and other materials form the primary sources for charting the map of policy discourse, historical accounts that seek to reappraise traditional narratives are also useful. Keith Kyle’s Suez has been described by Peter Hennessy as ‘the inquiry we never had into that extraordinarily significant affair’.60 Kyle was what ‘Robin Butler and John Chilcot are to Iraq’.61 It is perhaps unsurprising that this observation occurred to Hennessy following the launch of the Chilcot Inquiry into the Iraq War. Yet, Hennessy perhaps gives too much credit to these chairs of inquiries. Kyle’s outrage, after all, is always simmering below the surface of revelation after revelation of government policies and duplicity. The same subjectivity, impassioned perspective, can hardly be expected from those tasked with neutrality, impartiality, and objectivity. It is this very process of institutional inquiry that inevitably defers to government over crucial aspects in the production of an official history of the decision to go to war. Another text providing a revisionist narrative of the Suez Crisis is Tony Shaw’s Eden, Suez and the Mass Media.62 Shaw’s focus on media–state relations during the Crisis acts as a kind of corrective to the traditional account that Suez was the ‘moment’ at which the British press, both newsprint and broadcast media, emerged out of the shadow of censorship, holding the government to account and taking its place at the heart of democratic politics. It also corrects the view that decisions were taken in a ‘hermetically-sealed’, publicity-free ‘information environment’.63 Shaw’s insights are particularly useful in demonstrating the complexities of justifying military action. He highlights how the government sought, and despite its rather inept handling at times, successfully achieved a degree of censorship amongst the press; and how these efforts were

Anne Orford, ‘In Praise of Description’, Leiden Journal of International Law 25 (2012) 609–25. Kratochwil (1989) 223. 60 Keith Kyle, Suez: Britain’s End of Empire in the Middle East (IB Tauris, 2003). 61 Peter Hennessy ‘Afterword’ (2011) in Kyle (2003). 62 Tony Shaw, Eden, Suez and the Mass Media: Propaganda and Persuasion During the Suez Crisis (IB Tauris, 1996). 63 Philip Taylor, Global Communications: International Affairs and the Media Since 1945 (Routledge, 1997) 52. 58 59

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made. He traces the influence of personalities, of owners, and of policy officials in this process of influence and justification. Whilst Shaw is focused squarely on Suez, intriguingly Iraq yet again surfaces in his reflection on writing his history. He argues that Iraq showed Tony Blair ‘to be far more adept at media management than Anthony Eden’ and that scholarship had already demonstrated that Blair had had a more successful ‘media war’ than initial commentators suggested.64 This repeated invocation of Suez, in the light of Iraq, gives further impetus to the construction of this study, drawing the two episodes in British history into juxtaposition not simply to compare them, but to reflect upon the processes of justification across and through time—time as not necessarily linear, but as moments of meaning (re) production in dialogue.

1.6 The structure of the book The following chapter examines theorizations of justificatory politics and wider conceptions of the interaction between international law and domestic politics. The chapter explores a number of approaches centred on the question of international law’s ‘impact’ on domestic politics, and then considers two approaches in particular which seek to articulate theoretical models for understanding this ‘impact’. Whilst such approaches are useful in beginning the process of unpacking international law’s significance in domestic politics—and indeed vice versa—they are revealed as lacking nuance and sophistication, particularly in their thin description of politics, and their implicit ideological assumptions about law expressed through a commitment to legal formalism. Chapters 3 and 4 represent the fleshing out of existing critique by mapping British discourse in the Suez Crisis of 1956 and the Iraq War of 2003. The case studies draw upon a range of materials including archival material, media reporting, Parliamentary debates, polling data, personal memoirs, and, in the Iraq case study, evidence before three public inquiries. Some historical context introduces the case studies, yet what is striking when reflecting upon both is the narrative produced in these ‘moments’. A contextual or historicist reading of Britain’s relations with Egypt or with Iraq might question the striking omissions in these narratives: that meaning was not causally connected to the context of foreign policy. Instead meaning and therefore context seemed to be derived from the domestic focus of such narration, producing an experience of ‘encounter’ paying attention only to the meaning to be derived for British discourse. Chapter 5 reflects upon the case studies, drawing out a number of implications. It seems that discursive contests over legal justification do not reflect simply an 64 Shaw, Preface to the 2009 paperback edition, citing as an example Justin Lewis et al, Shoot First and Ask Questions Later: Media Coverage of the 2003 Iraq War (Peter Lang, 2005). Lewis’s study analysed the practice of ‘embedding’ journalists, so in this sense the successful media war refers in part to conduct of the war, as much as legal justification for the war.

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internalization of international legal norms, or a socialization to international legal argument. The picture is more complex. Discourse is ‘fed’ from a number of sources. These include physically identifiable sources such as government, media reporting and experts. Yet, discourse is also influenced and driven by more ‘abstract’ sources such as contests over knowledge production, interpretation, and transmission; framing; and narrating. These additional processes place the media in a particularly influential role in the politics of justification. Further, both sets of sources are fuelled by underlying claims to legitimacy and authority. The chapter focuses upon, amongst others, the significance of secrecy, the role of media and the influence of ‘the international’ to seek answers to questions posed by the case study maps. What are we to make of the public face of legal justification when we become aware of the hidden motivations for military action? How can we talk about the embedding of international law, without first acknowledging the translation of its language and practices through media and other institutional actors? And how can we continue to conceive of ‘the domestic’ and ‘the international’ as coherent borders of our doctrinal map of international law and its intra-discursive fields? The final chapter ends by considering the relationship between using force, and using law. Whilst it may be true that justifying force can constrain government action, the prior question surely is why justify in the first place? And why use international law? The presence of legal justifications, their deployment and practices must be accounted for and recognized before embarking, as a number of theorists do, on a project that implicitly advocates on behalf of such justifications. Such advocacy walks a thin line, perilously close to looking like an apology for power. It fails to recognize its own assumptions and ideology articulated in the progress narrative underpinning its account of international law. Is such a danger reserved only to the issue of using and justifying force? The chapter raises the possibility that certain features of the politics of justification might also appear in the process of justifying the conduct of war, or the use and justification of torture, these features might also be tracked through a range of other public policy questions. The study acts as a reflection upon the domestic operations of international law. The study of international law’s domestic face, its operations and its practices, raises questions that may go beyond justifying force, asking for further analysis of international law’s effects on claims to authority and ultimately to power. The unsettling of the traditional gaze of international law invites the recognition of international law’s multiple dimensions. At the same time, the study pays attention to the pull of the progress narrative underpinning doctrinal accounts of international law and its histories, to the power of international law’s distinctions— between war and peace, legal and illegal, past and present, and in defining the borders of ‘the international’ and ‘the domestic—and to the force of sovereign authority as expressed through justification. These deployments and usages of international law arguably seek to displace ambiguity with ideological certainty oriented towards authority and power, and so the study hopes to shine a light on what is at stake, in a sense beyond the use of force, when we map out the politics of justification.

2 Theorizing the Politics of Justification When governments go to war, invariably they justify their use of force. This use of justification can spur debate both internationally and domestically. Some writers have claimed that the pronouncements on using force generate a politics of justification with a number of effects at the international and domestic level.1 Others have claimed that this talking about international law leads to the embedding of international legal rules in domestic society.2 For such writers, the fact that governments justify force is, in itself, an important fact, perhaps even inherently positive in terms of constraining government action. This is because such writers are working under an assumption that the embedding of norms, or what they term socialization, acts to constrain governments from using force through law.3 Domestic actors are then able to use international law as a resource. It is a point of view that, simply stated, argues governments are trapping themselves into legal obligation4 and this will have positive effects on audiences’ ability to challenge the use of force. To that extent such theories rest on and propagate a form of progress narrative. The aim of this chapter is to challenge this narrative by refining and reorienting the analysis. It acknowledges the basic premises of the literature: that international law has domestic impacts, and there is, as a matter of fact, a form of politics which emerges from legal justification. The chapter seeks to demonstrate that this literature needs richer contextualization to reflect the complexities involved in such a politics of justification. By conceiving of international norms as objects or abstract entities, without acknowledging how they are also a language, or perhaps more appropriately a discourse, theorists have so far not acknowledged the manipulability of justification. Nor do current theories empirically trace or map the processes by

1

Schachter (1986); Finnemore (2003); Goodman (2006). Cortell and Davis (1996), (2000); Checkel (1999). 3 Goodman and Jinks (2005); Harold Koh (1996), (1997), (1998), (2004). 4 Risse (2000); Frank Schimmelfennig ‘The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern Enlargement of the EU’ International Organization 55(1) (2001) 47–80; Kathryn Sikkink, ‘Transnational Politics, International Relations Theory, and Human Rights’ Political Science and Politics 31(3) (1998) 516–23. I am grateful to Nikolas Rajkovic for highlighting how these constructivist writers can be termed ‘second generation’ constructivists. I refer to these, and other constructivist theorists, as ‘mainstream constructivists’ in the remainder of this work. The ‘mainstream’ label for constructivist theorizing in international relations brings the approach, in many ways, full circle, given that it began as a marginalized critique on the fringes of international relations theory: see Stefano Guzzini, ‘A Reconstruction of Constructivism in International Relations’ European Journal of International Relations 6 (2000) 147. 2

The Politics of Justifying Force. Charlotte Peevers. © Oxford University Press 2013. Published 2013 by Oxford University Press.

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which governments might become entrapped in their own legal arguments, if that is indeed the case. Attending to the context of justification, what lies behind the motivation to justify, and the nature of the politics that emerges refines our assessment of international law as it operates in and through politics. There are three important ideas that emerge from the existing literature. The first is that the structural context in which domestic political debate takes place matters, and that the salience of norms matters. This means that where justification takes place and what it refers to—particular norms—hold a certain significance. The second idea is that discourse matters. This means that the how of justification holds a certain significance. Discourse signals a change in the domestic context and a shift in the relationship between politics and the international norms being discussed. Finally, there is the claim that legal justification can create ‘blowback effects’ that constrain government actions and, in the extreme case, can limit the incidence of war in world politics. Blowback refers to the situation ‘in which the imagery and justifications that leaders use to build support for their policies at one stage of hostilities constrain their actions at later stages’.5 This literature claims that domestic actors can use international law and legal argument as resources generating discourse on norms which will increase the norms’ salience and create blowback effects. The literature suggests that, in doing so, international law can become part of the domestic structural context and the saliency of international norms is enhanced. The consequence of this is that these norms become embedded in domestic society, which has an international and domestic effect. Both these effects are termed ‘socializing’ states to international legal norms, whereby actors ‘internalize images and form collective beliefs about the situation based on the way the dispute is framed’.6 This chapter critiques and enriches these theories on the relationship between law and politics, laying down a structure for the empirical analysis of the case studies of justification which follow. The chapter argues that the politics of justification and its creation of blowback effects need a thicker description to give an account of what this politics looks like. How does international law operate in practices of justification? What are the various processes at work and which actors engage in these processes? Who holds the greatest legitimacy or claim to legitimacy in these contests? How does justification relate to wider claims to legitimacy and authority? What are the outcomes of this politics? By mapping discourse, the politics of justification is revealed as much more complex, subject to myriad effects and processes, resulting in both positive and negative outcomes in terms of constraint on government action. The ambivalence of law in constraining government action ought to indicate to theorists writing in this area that international law cannot be viewed simply as constraint; that it must also be acknowledged as a facilitative gateway to using force. In short, mapping discourse allows for a richer, more contextualized account of the politics of justification.

5

Goodman (2006) 123.

6

Goodman (2006) 124.

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2.1 Theoretical perspectives on international law and politics The interaction between international law and domestic politics is the subject of theorization in both international relations and international legal literatures. The question is often framed in terms of compliance: why do states comply with international law in the absence of enforcement mechanisms? This frame posits the significance of international law as one intimately connected to outcomes. Some writers within the liberal tradition see compliance with international law as a spillover effect from the rule-guided internal structure of liberal states.7 Mainstream constructivists go further, suggesting that compliance with international law is not simply determined by states’ internal structures, but is also a result of ideas and beliefs which shape actors’ views such that ‘norms’ gain persuasive authority and legitimacy.8 It is perhaps worth noting at this stage the terminology used by international relations theorists which refers to ‘norms’.9 This has a certain terminological inheritance that relates to the intra-disciplinary conflicts between realists and constructivists (and others). At heart, the conflict is over the epiphenomenalism of legal rules or their constructive effect on international politics. Whilst this study acknowledges the inheritance attached to ‘norms’, it will become clear that that history or technicality is not engaged with, or considered central, to the argument of this book. Legal process approaches have some overlap with mainstream constructivist and liberal scholarship. They assert that the processes of international interaction are constitutive so that actors internalize rules into the domestic legal system through various institutional dynamics such as bureaucracies.10 This internalization of norms enhances compliance, according to this view, as norms become embedded in domestic society fuelling rule-governed cooperation.11 In other words, process theorists argue that international law operates at a deep level to shape how states

7 For example, Anne Marie Slaughter, ‘International Law in a World of Liberal States’ European Journal of International Law 6 (1995) 503. 8 Nicholas Greenwood Onuf, World of Our Making (University of South California Press, 1989); Arend (1998); Sikkink (1998); Thomas Risse, Steve C Ropp, and Kathryn Sikkink, The Power of Human Rights (Cambridge University Press (Cambridge Studies in International Relations, 66), 1999); Schimmelfenning (2001); Shimmelfenning, The EU, NATO and the Integration of Europe: Rules and Rhetoric (Cambridge University Press, 2003). For a ‘critical constructivist’ account of compliance which rejects the linear behaviouralist model of mainstream literature, see Nikolas Rajkovic, The Politics of International Law and Compliance: Serbia, Croatia and The Hague Tribunal (Routledge Research in Comparative Politics) (Routledge, 2012) esp Ch 2. 9 See Antje Wiener, ‘Contested Meanings of Norms: A Research Framework’ Comparative European Politics 5 (2007) 1–17 for a detailed, critical constructivist account of distinctions to be drawn in constructivist theorizing between organizing principles, fundamental norms and rules. See also Antje Wiener and Uwe Puetter, ‘The Quality of Norms is What Actors Make of It: Critical Constructivist Research on Norms’ Journal of International Law and International Relations 5(1) (2009) 1–16. 10 Antonia and Abram Chayes, The New Sovereignty: Compliance with International Regulatory Agreements (Harvard University Press, 1995); James March and Johan Olsen, ‘The Institutional Dynamics of International Political Orders’ International Organization 52(4) (1998) 943–69. 11 Jose Alvarez, ‘Why Nations Behave’ Michigan Journal of International Law 19 (1998) 303.

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and other actors see themselves, their social situations, and the possibilities of action.12 These demonstrate at least two underlying assumptions which might be contested by a more critically informed approach. First, the various theories assume that there is a theoretical division between ‘the international’ and ‘the domestic’ creating two distinct spheres of law, politics, and discourse. This separation does entail interaction, but that interaction is mediated by political actors, and apparently by international lawyers, who straddle both spheres. Secondly, these theories treat the question of international law as one of compliance alone. Thirdly, there is a tendency in some of these literatures to treat law and politics as distinct and separate. These assumptions are open to challenge. By being open to challenge, they allow for the possible reconfiguration of their maps for tracing the relationship between international law and domestic politics. The primary argument for doing so is that international law is a knowledge-producing discourse which relates to ‘abstract’ or ‘formal’ laws, but which opens these laws up to challenge, critique, and contestation when politically debated. Law becomes an interpretive enterprise through discourse. It is a discourse used, interpreted, and applied by various actors to justify, oppose, or deny action. Studying the politics of justification allows us to trace the operative terrains of international law. The doctrinal split and distinction of operational fields—of ‘the international’ and ‘the domestic’—has significant implications for understanding how international law works. Whilst some of the theories attempt to grapple with the consequences of distinguishing these spheres of interaction, none goes as far as to map out both the interaction, as a mapping exercise, or the consequences, as an interpretive exercise. The distinction of spheres can be challenged by engaging a critically informed approach to the question of the role of international law in domestic political debate. By examining how law functions as a discourse, a knowledge-producing vocabulary for decision-making, its operations can be traced. Its operation as a framing mechanism for policy choices, and as a resource used by multiple actors can be unpacked and examined. This view of international law’s operations complicates the simplistic notion of socialization towards compliance through embedding. It adds empirical insights, which theorists might draw upon to better understand the politics of justifying force and thereby reveal the forms that international law takes and the authority that is exercised through it.

2.1.1 International relations theories: liberalism Liberal international relations (IR) theory is distinct from, though deeply indebted to, the ‘liberal tradition’ of thinkers such as Locke, Mill, and Kant. Whilst traditional liberalism is premised, ultimately, upon claims to freedom of the individual, liberal international relations theory is more practically focused on 12 Harold Koh has written extensively on transnational legal process in numerous articles and lectures. See eg Koh (1996) 181; (1997) 2599; (1998) 623; (2004) 337.

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describing order amongst states. In describing that order, liberal IR tends to be concerned with explaining why it is that states consent to international obligations. In the process of its method of description and explanation liberal IR takes on a strongly normative perspective which espouses the claim that ‘liberal’ states behave better in international affairs. This better behaviour is due to liberal states’ respect for international law as a ‘spillover effect’, which emerges from respect for the law within states. Liberal states do not go to war with each other because they espouse similar values. This construction of liberal states as reflecting similar values generates an image of international society that rests upon domestic socialization to law, and to order. In essence, liberalism asserts that democratic states comply with international law as a consequence of socialization to rule-guided behaviour. Because of this better behaviour the model of the liberal state ought to be one that is pursued actively (read aggressively) for the benefit of international cooperation and peaceful coexistence. The aggressive stance of some liberal IR reflects what Gerry Simpson has identified as a tension within liberalism: is has expressed itself in the international legal system both as ‘pluralist’ and ‘anti-pluralist’.13 The pluralist expression, as articulated in the UN Charter, makes no formal demand for democratic government as a condition of membership, whilst the anti-pluralist expression invokes the values of the ‘international community’ to drive towards greater peace and stability through liberal transformations of member states, sometimes by force. Liberalism is not a unified approach in international relations literature. In fact, there are a number of strands which emphasize different aspects and which are unified only in the sense that liberalism presents itself as a challenge to the ‘realist’ dominance of international relations theory. Republican liberalism, for instance, asserts that liberal democracies tend to be more peaceful than other forms of government, and they do not go to war against each other.14 Sociological liberalism, such as put forward by Joseph Nye and James Rosenau, highlights transnational communication between private actors, which is unaccounted for in the realist emphasis on state–state relations in international politics.15 Crucially, these strands of liberal theory are in dialogue with realist theories of international relations which eschew all considerations save for material interests and questions of power.16 13 In an earlier article, Simpson referred to the different liberalisms as ‘Charter liberalism’ and ‘liberal anti-pluralism’ (Gerry Simpson, ‘Two Liberalisms’ European Journal of International Law 12(3) (2001) 537–71) but later articulated Charter liberalism as liberal pluralism, albeit reflected in the Charter document and the negotiations over its content: see Simpson (2004). 14 For classic statements of the republican liberal position, see Michael W Doyle, ‘Kant, Liberal Legacies, and Foreign Affairs’, Philosophy and Public Affairs 12(3) (summer, 1983) 205–35; and Michael W Doyle, ‘Liberalism and World Politics’ The American Political Science Review 80(4) (December 1986) 1151–69. 15 Joseph Nye, ‘Neorealism and Neoliberalism’ World Politics 40 (January 1988) 246; James Rosenau, Turbulence in World Politics: A Theory of Change and Continuity (Princeton University Press, 1990); and James Rosenau and Ernst-Otto Czempiel (eds), Governance Without Government: Order and Change in World Politics (Cambridge University Press, 1992). 16 See Hans Morganthau, Politics Among Nations: The Struggle for Power and Peace (Knopf, 1948, 1960); and John Mearsheimer, The Tragedy of Great Power Politics (WW Norton & Co, 2002).

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Liberals, unlike realists, allow ‘space’ for international law to ‘matter’ but, in much the same way as their treatment of international institutions,17 it only matters as a consequence of the prior centrality of state–societal relations. Liberal states externalize internal norms of non-violence and compromise.18 In other words, domestic preferences shape international politics by constraining international actors.19 For liberal IR it is domestic politics that influences compliance with international law. Compliance has such a ‘pull’ on this literature because of the apparent paradox in the international legal system of state obedience, coupled of course with consent, in the absence of enforcement mechanisms. Here what appears to be measured as an ‘identifiable object’ is behavioural compliance. A crucial idea is that through adherence to internal values states become embedded in domestic and international society through socialization, which decisively constrains their actions.20 In many senses this is a progress narrative, in that the more liberal states there are, the less war there will be. Yet despite this, there is a recognition that where domestic preferences conflict with international norms or regimes, the domestic preferences will ‘win out’. This is on the basis that states have a priority claim to legitimacy based on constitutionalized rights and democratic systems of governance and representation.21 There seems to be an assumption accepted in liberal IR that such states may well wage aggressive wars if these are justified by reference to the prior legitimacy claims of the state.22 Here, we find expression of the liberal antipluralist perspective on order, justification, and legitimacy in the conduct of international relations.23 A corollary of this progress narrative, though one which is obscured in much writing within the liberal tradition, is that when liberal states encounter autocratic or dictatorial states their external expression of internal values is often reframed into expressions of security or under the banner of crusading liberalism, reframed as human rights or morality.24 This is not an outright claim to legitimacy over such states, but it nevertheless operates as a justificatory backdrop to aggressive policies 17 On institutional liberalism, see Robert Keohane, After Hegemony: Cooperation and Discord in the World Political Economy (Princeton University Press, 1989), and his appraisal ‘Twenty Years of Institutional Liberalism’ International Relations 26 (2012) 125–39. 18 A typical example of this approach is Slaughter (1995) 503–38. For a critique, see Jose E. Alvarez ‘Do Liberal States Behave Better? A Critique of Slaughter’s Liberal Theory’ European Journal of International Law 12 (2001) 183–246. 19 Andrew Moravcsik, ‘Taking Preferences Seriously: A Liberal Theory of International Politics’ International Organization 51(4) (autumn, 1997) 513–53. 20 Moravcsik (1997) 513–53. 21 Anne-Marie Slaughter Burley, ‘International Law and International Relations Theory: A Dual Agenda’ American Journal of International Law 87 (1993) 205. 22 For an alternative critical perspective on legitimacy and international law, Nathaniel Berman examines such justifications as involving claims to ‘super-legitimacy’, and these are not limited to the Western liberal state. See Nathaniel Berman, ‘Legitimacy Through Defiance: From Goa to Iraq [Symposium: Speaking Law to Power: International Law and Foreign Policy]’ Wisconsin International Law Journal 23 (2005) 93. 23 See Simpson (2004) 80–2. 24 David Armstrong, Theo Farrell, and Helene Lambert, International Law and International Relations (Cambridge University Press, 2007) 140.

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against such states. Liberal IR does not account for the circumstances in which liberal states may appear to be constrained by their internal norms, when in fact they are engaged in hegemonic international politics. This finds expression in, for example, the use of humanitarian intervention to maintain internal values and norms. There is a contradictory aspect to liberal IR which at once asserts its peaceful nature, whilst crusading to change other states’ internal structure, through force when necessary. There is the obvious danger that liberal IR becomes simply an apology for ‘justified’ war through the language of liberal democratic norms and values. The compliance ‘imperative’ justifies force to ensure compliance by others in a system said to be characterized by the absence of formal or institutional mechanisms for enforcement. In fact, one could argue that the system is characterized precisely by such enforcement mechanisms, through the executive security functions of the Security Council which is tasked with ensuring compliance with the peaceful regime of the UN Charter. Or perhaps as ‘legalized hegemony’: the recognized superiority of powerful elite states ‘giving rise to the existence of certain constitutional privileges, rights and duties’.25 Or indeed, through the very claim to authority revealed and articulated in the act of justification, deployed by hegemonic states as a method of hailing its superiority in order to impose obligation through military intervention. At the same time as seeking to explain ‘order’ amongst states, liberals seek to unpack what is meant by ‘the state’. They assert that the components of ‘the state’ interact with individuals and groups in a complex process of both representation and regulation.26 The claim is that states are constantly subject to capture and recapture, construction and reconstruction by coalitions of societal actors. Some scholars describe this as two levels of interaction.27 One problem with this liberal IR theory is that this ‘complex process’ is not nearly complex enough. The idealized vision of liberal democratic political process serves to perpetuate an image of international society and an examination of international law that presupposes an inherent ‘positive’ to the wider articulation of legal norms by, for instance, governments justifying force. This leads to striking assumptions being made about the progressive potential of international law as, in many ways, the product to be sold by liberal states to effect a more peaceful world. International law becomes the lingua franca of this trading on reputation to secure a privilege: an authority to invoke international law’s prohibitions, obligations, and rights. This vision of international law sees compliance as merely a benign reflection of peaceful coexistence, a common sense, universal ‘good’ of any community be it domestic or international without recognizing how compliance or non-compliance is represented and invoked. Such a progress narrative fails to acknowledge the ‘pull’ of the discourse of compliance, and does not address how justification might expose 25

26 Slaughter (1995) 508. Simpson (2004) 68. One element of this is to treat the two arenas of politics as a two-level game. For a ‘rationalist’ account see, eg Robert Putnam, ‘Diplomacy and Domestic Politics: The Logic of Two-Level Games’ International Organization 42 (summer 1988) 427–60. 27

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a darker side to compliance. This darker side is not compliance as idealized vision of international cooperation and mutual interdependence, but compliance as a hegemonic remaking of the world according to the interpretations, interests, and preferences of liberal states.

2.1.2 International relations theories: constructivism Constructivist approaches draw upon sociological methods and, like liberal IR, emerged out of intra-disciplinary contest in international relations theory. In particular, constructivism can be seen as part of the ‘reflectivist’ tradition, which concentrates on socially constructed facts, rather than accepting the ‘brute’ facts approach of scientific enquiry.28 Like liberals too, constructivism emerged in response to the gaps in realist accounts of international relations. Unlike liberals, however, constructivism also engages directly in critique of ‘rationalist’ accounts of international relations, which seek to attribute cooperation and interaction to rational choice, and economic theory, rather than acknowledging the constitutive effects of ideas, beliefs, and values. Constructivism reflects upon the force of ideas and structures that literally construct actors’ views about the world and their global institutional environment. Constructivists argue that norms define social situations so that they can determine the role of actors and the rules of the game. They also recognize that norms, rules, and decisions are an argumentative practice.29 Constructivists see law as self-constituting as well as transforming behaviour.30 They assert that individuals do not exist independently from their social environment and its collectively shared systems of meanings.31 Language and justifications play an essential role in constructing the social environment.32 Further, the rules of particular discourses ‘educate’ actors as to which arguments may or may not be made legitimately.33 Mainstream constructivist scholars Keck and Sikkink argue that some states appear more vulnerable than 28

Onuf (1989). For mainstream, or behaviouralist-leaning constructivist accounts, see Alexander Wendt, ‘Anarchy is What States Make of It: The Social Construction of Power Politics’ International Organization 46 (1992) 391; Wendt, ‘Collective Identity Formation and the International State’ American Political Science Review 88 (1994) 348; Wendt ‘Constructing International Politics’ International Security 20 (1995) 71; Jeffrey Checkel, ‘The Constructive Turn in International Relations Theory’ World Politics 50(2) (January, 1998) 324–48. For critical accounts emphasizing argumentative practice and indeterminacy rather than linear behaviouralism, see Kratochwil in Byers (ed) (2000); Rajkovic (2012); Wiener (2007). 30 Arend (1998); though identifying more with critique and as a ‘social idealist’ Philipp Allott’s image of law accords with this constructivist approach, by recognizing its self-constituting and transformatory role: Philip Allott, Eunomia: A New World Order for a New World (1990) 3–8. 31 Thomas Risse, ‘Let’s Argue! Communicate Action in World Politics’ International Organization 54 (2000) 1 at 5. 32 Christopher Borgen, ‘The Language of Law and Practice of Politics: Great Powers and the Rhetoric of Self-Determination in the Cases of Kosovo and South Ossetia’ Chicago Journal of International Law 20(1) (2009) 1 at 29. 33 For a critical account of these rules of discourse see Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (first published 1989) (Cambridge University Press, 2006) 11. 29

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others to normative persuasion and pressure. They assert that states with liberal, law-based traditions have difficulty resisting legal or normative arguments.34 Here there is some degree of overlap with liberal approaches to the state and to compliance with international law. In their research, Keck and Sikkink emphasize political activists’ expertise in framing human rights issues to mobilize political support and make norms resonate with broadly held cognitive and ideological principles.35 They argue that in such mobilizations, activists make norms appeal to more widely held belief systems. Framing the issue is therefore a crucial tool deployed by such ‘norm entrepreneurs’ and necessarily involves discourse. Picking up on the significance of framing, Ian Johnstone adds to this account by arguing that law structures relations among states by providing a common frame of reference. This is largely analysed in reference to international political actors and their engagements in international institutions.36 These engagements create ‘interpretive communities’37 amongst international actors, who can include experts such as legal scholars as well as political actors. Experts operating in what are also referred to as ‘epistemic communities’38 are equally endowed with authority to interpret international legal norms and principles, though it is political actors who seek to apply particular norms to their activities in order to enhance their legitimacy claim to be acting in accordance with established rules of the community. The analysis of interpretive or epistemic communities reflects a form of accepted division of labour. The analysis suggests distinct stages of discursive authority which can be exercised by speaking in international law’s vernacular. This vernacular of cooperation and coexistence in the international community brings with it a grammar for international relations by dictating the rules by which particular ideas may be expressed and articulated.39 This means that international law itself can become a prime source of legitimacy because it defines which arguments are permissible and, therefore, which words may be articulated in which order and structure to ‘fit’ within the community.40 This means that justifications for using force must avoid appearing to look like ‘cheap talk’ or ‘pre-textual’ otherwise they will not benefit from appearing to coalesce around the agreed rules of the discourse of international law. The linguistic focus of many European constructivists is useful for examining the politics of justifying force, but it is premised on two assumptions in mainstream 34 Margaret Keck and Kathryn Sikkink, Activists Beyond Borders (Cornell University Press, 1998) 117–19 and 207–9. 35 Kenneth W. Abbott, ‘International Relations Theory, International Law, and the Regime Governing Atrocities in Internal Conflicts’ (Symposium on Method) American Journal of International Law 96(1) (1999) 361–79 at 377. 36 Ian Johnstone, ‘Treaty Interpretation: The Authority of Interpretive Communities’ Michigan Journal of International Law 12 (1991) 371 at 372. See also Peter Haas (ed), Knowledge, Power, and International Policy Coordination, Studies in International Relations (University of South Carolina Press, 1997), particularly Haas, ‘Introduction: Epistemic Communities and International Policy Coordination’ 2. 37 Haas (1989); Haas (1997). 38 Haas (1989); Haas (1997). 39 Borgen (2009) 2. 40 Nico Krisch, ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’ European Journal of International Law 16 (2005) 369 at 377. See also Thomas Franck, Fairness in International Law and Institutions (Clarendon Press, 1995).

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constructivist thinking that can limit the approach. First, the state figures very prominently in mainstream constructivist literature and this can produce a tendency to ‘reify’ the state.41 Although state agents are acknowledged and their practices are analysed, the unit of analysis still refers back to the centrality of the state in international relations. As Keck and Sikkink’s approach demonstrates, this can lead to the same assumptions as liberalism being applied to the operation of the state, at the domestic level, without sufficient nuance or contextualization of the interrelatedness of different sites of political and social interaction. Secondly, mainstream constructivists appear to adopt problematic conceptions of law, and in particular, international law. Again, Keck and Sikkink’s work demonstrates the dangers of this approach. Whilst human rights activists can be seen in rather benign, even beneficial terms, as ‘norm entrepreneurs’, can the government likewise be seen as entrepreneurial in its deployments of legal justification? This constructivist approach seeks to explain the processes through which law influences politics, but without acknowledging the indeterminate qualities of law and legal discourse.42 Yet again, we are faced with a construction of international law which tends towards the (sole) issue of compliance, towards the positive outcomes of socialization in terms of establishing or entrenching order and peace. These assumptions as to law’s qualities and the endowing of particular, benign characteristics to certain actors are not, however, restricted to mainstream constructivist approaches. Transnational legal process scholars, engaged in crossdisciplinary dialogue with constructivist thought, similarly posit a range of characteristics and assumptions that require exploration and critique.

2.1.3 Legal theories: transnational legal process Mainstream constructivism and transnational legal process share a degree of commonality in their analysis of international law and politics. Of those writing expressly on the use of force, mainstream constructivists argue that every intervention leaves a long trail of justification in its wake. When states justify their interventions they draw on and articulate shared values and expectations that other decision-makers and other publics in other states hold. For these writers, justification is literally an attempt to connect one’s actions with standards of justice or, more generically, with standards of appropriate and acceptable behaviour.43 Process scholars such as Abram Chayes repeat this claim, arguing that ‘the felt need for justification’ can be a primary motivation for a government’s appeal to international legal institutions even when an overriding concern with realpolitik would suggest the irrelevance of international law and legal justification.44 41 Cynthia Weber, International Relations Theory: A Critical Introduction (3rd edn) (Routledge, 2010) 79–81. 42 Cf Onuf (1989); Kratochwil (1989); Wiener and Puetter (2009); Rajkovic (2012) esp Ch. 2. 43 Finnemore (2003) 15. 44 Abram Chayes, The Cuban Missile Crisis: International Crises and the Role of Law (Oxford University Press, 1974).

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For process scholars, the fact that justification takes place is just one aspect of interaction to which significance might be attached. What also matter, are the places where justification is articulated, where norms are debated and where they might, ultimately, become internalized. Harold Koh argues that scholars need to look at the complex processes of institutional interaction, where norms are debated, interpreted and, ultimately, internalized by domestic legal systems, to understand why nations obey international law.45 In this respect Koh straddles liberalconstructivist approaches by conceiving of international law in terms of processes which emerge from the liberal state’s ideas and values, whilst at the same time identifying the constitutive effects of legal process which take place at the international level.46 The approach focuses on how international legal rules are actually used by foreign policy-makers. New strands attempt to add a normative element— how the law should work—to the process project, although the normativity of transnational legal process is already premised upon Koh’s articulation of the challenge: ‘ . . . if the goal is to create greater obedience to international norms, then the challenge is to bring international law home’.47 What is striking about Koh’s account is the place of international lawyers: those apparently tasked with bringing international law home. The reference to place envisages both a concrete location—advising governments on policy, seated at the ‘table’ of power—and an abstract ‘place’—of legitimacy and authority in the exercises of expertise called upon by processes of norm internalization and socialization. Lawyers are there where states are interacting, where they are internalizing acceptable modes of behaviour, and where they ultimately become socialized to obligation. There is a rather disconcerting way in which the international lawyer, in both places but particularly in the abstract, appears to perform the role of ‘princely adviser’ in much the same way as an Erasmus or Machiavelli.48 Indeed, this performance suggests that international lawyers are tasked with ‘guarding the guardians’49through law. The lawyer already knows the optimum outcome and this outcome appears to be premised on a commitment to international law and to its inherent benign qualities and peaceful characteristics. Endowing any set of actors with such ‘enlightened’ characteristics is, however, an obviously dangerous enterprise. Additionally, it takes for granted the benevolence of law-inspired guardianship.50 This approach frequently attributes such characteristics and progressive outcomes to the actors

45

Koh (1997) 2602. Abram Chayes, Thomas Ehrlich, and Andreas F Lowenfeld, International Legal Process: Materials for an Introductory Course (Little, Brown & Co, 1968). 47 Koh (2004) 206. 48 I thank Akbar Rasulov for raising this historical perspective on the ‘place’ of the international lawyer. 49 The reference to guarding the guardians gestures to the Socratic dialogue on guardianship in Plato’s Republic. In Socrates’ view it was the guardians who could be guarded by themselves through the ‘noble lie’. Either they would believe this themselves, or at the very least the city’s public would. 50 On guardianship as a mode of governance, see Robert Dahl, Democracy and Its Critics (Yale University Press, 1989) esp Chs 4 and 5. 46

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engaged in the processes of law-making, internalizing, and socializing. Like constructivists Keck and Sikkink, rights activists and lawyers can become ‘norm entrepreneurs’ engaged in benevolent internalization strategies, whilst governments appear generally to be ‘anti-norms’, or at least need to be guided towards understanding the benefits of norm-guided behaviour. The international lawyer becomes a benign force over law’s processes towards the compliance ideal underpinning the progress narrative of international law and order. Critique of both mainstream constructivist and legal process approaches also highlights the problematic conception of discourse. These approaches focus on the difficulty of resisting legal argument as a measure of norm ‘success’—that is, the normative pull of an argument. The implicit assumption of the analysis is that norm compliance is an identifiable and distinct outcome of such discursive processes. These approaches see law as merely reflected in arguments, retaining its inherent benign or progressive qualities. There is no recognition of the structuring force of the claims to authority expressed through law’s discourses. The progress narrative elevates the role of activists, lawyers, and experts vis-à-vis policy-makers without interrogating the rhetorical power of international law’s terminology. A crucial missing element is how justification may be utilized to achieve policy aims, which include military action. In fact, we might say more accurately that legal justification invoking international law can operate and is called upon by these liberal states precisely because of their law-based traditions. Further, international law itself may not hold any universal, enduring, or benign qualities drawing towards peace. Such an hypothesis suggests a co-constructive relationship between law, politics, and discourse raised by the action and reaction of justification. Legal justifications for using force create a ‘politics’ that can reconstruct the terrain of political contestation and debate. Such justifications might redefine legitimate participants by, for instance, creating a larger space for experts. Further, by its very deployment, as a language of reasons justifying policy, it might legitimize government policy through its self-identification as reasoned authoritative discourse.51 The significance of reasoning processes and of authoritative decision-making leads to a consideration of another approach to international law and politics; policy-oriented jurisprudence.

2.1.4 Legal theories: policy oriented jurisprudence An alternative approach to transnational legal process is policy oriented jurisprudence (POJ), or the ‘New Haven School’, which focuses on the decision-making process as a whole to determine the constitutive effect of norms.52 This approach explicitly rejects the positivist assertion that law, defined as rules, can be objectively 51 For an account of how reasoned governance, or ‘communicative justification’ facilitates society’s obedience to hierarchy and rules, see Max Weber, Economy and Society Vols I & II (University of California Press, 1978). 52 For example, W Michael Reisman, ‘Unilateral Action and the Transformation of the World Constitutive Process’ EJIL 11 (2000) 3.

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identified and applied to a particular legal question. This is because ‘the decisionmaker confronted with the issue would be either consciously or unconsciously informed by his preferred values’.53 Myres McDougal, the founder of this approach, advocates that lawyers appreciate their habitation in a world of policy ‘in which the lawyer’s role is to clarify interests or goals by discerning and evaluating alternative strategies’.54 In essence, POJ sees international law as a process of authoritative decisions made with a view to future policy options, rather than a set of rules.55 POJ proposes a highly complex ‘method’ for identifying the processes of authoritative decision-making which first and foremost demands that the ‘viewer’ of the process adopt as bias-free and objective a position as possible. It is positivists’ failure to recognize their subjectivity that POJ scholars find fault with, yet they continue to foster the notion that an objective perspective of observation is achievable. Further, in its complex articulation of processes, POJ asserts that its model is premised on two fundamental principles: human dignity and a free society.56 The POJ approach holds that any theory of international law cannot be considered outside the concept of power, because law cannot exist in a vacuum, and its authority stems from the fact that it is deemed to be law by those that are powerful. The way this exhibits itself in POJ scholarship is in the purposive approach taken to the interpretation of international legal norms. This means that interpretation of lawfulness or otherwise is always context-dependent and a great deal of interpretative value is placed on how politically relevant actors themselves define their and others’ actions. The problem that POJ scholarship faces is rather obvious: it ignores the awareness that politically relevant actors have of their power and authority. In other words, the problem is their self-conscious fashioning of authority and power through actions deemed by POJ to be constitutive of international legality or illegality. A POJ approach therefore permits or indeed condones the construction of legal norms by these actors without questioning the claim to authority upon which such construction is premised. In this sense it becomes the ultimate apology for power. When POJ is applied to the prohibition on the use of force, problems emerge that find no adequate answer. Higgins rightly points out that there are obvious dangers in permitting an outcome-oriented approach to be applied essentially to legitimize unilateral actions, seemingly in direct contradiction of existing rules on the use of force. She notes that rules should remain an important guidance to decision-makers as representing previous patterns of decision-making.57 Other POJ 53 David Kleinmann, ‘Positivism, the New Haven School, and the Use of Force in International Law’ BSIS Journal of International Studies 2(3), 26, 35. 54 Anthony D’Amato, ‘Review: Studies in World Public Order, Myres McDougal and Associates’ Harvard Law Review 75 (1961) 458. 55 Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, 1994). 56 For a recent exposition of the New Haven approach, see Lung-Chu Chen, An Introduction to Contemporary International Law: A Policy-Oriented Perspective (2nd edn) (Yale University, 2000) esp. Ch 1 at 3–24. 57 Higgins (1994) 253; though this probably reflects Higgins’ move away from POJ scholarship.

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scholars reject this, arguing that because the prohibition could prevent the humanitarian saving of lives, a ‘desired social outcome’, that rule ‘can no longer be considered legally binding’.58 Here, POJ scholars’ own values and the inherent qualities assumed of international law come to the fore. This finds most obvious expression in the claim that decisions can be motivated by common goals for humanity. POJ holds a series of deeply normative commitments which are obscured by the mode of ‘objectification’ by rendering legal process capable of ‘scientific observation’. The denial of subjectivity acts as an illusion which masks the approach’s inherent normativity. Though useful in demonstrating the complexities of decision-making—that is, how international law works—the POJ approach seemingly ignores the role that actors other than those described as politically relevant (presumably deemed so either by POJ scholars, or actors themselves) might play not only in policy decisionmaking, but in international law’s wider operations. There is no challenge to the authority to speak in international law’s vernacular. It is as though the desire to take account of power and policy realities has exposed POJ scholars to the very power and policy realities they seek to incorporate in their analysis. And just as with transnational legal process, scholars envisage a crucial role for legal advisers to help guide those authorized to speak international law’s language. This exposure to power and danger of apologizing for policy-making in international affairs lends itself to critical exploration.

2.1.5 A critically informed account of international law and politics There are several critiques which run through each of the theories examined. The most obvious, and one which relates to all four outlined above, is the critique which centres on the power of international law’s discourse. This is a compound set of propositions. It refers, first, to how power manifests and is articulated through the language—or discourse—of law. Second, it seeks to uncover the power relations embedded in and reproduced by the legal structure of world politics. Third, it seeks to unmask as misconceived the ‘progress narrative’ of international law by highlighting the motivations behind legal rhetoric, and the ‘darker side’ to compliance.59 This study adopts a critically informed approach by mapping the contest over international law that takes place in domestic discourse. This mapping exercise assists in challenging some of the assumptions which operate in the background of mainstream constructivist, process, and liberal theories; and ‘thickening’ the empirical base from which such theorists choose to ‘model’ international law and domestic political relations. This includes challenging the interlinked assumption 58 Michael Reisman, ‘Criteria for the Lawful Use of Force in International Law’ Yale Journal of International Law 10 (1985) 283. 59 For example Koskenniemi (2006); David Kennedy ‘A New Stream of International Legal Scholarship’ Wisconsin International Law Journal 7 (1988) 6; Koskenniemi, ‘The Politics of International Law’ EJIL 1 (1990) 4.

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that socializing states to international law secures compliance. As Robert Keohane has argued, from the international relations perspective, states may seek to conceal their non-compliance or differentiate their activities by arguing that their breaches are in fact ‘correct’ applications of the law.60 Or they may demonstrate an awareness of the ‘internal point of view’ whereby law (and therefore legal justification) creates a sense of obligation to follow a rule, not simply coercing compliance.61 This might suggest the possibilities for rhetorical manipulation of legal argument not simply to justify policy decisions, but to require other actors to follow such policy decisions, as being grounded in law and therefore obligatory. Yet, even this critique lacks an engagement with international law’s productive uses as a vocabulary of authority and justification of power, by assuming that the sole issue of relevance is compliance: compliance with law, compliance through law, order in law. In his essay Of War and Law David Kennedy points out that all too often law is seen as operating outside war and that when ‘we pause to think about the law relevant to war, we are likely to focus on international rules designed to limit the incidence of warfare’.62 He goes on: We think of international law as a broadly humanist and civilising force, standing back from war, judging it as just or unjust, while offering itself as a code of conduct to limit violence on the battlefield.63

Yet, Kennedy points out, not only has law’s vocabulary been internalized by the military, it has come to shape the politics and the practice of warfare.64 Whilst his study concentrates primarily on the shifting processes through which the conduct of war has become a legal institution, the assertions made and observations drawn have particular resonance for this book and its focus on justifying force in the first place. Kennedy’s observation that ‘legalization’ has been accompanied by debates about war being conducted in a ‘common global political language of appropriate and inappropriate national politics and military objectives’,65 is one which informs this study. This critique pays attention to the authority of law as it speaks through its users, in other words to juris-diction.66 The aim of this study is to take these assertions as a framework upon which empirical analysis can build a concrete architecture. Whilst this study is critically informed, it also seeks to highlight the questions which remain unanswered or engaged with by constructivist and process scholars, namely how to conceive of domestic political processes. A central focus of the study is to analyse the complexity of discourse to demonstrate that the domestic context in which international law is debated is significant in ways that constructivism and process theories acknowledge, but which are under-explored. It seeks to highlight why the project of mapping discourse is productive, and to add theoretical insights as to how 60 Robert Keohane, ‘International Relations and International Law: Interests, Reputation, Institutions’ American Society of International Law Proceedings 93 (1999) 375 at 377. 61 HLA Hart, The Concept of Law (Oxford University Press, 1961) 89. 62 David Kennedy, Of War and Law (Princeton University Press, 2006) 5. 63 Kennedy (2006) 6. 64 Kennedy (2006) 7. 65 Kennedy (2006) 27. 66 Shaun McVeigh and Sundhya Pahuja ‘Rival jurisdictions: the promise and loss of sovereignty’ in C Barbour, G Pavlich (eds), After Sovereignty: On the Question of Political Beginnings (Rouledge, 2009) 97–114, esp. 98–99; Dorsett and McVeigh (2012).

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the constructivist project may be enriched by deeper analysis of domestic processes. This critically informed approach is distinct from liberal perspectives which in many senses simply seek to explain compliance by referring to the generally ‘peaceful’ state of domestic politics in liberal states. This study challenges that assumption by arguing that such characterization fails to address the ‘crusading’ elements of liberalism, and wrongly hypothesises that liberal states comply with international law as a mere reflection of compliance with domestic laws.

2.2 The domestic impact of international norms: an existing theoretical model Few writers have engaged directly in assessing the relationship between international law and domestic politics in the use of force realm. There are two approaches to this specific question that are assessed in this study. Both are informed by constructivist and process literature and both take on many of the assumptions about law and politics that appear in the work of liberal IR scholars. They come closest to setting up an empirically informed theoretical framework which this study seeks to elaborate upon, critique, and develop. Whilst neither approach has come to dominate their respective fields, they provide a useful model to ‘test’ against empirical analysis of the politics of justifying force. Andrew Cortell and James Davis have sought to generate a model (or series of modalities) for understanding the way international norms ‘matter’ at the domestic level.67 They employ aspects of liberal IR and mainstream constructivism to argue that norms will matter in particular domestic structural contexts and their impact will be further determined by their ‘salience’ in a given context. They posit several conditions which might enhance or reduce the salience of norms. Once such norms become salient, they are embedded into domestic society—the state is ‘socialized’ to the norm—and this enhances compliance. Their central claim is that international norms affect a country’s policy choice through the actions of domestic political actors. They assert that government officials and other societal actors can invoke international norms in domestic policy debates either to justify their own actions, or call into question an opponent’s legitimacy.68 Such norms can thereby become resources for domestic actors to use in the national arena.69 Deployed as resources, and debated in domestic politics, these norms can become incorporated into government decision-making. These norms can then affect outcomes and become part of domestic political process itself. According to Cortell and Davis, government preferences are mediated by the domestic structural conditions that prevail during policy debate.70 Further, by analysing debate we can assess the ‘saliency’—or in other words, the ‘pull’—of 67 68 69 70

Cortell and Davis (1996); and Cortell and Davis (2000). Cortell and Davis (1996) 453. For the use of norms as resources, see also Haas (1989). Cortell and Davis (1996) 454.

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particular norms. This is because, according to their model, debate is a precursor to socialization, with socialization representing the embedding of a norm in the domestic politics process. In order to understand their approach it is useful to first consider their treatment of a particular example of military intervention, and then consider critique of the foundations of their theoretical approach. Ryan Goodman utilizes Cortell and Davis’s theoretical approach to domestic impact, adding to it by describing what he terms ‘the politics of justification’.71 This politics, he explains, can result in constraint on government decision-making when governments seek to justify military action on the basis of international norms, because of what he calls ‘blowback effects’. Goodman’s claim is that by making lawful unauthorized humanitarian intervention we would likely see a reduction in the incidence of military action because state actors would be constrained by the ‘blowback effects’ (or ‘propaganda boomerang’) created by justification. His project is informed by an underlying assumption, like much mainstream constructivist, liberal IR, and legal process literature, that embedding international law enhances compliance. In that sense it is a normative project informed by a narrative of progress. Problematically, it reifies the compliance vision of international law and simplifies domestic political processes, failing to address the deep complexity and contingency of these processes. It should be acknowledged at the outset that Goodman’s articulation of the politics of justification is a direct response to a specific set of concerns which have arisen out of the suggestion that unauthorized humanitarian intervention be ‘legalized’.72 Those concerns include an anxiety about the dangers of humanitarian intervention being used as a ‘pretext’ for war, thereby threatening to sink international politics further into military conflict and away from international law’s ideal of ordering states and promoting peaceful coexistence. Despite his narrow focus, this study engages with his account by drawing out some of the implications for a wider account of the politics of justification.

2.2.1 An illustrative example: the US and the Gulf War 1990–1 In order to demonstrate their theoretical model, Cortell and Davis draw upon two case studies. One example relevant to this study is their analysis of the Gulf War which examines US public discourse utilizing the collective security norm.73 They argue that George Bush, snr., was constrained by his own rhetoric in justifying the Gulf War to the American public. Bush argued that US military action (with coalition allies) was justified by UN authorization following Iraq’s invasion of Kuwait in August 1990. Cortell and Davis claim that by justifying 71

Goodman (2006). His approach also informs another set of projects on human rights and socialization. See Goodman and Jinks (2005) 983–98; see also Goodman, Jinks, and Woods (eds) Understanding Social Action, Promoting Human Rights (Oxford University Press, 2012). 73 Their other example also involves consideration of the US position, but relates to an economic case: the US semiconductor industry’s efforts to persuade the Reagan administration to obtain Japanese liberalization of its trade practices with regard to semiconductor devices. See Cortell and Davis (1996) 451. 72

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action on the basis of the collective security norm, Bush raised expectations of adherence to this justification. Congress, whose support had to be sought according to the Constitution, exercised its authority by holding Bush to the norm of collective security. They argue that this represented constraint through the norm of collective security and therefore attests to the influence of international legal norms over government decision-making. In the language of international law, the appeal to UN authorization formed the legal justification for using force by identifying an appropriate exception to the prohibition framework of the Charter system. Congress then demanded that the war be pursued according to that limited mandate, thereby constraining government action and limiting the use of military action to that express exception. According to their case study, the United States complied with the tenets of collective security because these tenets became enmeshed in domestic political debate. At two junctures Congress was able to force Bush to abandon a unilateral strategy and instead seek a UN mandate. This was first with respect to the enforcement of trade sanctions and secondly in relation to the initiation of offensive action to drive Iraqi forces from Kuwait.74 On the other hand, they argue that once Bush opted for a response consistent with the collective security norm, Congress’s power to prevent US military involvement was limited.75 The authors argue that one of the reasons for Congress’s influence, and therefore why the collective security norm ‘mattered’ is because of the decentralized authority to wage war in the United States. Both Congress and the President have jurisdiction to conduct foreign policy. However, in state–societal terms there is a relative separation. In other words, despite decentralized authority, it remains the institutions of the state that lead policy-making. The public’s role in foreign policy formulation equates to a ‘followership model’ whereby an attentive public absorbs opinion leaders’ interpretations.76 This is largely because the points of access for interest groups are far fewer in security politics than in other arenas of policymaking.77 As a consequence of this ‘structural context’, Cortell and Davis argue that the domestic impact of an international norm will be a function of the actions and interests of government officials, as well as being a function of the norm’s domestic salience. The decentralized decision-making structure and salience of collective security ‘enabled Congress to use this norm to increase its influence in the policy debate, ultimately producing an American policy consistent with the tenets of collective security’.78 Further, the repeated invocations the President made which stressed the collective, international nature of the US response enhanced the salience of the norm domestically and framed the terms of subsequent domestic debate.79

74

75 Cortell and Davis (1996) 465. Cortell and Davis (1996) 465. Cortell and Davis (1996) 465, quoting Jack Snyder, Myths of Empire: Domestic Politics and International Ambition (Cornell University Press, 1991) 288. 77 Thomas Risse-Kappen, ‘Public Opinion, Domestic Structure, and Foreign Policy in Liberal Democracies’ World Politics 43 (1991) 479–512 at 491. 78 Cortell and Davis (1996) 466. 79 Cortell and Davis (1996) 466. 76

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As examples, they highlight interventions by two Senators who used the collective security norm to challenge the unilateral deployment of US troops and Bush’s claim that America had all the authorization it needed. In consequence, and in an apparent U-turn, Bush began a round of urgent diplomacy to win UN approval to use military power to enforce trade sanctions.80 They claim that this did not emerge from any lofty principles but was improvised and pragmatic. Cortell and Davis then consider whether the need for allied cohesion may have been a factor influencing adherence to the collective security norm, which better explains Bush’s action than Congress constraint. Here they suggest that Britain and France had already endorsed US action so allied cohesion is not explanatory of the Bush strategy to go to the United Nations. The Senate opened Congressional hearings in October 1990 and Cortell and Davis argue that arguments for seeking a UN mandate reflected a bipartisan consensus which supported the centrality of the collective security norm. In their analysis they refer to the same Senator as previously noted (Senator Moynihan) arguing for the importance of UN authorization, particularly in questioning Secretary of State James Baker.81 Privately, the US administration then decided that in order to keep the international coalition together and bring Congress along, they would need a Security Council resolution.82 Through international negotiation Bush obtained Security Council Resolution 678 and then, having long denied the necessity, sought Congressional authorization on the basis of this resolution.83 The support for action, together with statements by individual Senators meant that the legitimacy of American participation in a collective response could no longer be challenged.84

2.2.2 Appraising the case study To assess the case study fairly, it does not purport to be detailed or empirically guided, yet the gaps in analysis only serve to demonstrate the necessity of premising any theory of the ‘domestic impact of international law’ on a sounder empirical basis. The case study briefly notes that the United States demonstrates a ‘followership model’ in foreign policy, which limits the impact of public opinion. However, this does not take into account public opinion research that suggests there may, in fact, be a stronger link between policy and the public. Kull and Ramsay argue that during the 1990s the American public demonstrated a clear desire to remain a ‘world policeman’ and play an active role in international politics, but that a majority wanted the United States to involve other actors in this role, particularly

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81 Cortell and Davis (1996) 468. Cortell and Davis (1996) 467. Cortell and Davis (1996) 468. They cite journalistic accounts of a private meeting between Bush, Baker, and Scowcroft (National Security Adviser) written at the time as evidence for this shift in policy. 83 Senate Joint Resolution 2, 12 January 1991; House Joint Resolution 77, 12 January 1991 (signed by George W Bush on 14 January 1991, became Public Law 102–1). 84 Cortell and Davis (1996) 469. 82

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through the United Nations.85 Their research suggests that public opinion may well have influenced government decision-making to seek legal justification through appeals to the collective security norm. One note of caution, however, is that Kull and Ramsay’s research also shows that policy elites are misinformed about public opinion in this realm of politics. These authors argue that policy elites in fact believe that the public is anti-UN and antiinterventionist, preferring an isolationist stance in world politics. They note that one of the reasons for this misperception is that policy elites may wrongly assume that public opinion mirrors views in Congress and the media. The media’s role would therefore have been an important and necessary consideration in Cortell and Davis’s attempt at mapping the constraints on government decision-making. How the media reports events and policy options is an important influence, one which is explored further below. Its significance lies in its production of knowledge: the public will be more or less informed about a topic depending on the media coverage given to this. If the public are more informed they are likely to have more of an impact on policy elites.86 But also important is the way media reporting frames a given situation and what narratives this may involve. Cortell and Davis do not explore this aspect of structural context in the case study. They do not raise the issue of what impact the media as an institution might have had on shifting the direction of policy. Nor do they raise the issue of the relationship between ‘elites’ and ‘the public’, which might draw attention to the media’s institutional biases and its place in domestic politics. Further, an important factor is missing in the case study: the identity of the actors constraining policy-making within Congress. For example, the influence of personal motivations behind the appeals to constrain government. In this scenario, the norm of collective security may well be used as a resource, but this may only be where it accords with the broader principles of particular actors. For instance, Cortell and Davis refer to the trenchant position of Senator Moynihan in seeking to hold the government to the norm of collective security. Moynihan was Senator for New York and had been US Ambassador to the United Nations. Although he had, throughout the 1970s, held strongly anti-Soviet views, his stance had softened and by the 1980s he consistently challenged the Reagan administration to stop spreading false information about the imperialist ambitions of the communists. Further, in 1989 he had written On the Law of Nations which argued against American ‘impulse’ in the world. He argued for the importance of international law, particularly following the Vietnam War.87

85 Steven Kull and Clay Ramsay, ‘Elite Misperceptions of US Public Opinion and Foreign Policy’ in Brigitte L Nacos, Robert Y Shapiro, and Pierangelo Isernia (eds) Decisionmaking in a Glass House: Mass Media, Public Opinion, and American and European Foreign Policy in the 21st Century (Rowman & Littlefield, 2000) 95–110. 86 Philip Everts, ‘Public Opinion after the Cold War: A Paradigm Shift’ in Nacos et al (2000) 177–94 at 191–2. 87 Godfrey Hodgson, The Gentleman from New York, Daniel Patrick Moynihan: A Biography (Houghton Mifflin, 2002) 328.

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Although Moynihan was not the only Senator to voice concerns about the lack of a UN mandate, in Cortell and Davis’s analysis, he was perhaps the most vocal of opponents to Bush’s policy. This aspect of personality and preference is arguably an important element in tracing the process of the policy debate in Congress. The recognition of personality or experience does not necessarily result in undermining Cortell and Davis’s theory, but it does suggest a more nuanced approach. Such an approach might assist in enriching models of structural context, as Risse-Kappen has sought to explore in examining the relationship between ‘masses’ and ‘leaders’ in public opinion formation and foreign policy-making.88 He argues that it is not just the structural context that matters, it is also the coalition-building processes that mediate the relationship between policy elites and public opinion.89 Another element that may have influenced the collective security debate is the domestic political situation in Britain and France. Also underexplored is how ‘alliance cohesion’ may have relied on the context of international relations between the three powers. The exercise of unilateral action by either Britain or France may have been conditioned by the US policy position against Iraq. In order to persuade their domestic policy elites or domestic opinion it may have been necessary to operate—or be seen to be operating—within the UN paradigm in order to convey the impression of truly multilateral cooperation. This may have enhanced their domestic legitimacy because they would have been seen as acting in the interests of the ‘international community’. Additionally, the need to contain any post-Cold War fears of disorder and of unilateralist hegemony might also have played a role. Such an analysis requires greater scrutiny of the seemingly external, internationalized influences that may play a part in constraining government in domestic politics. The mapping of these influences is more complex than the authors’ case study conclusions suggest and is therefore crucial to understanding the role of international law in political decision-making and in public discourse.

2.2.3 Constructing the model: domestic structural context In Cortell and Davis’s model, there are four types of domestic structural condition or context which determine the ability of domestic actors to use international law as a resource.90 Their model places state–societal relations and decision-making on two separate axes. State–societal relations may be ‘close’ or ‘distant’, whilst decision-making may be centralized or de-centralized. State–societal relations means the gap between how the state operates and how society interacts with the state operation (or apparatus). Where the relations are distant there will not be a close nexus between the two, a condition to be expected in an autocracy and therefore running counter to the democratic model.

88 Thomas Risse-Kappen, ‘Masses and Leaders: Public Opinion, Domestic Structures, and Foreign Policy’ in David Deese (ed), The New Politics of American Foreign Policy (St Martin’s Press, 1994); Risse-Kappen (1991) 479–512. 89 Risse-Kappen (1991). 90 Cortell and Davis (1996) 455–6.

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Where state–societal relations are distant, state officials will serve as the primary means by which international norms affect national policy. This is because of the absence of institutional mechanisms linking societal actors to the policy process. As a consequence, societal actors’ ability to use international law to their advantage in influencing policy-making is more limited. Within the ‘distant’ typology, if decisionmaking authority is centralized, international norms will only affect national policy when and if ‘authoritative officials’ are predisposed to international legal norms. Alternatively, if decision-making is decentralized, different arms of government may influence policy choices. This can create a form of bureaucratic politics which may increase policy elite influence over decision-making. Where state–societal relations are ‘close’, the model presumes the existence of administrative, regulatory, or legislative procedures which will enable societal interest groups to assume a legitimate role in the government’s policy process, and thereby influence the course of policy-making. This is greater when government decisionmaking is de-centralized, but even in the centralized typology elite-level processes will exert societal and political influence on state actions. The authors claim that in this ‘close’ context, societal appeals to international law will at least affect policy debate, even if it is merely that government will pay attention to expressed interests. So there is a domestic institutional explanation for using international law in ‘close’ contexts because this can apparently influence interests and policy outcomes. The influence of these societal interests in the ‘close’ typology, and indeed of officials using international law as a resource in the ‘distant’ model above, is conditioned by a non-structural factor: the domestic salience of the norm. Before considering their explanation of salience, it is worth noting a few areas which, at this stage, could be explored and analysed further by the authors. Theirs is a reductive account of ‘structural context’. The structure is simplified into two typologies based on state–societal relations, and a binary structure of decision-making authority. This does not allow space for the roles of experts, the media, or activist networks and appears to homogenize public opinion. Domestic public opinion is a complex network of institutional arrangements that mediate demands and has been welldocumented as influencing policy elites and government decision-making.91 The failure to account for the complexity of domestic structure may be part of the effort to generate models of domestic impact. The effect is that widely divergent countries are categorized according to liberal-biased, historically contingent, yet dehistoricized, typologies. Where such processes are near their ideal, that is decisionmaking is decentralized and state–societal relations are close, the effects of international norms are predicted as enhanced because various domestic actors utilize these norms. What we do not learn from such a predictive model, however, is the character of those actors and the culturally and historically specific context in which debate takes place. The ideal also does not consider whether the language of international law as a discourse might cut off particular domestic actors and enhance the role of others in such a way that ‘constraint’ on government decision-making is negatively affected. 91 See Benjamin Page and David Shapiro, The Rational Public: Fifty Years of Trends on Americans’ Policy Preferences (Chicago University Press, 1992).

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The model of domestic context also suggests an underlying assumption that the embedding of international legal norms is a good thing. The model assumes that the greater the correlation with the liberal democratic ‘model’ process, the greater the prospect of contestation. This is a ‘good’ because contestation means discourse—in the authors’ limited sense of discourse purely as debate—and this discourse promotes policy change through the use of law as a resource. Through this process, international legal norms become embedded in domestic society, forging links between ‘the international’ and ‘the domestic’ and ultimately explaining and even enhancing compliance with international norms. But what if debating international law leaves a more ambivalent legacy behind? The problematic assumption underpinning their conceptualization of international law is that the sole issue is compliance; that international law provides a set of obligations which constrain policy-making, thereby limiting governmental power. But what if international law can also represent a facilitative mechanism by which force can be (legally) justified? What if, therefore, the focus on compliance is misconceived, generating only a partial picture of ‘domestic impact’? Embedding these norms purports to spread their influence from the international to the domestic, by enhancing legitimacy and ensuring compliance. The question is whether this is borne out by empirical analysis. Rather than the embedding of ‘norms’, what may actually take place is the embedding of forms of argument; legal justifications as articulations and interpretations of these norms. This distinct form of embedding, if it does take place, may well have significant impacts on public discourse. It might, in fact, enhance the prospects of military action. It might also enhance the influence of experts and policy elites, and make it harder for other domestic actors to challenge government decision-making or demand political accountability. This is because these domestic actors may not be accorded discursive legitimacy and authority to interpret and contest international norms. Cortell and Davis purport to explain the extent to which international law is embedded. This study asks the additional question of who benefits and who loses when international law becomes the vocabulary for domestic political discourse. In order to answer that question a different, more contextualized conceptual framework is required which accounts for actor identity and questions of discursive legitimacy. A further question that arises from the domestic structural context model relates to the uninterrogated implications of distinguishing distinct spheres of political interaction. The authors’ approach recognizes the physical separation of domestic actors from international politics, but does not investigate what effects this might have on the politics of justifying force. One implication is that governments and policy elites can become subject mediators; in other words, those endowed with legitimacy to interpret ‘the international’ for domestic discourse. This is because of the lack of access to knowledge or information, both of facts and of systemic, doctrinal, or theoretical aspects of international politics and international legal discourse.

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Another implication is that domestic actors become reliant upon the media to inform them of events at the international level, which will have a direct effect on political contestation of legal justifications. The mediation of spheres of political interaction and the production of knowledge through information management highlights the importance of media (as subject interpreters), and of actor roles (as subject mediators) in justifying force. Finally, tracing or mapping discourse may assist in enriching the typologies laid out by reflecting some of the nuance of approaches informed by a critical account of democratic theory. Democratic theorists, for instance, enhance the ‘state–societal relations close’ model by highlighting the splits between conflict-oriented participation and consensus-based participation in democratic states.92 These different concepts of how state and society interact have significant impacts on the conduct of politics, the language of contestation, and the question of power.93 There are also important differences within the concept of state–society relations. Democratic theory is highly significant in conceptualizing the domestic context of debating international norms. For one thing, it allows for comparisons between liberal states. For instance, RisseKappen argues that the society-dominated United States provides domestic actors and public opinion with multiple access points into the political system, whereas the Federal Republic of Germany comes closest to the corporatist type of domestic structure, in which the policy networks with strong intermediate organizations linking state and society play a significant role in the decision-making process.94 By attempting to draw conclusions about the domestic impact of international law that might apply to all forms of domestic structure, Cortell and Davis do not emphasize sufficiently complexities and debates about the nuances of democratic models. Taking their model as a baseline, the empirical mapping of discourse can illustrate precisely where the model falls down, adding to a rich vein of critique from theoretical accounts of domestic politics. Whilst these criticisms relate mainly to ‘context’, the next section addresses the question of salience, and in particular, the question of how to construct a persuasive account of ‘discourse’.

2.2.4 Constructing the model: domestic saliency As noted above, a non-structural factor explaining the domestic impact of international norms is the domestic salience of a norm. Cortell and Davis argue that the domestic salience of a norm largely derives from the legitimacy accorded it in the domestic political context. They suggest that this legitimacy varies along a continuum of state actions, from declaratory statements by authoritative actors to concrete policy choices.95 So, for example, a single statement declaring support for 92

See Seymour Martin Lipset, Political Man (Doubleday, 1960). For those emphasizing consensual over conflictual power, see Niklas Luhmann, Trust and Power (Wiley, 1979); writers emphasizing conflictual over consensual power include Pierre Bourdieu, Distinction: A Social Critique of the Judgement of Taste (translated by Richard Nice) (Harvard University Press, 1984). 94 Risse-Kappen in Deese (ed) (1994) 255. Though from the mainstream constructivist school, Risse-Kappen’s analysis here accords with democratic theory in that it seeks to add sophistication to the models of governance. 95 This notion of legitimacy varying along this continuum builds on Sikkink, ‘Human Rights, Principled Issue-Networks, and Sovereignty in Latin America’ International Organization 47 (1993) 411–41 at 415. 93

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an international norm is unlikely to make the norm salient, whereas repeated declarations may be indicative of the state’s commitment to that norm, and may come to symbolize a relationship whereby the norm is associated with the state’s interests or core values. The authors do not critically engage the question of ‘authority’ but indicate (as an example) that in the United States, this is usually constitutionally defined, as with the President’s authority on matters of foreign policy. Here, authority stands for a formalistic conception of jurisdiction over decision-making. An international norm will lack domestic salience if the state denies the norm’s legitimacy by, for example, repeated lack of compliance or refusal to ratify agreements. Norms will enjoy moderate domestic salience as declaratory statements come to be viewed as prescriptive by authoritative actors. This ultimately enhances the norm’s legitimacy. Other mainstream constructivists argue that when actors regularly refer to the norm to describe and comment on their own behaviour and that of others, the validity claims of the norm are no longer controversial even if actual behaviour continues to violate the norm.96 When norms become embedded within the state’s own normative and formal procedures, they will enjoy a higher degree of saliency as the state will have made concrete alterations to policy choices. When decision-making authority is decentralized, involving various arms of government and policy elites, the appropriation of a salient international norm will empower the policy-maker’s position because their interests are associated with the norm’s domestic legitimacy, making their position difficult to challenge. Drawing on research by other mainstream constructivist scholars, Cortell and Davis propose several conditions, mechanisms, and processes that will contribute to the domestic salience of an international norm (but which they argue need further research). They refer to the idea of ‘cultural match’ whereby international norms will resonate with domestic norms.97 Here domestic discourse will reveal the context within which the norm takes on meaning. In some cases political elites may view adherence to the norm as compromising sovereignty, or on the other hand, the ‘domestic populace’ may view the norm as inconsistent with values and traditions, even if political elites embrace the norm.98 In addition to identifying a norm’s ‘cultural match’ Cortell and Davis also identify rhetoric, domestic interests, domestic institutions and socializing forces as capable of enhancing the domestic salience of norms. When they refer to rhetoric they mean ‘persuasive discourse’.99 They argue that a repeated invocation of a norm by a state leader, even if originally deployed cynically, can increase a norm’s salience and thereby increase its impact. In addition, they identify a role for state officials in generating discourses around such norms, though the processes involved and motivations for doing so are not explored. Their examination of domestic interests points out that salience will increase where material concerns such as economic or 96 Risse-Kappen, ‘Ideas Do Not Float Freely: Transnational Coalitions, Domestic Structures, and the End of the Cold War’ International Organization 48 (1995) 185–214. 97 Checkel (1999) 83–114. 98 Cortell and Davis (2000) 74–5. 99 Cortell and Davis (2000) 76.

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security interests are engaged. They go on to say that which norms become salient ‘will be historically contingent, a function of human agency in rhetorical or political processes’.100 In their account of domestic institutions enhancing the salience of international norms they quote Louis Henkin: ‘[w]hen international law or some particular norm or obligation is accepted, national law will reflect it, the institutions and personnel of government will take account of it, and the life of the people will absorb it’.101 In essence, this suggests that once enmeshed in domestic institutions, these norms become ‘taken for granted’ as forming a legitimate part of the domestic process. Such institutional enmeshment relies, it appears, on the formal adoption of norms and translation into domestic law. Their brief account does not refer to the distinct processes this may take depending on whether a dualist or monist approach is adopted. Finally, they argue that socializing forces can enhance salience. Despite their explanation, how exactly this process of socialization works remains rather elusive. They refer to the persuasive effects of hegemonic ‘soft power’ as gradually being able to draw weaker states towards the hegemon’s own normative principles about domestic order.102 They also refer to the constitutive effects of international institutional interaction: that domestic states can learn bureaucratic models of governance over areas such as scientific innovation through their engagement with international organizations and communities of international experts.103 They do, however, acknowledge that further research is needed into this aspect of salience, as ‘it remains poorly understood’.104 In order to measure the domestic salience of a norm, Cortell and Davis suggest looking at changes in national discourse, state institutions, and state policies. The rationale for looking to national discourse is that it can be the most important measure of a norm’s salience, as it ‘precedes and indicates changes in institutions and policy’.105 Cortell and Davis argue that discourse will require government to provide reasons and evidence for a change in policy and that, paradoxically, the most salient norms will be evident only when violated, as actors will feel a strong need to justify non-compliance. What remains problematic is how to conceive of ‘discourse’: in which forums and under what structural conditions? These specifications will be relevant to the question of measuring salience. The problem of discourse is a wide-ranging theoretical issue and raises significant practical concerns in terms of mapping and tracing processes. Yet, the focus on discourse at least recognizes the constitutive effects that justification may have, and identifies a medium through which to examine the politics of justifying force. 100

Cortell and Davis (2000) 76. Louis Henkin, How Nations Behave: Law and Foreign Policy (Columbia University Press, 1979) 60. 102 Citing John Ikenberry and Charles A Kupchan, ‘Socialization and Hegemonic Power’ International Organization 44(3) (1990) 292. 103 Martha Finnemore, ‘International Organizations as Teachers of Norms: The United Nations Educational, Scientific and Cultural Organization and Science Policy’ International Organization 47(4) (1993) 593. 104 Cortell and Davis (2000) 84. 105 Cortell and Davis (2000) 70–1. 101

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2.3 The ‘politics of justification’ The fact that governments invariably justify their use of force in legal terms provides a starting point for asking questions about the effect this justification can have on policy choices and political contestation. Yet, this fact of justification is not something reserved to the ‘domestic sphere’. Justification also regularly takes place in international institutions or other forums. Chayes and Chayes claim that the requirement to justify arises from the fact that a salient norm may be perceived as being deviated from, or violated. Justification is a means by which actors can demonstrate their adherence to such salient norms. Justification seeks to show that ‘the facts are not as they seem to be; or that the rule, properly interpreted, does not cover the conduct in question; or that some other matter excuses non-performance’.106 This analysis of justification suggests that the prohibition on the use of force includes salient norms, or perhaps more appropriately, a salient set of norms under a salient regime. Traditional legal approaches to international law have long recognized the importance of justification. Oscar Schachter claimed in virtually every case, the use or threat of force is justified by reference to accepted Charter rules. The ‘felt need to issue a legal justification . . . demonstrates that States require a basis of legitimacy to justify their actions to their own citizens and even more to other States whose cooperation or acquiescence is desired’.107 Richard Lebow, however, suggests that those justifications are often a pretext, used to veil actors in a thin and manipulable form of legitimacy. He identifies a class of international crises in which leaders use pretextual justifications for initiating war.108 He explains that, across numerous historical cases, leaders have ‘employed strikingly similar means’, if not a ‘formula’,109 in articulating justifications for war. One of the principal steps in this formula for justifying hostility consists of legitimizing one’s demands in terms of generally accepted international principles. By claiming to act in defence of a recognized interest or right, leaders may succeed in masking aggression or at least in maintaining the fiction of innocence. This may be very important to third parties or domestic public opinion.110 Ryan Goodman’s argument for legalizing unauthorized humanitarian intervention is based on some of the ideas elucidated by Cortell and Davis and addresses the critique from pretext scholars such as Lebow. In particular, Goodman is interested in how the politics of justification (that is justification based on international law) creates blowback effects which can empower domestic actors and constrain government decisions to deploy military force. Though his argument is specifically addressed to unauthorized humanitarian intervention, his method can be interrogated to unpack the theory behind the politics of justification.

106

Chayes and Chayes, New Sovereignty 119 quoted in Cortell and Davis (2000) 69. Schachter (1986) 118. Richard Ned Lebow, Between Peace and War: The Nature of International Crisis (The Johns Hopkins Press, 1981) 23. 109 Lebow (1981) 29. 110 Lebow (1981) 34. 107 108

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Goodman seeks to challenge the claim that justification merely amounts to pretext, by arguing that justifications themselves raise expectations and thereby raise the burdens on government. He argues that domestic contest over legal justification will result in constraints on government and, ultimately, has the potential to reduce the incidence of military conflict.111 This approach accepts the basic premise or underlying assumption in Schachter’s analysis that in order to acquire legitimacy, government must seek legal justification. It seeks to go beyond the critique that justifying force using international law is a rhetorical manipulative device utilized by political actors for cynical strategic aims. Goodman instead argues that despite the best efforts of cynical politicians, legal justification may nevertheless raise the burden of justification through processes that such manipulators cannot be assumed to have total control over. Although the manipulability critique informs the case study analysis of this study, at the same time this study seeks to add context and empirical detail to Goodman’s theoretical premise that justification is a productive site for analysis.

2.3.1 Blowback effects and domestic political contest Goodman refers to ‘blowback effects’,112 ‘propaganda boomerang’, or ‘strategic culture’113 as terms to describe situations in which the imagery and justifications that leaders use to build support for their policies at one stage of hostilities, constrain their actions at later stages.114 In this model the influence of blowback effects is conditioned by three mechanisms: strategic political manipulation, social internalization, and bureaucratic politics. In relation to political manipulation, he argues that blowback effects can result from deliberate efforts by political opponents to use leaders’ own policy justifications and factual representations against them. In other cases, these effects can result from processes of ‘socialization’ in which individuals internalize images and justifications. This leads to the formation of collective beliefs about the situation based on the way the dispute is framed.115 To that extent Goodman goes beyond the idea that abstract norms are internalized and suggests that debates over norms are a process which contribute and impact upon the way a norm may be internalized (and therefore make a state ‘socialized’ to that norm). Finally, Goodman considers the role that bureaucratic politics, as a means of internalization, plays in influencing blowback effects. He cites Lebow who argues that policy elite groupings and individuals within government bureaucracy can become ‘loath to contest’ leaders’ rationales or beliefs in relation to a crisis.116 Similarly, he cites Kupchan’s argument that even where strategic images— here, read justifications—are crafted for public consumption only, they can become ‘organising principles for the broader decision-making community’.117

111 113 114 116

112 Snyder (1991) 41. Goodman (2006). Charles A Kupchan, The Vulnerability of Empire (Cornell University Press, 1994) 87. 115 Goodman (2006) 124. Goodman (2006) 123. 117 Goodman (2006) 126. Goodman (2006) 126.

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Goodman bases his analysis on the experience in relation to unauthorized humanitarian intervention and claims that the key is the plausibility of the justification. Plausibility turns on whether the facts of the case match the justificatory rationale.118 But how do ‘we’ learn about ‘the facts’ of a case? Here, surely, access to information becomes a crucial mechanism for policy-making, and a potential challenge to contestation of justification. The question becomes: who has access to this information? These actors will include government, intelligence agencies, policy institutions, experts, and governments abroad to name a few. But how do we learn about their access to information? Through the reporting of information by media. This can operate through a simple channel of transmitting political statements to audiences, or it can operate through more complex channels involving ‘sources’. Such sources are often left undisclosed, though their general identity may be indicated. For instance, a senior government minister may be referred to, or a former diplomat, a weapons inspections expert, etc. One element neglected in Goodman’s analysis is the extent to which use of force arguments, including those involving unauthorized humanitarian intervention, are deployed as domestic tools regardless of legality or illegality, but rather as ideologically fortified positions. For instance, in order to de-legitimize detractors governments may link opposition to using force with appeasement. This presents liberal electorates with a catch-22 dilemma in which they are caught between supporting government policy or being seen to support ‘the enemy’: a choice between doing something or doing nothing. So one means of challenging the proposition that legalizing unauthorized humanitarian intervention would reduce the incidence of war is to examine debates in which force is justified in legal terms. This might demonstrate the potential for legal argument to enhance the legitimacy of military action and therefore make war more likely. In this sense justifications based on international law might be part of the matrix of promoting war, not avoiding it. A second critique of Goodman’s analysis explores the power contests over legitimacy. In particular, this engages with the idea that knowledge, information, or secret intelligence (however it is referred to) can equate to power and that governments are in a privileged position right from the start. This is explored with reference to political communication literature below. Goodman’s fundamental premise, that government will become argumentatively entrapped by its own prescriptions for legitimate action, is a powerful observation and one that demands greater elaboration to unpack some of the complex processes at work. Again, however, the underlying assumption that discourse leads to embedding and internalization of legal norms and that this produces positive effects by constraining government is open to challenge. It may be more complex than simply hypothesizing that socialization of states in the international community (from below and sideways influences) or compliance from below is the outcome of justificatory discourse. This is a simplified version of political processes. Although there may well be a raising of the burden and the raising of expectations in domestic debate, certain actors may be privileged over others and limitation on action is not

118

Goodman (2006) 133.

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necessarily a guaranteed outcome. The reason for this does not lie simply in the domestic structural context: it is also due to the language of international law. Goodman therefore does not account for the rhetorical manoeuvrability of international legal argument, which governments may utilize to justify war.119 These gaps can be addressed by considering the effect of actor identity, broader contexts (historical, cultural), and the language of international law as a knowledge-producing discourse.

2.3.2 The vacuum of historical context It is striking that in setting up his theoretical model, Goodman relies upon the Correlates of War (COW) project.120 This is striking because of its reliance on statistical analyses of military conflicts, rather than contextual, historical, or case study approaches to analysing interventions. In that sense, context is abstracted and de-historicised in this move to ‘scientific’ analysis of war. There are obvious critiques to be made of the COW project which centre on the question of reliability of data, on the emphasis on states, and the limited categories of ‘issues’ said to drive decisions to engage in military conflict. As with any attempt to provide a scientific explanation for war that sets up comparative analyses, the problem is that context (or perhaps more appropriately history) is far more complex than a simple set of ‘abstract issues’. Further, Goodman acknowledges that the COW project relies upon publicly stated claims, and does not draw inferences as to ‘actors’ actual motivations or underlying interests’.121 Another example of this de-historicizing, de-contextualizing approach is in Goodman’s borrowing of the very idea of blowback from Jack Snyder’s analysis of discourses on empire. Snyder shows through empirical and historical analysis how certain officials promulgated strategic myths which were then internalized by members of the public, elites, and even officials themselves. He cites the example of the Crimean War in which British leaders were able to distinguish between bellicose rhetoric and reality, but domestic opinion could not, resulting in government being trapped into waging aggressive war.122 Snyder claims to have found deeper forms of socialization that may result from government justifications of aggressive action. This darker side of blowback effects has been expunged from Goodman’s analysis yet is crucial to understanding the operation of justificatory discourse, as facilitative of force as much as it may be constraining upon force. Goodman’s fundamental premise is that legalizing humanitarian intervention would be a considerable improvement over a system of de facto humanitarian intervention because a de facto system has ‘no substantial political debate or articulation of formal standards to regulate the practice’.123 He argues this on the

119 Susan Marks, ‘State-Centrism, International Law, and the Anxieties of Influence’ Leiden Journal of International Law 19(2) (2006) 339–47 at 344. 120 Correlates of War (COW) available at . 121 Goodman (2006) 120. 122 Snyder (1991) 102. 123 Goodman (2006) 137.

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basis of the legal authority that rules entail.124 But deployment of humanitarian intervention arguments might also be viewed as a legitimating justificatory mode for liberal states seeking to wage war. The humanitarian intervention argument is in many respects a modern manifestation of the appeasement argument, invoking human rights or democratic ideals as a rationale or legitimizing mode for war: using the very legal authority that rules entail to trump other discourses. This involves human rights concerns being deployed as a legitimating discourse for hegemonic domination. Goodman’s claim that legalizing unauthorized humanitarian intervention could reduce the incidence of war may therefore be misconceived. In fact, providing legal cover may have no effect on the incidence of war because unauthorized humanitarian intervention justification is deployed as theoretically coherent with liberalism and human rights ideals whether legal or not. In this sense, unauthorized humanitarian intervention is merely a mask to silence domestic opponents as appeasers or legitimators of tyranny. Opponents become the spokesmen for liberalism’s ‘other’. Or if unauthorized humanitarian intervention were legal it might merely enhance the legitimacy of the government’s claim or result in the increased centrality of legal language such that the issues could lose their context and become abstract arguments. This might also serve to further de-historicize war, justification, and the crisis situation. In order to avoid the manipulation of justificatory discourse, Goodman argues for regulatory methods to enhance the impact of blowback effects, specifically with reference to humanitarian intervention. This holds the promise of delivering justification from its dark side through the promise of more law through regulation. Yet again, the solution to conflict lies in law, as an exterior to politics. He claims that reporting procedures to international institutions could attempt to promote links with specific national actors or agencies in order to encourage the participation of members from particular epistemic communities (such as human rights and humanitarian experts).125 The important point is to strengthen the blowback effects—to build and entrench humanitarian justifications—by increasing the salience of public representations and fostering bureaucratic politics. Yet the crucial issue left unexplored is whether the system of what he terms ‘exceptions to the use-of-force prohibition’ may actually promote war. He himself recognizes this, but leaves this as an ‘open question’. He concludes that, in any case, justifications premised on humanitarian intervention would ‘not have such incendiary ramifications’.126 The problem with such an approach is at least three-fold. First, the promotion of war through the gateways within the prohibitory regime is a crucial issue to address when assessing legal justifications. Second, this acknowledgement of the potential ambivalence of international law suggests close attention ought to be paid to the motivations, whether public or private, of justification and not left as an open question. Justifications are not made to avoid war, but as is suggested by the name, to justify war. To suggest that another form of exception be 124 See Finnemore (2003). See also Michael Barnett and Martha Finnemore, Rules for the World: International Organizations in Global Politics (Cornell University Press, 2004). 125 Goodman (2006) 136. 126 Goodman (2006) 135.

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legalized is to cede yet more jurisdictional authority to governments to engage in war, this time on ‘humanitarian’ grounds. Finally, we are left wondering about the beneficial assumptions attached to humanitarian intervention. This is hinted at by the reference to less ‘incendiary ramifications’. Indeed, the whole architecture of Goodman’s analysis seems premised on the demonstrable, verifiable ‘positivity’ of humanitarian intervention, without querying the underlying structure upon which it is based. This might have included consideration of historic practices of humanitarian intervention, which would give pause for thought about the significance of power structures in the international legal system. Goodman’s analysis assumes the one-way flow of blowback effects. What else might happen to domestic politics when legal justifications dominate debates over the use of force? The language of international law could be viewed as a discourse which, when articulated in certain forms by certain actors, can make it a linguistic regime of exclusion, privilege, and power. It is also a language of legitimacy which might veil the continuities between imperialism and hegemonic liberalism in the international legal system.127 Goodman’s account might therefore be seen as part of a narrative of progress which assumes that arguments embed international legal norms which thereby enhance compliance and reduce war. In order to break down these theoretical assumptions it is necessary to engage in systematic analysis of how discourse unfolds, by mapping the politics of justification.

2.4 Mapping discourse Crucial to mapping the politics of justification is a background understanding of what is meant by ‘discourse’ and what the implications of discourse theory are for how we understand society, or more specifically, ‘reality’. Discourse can be defined as a system of communicative practices integrally related to wider social and cultural practices, which help to construct specific frameworks of thinking.128 Discourse can relate specifically to fields of knowledge, in which relevant actors employ the same language to communicate their ideas, both to the wider community and amongst themselves. Epistemic communities are a classic example of how discourse is constructed by relevant ‘experts’ about a particular area,129 but also how the process of construction is also constitutive, so that the discourse (re- or de-) constructs both the subject area and the ‘experts’ analysing it. Although it is important to consider the ‘special discourse’ of international law as it occurs between elite actors on the international level (including legal scholars and practitioners) this study concentrates on a wider notion of discourse as a knowledge-producing language. It brings things into being and is a means of construction; it literally produces knowledge about the world. With this concept of discourse-as-construction, actors’ identities become crucial to how discourse takes 127 128 129

Anghie (2004). Myra MacDonald, Exploring Media Discourse (Arnold, 2003) 10. Haas (1989) 377–40.

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shape and what matters to such discourse. For instance bureaucracies are specially endowed with features that enable claims to ‘special knowledge’.130 This is also true of perhaps more ad hoc, epistemic communities and other policy elites, including lawyers, diplomats, and military personnel (in the use of force realm at least). International law is significant in this process of understanding domestic discourse because it is characterized as a special discourse at the international level. That is, scholarly discourse seeks to articulate an objective field set apart from politics, with scholars themselves part of the process of international law-making, as authoritative contributors and framers of international legal discourse. The combination of these two factors, scholars claiming normative detachment from subjectivity, coupled with the identity of policy elites at the domestic level may result in a form of expert domination when international law enters debate. Seen from this perspective international law can become a vocabulary translated into vernaculars—a resource pool. Yet its grammar, lexicon, and translation—in essence, its definition—is not necessarily an ‘open’ language available to everyone as equal user. Although it may be used as a resource, the adoption of this discourse is not a simple story of empowerment and contestation. The use of such language entails discursive hierarchies, engaging the question of authority to ‘speak’ the law. In some respects, international law limits accountability at the domestic level because it appears to ‘trump’ certain other, domestically legitimated forms of contest and politics. In some sense therefore, using international law legitimizes the language of power: government and policy-making elites, as well as experts, can come to dominate the domestic public. This darker side to law’s discourse ought to chasten the generously optimistic, progressive account of the politics of justification. In mapping discourse the first issue tackled by the case studies is a distinction between policy and public discourse. The split is based on a public-private division in how decisions are taken. This split is crucial to tracing the influence of legal justification, and by implication international law. Without such a consideration government rhetoric may be difficult to interrogate and blowback effects difficult to trace. Evidence of secret arguments or private policy calculations reveals whether and how rhetoric operates in the politics of justification. Policy discourse includes legal advice and Whitehall correspondence where this has been declassified. This demonstrates how British governments have responded privately to legal arguments which utilize international law. This provides an indication of how decisions have been taken when international law is part of the matrix of considerations. It also, however, demonstrates how decisions have been moulded on to legal arguments, and therefore suggests limitations to the constraining effect of the politics of justification, pointing also to the facilitative aspects of justificatory politics. In choosing to map public discourse the issue arises as to whether we can really talk about ‘public discourse’ at all. This in turn raises the question of the existence

130

Weber, Economy and Society vol 1 (University of California, 1978) 225.

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or otherwise of a public sphere.131 Instead, this study highlights the fact that public discourse is ‘reported’ as such, and this reflection of public discourse can provide a foundation to examining its contours. Further, by referring to a range of sources— polling data, media reporting, activist literature, and political statements—a picture of public discourse emerges that does not make a claim to the facticity of ‘the public’ but nevertheless demonstrates the forms that public discourse appears to take. In assessing the sources used, the case studies acknowledge the difficulties of extracting ‘public opinion’ from polling data. This engages with literature on public opinion research. Though polling data is a significant contributor to tracing discourse, the most important tool used in this research is tracing discourse through newspaper reporting. Reporting is analysed through a systematic study of high circulation newsprint media throughout the period of both the Suez Crisis and the Iraq War. The limitations to this method are addressed, in particular by noting the significance of the role of media. The recognition of media influence includes consideration of its impact on politics through information transmission, media framing, and its role as an institutional actor in domestic politics.

2.4.1 Policy discourse This study refers to policy discourse as private discourse within the corridors of power, that is, among government and policy elites. The significance of policy discourse is as a ‘feeder’ into decision-making. The modes through which this operates depend on the institutional framework, the style of government, and the subject matter of the decision. In the two case studies, analysing policy discourse means looking to Whitehall to various branches of government and Cabinet decision-making. In relation to Suez, the task is more straightforward than in respect of Iraq. This is because, in the latter case, events are more recent and therefore many sources and documents remain ‘closed’ within the National Archives. Whilst numerous documents have been de-classified through the Chilcot Inquiry process, the view remains rather partial. The Suez case study uses archival material and personal memoirs of various actors within government. The archives include a wide-ranging selection of documents from the Foreign Office, the Law Officers’ records, the Lord Chancellor’s papers, Prime Minister’s documents, and Cabinet records. Perhaps unsurprisingly, the archival record still has gaps. For instance there is no record of the meeting at Sèvres at which the British, French, and Israelis agreed to collusion. For Iraq, the material is limited to de-classified documents submitted to the Chilcot Inquiry in 2009 and the evidence given during the course of that Inquiry (as well as others including the Hutton and Butler Inquiries). There were earlier ‘leaks’ of documents, for instance the ‘Downing Street Memos’ disclosed in the build-up to the 131 On the ‘public sphere’, see Jurgen Habermas, The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (Translated by Thomas Burger) (Polity Press, 1992) and Craig Calhoun (ed), Habermas and the Public Sphere (MIT Press, 1992).

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2005 General Election, which catalogued key events in government planning for war with Iraq. But the Chilcot Inquiry documents, and the evidence heard during hearings between 2009 and 2011, include extensive discussion of the legal advice provided to government from various elements within Whitehall, and fill out the current record of private decision-making. It is interesting to note that the Inquiry itself generated a ‘resurgent’ debate over Iraq War decision-making and, during the hearings, we perhaps heard more than ever before about the legal aspects of the decision to go to war. Whilst this later Inquiry discourse is a productive site for exploring the legacy of the Iraq debates, this study concentrates on policy discourse in the immediate build-up to war between 2002 and 2003. Although the picture remains partial, particularly in comparison with Suez, it is still possible to observe significant aspects of private decision-making and, most importantly, see how private motivations related to legal justification. Indeed, in both Suez and Iraq the ultimate policy objective appears to have been regime change. This is attested to by the documentary evidence of government decisionmaking and Cabinet meetings. These policy aims appeared to have been packaged in legal justification for public consumption. That suggests the rhetorical manipulation of legal justification to enhance public legitimacy. Yet, this conclusion alone would take for granted the ‘positive’ assumptions of legal justification. In other words, such a conclusion assumes that legal justification is capable of burdening government, if only law was not manipulated by government. Instead, we might read these legal justifications as coherent frames for articulating regime change in legitimate self-defence terms. This involves appreciating that legal justification premised either on collective security or self-defence, or indeed humanitarian intervention, need not necessarily be seen as antithetical to a policy objective of regime change. Indeed, regime change in all three ‘exceptions’ can, by necessity, involve the inevitable bringing down of a leader and regime. This observation becomes a challenge to international law doctrine on the use of force, rather than simply an observation that rhetoric can be manipulative of law. It demands a rethinking of the attributes accorded to international law as it operates through the prohibitory framework and rethinking international law’s supposed ‘outsides’.132 Further, although elements of government and policy elites may argue strongly for legal compliance, they also appear aware of the unique authority of government to make the ultimate decision to go to war. In short, government officials recognize that ‘policy considerations’ may often outweigh strictly legal considerations. This can recast their role not as constrainers of government but as facilitators of policy by constructing intricate, technical arguments which might reconstruct seemingly ‘illegal’ policies as legal. One reason for this subservience to ‘political realities’ may have to do with the structural context of military decision-making. The research on policy discourse therefore both supports and adds complexity to Cortell and Davis’s claims about structural context. It supports their claims by illustrating that the centralization of decision-making may impact upon policy elites’ abilities

132

On law’s so-called ‘outsides’ see also Johns (2013).

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to contest justificatory claims made by governments. It adds complexity by suggesting that personality, political style, and the specific circumstances of military decision-making may also play a role in the politics of justification. Yet, ultimately, the difficulty with mainstream constructivist, and particularly liberal, approaches is the problematic conceptualization of law and its relation to politics, which may require a complete rethinking of the model of the ‘politics of justification’ as currently constructed. This implication is considered further in Chapter 5.

2.4.2 Polling data One source for generating a map of public discourse is reference to polling data and its uses by various actors in justificatory politics. There are a number of controversies in the literature surrounding polling data and more generally the notion of public opinion. Some writers suggest that public opinion does not exist and that it is a fabrication used to maintain the domination of elites over masses. Others argue that numbers become tools which political actors manipulate to further their policy aims. Overall, however, there is general consensus that whether or not polls reflect opinion, they do seem to affect government policy and public debates over issues. The United States is often used as an extreme example of the influence of polling on domestic politics. However, British politics has increasingly followed this example with the introduction of widespread use of ‘focus groups’ and polling over an increasing number of issues. The fact that polls are published by the media serves to further entrench the significance of polling data, though this speaks as much to media influence as to the general influence that public opinion may or may not have on political processes. Pierre Bourdieu claims that public opinion does not exist and that attempts at calculating it are simply reflective of a strategy of dispossession that works by agglomerating views.133 Viewed through this frame, polls detach mass opinion from political contestation by simplifying and distilling viewpoints. Such actors lose their ‘voice’ except as fragmentary opinion, which is controlled by the types of questions that are asked and circumstances in which polling data are sought. This theoretical claim acknowledges how polls can become the focus of discourse itself and can be used by other actors to frame and empower their own positions by manipulating the statistical power of ‘mass’ opinion. Others argued that by identifying trends through statistical analysis, polls can provide information to political actors about the attitudes of the electorate, thereby shaping or re-framing political discourse.134 This creates a ‘cycle of influence’ whereby polling becomes a key tool in determining the ‘mood’ of the public whether before, during, or after policy decision-making. This cycle of influence is premised on the apparent rationality of public opinion as long as the public are 133 See Pierre Bourdieu, ‘Public Opinion Does Not Exist’ (Chapter 18) in Sociology in Question (Sage, 1995). 134 Benjamin Page and Robert Shapiro, ‘Foreign Policy and the Rational Public’ Journal of Conflict Resolution 32 (1988) 211–47. See also Page and Shapiro (1992).

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sufficiently informed about events.135 This pattern is highlighted in John Mueller’s studies of public opinion in the United States during the Vietnam War.136 Other studies also explore how public opinion shapes discourse around the justifications for policy choices and affects policy in a kind of boomerang effect.137 One limitation in gauging this ‘opinion’ is implied by Bourdieu’s analysis: opinion is limited by the types of questions asked, which will often reflect pollsters’ preferences and interpretations. These preferences in turn reflect elite opinion, rather than ‘mass’ opinion. If we take one type of question as an example it helps to illustrate some of the problems associated with analysing polls. In many polling questions there is a high degree of elision between the concept of multilateralism, and international law. Drawing on US polling results, Richard Eichenberg argues that the key factors in explaining support for the use of military force are a given country’s stated foreign policy objective, the prospects of success, and the degree of multilateral participation.138 Eichenberg adds that multilateral participation provides greater credibility in the framing of a particular intervention to the public. This translates into greater support for the use of force, though it remains contingent on the objective being sought.139 Eichenberg illustrates this with his assessment of US public reaction to the Iraq War 2003. He asserts that initially support for the war was extremely high as the rhetorical justification centred on the threat of weapons of mass destruction posed by the Iraqi regime. Although international opinion was divided, clear support for action was expressed by key allies such as Britain. This satisfied the requirement of multilateralism. The appeal of multilateralism does not exactly correlate with the influence, or otherwise, of international law. The question that this raises, which echoes Bourdieu’s insights, is who is it that does not consider international law significant: the pollsters or the public? Why is the question of international law not asked, and instead the issue framed as one centred on multilateralism? A similar elision can also be seen in British polls over Iraq which focused on the role of the United Nations and inspectors rather than asking specifically about international law. Even in later polls which asked whether or not military action was ‘legal or illegal’, this was not prefaced with the term ‘international’. It is therefore open to question whether legality really did relate solely to international law, or whether some other principles applied, such as ideas about the rule of law, legitimate governance, or military accountability. A further issue raised by analysing polling data is that the perceived success or failure of policies during war is often more significant to public opinion than

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Page and Shapiro (1988). John Mueller, War, Presidents, and Public Opinion (John Wiley & Sons, 1973). See eg Ole Holsti and James N Rosenau, American Leadership in World Affairs: Vietnam and the Breakdown of Consensus (Routledge, 1984), Chs 1–2; S Erikson, R Luttberg, and KL Tedin, American Public Opinion: Its Origins, Content and Impact (Macmillan, 1988). 138 Richard C Eichenberg, ‘Victory Has Many Friends: US Public Opinion and the Use of Military Force, 1981–2005’ International Security 30(1) (summer 2005) 140–77. 139 With foreign policy restraint action characteristically exhibiting far higher levels of public support than intervention in internal political struggles. 136 137

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explicit support for or implicit internalization of international law on the use of force.140 This highlights the difficulty of drawing inferences from such polling material. Yet the reason for including polls in this study is that they can be significant sources for gauging support for government action; they can raise the stakes of justification or result in a shift in gear in the terms of justification. We know from the archival record on the Suez Crisis that polls were passed to government officials and decision-makers regularly, and were the subject of either consternation, or continuation of particular policies. Many polls were, and continue to be, commissioned by media outlets and so, again, they provide useful indications of the methods through which public discourse is being shaped and reshaped by media interaction with public opinion. Aside from the interpretation of polls by scholars, is that of information flows. According to Page and Shapiro, information flows through the media.141 This means that information is subject to the framing and preferences of media outlets, which can serve to enhance government and policy elites’ abilities to manipulate public opinion.142 However, they also argue that ‘public opinion is quite resistant to being led astray, particularly when at least a few elite voices dissent, or when policy preferences are based on personal experience, or when events are inherently easy to understand’.143 Other writers challenge this assertion, arguing that ‘the public remains uninformed and manipulated by keywords included in polling questions. When government acts it may merely be dancing to the shadows it has created’.144 This tension in polling analysis demonstrates the complexities in seeking to map discourse, yet public opinion remains a crucial part of the policymaking matrix, whether that opinion is real, imaginary, or constructed and whether it is reflective of elite dissensus, mass opinion, or ideology. For from arguing against the inclusion of polling data, these issues demonstrate the need for a much more nuanced approach to discourse and justificatory politics. In terms of data selection, polls from a number of sources are used, which include archives of IPSOS Mori, ICM, and Gallup. Some of these are available online, for example in relation to Iraq. Others are compiled in country-specific publications, such as the Gallup collections in relation to Britain, France, and the United States over the post-war period. Through archival research of media reporting, polls are included which were published through relevant media outlets and, in relation to Suez, this makes it possible to identify how public opinion concerns influenced government justifications. This context-based approach to polls is necessary in order to uphold the contention that polls themselves can provide important constitutive influences on public discourse. Although media itself can be viewed as an elite institution or at least an elite-biased actor (discussed 140 Louis Klarevas, ‘The “Essential Domino” of Military Operations: American Public Opinion and the Use of Force’ International Studies Perspectives 3(4) (November 2002) 428. 141 Page and Shapiro (1992) 116. 142 Page and Shapiro (1992) 395. 143 Page and Shapiro (1992) 395. 144 Norman Luttbeg, ‘Review of The Rational Public by Page and Shapiro’, The Journal of Politics 55(2) (1993) 518–19.

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in the following section), widespread reporting gives some indication at least of how public opinion is being interpreted by domestic actors in public discourse.

2.4.3 The role of media This section considers some of the key elements of the literature on media and political debate, focusing on three main issues. The first is the significance of media as an information provider. The spreading of knowledge has important effects on both public opinion and policy discourse. Information, however, is not neutrally imparted upon the public. Therefore, the second issue focuses on the idea of framing. The media produces frames through which events are narrated. These narratives can have influential effects on how events are interpreted and the use of narratives can have longer-term effects on how future events are interpreted. This creates a form of cultural legacy in the way the use of force may be debated in domestic politics. Consideration is also given to the media as an elite institution.145 This means that its choice of narratives and frames may reflect institutionally biased interpretations of government decision-making, or not necessarily reflect mass opinion, as it might claim they do. This broader concept of elitism argues that journalists, academics, government, and political activists are elites because they are people ‘on whom we depend, directly or indirectly, for information about the world’.146 This suggests support for the view that the parameters of discourse are largely determined by the political power and preferences of the interests involved.147 Media’s role in society remains an unresolved and deeply contested issue, premised upon an illusory and idealistic conception of liberal democracy and freedom of the press. For instance, media can be said to represent a challenge to government policy simply by having access to information. Yet, this leaves uninterrogated the question of ‘sources’, the relations of media actors to other societally and politically powerful actors, and their integration within a distinct political economy. Whilst a detailed study of this ideological and political economic aspect of media’s role in society is beyond the scope of the case studies, issues such as media ownership, censorship (both self-censorship and government-imposed), and access points to powerful actors (including personal relationships between governments and media) do surface in the case study analysis. Of particular relevance to this study is the way this unresolved conception of the media’s role is exacerbated during moments of national crisis. On one hand, its role may be to generate consensus about issues, adjudicating neutrally and 145 This study focuses on media as an elite, institutional actor but there is also significant scope for expanding that unit of analysis to include media as a process and ‘mediatization’. On mediatization see Frédéric Mégret and Federick Pinto, ‘Prisoners’ Dilemmas: The Potemkin Villages of International Law?’, Leiden Journal of International Law 16 (2003) 467–90, 468; and Daniel Joyce, ‘Human Rights and the Mediatization of International Law’, Leiden Journal of International Law 23 (2010) 507–27. 146 John Zaller, The Nature and Origins of Mass Opinion (Cambridge University Press, 1992) 6. 147 See for a similar analysis of Gulf War American discourse, Robert Entman, ‘Framing: Towards Clarification of a Fractured Paradigm’, Journal of Communication 43(4) (1993) 51–8.

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impartially between competing positions in debates.148 This performative function of media makes it a central plank in democratic processes and thereby provides a self-legitimizing role which avoids conflict and instability whilst ensuring issues are debated. At the same time, the prospect of war coupled with the nationalist traditions of many Western liberal democracies, in this case the United Kingdom, may influence media reporting to emphasize bipartisanship and unity in the face of potential threats to the national interest. This presents media with an as yet unresolved dilemma: to report challenge to government policies in times of crisis, or self-censor in the apparent interests of national unity. Further, the dilemma of self-censorship may result in a lack of accountability, which is an oft-expressed function of a free press in liberal democracies. Whilst media influence is, therefore, crucial to understanding the complex processes of international law’s impact on domestic politics, influence ought not to be caricatured as a one-way street. Though the dissemination of information can be seen as a productive construction of knowledge, we ought not to assume that the public, or indeed the less homogenizing notion of ‘the audience’ is a passive observer of this influence. One strand of media communication research emphasizes that audiences can demonstrate an ‘imperviousness to influence’.149 There are other strands which emphasize not so much imperviousness to influence, but the co-production of meanings. In particular, Stuart Hall’s approach to encoding and decoding argues that there can be at least three codes or positions for the reader of a text: a dominant, or hegemonic, reading; a negotiated reading; and a counterhegemonic, or oppositional, reading.150 In other words, Hall does not assume that the encoder, in our case media reporting of either the Suez Crisis or the Iraq War discourses, is all powerful in relation to the decoder. He recognizes a role for the decoder in generating meaning and thereby constructing knowledge. One way of recognizing the influence of audiences is to pay attention to the narratives which frame ‘crisis’ discourse. Such narratives play a particular role depending on the context of discourse. Notice, for instance, the widely divergent narratives over the invasion of Iraq between the United States and Britain. In the former, the ‘War on Terror’ narrative loomed large in media reporting, and appeared to reflect audience receptivity to this frame for understanding military action. In Britain, such a framework had far less resonance, no doubt because of the absence at that time of the spectacle of a terror attack on ‘home soil’. Or consider the differences in the construction of the ‘problem of Nasser’ for the British and the 148 For an account of the media’s wider role, which reflects upon the need for journalistic professionalism and integrity which gravitates towards its utilitarian purposes in a democratic society see Nick Davies, Flat Earth News: An Award-winning Reporter Exposes Falsehood, Distortion and Propaganda in the Global Media (Vintage, 2008). 149 See Raymond Bauer, ‘The Obstinate Audience’ American Psychologist 19 (1964) 319–28; Bauer and Claire Zimmerman, ‘The Effects of an Audience on What is Remembered’ Public Opinion Quarterly 20(1) (1956) 238–48; Raymond Bauer and Alice Bauer, ‘America, Mass Society and Mass Media’ Journal of Social Issues 10 (1960) 3–66. 150 Stuart Hall, ‘Encoding/Decoding’ in Stuart Hall, Dorothy Hobson, Andrew Lowe, and Paul Willis (eds), Culture, Media, Language: Working Papers in Cultural Studies 1972–79 (Hutchinson, 1980) 128–38.

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French. For the British, Nasser was a thorn in the side of efforts to reconstruct Britain’s post-war role in the Middle East and secure the influence of indirect empire. Yet for the French, Nasser was deeply implicated in the Algerian demands for independence and indeed the granting of independence to Tunisia in 1956. The case studies consider the role of these ‘grand narratives’, or ‘wider’ frames, and the way that information was filtered through particular frames for public consumption. Aside from theoretical questions on the influence of media, there is a useful body of public opinion research which considers how media can affect ‘issue saliency’, that is the resonance of a particular issue. This may provide a more fruitful unpacking of ‘saliency’ than is proposed by the mainstream constructivist account of ‘norm’ saliency. The public opinion literature’s configuration of issue saliency invites examination of the central role media plays, as information transmitter and framer of narratives. For political scientists, public opinion only impacts an issue when the issue is salient. Given that public opinion is largely perception, saliency is primarily a hypothetical political question and one of mobilization—changing latent opinions into manifest ones.151 There are three survey measures that can be used to measure saliency. The first is knowledge, or the extent to which people are aware of an issue. The second is the topicality, or perception as being talked about, of a given issue. Finally, the third measure is involvement or the degree to which people are prepared to act on an issue.152 Media’s role is clearly crucial to all three processes identified by public opinion researchers. The analysis of their role, and indeed this concept of saliency, can be added to constructivist theories on international law’s role in domestic debate. First, the media have a high degree of influence over public opinion, and public debate, as knowledge producers. Though they do not hold themselves out as ‘specialists’ themselves, they perform two functions which challenge government justifications. They challenge government’s monopoly over information. This is both by reporting events which are exclusively attended by government or other political elites (such as UN Security Council meetings) and by calling upon sources to challenge the interpretation of these events. They also challenge government claims to ‘secret’ or privileged knowledge. This involves another function of media, as a knowledge producer, as well as transmitter of policy discord over information or knowledge interpretation. Journalists use sources throughout government and bureaucracy as well as outside experts to sound out policy divisions and to make public these policy contests. These two functions will increase public knowledge about an issue. The second aspect of saliency, topicality of a given issue, is also affected by media. This is primarily by media reporting of events and opinion. So, again, this is a function of their role as knowledge producers generating the sense that an issue is significant by repeatedly referring to it in their reporting of news. Third, media can enhance involvement in an issue through spreading information about

151

Everts in Nacos et al (eds) (2000) 187.

152

Everts in Nacos et al (eds) (2000) 187.

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opinions, both in terms of policy elite, expert, and mass opinions. In the context of discourse over the use of force this can include information being transmitted and interpreted by a range of experts, from diplomats to civil servants, to armed forces personnel and academics. As discourse continues, media reports the discourse taking place not just in policy circles and among experts, but ‘on the street’. This characterizes the discourse as one affecting everyone’s life and of critical importance to the nation. This characterization might include reporting of activist steps being taken by academics, students, and ‘Middle England’ to protest against the war. This might also include publishing petitions, letters, features, and covering anti-war protests. This information transmission can thereby serve to enhance the issue saliency of military action. Though issue saliency is distinct from what Cortell and Davis term ‘norm saliency’, the two are in fact two sides of the same coin. This is on the basis that talking about norms in domestic debate involves interpretation and engagement with arguments, not with abstract norms. At least from the perspective of public opinion and public discourse, the physical separation between the two spheres (the international and the domestic) means that often (or at least in the realm of military action) the issue–norm nexus can be taken as a given. In this way, whether we talk about issues or norms, saliency is largely a reflection of the media role in informing the public and in producing or transmitting knowledge. It may be mistaken to focus on ‘norm saliency’, and separate this from argumentative processes. This reflects the view that the media is constitutive of discourse, and operates on a metadiscursive level, helping set the terms in which we think about the media itself.153 The case studies will show that the media’s centrality in affecting saliency makes it necessary to add such an analysis to existing theories as it has a central explanatory role in the politics of justification. Media’s framing role has already been alluded to above. Essentially, the significance is in how frames can set the terms of debate and therefore affect the impact international law has on political debate. Goffman argues that the organization of messages affects subsequent thoughts and actions. In general, framing involves the organization and packaging of information: ‘We actively classify and organize our life experiences to make sense of them . . . schemata of interpretation’ are labelled frames; they enable individuals to ‘locate, perceive, identify, and label’.154 Assessing how these frames operate in practice poses a significant challenge to researchers. One method is to identify a hermeneutic code to identify the number of articles referring to international law during debate. However, though this might give an indication of the volume of reports which include legal argument, it may not provide a useful interpretive tool to analyse the extent to which the media frames a particular crisis in international legal terms. The relevance of other background aspects of discourse, such as for example the colonialist, appeasement, and pacifist legacies also have a role in subjecting legal justification to broader contest and contextualization. One example of framing is how debates on the use of force are 153 154

MacDonald (2003) 10. Erving Goffman, Frame Analysis (Harper & Row, 1974) 21.

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connected to the broader narrative of threats from terrorism or part of the ‘War on Terror’. These contextual elements, or narratives, are important in understanding how challenges to government action are embedded in broader contest and complex, shifting historical and cultural legacies which emerge, at moments of rupture. Media’s role as narrator both of past events and debates over contemporary government decision-making is therefore crucial to any examination of the politics of justification. Methodologically, media reporting remains the foundation for much of the public discourse material in the two case studies. To document reporting, microfilm archives of several major newsprint publications were analysed during specific periods of discourse. News media was selected for analysis on the basis of circulation figures and to provide a cross-section of broadsheets and tabloids. This excluded systematic analysis of radio and television media reporting to keep the studies within manageable proportions. Given the extent of literature regarding the complexities of the relationship between the public and television155 (including areas such as content, sampling, interpretative, discourse and agenda-setting issues) this may be a limitation on the assessment of the media’s role in domestic discourse. In relation to Suez this is perhaps of less concern than in relation to Iraq. Media outlets in 1956 consisted of newsprint as the main form of media reportage, followed by BBC radio broadcasts and to a very limited though rapidly increasing degree, television broadcasts. By 2003 media reporting was no longer dominated by newsprint and so the analysis of other forms of networking, and particularly television and ‘new’ media, ought to be pursued beyond this study. The formal nature of newsprint media may mean that the overall analysis provides a distorted image of public discourse. Further research into Iraq may seek to engage with how media as process, in particular as images or online media, impacted upon debate.156 This might involve analysis of emerging and already entrenching forms of cyberbased discourse, whether termed ‘new media’ or other (still relatively) novel forms of discursive interaction.157

155 For media analysis specifically looking at the relationship between television and its audiences, see eg Hall in Hall et al (eds) (1980), and Dave Morley ‘Chapter 3: Interpreting Television: the Nationwide Audiences’ in Television, Audiences, and Cultural Studies (Routledge, 1992) 75–118. For more in-depth treatment of the relationship between media and public sphere, see eg John Keane (1995) ‘Structural Transformations of the Public Sphere’ in Maggie Scammell and Holli Semetko, The Media, Journalism and Democracy (Dartmouth Publishing Co, 2000), and Walter Lippman ‘Public Opinion’ in Howard Tumber (ed), News: A Reader (Oxford University Press, 1999) 5–11. 156 For an account of the effect of television and ‘visual culture’ during the Iraq War, see Nicholas Mirzoeff, Watching Babylon: The War in Iraq and Global Visual Culture (Routledge, 2005). 157 For a history of changes in media, see Asa Briggs and Peter Burke, A Social History of the Media: From Gutenberg to the Internet (Blackwell, 2001). For background on issues related to the internet, see James Slevin, The Internet and Society (Polity Press, 2000); and for more detailed analysis of the impact of the internet on ‘public sphere conceptions’, see Peter Dahlgren, ‘The Internet, Public Spheres, and Political Communication: Dispersion and Deliberation’, Political Communication 22(2) (2005) 147–62; Lincoln Dahlberg, ‘The Internet and Democratic Discourse: Exploring the Prospects of Online Deliberative Forums Extending the Public Sphere’, Information, Communication & Society 4(4) (2001) 613–33; Olga G Bailey, Bart Cammaerts, and Nico Carpentier, Understanding Alternative Media (Oxford University Press, 2008) esp Ch 2.

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2.5 Reflections on theorizing the politics of justification There are a range of useful literatures and approaches that can be drawn upon to map the politics of justification. The (mainly) constructivist and process school ideas about how international norms affect domestic politics can provide useful tools with which to examine the effects of legal justification. But without themselves mapping these processes, theorists have so far misjudged certain effects and missed the significance of others, particularly the facilitative and empowering aspects of international legal discourse upon government decision-making. This addition to existing theories about the domestic impact of international law and the constraining influence of the politics of justification is necessary if such theories are to more accurately reflect the processes at work during domestic discourse. To better realize the nuances and complexity of the domestic structural context, research needs to appreciate at least three factors. The first is the extent and impact of public–private splits in how decisions are reached and then justified. This allows for a more thorough interrogation of rhetorical justification. Second, the way in which use of force decisions are made is an important factor conditioning the politics of justification. Government’s unique authority coupled with aspects of personality and political style may have as important an impact on discourse as whether decision-making is centralized or decentralized. Finally, context simply cannot be abstracted into formulaic typologies. Context is both historically and culturally contingent and shifting. It therefore matters how the use of force has been debated previously and what might be the legacies of past discourses on current contestation. Further, context is not only domestically oriented, and the product of memory, it seems always in a state of flux, shifting meaning as we face the past with the movement into the presently arriving future.158 In addition to adding complexity to the notion of structural context, the concept of norm salience requires greater exploration and specification. Assessing norm salience may in fact be misplaced because norms operate as arguments in the politics of justification. Therefore, salience may be more about the resonance of arguments and how norms are wedded to particular narratives and frames. This assertion, however, is not necessary to challenging saliency ideas. Even if we consider that norms themselves may be more or less salient, the processes whereby norms might resonate are subject to further processes left out of Cortell and Davis’s analysis. To be fair, their study recognizes that far more research is needed, but it is the unit of analysis that is problematic: the unit being ‘norms’ rather than ‘normative arguments’. Some of these critiques were explored in examining Cortell and Davis’s own case study. They at least set a foundation for deeper empirical analysis. For instance, the Gulf War occurred in the immediate aftermath of the collapse of the Soviet Union 158 Such a ‘gaze’ or fixation on the past recalls Walter Benjamin’s reading of Angelus Novus. See Walter Benjamin ‘On the Concept of History’ (1940) in Selected Writings, Vol. 4 Howard Eiland and Michael W. Jennings (eds.) (Trans. Edmund Jephcott et al.) (Harvard University Press, 2003), Thesis IX.

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and end of bipolarity. This aspect does not feature in Cortell and Davis’s case study research at all. Arguably, this broader paradigm shift had an impact on consideration of the collective security norm and, in particular, in assessing other international actors’ concerns. In addition, the Congressional oversight over war-making was historically contingent, premised on the experience of the Vietnam War, a legacy from post-war politics. Further, Cortell and Davis’s account of discourse provides a ‘thin’ description of justificatory processes. By mapping the terrain of discourse and the politics which emerges out of justification this study seeks to produce a ‘thick’ description in order to better understand international law’s operations, practices, and usages. The chapter also considered Ryan Goodman’s conceptualization of ‘the politics of justification’. In particular, it highlighted the importance he attached to blowback effects and how these constrain government actions and force adherence to legal justification. It explored some of the underlying assumptions of this theory including the idea that blowback effects inevitably or even sometimes reduce the likelihood of military conflict. Historical context is, again, a significant factor missing in the analysis. The failure to examine actor identities or trace the contours of discourse places significant limits on the adaptability of Goodman’s approach to broader constructivist projects of when and how international norms matter. Adding these analyses does not necessarily lead to a rejection of Goodman’s observation that legal justification may work in more complex ways than simple rhetorical manipulation and pretext. Yet, it does question the explanatory potential of the behavioural account of compliance, itself tied to a legal formalist account of international law. Instead, compliance can be unpacked as a rich array of interpretive practices—a matter of interpretation, a matter of argument, a matter of the exercise of authority. In the case study chapters which follow, influences over policy and public discourses are traced as a means of ‘correcting’ some of the deficiencies in existing accounts of the politics of justification. This does not necessarily result in greater clarity however: in the process of revealing aspects of this politics previously unaccounted for, more questions than answers can be raised. Yet part of the process of unpacking this politics is first to get a sense of what it looks like. Only then can we begin the longer process of rethinking justificatory politics, asking questions about the nature and role of international law in policy and public discourse, the significance of authority, and the central role of the media. By asking these additional questions, we come closer to understanding the full extent of international law’s usages and operations. We might also come closer to observing the significance of history as an ever-changing, productive site of meaning generation for justificatory discourse and therefore for international law.

3 The Suez Crisis British discourse during the Suez Crisis of 1956 was wide-ranging and deeply divided. Public discourse emerged in late July 1956, following Colonel Nasser’s nationalization of the Suez Canal Company. It reached a climax following the Anglo-French invasion and occupation of the Canal Zone at the end of October 1956 and eventually petered out by January 1957, by which time the first UN ‘peacekeeping’ force (UNEF) had replaced British and French troops. Though the Crisis was concerned with whether or not Britain could use force to protest its economic interests in the Canal and its operation, the apparent collusion between Britain, France, and Israel in precipitating the conditions for invasion became a late feature of the crisis debate, particularly at the international level. The British government sought to justify its actions in international law throughout. However, there was widespread international distrust of British motivations and its behaviour at the UN. The invasion occurred at precisely the same time as the Soviet Union quelled a popular uprising in Hungary. This action provoked comparisons with Anglo-French action in Egypt, which served to further de-legitimize British Prime Minister Eden’s claims to be acting in the interests of international peace and security. The comparison and distrust of British actions led to widespread challenge to ‘naked’ British imperialism. By mapping the policy and public discourses that emerged during the Crisis, this chapter provides a rich, empirical account of international law’s role in domestic politics, and contextualizes the theory on the politics of justification. The account begins with a background to the conflict. The account of background is substantially broader than traditional accounts of the Suez Crisis, which tend to focus on the eruption of the Crisis without contextualizing the colonial history preceding the nationalization of the Suez Canal Company.1 The chapter demonstrates the argument made in Chapter 2, that debate over the use of force is always set within a wider context of social and political discourse, and is historically and culturally contingent. There were two significant phases to public discourse during the Suez Crisis. The first related to the response to nationalization. The second focused on the threat and eventual use of force by Anglo-French forces in October 1956 up until their withdrawal in January 1957. The most significant aspect of this discourse was the 1 See eg Robert Bowie, International Crises and the Role of Law: Suez 1956 (Oxford University Press, 1974) 1.

The Politics of Justifying Force. Charlotte Peevers. © Oxford University Press 2013. Published 2013 by Oxford University Press.

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deep divide between the ‘go it aloners’ and the ‘law not war’ advocates which cut across both phases. Broadly, the former were referred to as ‘gunboat Tories’ and imperialists, the latter as pacifists, anti-colonialists, or worst, as appeasers. The discourse therefore had a deeper structural and historical context—a memory being re-written and forged in the thrust of the event-crisis—as well as indicating division over the question of whether or not international law was a policy option or an obligation. On 28 July 1956 all the main papers led with Nasser’s nationalization as their front page. The Egyptian leader was characterized as a thief and brigand. Papers from both sides of the political divide called Nasser a robber and referred to his action as a ‘grab’.2 The House of Commons proceedings were reported in detail, including the immediate connection made between Nasser and Hitler.3 Despite this apparently fervent support for immediate military action, behind the scenes the government continued to seek a legal justification that would, in Eden’s own words, strengthen their case. This was because at this stage it was clear that Britain would not be able to do anything about the nationalization for at least a few weeks, simply in terms of logistics and military planning. The public and papers had little concern with the ‘legal niceties’ of nationalization.4 There seems to have been a disinterest in engaging in debate over the legitimacy of Nasser’s actions. Instead, the focus both privately and publicly turned to the legitimacy or otherwise of military action. Following Nasser’s nationalization, the British, French, and American governments moved swiftly to condemn the action publicly, and arrange an international conference to attempt settlement of their concerns. This became known as the London Conference and took place in August 1956. Of 22 states participating, with the notable exception of Egypt, 18 agreed to a resolution outlining settlement proposals. This was conveyed to Nasser’s government by the Australian Prime Minister, Robert Menzies, as part of a five-man delegation. He was unsuccessful in convincing Nasser to accept the proposal, following which the three powers again instigated fresh negotiations to reach a settlement. The terms of this new settlement were largely constructed by US Secretary of State, John Foster Dulles, and came to be known as the Dulles Plan. It proposed a Users’ Association and became the blueprint for negotiating international control of the canal. In his recollections as US Ambassador to Britain, Winthrop Aldrich records that Eden saw this proposal as a precursor to using force. He says that ‘it became plain that Eden thought of it as having been devised to justify the use of force as a last resort’.5 Whilst Eden considered the plan a deliberate ‘slap in the face to Nasser’ the United States, and in particular Secretary Dulles, ‘thought of the plan as a desirable step in keeping the users of the Canal together in order to work out a good arrangement with Egypt for its operation’.6 This divergence of opinion

2 3 4 5 6

Daily Sketch, 28 July 1956, front page; Daily Mirror, ‘Grabber Nasser’, 28 July 1956, front page. Daily Express, 28 July 1956, front page; Manchester Guardian, 28 July 1956, front page. For example The Times, 1 August 1956, Opinion. Winthrop W Aldrich, ‘The Suez Crisis: A Footnote to History’, Foreign Affairs (April, 1967) 541. Aldrich (1967) 541.

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between the United States and British positions as to using force would come to play a significant role in the crisis and its aftermath.7 During the negotiating period between August and October the initial calls for military action turned to frustration among the right-wing press that more could not be done to teach Nasser a lesson. Among the liberal press, the everpresent threat was that Eden continued to use aggressive language, which made negotiating a peaceful settlement more difficult. However, by mid-October 1956 it seemed that the crisis was almost over. Egypt’s Foreign Minister, Mahmoud Fowzi, had communicated acceptance of the new plan to the Secretary-General, Dag Hammerskjöld, leading US President Eisenhower to announce that the crisis was effectively over.8 In fact, the crisis was about to hit its climax. On 29 October 1956, in apparent reprisal for Egyptian support for fedayeen fighters, Israel launched a surprise attack through the Sinai. Britain and France issued an ultimatum to both Israel and Egypt to withdraw and stop the fighting. The reality was that they had colluded with Israel to manufacture a pretext for military occupation of the Canal Zone—the infamous Protocol of Sèvres—and knew that any acceptance of the ultimatum by Israel would be conditional on Egyptian agreement. They also knew, and banked on, Egypt refusing the demand, not least because Nasser could argue credibly that Egypt had been the subject of an unprovoked attack. The deadline passed without Israeli or Egyptian compliance, and Britain and France announced their deployment of troops on 31 October, taking occupation of the Suez Canal Zone to ‘safeguard international interests’.9 This was despite the fact that Israeli forces had not come close to the Canal Zone. Events led to international outcry at the emergency sessions of both the UN Security Council and General Assembly. Britain was also met with hostility from the United States who publicly declared the action illegal and unjustified. Eden’s confirmation to the House of Commons that British forces had begun military action in Egypt was greeted with outrage at home.10 There was a high degree of confusion and lack of information about what exactly the government were doing between 31 October and 5 November. Public (and private) debate centred on two concerns. The first was that the use of force had been without UN sanction. The second was that there was public and vocal opposition within the Security Council. These concerns demonstrated not so much outrage at the breach of particular international rules, but the breach of a system of regulation set up to adjudicate international disputes.11 7 Although Kyle suggests that as far as Nasser was concerned, the Users’ Association was nothing more than a proposal to legitimize the eventual use of force. Nasser could not understand the American position, which had supported this proposal because he saw it as simply a way of ‘waging war’. See Kyle (2003) 450–1. 8 Statement by Eisenhower at his press conference, 12 October 1956 cited in Selwyn Lloyd, Suez: 1956, A Personal Account (Jonathan Cape, 1978) 160. 9 Eden, 1 November 1956, HC Deb (1955–56) vol 558 col 1639. 10 Eden, 1 November 1956, HC Deb (1955–56) vol 558, col 1627. 11 See eg the Union of Democratic Control’s letter to Morgan Phillips, Secretary of the Labour Party, 31 October 1956, Labour Party Archive, Manchester, G3/SUEZ/38.

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There seems to have been an understanding that a fundamental principle of international law was the prohibition on using force to settle disputes. Public discourse appeared to recognize international law and its institutional regime as promising an order for the promotion of peace.12 However, international law was also used most vocally by the Labour Party and other opponents of the war to demonstrate the need for a paradigm shift in the way Britain conducted its international affairs, away from formal Empire and towards moral leadership. Public discourse in many ways mirrored some elements of policy discourse, in particular the party political splits in both parties, and the legal advisers’ and diplomats’ positions. In terms of analysing the debates, the distinction between private sphere decisionmaking and public justification is possible because of access to archive material. Using this material and distinguishing it from ‘public discourse’ helps to trace the processes by which justification was formulated and made public. It enables hypotheses to be made about why certain arguments became public whilst others did not and what that might add to current theories on the politics of justification. The discussion begins by highlighting the general attitude of Whitehall. It then considers the legal advisers’ positions on nationalization and military intervention. This policy discourse reflected a bureaucratic concern that legal advice be taken on board by government not least to ensure international reputations remained intact. Much of this debate was never aired publicly but it did impact upon what government could say in Parliament. It also seems to have had some impact on party political splits, which are considered in the subsequent section. These splits often ran very deep and were connected to the legacy of appeasement in the 1930s and to the collapse of formal Empire. This deeper divide also ran across parties and posed a difficulty to party leaders seeking to present a united front. Elements of government decision-making ‘behind closed doors’ are then analysed, which involves discussing the influence of these party divisions. It includes consideration of high-level meetings as well as secret collusion over eventual deployment of British troops. This behind-the-scenes decision-making, dominated by the desire to get rid of Nasser at any cost and to ensure the continued security of British ‘interests’ in the wider Middle East, was strongly informed by historical context and by personality. Examination of this ‘closed process’ adds further dimensions to the study of international law’s role in use of force decision-making. Many privately held views regarding the need to topple Nasser never reached the public whilst views over the threat or use of force quickly entered public discourse. In addition, the influence of ‘world opinion’ was intrinsically linked to identity and cultural connection. Therefore, it mattered a great deal that it was the United States, partner in the ‘special relationship’, which publicly condemned AngloFrench actions. Leading Commonwealth countries such as Canada and India also mattered to British public opinion. This attentiveness to ‘world opinion’ suggests that the realms of ‘the international’ and ‘the domestic’ are not entirely distinct 12 Hans Kelsen, Law and Peace in International Relations: The Oliver Wendell Holmes Lectures, 1940–41 (Harvard University Press, 1942) 1.

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spheres of opinion and engagement, that they are not ‘closed systems’ but instead are influenced in myriad ways by different actors and institutions. Consideration is also given to the influence of experts, both in the realms of policy discourse and in public. The section goes on to consider the possibility of international institutional influence. On the former, there was a distinct lack of public engagement by legal scholars. The latter point, that is international institutional influence, is difficult to trace but it may be that the United Nations as international forum and legacy of the post-war desire to avoid world war, had a novel impact on various levels of discourse, previously not experienced in decisions to use force. This section is included largely as a counterpoint to the analysis of the Iraq War and is discussed in comparative perspective in Chapter 5. The chapter concludes by reflecting, briefly, on the aftermath of the invasion. Despite fervent protests against invasion, there was a distinct shift in public discourse once the UN-brokered ceasefire was announced and the peacekeeping forces arranged for deployment. It appeared that British public opinion was split on the issue of the timing of the British withdrawal from the Canal Zone. In part, this debate reflected the arguments of 1954 and 1956, when Britain withdrew its forces from the Canal Zone as part of the final phases of the decolonization of Egypt. However, a somewhat novel aspect of the debate was a growing sense of resentment at America’s ‘dumping’ of an ally, and her turning of the economic screw to force British withdrawal. The British economy was in dire straits and without American goodwill the economy was likely to experience a full-scale collapse, brought about by the freeze on oil imports and the blocking of the Canal which prevented essential trade and revenue.

3.1 Setting the scene: backdrop to the Crisis The colonial legacy and continuing interference by Great Powers in the Middle East was a key feature of the Suez Crisis. Britain’s ‘encounter’ with Egypt stretched at least as far back as 1869 and the completion of the Suez Canal.13 In 1875 the British Prime Minister Benjamin Disraeli had purchased a minority shareholding in the Universal Suez Canal Company from the bankrupt Ismail Pasha,14 with France retaining a majority holding in the Company. The Canal had a dramatic effect on trade, drastically cutting the length of time it took for goods to travel across the world’s oceans. Occurring at precisely the same time as the ‘Scramble for Africa’, the Canal’s early operation arguably had a profound effect on the colonization of 13 For a wonderfully rich and engaging account of of the period prior to and during British rule in Egypt, see Timothy Mitchell, Colonizing Egypt (University of California Press, 1991). A full examination of the occupation of Egypt and in particular of the military occupation of the Canal Zone is beyond the scope of this study, though the legacy of exploitation and occupation was a key element in Nasser’s decision to nationalize the Suez Canal Company. 14 Khedive of Egypt and Sudan from 1863 to 1879. He was removed by the British and replaced by Tawfik Pasha who was Khedive from 1879 until 1892, that is during the period in which the British instituted formal occupation of Egypt.

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Africa.15 As with colonization, so with the Suez Crisis: Egypt became the ‘driveshaft in a vast geopolitical machine’.16 From the British perspective, they were in Egypt not merely for Egyptians’ sake, though they were there for that as well; they were there for the sake of Europe at large.17 Although Egypt was not considered a formal British colony it nevertheless ‘had many of the attributes of a British colony’.18 Since 1882 Britain had occupied Egypt as a consequence of its ‘invitation’ to quell a nationalist rebellion. Between 1914 and 1922 Egypt had become a Protectorate and after Egypt’s independence in 1922, it remained known as a ‘veiled protectorate’.19 The informal rule through military occupation and economic exploitation20 meant that the Colonial Office never undertook responsibility for governing or administration. Instead, British interests were coordinated through the Foreign Office and, on the ground, the British Embassy in Cairo. The tendency for the British to intervene ‘from time to time in their own self-interest’ was, suggests Louis, a primary cause of Egypt’s sense of humiliation following the 1942 installation of a puppet government, Israel’s declaration of independence in 1948 and, as the immediate precursor to the Crisis, the withdrawal of the loan for the Aswan Dam.21 Britain had only removed the final vestiges of forceful occupation between 1954 and June 1956, when troops stationed in the Canal Zone were evacuated pursuant to the Anglo-Egyptian Treaty of 1954 and following subsequent negotiations with Nasser. Of particular relevance in considering the legal aspects to the Suez Crisis, was the Constantinople Convention of 1888. The Convention was a treaty signed by a number of mainly European powers to guarantee the absence of imperialist contest and ensure neutrality. Jean Allain notes that at the time of signing the British delegation were, in fact, deeply hostile to the provisions on neutrality, not least because their military occupation of the Canal Zone since 1882 had guaranteed control of the operation of the Canal, and collection of dues (though France remained the majority shareholder and continued to benefit from dues).22 What was to transpire was an effective ‘abeyance’ of the Convention as Britain held to the spirit of a reservation which considered Egypt’s ‘exceptional status’ to mean that neutrality could not be achieved. Allain records how in the interim Britain continued to dispense with any good faith adherence to the agreement, at times upholding neutrality—as in 1936 when it allowed Italian forces through the Canal to pursue its invasion of Abyssinia—whilst at others commandeering the

15 This is according to Ronald Robinson and John Gallagher with Alice Denny, Africa and the Victorians: The Official Mind of British Imperialism (Macmillan, 1961). William Roger Louis, however, described their connection with the Scramble for colonies and the Canal as causal and fallacious. See William Roger Louis, The Ends of British Imperialism: The Scramble for Empire, Suez and Decolonization (IB Tauris, 2006) 5. 16 Louis (2006) 503. 17 Speech by Lord Balfour in 1910 in the House of Commons, quoted in Edward Said, Orientalism (1978) (Reprinted Penguin Books, 2003) 33. 18 Louis (2006) 7. 19 Louis (2006) 7. 20 Louis (2006) 9. 21 Louis (2006) 9. 22 Jean Allain, International Law in the Middle East: Closer to Power Than Justice (Ashgate, 2004).

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Canal for its own purposes and denying access—as with its denial of access to the Italians and later the Axis powers during the Second World War.23 Intriguingly, once Nasser nationalized the Canal Company the Convention suddenly became the basis for Whitehall advising of the legal position to government. The terms of the Convention were even reported by some elements of the press early on, as a demonstration of Egypt’s failure to abide by international commitments, particularly Article 1 which provided for an assurance that the Canal remain open to all shipping. The assumption appeared to be that Egypt was simply unable to, and incompetent of, meeting this international obligation; and, further, of paying the compensation that would be due to the Company under international law. This assessment was the conclusion to the first emergency Cabinet meeting following nationalization.24 This was despite the fact that both the 1936 and 1954 Anglo-Egyptian Treaties could be considered as superseding the terms of the 1888 Convention, and in any case, had explicitly recognized Egyptian sovereignty over the Canal Zone.25 Yet, Nasser himself had indicated his commitment to adhere to the Convention. Following the nationalization announcement he declared that Egypt would continue to operate the Canal as before, without discrimination, and that it would pay compensation on the basis of the closing price of the Canal Company’s shares on the day before nationalization. The ‘orientalist’ approach to Egypt’s actions, and towards Nasser in particular, was a key feature of the British press reaction to nationalization, and of Eden’s engagement with the ‘problem’ of Nasser throughout the Crisis.26 Indeed, even before the Crisis, it was evident that Eden’s perception of Nasser as an ‘oriental despot seeking personal glory’27 would come to dominate the formulation of British policy towards Egypt. The two had an ‘uncomfortable’ first meeting on 20 February 1955 at the British Embassy in Cairo28 in which Mohammed Heikal recalls that Nasser was condescended to by Eden, the latter playing the role of ‘a prince dealing with vagabonds’.29 Eden construed Egypt’s security interests, including Nasser’s refusal to join the Baghdad Pact, as simply Nasser’s egotism, rather than as a legitimate concern that this was an externally led coalition.30 Following Eden’s accession to the Premiership in April 1955, Heikal recalls that a committee was formed by Nasser to assess what significance Eden’s new role might have for Egypt. It concluded that, given Eden’s interests as a ‘one-time 23 Jean Allain, ‘Orientalism and International Law: The Middle East as the Underclass of the International Legal Order’ Leiden Journal of International Law 17 (2004) 391–404 at 396. 24 See Cabinet Meeting Records, 27 July 1956, CM(56)54, PRO CAB 128/30. 25 Rather intriguingly both 1936 and 1954 Treaty documents can be found in the Foreign Office archive (PRO FO 800/748) but are rarely, if ever, referred to by either Fitzmaurice or indeed the Attorney-General or Lord Chancellor. 26 For an account of Eden’s orientalism, including discussion of his ‘Arabist’ studies, see Lindsay Frederick Braun, ‘Suez Reconsidered: Anthony Eden’s Orientalism and the Suez Crisis’ Historian 65 (2003) 535–61. 27 Braun (2003) 553. 28 At the time Eden was Foreign Secretary. 29 Mohammed Heikal, Cutting the Lion’s Tail: Suez Through Egyptian Eyes (A Deutsch, 1986) 62. 30 Braun (2003) 551.

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Arabist’ he was ‘bound to become involved in the Middle East’ and would be keen to ‘leave his fingerprints on history’.31 Despite these misgivings, however, the Egyptian government held firm that the last vestiges of British occupation had to come to an end, and this meant negotiating the withdrawal of British troops from the Canal Zone, in advance of the expected end of the Canal Company’s concession in 1968. The Canal’s geopolitical and economic significance for Britain is crucial to understanding the strength of opposition to Britain’s eventual military withdrawal from the Canal Zone in June 1956. It was not only a vast economic resource because of the increase in shipping and trade in the twentieth century, it was also the gateway to the rest of the British Empire.32 Whilst the ends of formal Empire may appear obvious with the perspective of history, argument still raged in Britain as to the future of its colonies and its future role in world affairs. There was recognition, however, that Britain was economically vulnerable and weak after the war. This economic reality was a factor in the shift to informal Empire premised on access to oil and trade in commodities from former colonies and the Commonwealth. Britain could no longer hold onto its dominions and promises of economic support alone, and so would need American assistance to maintain interests. Initially this new economic reality led to agreements such as the 1950 Tripartite Declaration. In this agreement Britain, the United States and France promised to control arms sales and prevent aggression in the Middle East. However, the Korean War meant that the Americans would not deploy forces in the Middle East and so the agreement seemed more than anything a declaration of spirit rather than an enforceable obligation. In any case, US officials were still wary of British colonialism especially after London threatened war over Iran’s 1951 nationalization of the Anglo-Iranian Oil Company.33 Agreement could be reached between the two powers as long as both countries’ interests coalesced, as was the case when the CIA and MI6 coordinated the 1953 overthrow of the Mossadeq Government in Iran.34 But it was clear to Eisenhower and his Secretary of State, John Foster Dulles, that there was an intense distrust and dislike for the British among Arabs such that their continued presence only enhanced instability.35 Further, Eisenhower insisted that he did not want to force adherence to the status quo of imperial domination.36 The growth of the Arab nationalist movement and resistance to colonial influence was of central concern to foreign policy elites not only in Britain and France, but also in the United States. This was because of the emerging paradigm of Cold War politics and contest over spheres of influence, which threatened American

31 Mohammed Heikal, The Cairo Documents: The Inside Story of Nasser and His Relationship with World Leaders, Rebels and Statesmen (New York: Doubleday, 1973) 76–7. 32 For an economic history of the Canal, see DA Farnie, East and West of Suez: The Suez Canal in History 1854–1956 (Oxford: Clarendon Press, 1969). 33 Scott Lucas, Britain and Suez: The Lion’s Last Roar (Manchester University Press, 1996) 9. 34 Indeed, on the basis of this approach to Iran’s exercise of national interest over the oil fields, Eden should arguably have been able to rely on US support in militarily confronting Egypt. 35 Foreign Relations of the United States, 1952–54, vol IX, 379 (available on heinonline). 36 Letter Eisenhower to Churchill, 16 March 1953, PRO PREM11/486.

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interests in the region. These contests for influence were not simply ideological battles but were also driven by strong economic considerations which were crucial to maintaining domination over newly emerging states. Access to oil was a fundamental aspect of foreign policy, as was international trade and access to raw materials. Suez therefore evoked a whole range of responses that intertwined economic, political, and colonialist considerations, embedded in an emerging paradigm of ‘Super power’ bipolarity. The Suez Crisis was also enmeshed in the Arab–Israeli conflict which threatened to destabilize Western influence in the region, particularly in Jordan. The Great Powers sought a complex twin strategy aimed at undermining Nasser’s influence in the Middle East whilst at the same time pinning hopes of resolution of the Arab– Israeli conflict on Egypt. The creation of a mutual defence treaty between Iraq and Turkey in February 1955 later emerged as the Baghdad Pact when Britain joined, and was publicly lauded as a means of ensuring stability. But Nasser saw it as fracturing Arab autonomy and solidarity and argued that it would split Iraq.37 Indeed, the Pact can be seen as an explicit policy of divide and rule, in particular seeking to control the spread of pan-Arabism and to exert pressure on the Soviet Union’s southern borders which would stretch from Turkey to Pakistan. The secretive ‘project Alpha’ was simultaneously designed by Britain and America as a means of ensuring the exclusion of Soviet influence on the resolution of the Palestine question. There was broad agreement that the only person who could make an agreement stick between the Arab world and Israel was Nasser38 and that any solution to Palestine had to be made before the November 1956 US elections to avoid the influence of the Zionist lobby.39 This pressure to reach a solution realistically could not be achieved without abandoning conflicting policies such as the Baghdad Pact and the continued attempt to maintain a physical presence in Jordan. The lack of a coherent policy soon blew up in the Great Powers’ faces. In April 1955, Israel attacked the Gaza strip ostensibly in revenge for Cairo’s execution of Israeli spies and seizure of an Israeli ship in the Canal, but largely as a result of a shift in policy to demonstrate military superiority to deter Arab attacks.40 Nasser responded by linking negotiations with the United States and Britain over Palestine to the question of military armament.41 By now, Eden had turned against Nasser42 and the United States was not prepared to sell arms unless American 37 Kyle (2003) 57. In the event, there was a bloody revolution in Iraq in 1958 in which General Nuri es-Said, Anglophile twelve-time leader of Iraq, the young King Faisal, and his uncle the Crown Prince were assassinated. 38 Makins (Washington) to Eden, 5 November 1954, PRO FO371/111045. 39 This was described by US Secretary of State John Foster Dulles in a meeting in Paris with British Ambassador Makins. Makins (Washington) to Eden, 5 November 1954, PRO FO371/111045. 40 Avi Shlaim, ‘Conflicting Approaches to Israel’s Relations with the Arabs: Ben Gurion and Sharett, 1953–6’ Middle East Journal (Spring 1983). 41 US Ambassador to Egypt, Henry Byroade, Cairo to State Department Cable 1881, 9 June 1955, US National Archives, Department of State, Central File, 780.5/6–955 extracted in Lucas (1996) 14; and Statement by President Nasser to the British Ambassador to Egypt, Sir Ralph Stevenson, BBC Monitoring Report, 8 October 1955, PRO FO371/113675/JE1194/190. 42 This was largely because of Radio Cairo’s support for Saudi Arabia in its dispute over territory in the Arabian peninsula. See Lucas (1996) 14.

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military ‘advisers’ were also sent to Cairo.43 Nasser therefore turned to the Soviets and on 27 September 1955 announced that theirs had been the only offer without strings attached and which was solely a ‘commercial transaction’.44 Harold Macmillan45 raged at his officials that they may have to get rid of Nasser46 but the Americans believed there was no alternative to Nasser at that time, and instead had helped Nasser write the speech, encouraging him to make a gesture of peace to Israel.47 Although Macmillan still wanted to ‘overthrow [Nasser] if possible’,48 the Foreign Office advised that Britain should adopt a wait-and-see policy and continue to proceed with ‘common interests’ such as the Aswan Dam, considered a crucial plank in restoring British standing in Egypt.49 However, further discord and exasperation were caused when, in December 1955, Macmillan authorized a British attempt to bring Jordan into the Baghdad Pact. This was seen by Saudi Arabia and Egypt as a further attempt to divide Arab unity, and it precipitated riots in both countries, as well as in Jordan itself.50 Britain’s actions infuriated Eisenhower who had warned Macmillan against approaching Jordan and wrote that ‘the British never had any sense in the Middle East’.51 Having publicly guaranteed financial support for the Aswan Dam in an attempt to stave off Soviet influence over Egypt, the United States and Britain held a summit in Washington in January 1956 to discuss Middle Eastern policy. Eden reported that he felt it was the best meeting they had ever had, as interests appeared to be coalescing around the need for military assistance through the Baghdad Pact (though the United States continued to remain formally outside the agreement).52 Dulles even considered overthrowing the Nasser-friendly Syrian government as it was seen as a threat to Iraq and Jordan and suggested that their whole attitude towards Nasser might have to be changed.53 The notion, however, that progress was being made was shattered by Britain’s sense of humiliation which followed events on 1 March 1956: General Glubb, British commander of Jordan’s army was dismissed by King Hussein. Eden wrote to the King explaining that this would be seen with great resentment in Britain.54 43 Lucas (1996) 15; though his reference—Foreign Relations of the United States, 1955–7, vol XIV, 274—does not in fact appear to support this specific claim, instead referring to a list of items requested by Nasser with a footnote that Eisenhower had determined to ‘woo’ Nasser (the footnote references Department of State, Central Files, 611.80/7–1155). 44 Kyle (2003) 75–6. 45 Foreign Secretary until he was replaced later in December 1955 by Selwyn Lloyd. 46 Minute by Sir Harold Caccia, Foreign Officer Under-Secretary, 23 September 1955, PRO FO371/113674/JE1194/152G. 47 Scott Lucas, Divided We Stand: Britain, the US and the Suez Crisis (Hodder & Stoughton, 1991) 58–62. 48 Harold Macmillan, telegram to Washington, 28 November 1955, cited in Kyle (2003) 62. 49 Memo by Foreign Office, 9 November 1955, PRO FO371/113678. 50 Lucas (1996) 19. 51 Eisenhower Minute, 16 December 1955, extracted in Lucas (1996) 20. 52 Lucas (1996) 23 referring to Message from Eden, Washington to Foreign Office Cable 286, 1 February 1956, Avon Papers, University of Birmingham, AP20/24. See also Eisenhower Library, Eisenhower Papers, Ann Whitman Series, International, Box 20, Eden Visit, 30 January 1956. 53 Foster Dulles to Eden at Washington summit, extracted in Lucas (1996) 23. 54 Cabinet Meeting Minute, 5 March 1956, PRO CAB128/30.

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He (wrongly) interpreted the dismissal as being instigated by Nasser.55 In fact, during a meeting with the British Foreign Secretary, Selwyn Lloyd, Nasser offered his congratulations, thinking that the British had sought to get rid of Glubb in order to improve their relations with the Arab nationalists!56 After reading a Foreign Office analysis of Britain’s options in March 1956, the Prime Minister exploded to Nutting: ‘But what’s all this nonsense about isolating Nasser or “neutralising” him, as you call it? I want him destroyed, can’t you understand? I want him removed . . . ’ and he didn’t ‘give a damn’ if that resulted in anarchy and chaos in Egypt.57 Shuckburgh claims that Eden described Nasser as a ‘second Mussolini’ who ‘must be got rid of ’. Eden apparently argued that it was ‘either him or us’.58 Opinion was also changing in the US Administration. Dulles and Eisenhower were frustrated by the lack of progress with project Alpha and were now ready to ‘ditch’ Nasser.59 Eden stirred up the President’s rising antagonism by claiming (in private correspondence) that Nasser was trying to lead a united Arab republic by overthrowing regimes in Iraq, Jordan, Libya, and Saudi Arabia.60 Dulles wrote to the President that in view of the negative outcome of efforts to bring Nasser to adopt a more conciliatory approach to Israel, the US should shift its policy so that Nasser was clear he could not make overtures to the Soviets, but that the United States would not burn any bridges to good relations. This policy, which included high levels of assistance to other Arab states and sought to delay conclusion of Aswan Dam negotiations as long as possible, was to be coordinated with the British.61 Coupled with this, project Omega, which sought diplomatic, economic, and military steps to ensure the downfall of Nasser, now replaced the failed project Alpha. Though it appeared that this was a united front ready to topple Nasser, it was soon clear that Britain was more intent on radical change, whereas the United States was keen to let the Dam project languish without giving Nasser an excuse for saying it was their fault.62 It was clear that British and American policy was beginning to diverge dangerously and this led Eden to private and public ‘tantrums’.63 As Anne Orford notes, during this period the United States sought to entrench its role as at the heart of a new ‘empire of economic management’ of 55 Foreign Secretary Lloyd to Prime Minister Eden, describing his meeting that same night with Nasser in Cairo and stating that he found it ‘difficult to believe that Nasser did not know’. Cairo to Foreign Office, Cable 413, 2 March 1956, PRO FO371/121243. 56 Heikal (1986) 110. 57 Anthony Nutting, No End of A Lesson: The Story of Suez (Constable & Co, 1967) 34–45. 58 Evelyn Shuckburgh, Descent to Suez: Diaries 1951–56 (Weidenfeld & Nicolson, 1986) 346. 59 Note of meeting between Dulles and Lloyd, Karachi to Foreign Office Cable DORAN 33, 7 March 1956, PRO FO371/118842/JE1022/11G. 60 Letter Eden to Eisenhower, 15 March 1956, PRO PREM11/1177. 61 Memo Dulles to Eisenhower 28 March 1956, extracted in Lucas (1996) 29. 62 Record of meeting between Lloyd and Dulles in Paris, 3 May 1956, PRO FO371/121273/ V1075/117G. 63 See eg his private letter to Churchill, 21 April 1956 PRO PREM11/1690 in which he complained that America was not letting it be known that Britain and America were ‘at one’ on the issue. See also The Times, 14 April 1956, Leader ‘Choice of Friends’, 7.

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decolonization, distinguishing itself from ‘old forms of imperial power’.64 Further, US Presidential Elections would soon be in full campaign swing, and Eisenhower sought re-election on the basis of ‘waging peace’.65 Another important question that needed to be addressed was the emerging alliance between France and Israel, which included the supply of weapons. The French government was in the midst of dealing with an increasingly popular rebellion in Algeria, which they believed was ideologically and materially supported by Nasser.66 Politicians and officials in Britain and France were increasingly obsessed by the propaganda campaign being waged by Radio Cairo against their colonial interests throughout the Middle East and North Africa.67 They also saw Nasser’s hidden hand behind events which did not serve their interests. The stage was therefore set for a shift from the special relationship to closer Anglo-French cooperation. The event which finally precipitated the nationalization of the Suez Canal Company was the US decision to withdraw support for the Aswan Dam on 19 July 1956. This was due in large part to pressure from Congress. Britain and the US concluded that Egypt’s lack of resources in being able to finance the project would be the public line.68 Nasser considered nationalization a fitting response to the very public humiliation of the cancellation of the loan. He wanted to show that Egypt would not be pushed around by the West.69 Nasser met with huge domestic approval, and Great Power condemnation.

3.2 Policy discourse Before considering the nature of policy discourse over Suez, it is worth pausing to consider how government during this period was conducted. Some political scientists have asserted that, in many respects, particularly over foreign policy, British government retained, and indeed retains to this day, many of the characteristics of pre-democratic governance.70 In some senses, it is easier to identify what government was not, rather than what is was. It was not formally guided by any written code of conduct, akin to the Ministerial Code first issued in the 1980s. Instead, it appears that decision-making was more informal, and perhaps more personal. Certainly, without a Code, the nature of giving and receiving legal advice appears to have been less formal. Yet, despite this lack of formality, legal advisers 64

Orford (2011) 56–7 and 67. Suggested by the title of his autobiography, The White House Years: Waging Peace, 1956–61 (Doubleday, 1966). 66 See Zach Levey, ‘French–Israeli Relations, 1950–56: The Strategic Dimension’ in Simon C Smith (ed), Reassessing Suez 1956: New Perspectives on the Crisis and its Aftermath (Ashgate, 2008) 87–106. 67 Keith Kyle, ‘Britain’s Slow March to Suez’ in David Tal (ed), The 1956 War: Collusion and Rivalry in the Middle East (Frank Cass, 2001) Ch 5, 95–118 at 96. 68 Statement by Lloyd to Cabinet, 17 July 1956, PRO CAB128/30, C.M.51(56). 69 This is what Nasser apparently told Anthony Nutting in private in the years after the crisis. See Nutting (1967) 45. 70 Martin Burch and Ian Halliday, The British Cabinet System (Prentice Hall, 1996) 10. 65

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remained adamant in their correspondence with government Ministers that the seeking and provision of advice was a constitutional matter. For instance, Sir Gerald Fitzmaurice, legal adviser at the Foreign Office emphasized that the Prime Minister’s reliance on the Lord Chancellor for legal advice was unconstitutional, and the proper legal authority vested in the Attorney-General’s Office. This is discussed in more detail below. The characteristic feature of policy level discourse was that it was conducted privately and often never reached the public. It is therefore particularly useful in demonstrating the extent to which public justifications by politicians correlated with private discussions and arguments. Despite this distinction, there was also a high degree of overlap between the private and public discourses. This illustrates the policy elite influence over public discourse and may pose interesting theoretical challenges to previous scholarship on how public opinion is formed. Further, it should give scholars of international law a clearer sense of the role legal argument played in the Suez Crisis. One of the most significant points about these debates behind the scenes was that the eventual military action was the product of secret collusion which had to be completely denied to all but a tiny minority of Cabinet Ministers. Though there were widely reported suspicions, voiced in particular by Hugh Gaitskell, Leader of the Opposition, the public would not know the truth for many years. Even the United States had been caught somewhat off guard which may have contributed to the strength of their condemnation. This section begins by considering the legal opinions produced by a number of advisers within Whitehall, most famously Sir Gerald Fitzmaurice, Foreign Office Legal Adviser, but also Reginald Manningham-Buller, the Attorney-General, and Lord Kilmuir, the Lord Chancellor. Whilst the influence of Fitzmaurice’s unambiguous assessment that the use of force against Egypt would amount to charges of aggression and would be illegal in international law ultimately may not have changed the course of the Crisis, his advice certainly percolated through to government decision-making. Further, his trenchant opposition to using force may, in fact, have had some influence in how the government ultimately sought to justify military action.

3.2.1 Whitehall and the legal advisers Whilst it is often dangerous to generalize on the processes of advising, and the content of that advice, in Fitzmaurice’s case two clear themes emerge from the archival record. The first is that early on in the Crisis he was charged with producing a presentable foundation to the government’s preparations for the first London Conference, in August. What this meant was that Fitzmaurice drafted a series of advices that questioned the prevailing view of world opinion, that Nasser’s act of nationalization was not necessarily unlawful in international law. In essence, Fitzmaurice sought to present an alternative reading of his act, to at least provide the foundation for holding an international Conference in the first place. Without

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this legal opinion it would have been difficult to justify why international leaders ought to gather to consider the issue of the Canal Company’s nationalization. Yet, even during this early recognition of the need to present a case for international action, Fitzmaurice was sceptical of the lawful authority to use force. At this stage, his conclusions on force were largely speculative and so his memos reflected a ‘force only as last resort’ framing of advice. But, as the Crisis developed, his ‘presentational’ stance—recognizing the needs of legal justification in formulating government policy in public—was replaced by an explicitly ‘advisory’ stance. This advisory stance meant that he positioned himself in direct opposition to government legal justifications that sought to threaten the use of force. Ultimately, also, it led him to reject the government’s legal justification for using such force at the climax of the Crisis. Interestingly, early on it appears that his advice was sought actively, particularly by the Lord Chancellor, but as the Crisis developed, and his views crystallized in opposition to government policy, it seems Fitzmaurice was increasingly sidelined and, indeed, ignored. On 1 August Fitzmaurice wrote a memo which was circulated to the Cabinet, and later to the Ministers of the Egypt Committee, which outlined his view on the legal questions raised by nationalization. He argued that the threat of force by Nasser to keep British and French subjects working on the Canal was itself a breach of international law, and warned of Egypt’s inability to keep the Canal running smoothly; and that the Canal Company was recognized as having an international character which made the nationalization a potential breach of international law.71 Fitzmaurice continued that none of Egypt’s actions could be regarded as a direct breach of the Constantinople Convention and that, indeed, most of the points were relatively weak. This meant that direct impact on the freedom of shipping would need to be established before Britain could assert an actionable breach of international law.72 The Attorney-General, Reginald Manningham-Buller, then wrote to the Secretary of State for Foreign Affairs, Selwyn Lloyd, advising on the points that could be made in the Suez Debate of 2 August in the House of Commons.73 With little information to go on, it was important to keep lines of argument open, without affixing too much significance to them, if they later turned out to be irrelevant or overcome by Egyptian actions being compliant with international law.74 The tone was therefore tentative whilst attempting to state the acceptable lengths to which the Secretary of State could go in laying out legal justification for Britain’s firm view of the nationalization. Very early on, it became apparent that there was a split in Whitehall between Lord Kilmuir, the Lord Chancellor on one hand, and the Law Officers75 and 71 Sir Gerald Fitzmaurice, ‘Suez Canal: Legal Opinion of the Lord Chancellor, the Law Officers and the Legal Adviser to the Foreign Office’, 1 August 1956, PRO LCO2/5760. 72 Fitzmaurice, 1 August 1956, PRO LCO2/5760. 73 Reginald Manningham-Buller to Selwyn Lloyd with Memo ‘Draft of what it is suggested might be said to be the legal position in the debate on Suez’ attached, 1 August 1956, PRO LCO2/5760. 74 Manningham-Buller, 1 August 1956, PRO LCO2/5760. 75 ‘Law Officers’ refers to the Attorney-General and Solicitor-General.

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Foreign Office Legal Advisers on the other. This rested on interpretations of the extent of the threat Nasser posed to Britain. The Lord Chancellor took the view throughout that Nasser’s nationalization represented an act of aggression against an international territory which would justify the use of force, though he admitted the only support he could find from lawyers was from Professor Goodhart of Oxford University.76 Goodhart had written a letter to the editor of The Times on 11 August which set out the proposition that Article 51 of the UN Charter may apply in Britain’s favour if it decided to use force. He further opined that there was no presumption of absolute territorial sovereignty that allowed Nasser to nationalize and that the 1888 Convention implicitly acknowledged this fact, making the Canal Zone an international territory.77 This public intervention by a legal scholar did not appear to have any impact on public debate, but it certainly appeared to influence the Lord Chancellor’s argument with policy elites and the legal advisers. Goodhart’s opinion was, as Kilmuir accepted, widely disregarded by other prominent lawyers, including the Whitehall lawyers. Lord McNair, former President of the International Court of Justice and member of the House of Lords, though able to agree with the government’s calls for international control, was ‘unable to see the legal justification of the threat or use of armed force by Great Britain against Egypt in order to impose a solution of this dispute’.78 Fitzmaurice wrote that as things stood on 10 August, Britain was on a ‘very bad wicket legally’ in relation to using force in Suez and that he could see no present justification for using force.79 He feared ‘piling illegality over illegality’ if the proposition to forcibly use Libya as a base for military operations were to be agreed.80 He went even further in a letter to Sir Harold Caccia81 on 13 August saying that: as things stand at present and unless the Egyptians give some further and better pretext than the mere rejection of internationalization, there would be no basis for any such action on our part. It would in fact, whether it was called so or not, be an act of war.82

There could be no confusion: as far as the Foreign Office Legal Advisers and the Law Officers were concerned, there was no legal justification for the threat or use of force. Having said that, there was some hesitation in setting out the procedure to follow if the dispute was to be resolved by peaceful means. Immediately prior to the London Conference in August, Fitzmaurice raised the possibility of difficulties being encountered, namely the need for Egypt’s cooperation and consent in taking

76 David Fyfe, Political Adventure: The Memoirs of the Earl of Kilmuir (London: Weidenfeld & Nicolson, 1964) 268. 77 The Times, 11 August 1956, Letter to the Editor, Professor AL Goodhart, University College, Oxford, 10 August. 78 Lord McNair, 12 September 1956, HL Deb (1955–56) vol 199, cols 657–63. 79 Sir Gerald Fitzmaurice to Mr Beeley, 10 August 1956, PRO FO 800/748. 80 Fitzmaurice, to Mr Beeley, 10 August 1956, PRO FO 800/748. 81 Foreign Office Under-Secretary of State. 82 Sir Gerald Fitzmaurice to Sir H Caccia, 13 August 1956, PRO FO 800/748.

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the dispute to the International Court.83 Whilst these difficulties were raised in his advice, they did not appear to shift him from the position that force could not be justified. Yet, his advice ruling out the use of force did not prevent him providing further advice in September on arguments involving the law of necessity or the precedent of the Corfu Channel case.84 The Corfu Channel judgment of 1949 was the first decision promulgated by the International Court of Justice. In 1946 British naval ships passing through a narrow strait within Albanian territorial waters between Corfu and Albania had come under fire and then, shortly after, been struck by mines leading to a number of deaths and damage to the two naval vessels. The dispute was submitted to the ICJ where the court found that Albania had breached the rights of ‘innocent passage’ that applied to ‘international straits’. The court, however, considered that Britain’s ‘self-help’ action in subsequently sweeping the mines (in ‘Operation Retail’) could not be justified on the basis of self-defence or the doctrine of necessity, and therefore was rejected. The court found that Britain had, thereby, breached Albanian sovereignty. Fitzmaurice used this case to highlight the possibility, and limits, of arguing for a forceful assertion of the innocent right of passage should this be obstructed.85 The argument would be reliant upon Nasser by his own act obstructing the Canal and there being no remedy other than to militarily occupy the Canal Zone to ensure safe passage. Short of these conditions being met, the only conceivable, ‘minimal force’ that might remain in light of the Corfu Channel case, would be a warship escort of innocent shipping to enforce rights, but only with powers to fire if fired upon.86 Fitzmaurice did not see how the prospect of an escort could justify the sending of major forces to the area, on the basis of speculative breach of passage rights. On 14 September Fitzmaurice sent copies of his advice to the AttorneyGeneral.87 At the time of his Corfu Channel advice there was an increasing focus in public and in government on the passage of shipping through the Canal. Intriguingly, Eden was about to launch Operation Pile-Up which planned to inundate the Canal with a convoy of ships which would demand pilots at precisely the moment that the Canal Company’s remaining pilots abandoned their posts.88 The seeking of advice on what to do in the event of a hold-up to shipping, may well have been less speculative than Fitzmaurice realized or his advice reflected the informal channels through which he may have been made aware of government planning. In any event, Fitzmaurice subsequently wrote to George Coldstream at the Lord Chancellor’s

83

Memo (unknown recipient) by Fitzmaurice dated 7 August 1956, PRO FO 800/747. Corfu Channel Case (United Kingdom v Albania), Judgment [1949] International Court of Justice Reports, 4. 85 Minute by Fitzmaurice to African Dept and United Nations Dept dated 5 September 1956, PRO FO 800/747. 86 Memorandum of 7 September 1956 attached to Minute sent on 5 September, PRO FO 800/ 747. 87 Letter Fitzmaurice to Manningham-Buller, 14 September 1956, FO 800/747. 88 Kyle (2003) 449. 84

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Office that the use of force was what was concerning ‘international legal opinion’ and that it was utterly unconvinced of any legal justification. He asserted that it would be necessary to have legal justification, whatever the economic or political arguments were for using force, otherwise it would be viewed as an act of aggression.89 In that same correspondence, Fitzmaurice also sought to respond to a private letter sent to the Home Secretary90 by Robert Jennings, Whewell Professor of International Law at Cambridge University.91 In his letter, Jennings emphasized that he had ‘never before attempted to address a cabinet minister on politics’ but that as a Fellow of the Home Secretary’s old college, and former tutor of his son, he sought to raise important considerations in the ‘distressing business of the Canal’.92 He made a series of propositions that were ‘practically unassailable’ which included the fact that nationalization could not be seen as a breach of international law, that the UN Charter in any event prohibited the use of force to settle disputes and that there could be no lawful way of imposing the outcome of the forthcoming London Conference by force.93 Fitzmaurice proposed a draft response which began by agreeing that the current situation was a ‘very difficult case from the legal point of view’ but reassured that it had been given anxious scrutiny by the government’s legal advisers.94 Fitzmaurice then went on to consider the points raised by Jennings as to the legality of nationalization, putting forward an alternative reading of the 1888 Convention and concession, which argued that the ‘international character’ of the Canal suggested its regulation in and through international law. It is intriguing to note that Fitzmaurice proposed not to deal with the issue of using force, because he suggested that this did not strictly follow from the question of the legality of Egyptian action.95 There is no record of any further correspondence, but it is interesting that Jennings, McNair, and Goodhart all featured to varying degrees in calculating the legal position of the government in policy discourse. One further point of interest in the letter to Coldstream was Fitzmaurice’s reference to Nuremberg in his explanation of the limits of arguing the doctrine of necessity to justify force. He was at pains to point out that even if the argument could be sustained that Egypt had breached international law by nationalizing the Company, ‘vital interests’ or ‘economic necessity’ were unlikely to prove capable of extending the limited grounds of necessity. He included for the Lord Chancellor’s consideration the Nuremberg Tribunal’s judgment which he considered ‘very apposite’ in the circumstances.96 89

Fitzmaurice to Coldstream, 6 September 1956, PRO FO 800/747. Gwilym Lloyd George, a younger son of the former Prime Minister David Lloyd George. 91 He also forwarded this on to Manningham-Buller in his letter of 14 September 1956, PRO LO 2/825. 92 Robert Jennings to Rt Hon Gwilym Lloyd George, 13 August 1956, PRO FO 800/748. 93 Jennings, to Rt Hon Gwilym Lloyd George, 13 August 1956, PRO FO 800/748. 94 ‘Draft Paragraphs for Reply to Professor Jennings’ Letter to the Home Secretary of 13 August 1956’, Fitzmaurice to Coldstream, 6 September 1956, PRO FO 800/748. 95 Fitzmaurice, to Coldstream, 6 September 1956, PRO FO 800/748. 96 Fitzmaurice, to Coldstream, 6 September 1956, PRO FO 800/748. 90

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Two significant points arise from Fitzmaurice’s concerns expressed in response to the Lord Chancellor’s position on the Suez Canal. The first is that he considered that ‘others’ would call any use of force an act of war or aggression. The second is that he considered ‘international legal opinion’ would be unconvinced of legal justification. Both these points are linked to his perception that there was an international community of opinion which would not only be influential—in what ways is never made clear—but also whose opinions mattered to Whitehall bureaucrats such as legal advisers. The reputational concern reflected how the bureaucratic elements of government were aware of (and part of) an emerging international bureaucracy, not just through international institutional settings but also through their policy links with different departments: the African Department, the UN Department, the Foreign Office, the Colonial Office, to name just a few. Also the Foreign Office advised embassies across the world, providing a link with other diplomats in addition to the UN forum. The opinions of ‘others’ mattered because judgment would be passed on individual advice and might impact upon career considerations or simply being able to get their job done. This fear of loss of reputation was echoed by others, most notably Sir Robert Makins, Ambassador to Washington, and Sir Pierson Dixon, British Ambassador to the United Nations. Their views are considered below in assessing the influence of international discord. It appears that the greater the engagement with international bureaucracy and interaction—whether through the United Nations or, as in Fitzmaurice’s case, at the International Law Commission—the greater the resistance to ‘illegal’ action. Legal justification was paramount to these advisers, no doubt because of their training and their role as advisers, but clearly also because of their interconnectedness with international bureaucracy. It appears that Fitzmaurice as legal adviser spoke for a number of Foreign Office officials, which included Dixon and Makins, who believed that there was a ‘world opinion’ to consider and that this affected the arguments that could be made publicly about British action overseas. Therefore, his dismissal of ‘the right’ and their imperialist ambitions was rooted in the notion that it would be impossible to explain, not domestically, but internationally. Legal opinion, save for Goodhart and Kilmuir, therefore appeared clear right through the nationalization phase of debate: in the precise circumstances, the threat or use of force could not be justified. This was no surprise to the government. As early as 30 July, Eden was aware that the legal justifications for the use of force were not made out. Whilst arguing publicly throughout September for international control of the waterway, it became increasingly difficult to justify resistance to involving the United Nations, particularly as far as his legal advisers were concerned. In Fitzmaurice’s view, the ‘gunboat diplomacy’ advocated by some on the right was a method that was no longer accepted in world opinion and few people in Britain seemed to realize that such a shift had occurred.97 It was perhaps more specifically that few Conservatives and their supporters had accepted this change. This was

97

Fitzmaurice, to Coldstream, 6 September 1956, PRO FO 800/748.

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attested to by the huge success of Labour and Liberal advocates of the war slogan ‘Law not War’. Fitzmaurice also roundly rejected the view that Britain would have any legal justification in toppling Nasser. He could not see any way of getting away from the ‘peaceful purposes’ requirement of the UN Charter obligations.98 The addressing of the issue of ‘regime change’ suggests at the very least some knowledge of Eden’s views of the Egyptian leader and a recognition that this might be part of the government’s policy aims. This knowledge, or at least suspicion, of the government’s motives in relation to Nasser is further attested to by the increasing frequency with which Fitzmaurice produced formal advice through memoranda circulated to, in particular, the Lord Chancellor and Ivone Kirkpatrick, the PM’s Private Secretary. Manningham-Buller was equally clear in his advice about resorting to force in the lead up to the British invasion of the Canal Zone. In response to the Lord Chancellor’s request for advice from the Law Officers, the Attorney-General and Solicitor-General recorded that Egypt could not be said to have committed any act justifying the use or threat of force by the United Kingdom in self-defence, and that any failure on the part of the Security Council to act would not remedy this absence of lawful authority.99 The doctrine of self-help had been ‘condemned by the International Court in the Corfu case’.100 Interestingly, the Lord Chancellor responded with his own detailed legal opinion, in which he argued for the ‘dynamism’ of international law, and rejected the Law Officers’ opinion on force. He continued, ‘[j]ust as the Rhineland was remilitarised, the Canal was de-internationalised’.101 Geoffrey Marston notes that this memorandum, which was based in the Lord Chancellor’s own words ‘on the extension of the doctrine of self-defence to the preservation of the international character of territory by those for whose benefit it was given its international nature’, ‘was a counter-offer which the Law Officers could not accept’.102 The archives record a series of drafts then being produced by the Law Officers and by the Lord Chancellor. By 31 October, the Attorney-General wrote to the Lord Chancellor enclosing his draft memorandum on military action, which was unequivocal that there was no legal basis for the use of force.103 Neither the Law Officers nor Fitzmaurice knew that by mid-October Eden was already in discussions about collusion with France and Israel. When Anthony Nutting suggested at least bringing in Fitzmaurice as the government was about to take the law into its 98

See eg Fitzmaurice to the Attorney-General, 14 September 1956, PRO FO 800/748. Letter from Attorney-General to Lord Chancellor enclosing Law Officers’ Memorandum, 12 October 1956, PRO LCO 2/5760. 100 Attorney-General to Lord Chancellor enclosing Law Officers’ Memorandum, 12 October 1956, PRO LCO 2/5760. 101 Letter from Lord Chancellor to Law Officers, 15 October 1956 (enclosing memorandum) PRO LO 2/825. 102 Geoffrey Marston, ‘Armed Intervention in the 1956 Suez Crisis: The Legal Advice Tendered to the British Government’ International & Comparative Law Quarterly 37 (1998) 773 at 793. 103 Letter from Lord Chancellor to Law Officers, 31 October 1956 (enclosing draft memorandum) PRO LO 2/5760. 99

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own hands, Eden exploded that Fitzmaurice was the last person he wanted consulted: ‘[f]or God’s sake keep them out of it. This is a political affair’.104 The government’s lawyers were nothing short of outraged when Eden finally decided to use force at the end of October. This outrage was exacerbated by the fact that the Lord Chancellor had ignored their advice in his address to the House of Lords on 1 November 1956. To further incense the lawyers, Eden transmitted a telegram to the Middle Eastern Embassies asserting that the government was advised on the highest legal authority that it was entitled under the Charter to use of force.105 This simply did not accord with behind-the-scenes advice: Eden had been aware of the lawyers’ opinions on military action since at least the beginning of August 1956. The Attorney-General wrote to the Foreign Secretary copying in the Prime Minister and the Lord Chancellor saying that he was worried about the consequences for the government should it become known that it was against the advice of the Law Officers. He was unable to devise any argument in support of the government’s actions. In a strikingly candid conclusion, the Attorney-General made plain that he was not consulted before the ultimatum was issued, that it was the constitutional position that advice be sought and provided by the Attorney-General and that he was now making his views clear, having had no opportunity to do so before.106 In a letter sent the same day, 1 November, to R.A. Butler, the Lord Privy Seal, the Attorney-General concluded that action ought not to be justified on grounds of international law, ‘but on the ground of expediency in the interests of the nations of the world and in conformity with the intentions underlying the Charter of which we were one of the main architects’. He apologized for being unable to ‘think of a better line’.107 Manningham-Buller ended that he was very sensitive about being put in a position to have to defend the government’s legal justification and that he would rather not face this prospect. This seems to have also been reflected in Fitzmaurice’s reaction to the government’s actions. It is, no doubt, highly significant that in a private meeting between Eden, the Law Officers and Fitzmaurice, Eden assured them that ‘the Government’s decision [to use force] was taken on grounds of policy, not law’.108 Interestingly, both Fitzmaurice and Manningham-Buller appeared to accept that action could have been taken on the grounds of policy alone: they were more aggrieved by the fact that they were somehow to be implicated in government action, particularly with regards to Eden’s correspondence with Middle Eastern Embassies.109 This led Fitzmaurice to circulate a disclaimer throughout the whole Foreign Office, a highly 104 105

Nutting (1967) 95. Cited in Saul Kelly and Anthony Gorst (eds), Whitehall and the Suez Crisis (Frank Cass, 2000)

58–9. 106

Manningham-Buller to Lloyd, 1 November 1956, PRO FO 800/749. Manningham-Buller to Rab Butler, 1 November 1956, PRO LO 2/825. 108 There are numerous references to this meeting, which took place in response to long and detailed complaints by the Law Officers to the PM, the Lord Chancellor, and the Foreign Secretary, in the papers of the Prime Minister’s Office relating to Suez. This particular quote is Norman Brook in a letter dated 14 November 1956 to Ivone Kirkpatrick, the PM’s Private Secretary, PRO PREM 11/1129. 109 Fitzmaurice to Kirkpatrick, 1 November 1956, FO800/747. 107

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unusual step.110 Both lawyers were extremely concerned that the government had acted unconstitutionally, by shutting out both the Law Officers and Foreign Office Legal Advisers from government decision-making, and relying on legal advice from an ‘unconstitutional’ source, the Lord Chancellor.111 In response to this final positioning taken by the legal advisers, Sir Norman Brook, Secretary to the Cabinet, wrote a minute to the Prime Minister in which he advised that, given the difficulty of the legal advisers’ position, and that they had now accepted the decision had been taken on the grounds of policy, not law, ‘further trouble’ would be averted by Ministers if, in their public speeches, they avoided reference to legal argument in their justification of action. He advised that the Prime Minister mention this in Cabinet as soon as possible to avoid any ‘embarrassment’ should the views of the legal advisers become known.112 It is clear from the government archives that the Whitehall lawyers did not consider the use of force justifiable, first in response to nationalization and secondly, in outright defiance of the United Nations. The government could make no mistake that its advisers believed there was no legal justification that would be accepted internationally for using force and that Britain was in danger of being accused of an act of aggression. However, Eden appeared not to appreciate this wider context of foreign policy decision-making. Fitzmaurice was the last person he wanted consulted. The lawyers were always against the government doing anything.113 Eden’s reputation was staked on responding to Conservative and propaganda expectations that he had helped raise to act decisively, particularly given the historical context of appeasement and his own linking of Nasser to Hitler. The legal advisers and other Whitehall officials did not have the same reputational concerns. During the Suez Crisis, the archive reflects a concern amongst legal advisers that the government, through its public appeals to international law, was misrepresenting their advice and that this would have significant consequences for their reputation. It would also convey a misleading impression to government outposts at the United Nations and its embassies. The trenchant advice on using force, however, did not prevent them providing wide-ranging advice on potential outcomes, should they arise. For instance, the advice provided in relation to the doctrine of necessity and the threats to nationals. Their advice was ‘translated’ and ‘found voice’ through memorandums and immediate responses to government statements both in the press and in Parliament. There were very few personal meetings between government and the advisers, not until they threatened replace resignation. The public positioning of government policy did appear to reflect a recognition of the ‘legal difficulties’ even if private decision-making sought to pursue a policy of regime change in defiance of legal opinion. However, it was clear that Eden had relied on private advice from Kilmuir, the Lord Chancellor, and

110 111 112 113

Fitzmaurice Memo, 1 November 1956, PRO FO800/747. Fitzmaurice to Sir Ivone Kirkpatrick, 5 November 1956, PRO FO800/747. Minute, Sir Norman Brook to Eden, 15 November 1956, PRO PREM 11/1129. Nutting (1967) 95.

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kept the government’s legal advisers ‘in the dark’.114 Fitzmaurice remarked, rather accurately with hindsight, that ‘bypassing the regular channels of legal advice always leads to trouble’.115

3.2.2 Government decision-making behind closed doors It was clear, very early in the Crisis, and prior to nationalization, that Eden was determined to get rid of Nasser. On the evening of 26 July 1956 Eden arranged a meeting with Chiefs of Staff, other Cabinet Ministers, and American and French representatives to discuss Nasser’s nationalization of the Canal Company. According to William Clark,116 the meeting was deeply humiliating. Eden said that there had been an act of aggression against Britain and, while asking the Foreign Office to look into legal remedies, he wished to respond forcefully and immediately. The Chiefs of Staff responded that they could do nothing immediately. It was suddenly obvious that Britain had no capacity for this kind of emergency.117 According to the Minutes of the first full Cabinet meeting regarding Suez, which took place on 27 July, those present agreed that the legal situation had to be faced: Britain would be on weak ground in basing resistance on the narrow argument that Nasser had acted illegally. From the legal point of view, the act was nothing more than buying out shareholders, and so the case would have to be presented on the wider international grounds that the action represented a threat of exploitation of an international waterway of vital importance.118 There was, however, agreement that economic and political pressure to meet Britain’s goal of securing international control must be met with the threat, and if need be, the use of force.119 There is therefore evidence early on that the government shifted its view from regarding nationalization as an act of aggression to recognizing that it was not, from the legal perspective. The question this raises is whether Eden was persuaded by the legal advice received from the Law Officers and Fitzmaurice. This policy position certainly reflected the advice he had already received and suggests that he channelled the policy towards ‘international interest’ in the Canal rather than citing expropriation of property as an act of aggression demanding the use of force. In Eden’s initial speeches to Parliament, on 30 and 31 July, and 2 August, he focused attention on international interest in the nationalization and whether Nasser could be trusted to prevent catastrophe, in particular to guarantee 114 Fitzmaurice minute to Laskey (Foreign Secretary’s Private Secretary), 5 November 1956, PRO FO/800/749. 115 Fitzmaurice minute to Laskey (Foreign Secretary’s Private Secretary), 5 November 1956, PRO FO/800/749. 116 The Prime Minister’s Press Officer. 117 William Clark quoted in Leonard Mosley, Dulles: A Biography of Eleanor, Allen and John Foster Dulles and their Family Network (Hodder & Stoughton, 1978) 405. 118 Cabinet Meeting Records, 27 July 1956, CM(56)54, PRO CAB 128/30. 119 Fitzmaurice minute to Laskey (Foreign Secretary’s Private Secretary), 5 November 1956, PRO FO/800/749.

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freedom of shipping and to pay compensation. Again, this reflected aspects of the advice tendered by the Law Officers and Fitzmaurice in the early days of the Crisis. At the second Egypt Committee meeting, Eden shifted his opinion, and argued that ‘a conference would help to occupy the necessary interval before we should be in a position to take other action . . . ’ and that the policy of ultimatum was to remain, so that the sole purpose of the conference would be to ensure that Nasser repealed the nationalization order.120 It seems that the logistical issues in facing the apparent threat from Nasser meant that justifications would have to be made in the interim. The meeting of the Egypt Committee throughout the Crisis can be seen as closing off much of government decision-making to all but a handful of more ‘hawkish’ members of government. Beck has called it, in essence, an ‘Inner Cabinet’.121 Throughout the Crisis, Eden maintained two secret policies which contradicted his public stance, the legal advice he had apparently taken on board, and even private meetings with the full Cabinet. These secret policies, ‘project Omega’ and collusion with France and Israel (the Protocol of Sèvres) required an increasingly ad hoc and secretive approach to government decision-making. Eden drew an ever smaller inner circle into decision-making to avoid having to disclose true motivations to others in Whitehall and government. This secrecy arguably resulted in a shift among officials. Following nationalization most officials, whether diplomats or military men, had appeared to favour some form of active engagement with Nasser and place the Canal under an international regime. But in the last weeks of the crisis the concern among officials about the course of British foreign policy was widespread.122 They may have felt pushed out of policy-making and concerned that bureaucratic reason was being shaped by party political considerations rather than sound justification. Eden’s personality traits and debilitating health also had an impact on policy formation. He had staked so much of his personal credibility on defeating Nasser that he had to see it through. This was despite his repeated claim to remain a man of peace. This claim would come back to haunt him. He sought to achieve peace through war,123 but this policy would be rejected by world opinion and the UN members. It also completely undermined his political reputation domestically and ultimately resulted in what many considered was a nervous breakdown, and eventual resignation. It was a catastrophic humiliation for a formerly popular and charismatic politician. There were some within Whitehall, such as Kirkpatrick, and Alexander Cadogan, Chairman of the BBC Board of Governors, who trusted Eden, distrusted the United Nations and the United States, and opposed ‘appeasement’ of Nasser, all because of their experience of facing Hitler in the 1930s. Their perception of the national interest made both men ready to exploit their positions in ways which

120

Quoted in Robert Rhodes James, Anthony Eden (Weidenfeld and Nicolson Limited, 1986) 470. Peter Beck, “The Less Said about Suez the Better”: British Governments and the Politics of Suez’s History, 1956–67’ English Historical Review 124(508) (2009) 605–40 at 609. 122 Kelly and Gorst (eds) Whitehall and the Suez Crisis (Frank Cass, 2000) 223. 123 Kyle (2003) 432. 121

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would potentially damage the institutions they ran: Cadogan sought to use the BBC as a propaganda tool and Kirkpatrick maintained his links with MI6 to keep the Foreign Office completely out of the loop at the final stage of the Crisis.124 This attitude was in sharp contrast with those working within the Foreign Office, particularly in the United States and at the United Nations. Despite these differences, a degree of consensus emerged among officials, even if this could sometimes be undone by personality. At the start of the Crisis there was a consensus that something had to be done about nationalization. Following the confusion of September and October there was then consensus that force should be avoided, that collusion (if known about) was folly and that a diplomatic solution ought to be sought.125 It was this difference of approach, coupled with Eden’s growing anti-American stance, that led him to underestimate the strength of opposition he would face on the world stage. He also drastically underestimated the strength of domestic opposition. Reasons for this included that he underestimated Washington’s delaying influence, the caution of the Foreign Office, and the logistical restrictions on military timetabling.126 All these elements fed into public discourse and generated opposition to his policies. Another reason for his miscalculation may have been the divisions within his own party that may have misled him as to the strength of support for continuing with forceful assertion of Britain’s interests abroad. Essentially, he postured so aggressively, benefiting from successful propaganda, but he then looked weak when he became trapped by his own propaganda: an apparent propaganda boomerang similar to Snyder’s analysis of the Crimean War. During the Suez Crisis, government decision-making was marked by a move towards ‘ad hoc-ism’, whereby a select few members of government and civil servants were appraised of, and involved in, decision-making. Whilst there were certainly ‘feeders’ into that process, and the influence of legal advice had clearly shaped how policy could be justified in public, the secrecy underpinning decisionmaking is significant. It is worth repeating, again, that neither the Protocol of Sèvres, nor any reference to it, ever found its way into the archive. Many members of the government and Whitehall remained unaware of Eden’s collusion, even if many subsequently suspected it. It is striking that collusion presented an opportunity to ‘see out’ the real motivation for Britain’s aggressive stance towards Egypt: regime change. Whilst Eden was well aware of the impossibility of justifying this hidden policy, he believed that legal arguments could fashion the necessary justification for using force. Kyle notes that the use of force ‘as last resort’ ensured that Cabinet went along with government without public protest, despite widely divergent views on policy.127 So, legal justification was not simply constructed for public consumption, but also had an important ‘private’ role, to persuade the wider Cabinet to follow the government line, and to appear to reflect legal advice from Whitehall.

124 126

125 Kelly and Gorst (2000) 225. Kelly and Gorst (2000) 224. 127 Kyle (2003) 577. Lucas (1996) 74.

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Eden’s miscalculation was to fail to consider how the underlying premise of the UN Charter system had been interpreted by domestic policy elite, world, and public opinion: whilst he considered the United Nations to reflect the institutionalization of Great Power ‘enterprise’, many others seemed to see it as embedding peace through law. One reason for Eden’s failure in appreciating this ‘translation’ of principle may have been because he surrounded himself with ‘hawks’ in his war planning. Another reason may have been the splits within his own party.

3.2.3 Party political splits According to R.A. Butler’s memoirs, much of the support for a tough stance against Nasser stemmed from the illiberal resentment at the loss of Empire, the rise of ‘coloured nationalism’ and the transfer of world leadership to the United States.128 These sentiments were also held by supporters of the Labour Party. Butler claims this deeply embarrassed the Labour leadership, who in any event, supported Eden’s early stand for British rights immediately following nationalization, but on the apparently distinct ground that Nasser represented a real threat to the Middle East and European interests. Butler hints that this ‘illiberal sentiment’ may have been felt across party political lines, reflecting similar splits in public opinion.129 The argument to ‘go it alone’ was espoused by the ‘Suez Rebels’ (or ‘Gunboat Tories’ as they were less than affectionately known), but was representative of a large minority of public opinion. This grouping of MPs and section of the public had been adamantly opposed to the government’s withdrawal of troops from the Suez Canal Zone in June 1956 and indeed to earlier negotiations in 1954 which had arranged for Canal control to revert to Egypt in 1968. They were strong imperialists who, in the first days of the Crisis, argued that an immediate occupation of the Suez Canal was the only effective response to Nasser’s use of force. Once it was clear that an immediate military response was logistically impossible, they sought to ensure that the perception of immediacy of threat to Britain remained the focus of policy discourse and public debate. These views found public representation in the papers of Lord Beaverbrook and Lord Rothermere,130 namely the Daily Mail, Daily Express, and Daily Sketch. Tory members such as Julian Amery said that Nasser ‘is the man who holds the economic life of Europe by the throat, and we are agreed that it would be madness to leave the Canal at his mercy’.131 It is clear from Hansard, as well as from the reported proceedings of Parliament in the press, that Eden was being pushed by the Tory rebels to come out strongly against Nasser. The problem Eden faced was that his twin strategy of internationalization of the Canal (through the London Conference and the Users’ Association negotiations) and obsessive desire to topple Nasser, did not accord with a large 128

RA Butler, The Art of the Possible (Hamish Hamilton, 1971) 188–9. Butler (1971). I return to the significance of these figures below, in considering the role of media and its reporting of the Crisis. 131 Julian Amery (Conservative, Preston, North), 2 August, HC Deb (1955–56), col 1697. 129 130

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section of his own party. Leaving aside how difficult it was to deal with the Foreign Office, Eden could not avoid being characterized as indecisive and vacillating by the right of his party because of his impulse to hide the real policy of Suez. Although he had anti-appeasement credentials in having been part of Churchill’s grouping in the 1930s, he also traded publicly on his post-war credentials as Foreign Secretary. He described himself as a ‘man of peace’ and a ‘man of the United Nations’.132 The difficulty for Eden was that members of the Suez Group such as Amery were privy to the secret project Omega, launched in March 1956.133 The aim of that project, which tallied with the Suez Group’s aim, was to replace Nasser with a more amenable government. But the ultimate rationale for doing so could not be admitted by Eden in public. This is because he faced the dilemma of believing he had to present military action as consistent with legal principles. Reputationally, he had tied himself to peace and therefore to the United Nations. The image of Britain as caretaker of democracy and the rule of law was a crucial aspect of public debate, but it could not be married with the Suez Group’s expressed desire to hold on to the Canal in order to sustain the British Empire as a military and political entity. Without the Canal, Britain could no longer be a World Power.134 On the other side of the House, Labour faced some degree of split, but it did not impact upon their opposition as fiercely as in the Conservative Party. Early in the Suez Affair advocates of the United Nations framed nationalization as a very dangerous act, but one over which force was not desirable or justified. They voiced their concerns over Britain’s tough stance very early on, but this did not prevent sections of the Labour Party, including Gaitskell135 himself from falling into the trap of exuberant condemnation of Nasser’s actions.136 The link with the Rhineland in the 1930s was in fact first made by a Labour Party MP, Reginald Paget.137 This was seized upon by Tory rebels such as Amery to pressure Eden further into waging war against Nasser, in an apparent confirmation of Snyder’s predicted ‘logrolling’ in response to justification.138 As the crisis developed, Gaitskell’s analysis shifted. In the Parliamentary debates of 12–14 September, it involved a multi-faceted attack on the government’s statement of intention. First, he condemned the threatening nature of statements made by the government. These were that if Nasser failed to accept the conclusions of the August London Conference there would be military consequences, which the United Kingdom would be justified in deploying. Gaitskell said this not only created a dangerous and volatile situation, particularly if Nasser called Eden’s bluff, but also was contrary to international law and principles enshrined in the

132 For the full text of Eden’s public address to the nation on 3 November 1956, see The Listener, 8 November 1956, 735–6. 133 Sue Onslow, ‘Julian Amery and the Suez Operation’ in Smith (ed) Reassessing Suez (2008) 67. 134 Lord Hankey (member of the Suez Group), Memorandum ‘The Suez Canal Company. Military Evacuation of the Zone’, 7 February 1953, PRO PREM11/392. 135 Labour Party Leader. 136 Hugh Gaitskell, 2 August 1956, HC Deb (1955–56), vol 557, oral answers col 916. 137 Reginald Paget MP (Labour), 2 August 1956, HC Deb (1955–56) vol 557, cols 1664–9. 138 Snyder (1991) 17.

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UN Charter. He called this ‘sabre-rattling’ which had ‘had a disastrous effect on world opinion’ and saw the threat of force hanging over the problem as a ‘very grave handicap in the way of a proper solution’.139 Second, he condemned the attempt at a ‘very clever legalistic argument’ put forward by Eden early on in the debate of 12 September 1956 that failure to accept the Users’ Association proposal would amount to an actionable breach of the 1888 Convention.140 His analysis demonstrated a rather nuanced approach to the question of international law, one which rejected a technical justification for war, by emphasizing the underlying premise of the international legal system, namely as a regime for peace. Gaitskell said that the government’s actions and statements, particularly its apparent intent on using force, could not but divide the nation even more deeply and would lead to a legacy of mistrust.141 Gaitskell was deeply sceptical of the entire premise of the debate: namely that Eden had announced the government’s decision to place the nationalization issue on the agenda of the Security Council. Eden’s public reason for doing so was ‘not [to] ask for any action at this stage, but it puts us in a position to ask for urgent action if that becomes necessary’.142 Eden had then gone on to remind the House of the Security Council’s failings over Abadan, stating that ‘realities’ had to be faced, that its failure to act then had created a precedent.143 Gaitskell interpreted this move to the Security Council not in positive terms, but as demonstrating that Britain’s intentions were not to be trusted. He alleged it was mere window dressing to pursue active engagement of British troops.144 Labour’s recent party history assisted Gaitskell’s public stance against war. For one thing, the party had been vocally opposed to appeasement, abandoning its earlier pacifist stance when it saw the threat from Hitler.145 It was therefore difficult to tar them with the brush of appeasement. Further, the Party had a clear vision for post-war reform, which obviously had included radical social reform, but also

139

Hugh Gaitskell, 12 September 1956, HC Deb (1955–56), vol 558, cols 21–2. Hugh Gaitskell, 12 September 1956, HC Deb (1955–56), vol 558, col 24; Reported in the Daily Mirror, 13 September 1956, front page. 141 Daily Mirror, 13 September 1956, 6. 142 The Prime Minister, 12 September 1956, HC Deb (1955–56), vol 558, col 12. 143 The Prime Minister, 12 September 1956, HC Deb (1955–56), vol 558, col 12. Eden’s reference to Abadan related to the government’s efforts at seeking a resolution in response to the nationalization of Anglo-Iranian Oil. He claimed that the resolution had been weakened by the need to link any resolution to the ICJ’s final determination (sought by the Soviet Union under threat of veto) and that when the ICJ finally ruled there was no jurisdiction, the government had not been able to table the issue back on the agenda of the Security Council. It seems rather dubious that Eden would have referred to Abadan, given the knowledge we now have that Britain and the United States had instituted a coup against Mossadeq to re-secure Anglo-Iranian Oil, but at the time this may not have even been suspected by the Labour Opposition. For a detailed account of Abadan and Iranian nationalism under Mossadeq, see James A Bill and William Roger Louis (eds), Musaddiq, Iranian Nationalism, and Oil (Tauris, 1988). 144 Hugh Gaitskell, 12 September 1956, HC Deb (1955–56), vol 558, cols 26–32. 145 This was largely a result of work by Hugh Dalton and Ernest Bevin. See AJ Davies, To Build a New Jerusalem: The British Labour Party from Keir Hardie to Tony Blair (Abacus, 1996). 140

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involved the institutionalization of foreign policy reform. Clement Attlee146 oversaw the dismantling of formal Empire, and this shift in foreign policy dovetailed with a grand narrative of the link between socialism and peace.147 This ‘principled’ approach to foreign policy echoed the Party’s own rhetoric whilst in government between 1945 and 1951. Particularly in relation to the Middle East, Labour had developed an explicit policy of non-intervention under the leadership of the Foreign Secretary at the time, Ernest Bevin. As Louis notes, ‘Labour’s “grand strategy” (in the sense of underlying principle and sustained aspiration) may be summed up in the phrases “non-intervention” and “conciliation”’.148 Yet, Labour was not an idealist anti-colonialist. Whilst in government it pursued ‘enlightened’ imperialism in the Middle East, believing that Britain was a ‘beneficent force in world affairs’.149 Bevin recognized that in order to remain a great power in the Middle East, Britain would need to play down economic exploitation and instead promote the idea of equal economic partnership, particularly in relation to securing oil.150 In a meeting with senior Labour members, Gaitskell was encouraged to play down the Hitler analogy and capitalize on the opportunity to use international law and the United Nations to highlight the Conservatives’ continued attachment to imperialism and his own principled approach in light of Eden’s apparent defiance of the United States, the Commonwealth, and the United Nations.151 This principled approach would distinguish Labour from the government and, because it was premised on ‘world opinion’, would not be so easily deflected as merely political opposition capitalizing on a difficult international situation. In the run-up to the party conferences in early October the government again set about preparing answers to what it believed were Party criticisms of policy on Suez. The Whip circular sent to Ministers before the Tory Conference in Llandudno suggested answering that the government had always been committed to taking the dispute to the Security Council if the Menzies mission failed, that they were now doing this, and that force had always been put forward as a last resort.152 When 11 October arrived, Nutting opened the conference with a speech that set about attacking both Nasser and Gaitskell and then asserted that Britain had been a model UN member.153 He went further and said that if the UN failed to fulfil its duty Britain would not flinch from the task of maintaining order and upholding

146

Labour Party Leader and British Prime Minister 1945–51. The party’s programme ‘For Socialism and Peace’ was adopted in 1934 to institute nationalization of major industry and can be seen as reflecting broader notions of a grand narrative in Labour Party politics. 148 William Roger Louis, The British Empire in the Middle East 1945–51: Arab Nationalism, The United States, and Postwar Imperialism (Oxford University Press, 1984) 3. 149 Louis (1984) 4. 150 Louis (1984) 4–6. 151 For an account of this meeting, see Mark Phythian, The Labour Party, War and International Relations, 1945–2006 (Routledge, 2007) 49–58. 152 ‘Notes for publicity line on Suez’, 5 October 1956, prepared by the Lord Privy Seal’s Private Secretary in preparation for Conservative Conference at Llandudno (to be circulated amongst Ministers not having direct involvement in Suez in order to arm them with necessary policy guidance. This was to be distributed by RA Butler), PRO FO 371/119153. 153 Kyle (2003) 285. 147

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international law.154 It was a very popular speech which sought to appeal to the wider base of Conservative support and stir up patriotic support for Britain’s policing role in the world. When Eden addressed the Conservative Conference on 13 October he was restrained to the point of defensive.155 He said that he knew there were some who thought Britain should have acted more promptly—in stark reference to the splits in his own party—but that ‘by going through every stage which the Charter lays down’ Britain had ‘given an example of restraint and respect for international undertakings’.156 This was a much more toned-down speech than Nutting’s. Overall, the splits in the Conservative Party and the charge that he was indecisive, appeared to galvanize Eden in his private project to get rid of Nasser. This did not, however, prevent him presenting his actions and those of his government as in accord with his post-war legacy and credentials as a man of peace. This may have been because he appreciated that the Suez Group’s views were losing popular favour and, as Fitzmaurice had consistently warned, international opinion would not tolerate naked British imperialism. Gaitskell, too, had faced some political divisions but they did not run as deep as in the Conservative Party. He found it easier to galvanize opposition because of the legitimacy pull of appealing to world opinion and the United Nations, and because of the suspicion of collusion raised by the dubious behaviour of government in the final twists and turns of the crisis. Both Gaitskell and Eden used international law to bolster their political positions, but it seems that Eden’s hidden policies, of toppling Nasser and then of collusion, resulted in a catastrophic miscalculation. Appeals to international law trapped him into deeply hypocritical behaviour at the United Nations when the crisis came to its climax. Those within the Labour Party who had supported the government’s tough line, and caused Gaitskell some difficulty, now melted away as it became increasingly obvious that a rupture with the United States could lead to catastrophic economic and political consequences for British prestige and power.

3.3 Public discourse The mapping of public discourse begins by considering the role of media and the extent to which, if at all, it reflected the government’s agenda or had distinct agendas which were apparent during the crisis. It identifies how media framed the crisis at various points and what influence this had on opinion formation and policy-level decision-making. It analyses parliamentary debate to determine what role international legal argument appeared to play and how such debate was reported and filtered through to public opinion. It then considers public opinion 154 Speech by Anthony Nutting, 11 October 1956, The National Union of Conservative and Unionist Associations, The 76th Annual Conservative Conference, Verbatim Report, Conservative Party Archive, Bodleian Library, Oxford. 155 Kyle (2003) 287. 156 Speech by Sir Anthony Eden, 13 October 1956, The National Union of Conservative and Unionist Associations, The 76th Annual Conservative Conference, Verbatim Report.

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during Suez, focusing on polling data to get a sense of the spectrum of opinion and the impact of legal argument and world opinion on public discourse. Finally, consideration is given to whether there may have been other important influences on public discourse which suggest interesting theoretical implications for legal scholars. The question arises whether experts intervened in public debate and, if so, whether this public role may have contributed to the framing of debate and the role of legal argument. The section also assesses the extent to which the United Nations as an international forum itself exerted influence on public discourse. As explored above, it is clear that amongst policy elites, reputational and bureaucratic concerns influenced decision-making. The analysis suggests that the United Nations as an international organization may have had effects on public opinion formation and on Parliamentary debate in particular. This analysis of public discourse, as with policy discourse, suggests that the idea of distinct, separated fields for political interaction—namely the separation between ‘the international’ and ‘the domestic’ are misconceived and fail to appreciate the interconnected aspects of influence over opinion- and policy-formation.

3.3.1 Media reporting and the role of media The Suez Crisis occurred at a time of media shifts both in ownership and its relationship to government propaganda. Eden had assumed that personal briefings and government lobbying, particularly of the BBC (through government Board membership) would result in a compliant press which toed the government line on Suez. In Tony Shaw’s excellent and revealing analysis, there was no clear-cut ‘propaganda policy’ during Suez, such as issuing government guidelines detailing what should and should not be told to the media. He argues that what emerged from this period was an improvised yet concerted effort by government, individually and collectively, to persuade domestic and international opinion of the justification for using force against Egypt.157 The techniques of persuasion were sophisticated and the need for subtlety was accentuated given the fact that there were hidden motives, a policy of intention to conduct limited war and strident domestic opposition.158 However, Eden could not guarantee the absence of press challenges to his policies because the wartime censorship regime had come to an end. Clearly, the government line was influential to press reporting and it is also clear that the media remained to some degree part of an elitist sphere of discourse and therefore did not necessarily reflect public opinion. There were at least three aspects to this influence that can be traced in media reporting. First, media ownership meant that some influential ‘press barons’ affected how the crisis was framed and which narratives would dominate. For example, Lords Rothermere and Beaverbrook were strident imperialists who owned the right-wing Daily Mail and Daily Mirror, and the Daily Express, respectively. Although Beaverbrook had supported 157

Shaw (1996) 2.

158

Shaw (1996) 3.

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the British fascists during the 1930s, his views generally accorded with the strongest elements of the (Tory) Suez Group. Ownership meant that these papers were generally supportive of the government’s aggressive public statements, and only challenged government policy when it appeared too conciliatory to Nasser and not aggressive enough. To them, international law was an attempt to constrain Britain’s interests and destroy her prestige. Lord Astor, owner of The Times, had equally strident imperialist impulses although the paper remained somewhat more loyal to government establishment than the others on the right. The News Chronicle’s owners, the Cadburys, were Conservative party members but took a more hands-off approach as long as circulation remained steady. As the Crisis developed, the Cadburys became increasingly interventionist in the News Chronicle’s coverage, demanding less criticism of the government’s policy, because it began haemorrhaging its readership. Second, papers still often reflected party allegiances. This could include reflecting splits in political parties which fuelled public challenges to government policy. For instance, the Beaverbrook and Rothermere papers sought to further the aims of the Suez Group according to their belief that Britain had to create a new Empire, which would be based in the Middle East. The Daily Herald was the ‘voice’ of the Labour party even though the Trades Union Congress (TUC) had given up financial control of the paper in the 1920s.159 It could therefore be expected to support the ‘law not war’ campaign. The News Chronicle to some degree represented the Liberal party’s politics but because of the party’s decline in the early years of the century it was less of a political mouthpiece than the Beaverbrook papers or Daily Herald. For the liberal and left-wing press, the appeal to the United Nations arguably addressed the confusion and suspicion of government policy. By advocating for this approach this section of the press—which included the News Chronicle, Manchester Guardian, Daily Mirror, and the Observer—echoed US and world opinion, and reflected Labour party opinion. These papers could therefore gain legitimacy for their approach from structural elements of both international politics and domestic society. This legitimacy may have been crucial to their consistent reticence over using force and their appeals for the United Nations to resolve the debate peacefully. The News Chronicle was also distinct in that it was often the source of public opinion surveys, regularly publishing polling data, which served to link mass opinion to political discourse. This era also saw, however, the rise of non-dominant shareholdings in media ownership. This meant that papers such as the Daily Mirror and Manchester Guardian were not as subject to press magnates’ or party political views, though could still be classed as ‘left’ or ‘liberal’. The Manchester Guardian had been set up in 1821 as a reformist paper and had been hostile to Labour’s post-war government. Though anti-establishment, it sat on the fence during much of the Crisis, initially cautiously supportive of the government, but eventually opposed as the depth of 159 James Curran and Jane Seaton, Power Without Responsibility: The Press and Broadcasting in Britain (5th edn) (Routledge, 1997) 50.

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division (in the country and internationally) increased in October 1956. The editor of the Observer, David Astor, was a vociferous anti-colonialist and championed the cause of human rights. He sought to publish views on both the left and right and came under fire during Suez when he accused the government of lying over the Crisis.160 All these newspapers were part of a consolidating ‘fourth estate’ that would no longer be financially reliant on political donations, because of either personal wealth or advertising revenue. Third, links between policy elites and the media had a profound effect on media reporting during the Crisis. Sometimes these were personal links between media and government, as was the case with The Times. The close relationship between Iverach McDonald, previously diplomatic correspondent and now foreign editor, and Eden was crucial to the paper’s position throughout the Crisis. Right from the start of the Crisis, Eden had briefed McDonald individually, practically providing a verbatim note of what would go to Cabinet. Eden emphasized that, ultimately, Britain was prepared to depose Nasser for the sake of the Middle East and the safe running of the canal, but he did not disclose any timetable for action. This information, as Shaw notes, appeared to have the desired effect, and The Times remained the most loyal of the papers, consistently reporting the government line, and often relaying verbatim, press communiques.161 In addition, meetings between government and the press were often ‘secret’ briefings that included the government issuing ‘D-Notices’ and other means of effecting media’s ‘self-censorship’.162 Early on in the Crisis, Eden held a press conference which was packed with editors at which he divulged a range of highly sensitive military secrets with the warning that reporting of them could endanger soldiers’ lives. Although William Clark (the government Press Secretary) was horrified at Eden’s apparent openness, Shaw notes that it had the intended effect: in a sense Eden had ‘called the editors’ bluff ’ because no editor wanted to decide for himself which piece of military information to publish.163 The result was an agreement to ‘censorship in peacetime’.164 Despite Shaw’s argument that the press were always more supportive of government than public opinion polls,165 it was a novel aspect of the Suez Crisis that newspapers published public opinion polls so prominently and throughout the Crisis. Whilst the media did not strictly reflect mass opinion, the reporting of polls nevertheless added a ‘mass’ opinion element to discourse. This aspect, coupled with the framing of the Crisis as one involving fundamental principles of foreign policy, added to the sense of national disunity and arguably helped to fuel public discourse. Any media challenge to government did not, however, emerge until well into the Crisis, and even then it was more muted than public opinion and political opposition. 160 The Observer, 19 December 2001, ‘Observing David Astor’, Features, 1 (Astor had died the previous week). 161 On McDonald and Eden’s relationship during the early stages of the Crisis, see Shaw (1996) 25–8. 162 See Shaw (1996) esp 48–52 and 81–2. 163 Shaw (1996) 49–50. 164 Shaw (1996) 50. 165 See in particular Shaw (1996) 92–5.

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Early on, the British press displayed overwhelming hostility towards Nasser’s nationalization of the Suez Canal Company. This aggressive stance echoed the unity exhibited in the House of Commons, in the days before the first debate, and last sitting before the Summer Recess. In its 28 July front page the Manchester Guardian was the only paper to question the link with Hitler. It thought it was doubtful how far the early calls to use force were representative of opinion on both sides of House. It described Reginald Paget MP (Labour) as part of a small minority; and Captain Waterhouse (Conservative) and other former Suez rebels as commanding emotional sympathy on the Conservative side but again not representing majority views.166 In the first days of the Crisis, however, these qualifications were drowned out by the overwhelmingly hostile response to Egypt. Even the liberal-owned News Chronicle led with ‘Suicide of the Sphinx’, reporting how Nasser’s act was in ‘reckless defiance’ of international agreements and was a disaster which would do nothing to help lift Egypt out of poverty.167 In the days leading up to the start of the London Conference in August, the Beaverbrook and Rothermere press clamoured for military action and raised expectations of a military confrontation by reporting troop movements and military preparations. They would accept nothing less than characterization of Nasser as a thief and sought to argue that his use of force in grabbing the Canal justified a military response.168 In particular, this position was supported by the Daily Express which claimed that British cruisers were ‘standing by’.169 This was an attempt to push Eden into a position in which he would be persuaded to use force to avoid condemnation as weak and vacillating; a charge which was already well-worn following the formal pull-out from Suez a month previously and which the former Suez rebels were waiting to make publicly if Eden did not appear tough enough.170 The clamour for action in the Beaverbrook and Rothermere papers died down as the country awaited the outcome of the London Conference. However, these papers consistently reported the military measures being taken behind the scenes. This reporting led to claims that the government was fuelling the rumours of troop movements to undermine the Conference process and provide itself with an excuse for war. It was as a result of these arguments that the debates began to appear ever more polarized, with opinion becoming increasingly divided. During this early period of the Crisis, there was a growing impression that Eden was losing his propaganda dilemma:171 on one hand, he kept the Crisis in the forefront of the public’s mind to maintain momentum and keep pressure on Nasser; on the other, he feared that reports of precautionary measures might 166

Manchester Guardian, 28 July 1956, front page. News Chronicle, 28 July 1956, Leader, 4. 168 This argument was employed in the Daily Express, 8 August 1956, front page, reporting the apparent views of Secretary of State Dulles, saying that Britain and France ‘may well be justified in using force’ the reason being that ‘one side [Nasser] has already used force’. 169 Daily Express, 28 July 1956, front page. 170 This is according to Rhodes James (1986) 490, who records that this section of the press and political opinion were beginning to get reckless about action being taken against Egypt during the first weeks of August. 171 Shaw (1996) 41. 167

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spook Nasser into complaining to the Security Council that Britain’s actions were a threat to peace.172 What is striking is that during the massive deployment of British forces, the largest seen since the Second World War, the papers were relatively silent on military preparations.173 This silence was largely as a consequence of what Shaw has identified as ‘self-censorship’. He makes the point that had the world known about the huge build-up of military forces in the Mediterranean that began in the early weeks of August, ‘far fewer nations would have accepted the invitation to the London Conference’.174 Yet, the absence of reporting also posed problems: Eden could not rely on the build-up of a ‘war psychology’—could not play the ‘jingoistic’ card—to generate momentum behind the government’s aggressive stance.175 As the start of the London Conference (16 August) approached, the Daily Mirror’s opposition to the threats to use force became more trenchant and explicit: in its front page of 14 August it led with ‘The Mirror’s Message to Eden: No War over Egypt!’.176 This report seems to have been a response to knowledge about the build-up of military presence, but self-censorship in reporting the extent of military preparations. It was clear that the government wanted the public to be aware of the measures from a propaganda perspective, to substantiate the threat posed by Nasser. It was equally clear that a large segment of the Conservatives favoured using that force, regardless of the outcome of the Conference. Eden had to tread a delicate balance. Eden’s broadcast to the nation on 8 August asserted that Britain did ‘not seek a solution by force, but by the broadest possible international agreement’.177 It was an expertly crafted speech—only the second ministerial address on television—that wove together the government’s policy of isolating Nasser and likening him to Hitler, of emphasizing the importance of the canal for Britain and the world, and assuring that military preparations were simply a precaution. The problem was that this was not the tenor of press briefings, and it was apparently clear to a number of commentators that Eden and his Cabinet were intent on bringing Nasser down. This is what alarmed those who opposed the use of force. They could see that there was a real danger the government would launch action whether or not agreement was reached in London. This fear provoked the News Chronicle to lead with a front page comment demanding that Britain go the United Nations first.178 The pro-force, right-wing press continued to report the British military preparations during this time whilst also opining about the ‘dangers of delay’.179 However, both the Daily Express and Daily Sketch seemed to be losing interest as the dispute carried on and on and became more complicated. Throughout late August, during and immediately prior to the end of the Conference, the Daily Sketch reported several stories relating to spy activity, and of Nasser’s ‘Gestapo-like’ treatment of British workers accused of spying for the government.180 This reporting served to entrench the paper’s view that Nasser was to be likened to 172 173 176 177 178 179

Egypt Committee, EC(56) 10th Meeting, Minute 2, 3 August 1956, PRO CAB 134/1216. 174 Shaw (1996) 52. 175 Shaw (1996) 52. Shaw (1996) 52. Daily Mirror, 14 August 1956, front page. For a detailed account of this address, see Shaw (1996) 112–14. News Chronicle, 9 August 1956, front page, Comment ‘United Nations First’. 180 Daily Sketch, 25 August 1956, front page. Daily Express, 9 August 1956, Opinion.

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Hitler, and to remind readers of the dangers of appeasement. In the following days there was immediate response to the contentious editorial, with the Evening Standard ‘exposing’ as a lie the claim that the Egyptians had built concentration camps being run by ex-Nazis.181 In the run-up to the August London Conference, the government had been heavily briefing the press to refrain from reporting on the heavy military build-up, other than to document it as vague precautionary measures. At the same time, the government requested editors to await the outcome of the Conference, that is to prevent the press from scuppering the talks. This put the press in an impossible position and the diplomatic correspondent of the Manchester Guardian remarked in private correspondence that Eden was involved in censorship and double-dealing.182 The press were also wrongly briefed that America was standing firm behind Britain and France’s resolution to meet the threat Nasser posed, by force if necessary, if he did not accept the Conference outcome. This was a rather distorted picture, as Eisenhower repeatedly made clear that despite his desire to get rid of Nasser (expressed in private only), force in the present circumstances would be disastrous.183 The Times editorial of 27 August was arguably its most bullish yet, claiming that the London Conference had changed nothing and that Eden’s policy of force as an absolute last resort was justified and crucial to Britain defending its interests. It argued that of course the public wanted to avoid the use of force but that the ‘disease’ of self-guilt and blindness had to be overcome.184 Shaw argues that this stoking up of crisis was as a direct result of the close relationship between William Clark, Eden’s Press Secretary, and William Haley, author of the editorial.185 The stoking up of hostility was condemned by the News Chronicle, Manchester Guardian, and Daily Herald as amounting to an attack on the right to speak out and criticize government in times of crisis.186 As it became clear that the London Conference proposal taken to Nasser was to be rejected, the Daily Express came out explicitly against Eden’s proposal to take the matter to the Security Council. On 8 September it opined that Eden’s was the wrong course, which would lead to the grave danger of Britain’s vital interests being frustrated by the Russian veto, and that any UN negotiation would be ineffective anyway, given Egypt’s actions in the past.187 This neatly summed up the impossible position Eden found himself in: he was being pressured from his own party to go it alone, whilst himself acknowledging that without international support, and with a divided public, this was looking more and more impossible to justify. It was his inability to justify solo action which arguably led to his ‘going through the UN motions’ whilst secretly plotting an invasion with France and Israel. 181

182 Shaw (1996) 45. Evening Standard, 28 August 1956, 8. See eg Letter Eisenhower to Eden, 8 September 1956, extracted in Eisenhower: Waging Peace (Doubleday, 1965) 669–71. 184 The Times, 27 August 1956, Editorial ‘Escapers’ Club’. 185 Shaw (1996) 58. 186 News Chronicle, 28 August 1956, Leader, 4 ‘Britain Can be Great’; Manchester Guardian, 28 August 1956, ‘Escapers’, Leader, 6. 187 Daily Express, 8 September 1956, Opinion ‘The Wrong Course’. 183

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Eden was losing open support from the pro-force papers, not because they did not want military action, but because it all seemed to be dragging on for too long and it was difficult to sustain the argument that the life of the country was threatened when, as time passed, it appeared it was not in mortal danger. David Carlton claims that at this point, Eden hoped for ‘something to turn up’ as British policy appeared to have become wracked by indecision: climbdown seemed impossible, but Eden and Lloyd did think that the ‘Six Principles’ agreed in secret UN talks in October were capable of bringing the dispute to an end.188 Everything would change once British collusion with Israel and France was agreed and the Israelis launched their offensive against Egypt on 29 October. The News Chronicle and Daily Mirror were to some extent indifferent in their coverage of the invasion said to be happening on Wednesday 31 October 1956.189 Having been steadfastly critical of government policy over Suez, both papers were coming under increasing fire. The Chronicle’s owners, the Cadburys, were Conservative party supporters, and were concerned that the paper was losing Tory readers in droves through the summer of 1956.190 Meanwhile, the Mirror’s chairman wavered, as he had done when the Crisis first broke and it looked like troops might go in for a short, sharp victory.191 On the other hand, the Express, Sketch and Mail displayed clear support for Eden’s ultimatums as it finally looked like Britain was on the verge of war. The Express reported Selwyn Lloyd’s address to Parliament in which he said that Britain was forced to engage in ‘police action’ because the Security Council was frustrated by the veto and could never act immediately in any case. The paper reported the Conservative benches greeting this with rapturous applause.192 British military action posed a dilemma for other sections of the press that had been critical of government policy. First, there was confusion as to what precisely was going on. There were rumours of collusion, but nothing could be substantiated. There was some question as to whether Britain was actually at war, had landed troops, or engaged in combat operations. Further, there were conflicting reports emanating from the UN emergency meetings. It was the Daily Herald, Manchester Guardian, and Observer that led the criticism of the ultimatum and, interestingly, it was Gaitskell who then reflected these editorials in his subsequent contributions in the next day’s debates in Parliament. Shaw notes, however, that the Chronicle only dared to go so far in its criticism, stating on 15 November only that the country had been ‘seriously misled from the start on facts it was entitled to know’.193 Indeed, none of the papers seriously investigated the charge of collusion,

188

David Carlton, Britain and the Suez Crisis (Blackwell, 1988) 53. ‘Said to be happening’ because this period of ultimatum, bombing, and invasion was incredibly opaque and characterized by confusion as to Britain and France’s actions and whether or not action was already underway. 190 This point is made by Tony Shaw (1996) 72, and further explained by financial concerns. The Chronicle had only recently assimilated the Daily Despatch, many of whose readers were natural Tory sympathizers, and who were reported to be abandoning the paper. 191 Shaw (1996) 72. 192 Daily Express, 31 October 1956, front page. 193 Shaw (1996) 89. 189

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instead framing their dissent in terms of having been misled, particularly in relation to Britain’s actions at the United Nations. Whilst suspicions of collusion simmered in the background during the negotiations over ceasefire, with the introduction of UN peacekeeping forces and the withdrawal of Anglo-French troops much of the ‘heat’ of debate lost its fire as early as January 1957. Discontent over America’s failure to stand by Britain became a strong feature of media reporting, particularly amongst the pro-force press, but many saw the introduction of UN forces as a positive, even legitimizing effect, on British actions. Yet, even this discontent petered out with the announcement of the Bermuda Conference in March 1957, especially convened to repair the special relationship between Britain and America. Attention shifted away from Nasser and the Canal as it looked like normal operation would continue, and economic prospects would improve now that the United States had eased the pressure at the International Monetary Fund and oil was again flowing from the Middle East. The media role’s during the Suez Crisis is a difficult one to assess and one which poses lingering questions about the media’s supposed ‘freedom’ and relation to the state. These theoretical aspects of the Crisis are explored further in Chapter 5. For many traditional accounts of Suez,194 the press played a crucial role in reporting discord in the country, and including commentary which criticized government policy. Yet, Shaw’s important reappraisal of the role of media and this study’s trawling of the archive paints a very different picture, which suggests close connections between government and the press, and a more ‘loyal’ positioning than public opinion expressed.195 Whilst the government did not have a clear propaganda policy, it nevertheless successfully deployed a range of strategies to mute challenges to its policy. These strategies included a provocation towards ‘self-censorship’ by disclosing sensitive information in a way that left little room for publication. Another significant strategy was to deploy ‘an arsenal of powerful legal weapons’ to fashion press reporting.196 The challenges to these legal justifications found most forceful voice in the Parliamentary debates over Suez.

3.3.2 Parliamentary debate Through the course of Parliamentary debate it became clear that Eden’s use of international law to justify his desire to use military force, and to justify the ultimate invasion at the end of October, would come back to haunt him. Fitzmaurice had warned that in legal terms the argument could not be made to support military invasion. Yet Eden had ignored this and staked justification on his personal reputation as a man of the United Nations. By invoking international law, he may have set the tone of debate. What emerges from the analysis of the Hansard records, however, is that the appeal to international law was also an opposition194 Including recent ‘mythologizing’ of the Suez Crisis such as the BBC dramatization The Hour which aired in 2011 and 2012. 195 Shaw (1996) 92–4. 196 Shaw (1996) 95.

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driven argument that linked world opinion and the United Nations to challenge the government’s legitimacy and authority. The nationalization of the Suez Canal Company was first discussed in Parliament on 27 July 1956 in the form of a preliminary statement by the Prime Minister. Eden’s statement referred to immediate consultation taking place in London between Britain, France, and the United States. This ongoing consultation necessarily limited what he was able to report back to Parliament though he made clear that he would not accept any argument that involved the future of the ‘great international waterway’ being left in the ‘unfettered control of a single Power’, which could exploit it for purposes of national policy.197 This position did not appear to be as aggressive, or broad-brush, as the media’s widespread condemnation of Nasser’s ‘illegal land grab’. The government position was, therefore, subtly different to expressions of condemnation in the press. Eden framed the act as one endangering international interests, as opposed to an outright illegal expropriation. Part of the reason for this framing may have been a reflection of the advice he had received from Fitzmaurice, previously mentioned. If the act were characterized as an international dispute over commercial interests, it may have been clearer that this dispute should be resolved by reference to the International Court of Justice. Having recently failed in a bid to the ICJ over the Abadan Crisis, the government was unlikely to make the same ‘mistake’ again. Hugh Gaitskell supported the tough stance, and indeed went further by calling the Egyptian action ‘high handed and totally unjustified’ and reminded the House of the behaviour of Hitler and Mussolini.198 In subsequent days of the debate Labour MP Reginald Paget likewise linked the nationalization to action ‘we had got used to in Hitler’s day’, making clear reference to the danger of appeasing dictators.199 This linking of Hitler’s 1930s’ ‘grab’ of the Rhineland stoked up the legacy of appeasement. It presented Nasser not only as a threat to British interests but, more significantly, as one engaged in illegal and illegitimate acts that could be likened to Hitler’s early acts, which ought to have been policed rather than allowed to fester and escalate. These narrative aspects of debate demonstrate that legal justification was not all about rhetorical manipulation, it was intimately connected to the legacies of previous foreign policy discourses, private and public. A number of centre-left papers, including the News Chronicle, condemned Nasser for tearing up international treaties and argued that it was this trait that posed the greatest threat to Britain’s interests.200 The News Chronicle reported that Gaitskell had ended his speech with the cautionary words that ‘we must not get ourselves into a position where we might be denounced as aggressors in the United Nations Security Council or where the majority of the General Assembly would be 197 198 199 200

Sir Anthony Eden, 27 July 1956, HC Deb (1955–56) vol 557, oral answers col 918. Hugh Gaitskell, 27 July 1956, HC Deb (1955–56), vol 557, oral answers col 916. Reginald Paget MP (Labour), 2 August 1956, HC Deb (1955–6) vol 557, cols 1664–9. News Chronicle, 28 July 1956, Leader.

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against us’.201 However, there was no mention of this warning in the reports of the Daily Sketch or Daily Express and instead these papers focused attention on the communiqué issued by the three powers, which appeared to warn that Nasser would have to accept the outcome of the Conference, or else.202 The communiqué attention was in direct response to the briefing given to the media by the PM’s press secretary William Clark.203 Indeed, the Daily Express appeared to twist Gaitskell’s words, by reporting that he had merely said that Britain should not be denounced as aggressors and that force, if it were to be justified, would surely relate to Nasser’s blockade of Israeli shipping; the future was another matter.204 This was not an accurate reflection of his speech to Parliament but picked up on the broader narrative of the dangers of Nazi aggression and appeasement. The Daily Mirror’s front page included Gaitskell’s insistence that Britain should not use force unless in accordance with UN principles. It then went on to explain when force would be justified: if Nasser had done anything wrong legally, the right step would be to take him to Court; and the use of force would have been justified in response to the blockade of Israeli shipping but did not occur at the time.205 The Labour Party publication, Forward, was adamant that any talk of war over Suez was ‘sheer madness’.206 Douglas Jay207 wrote that any action alone would be ‘calamitous’ and deplored Eden’s ‘crazy dream’.208 Political debate fissured along sharply divided lines. Parliament was recalled on 12 September 1956. This debate was very different in character and content to the earlier debate on 2 August. During the period between these two debates public opinion had become deeply divided over Suez, and apparently over the single issue of whether or not it was right—the definition of which would also be crucial—to use force against Nasser. There is no doubt that the press and public, immediately after the Suez Canal Company’s nationalization, were unanimous in their condemnation of Nasser’s act. This initial fervour, however, had dampened significantly in the intervening period. It appeared increasingly untenable to hold the opinion that Nasser represented a clear and present danger to British interests, especially since the canal continued to operate without incident. In a public speech on 17 September, Gaitskell argued that the differences between the political parties had, by the end of the debates in the Commons a week earlier, almost been resolved. Unity was being held back by Eden’s refusal to give assurances that he would take the dispute 201 News Chronicle, 3 August 1956, 2 ‘This Pocket Dictator in Cairo—Morrison: Challenge of Nasser brings Unity to Commons’. 202 Daily Sketch, 3 August 1956, front page ‘ . . . UK warned last night: We will not yield in the face of Nasser’s theft of the Canal’; Daily Express, 3 August 1956, front page ‘ . . . Britain and France determined [the conference outcome] will be carried out, by force if necessary . . . ’. 203 Shaw (1996) 42. 204 Daily Express, 3 August 1956, 2 ‘Gaitskell: It’s Like Hitler’. 205 Daily Mirror, 3 August 1956, front page, ‘When force is justified’. 206 Forward, Saturday 4 August 1956, front page. 207 Labour Party Member for Battersea North. 208 Forward, Saturday 11 August 1956, front page.

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to the United Nations, and that force would only be used in accordance with the UN Charter.209 In other words, Gaitskell was at pains to point out that Labour did not oppose the government’s policy merely for opposition’s sake.210 The passing of the ultimatum deadline at the end of October, and the announcement of the intention to deploy troops to Egypt, led to unprecedented scenes of rancour in Parliament. There were equally unprecedented protests against the use of force on the streets, outside the Houses of Parliament, and in Trafalgar Square. At this point, the position of those who had consistently supported military intervention was simply stated by reporting government military operations without much clamouring opinion. Theirs became the matter-of-fact voice of unfolding military engagement. The only issue on which this section of the public was vociferous was that any opposition to government action would be unpatriotic. Britain, they said, required a united front to face Nasser’s challenge. However, by all accounts, the specifics of the debate were drowned out by the sheer volume of noise during the debates on 30 and 31 October and 1 November.211 The main issue that drove the rancour was the confusion brought about by the sheer lack of information.212 On 30 October, without furnishing relevant details, Eden announced that an ultimatum had been issued to both Egypt and Israel to stop the fighting and that if they did not accept it within 24 hours, Britain and France would launch a policing force to protect the Canal.213 There was illdisguised outrage. Britain had appeared to go from the lull of near-settlement, to an all-out war footing. There was deep suspicion that something murkier was behind the ultimatum and there were some in Parliament who voiced concerns about collusion with Israel. These sentiments were fuelled by public statements from world leaders, particularly the United States, who appeared confounded by British actions. It appeared that Eden was making use of the time difference and lack of information to spread disinformation; in effect lying to Parliament about what was happening in New York. The British and French use of the veto against the United States in the Security Council incensed some members of Parliament. The PM claimed that the Security Council had its hands tied behind its back because it was being frustrated by other members’ threats to use their veto. The Council therefore could not act immediately to address the situation.214 Parliament was suspicious of this claim. It was after all Britain and France that had created that situation by using the veto, which resulted in the Council’s ineffectiveness. This was much to the consternation of the United States and public dismay. The United States publicized its anger and this was picked up by press reports which appeared increasingly bewildered by the inexplicable actions of 209 The Gaitskell Papers held by University College London, GAITSKELL/C152.5 ‘Socialist International Information’, containing an article by HG ‘Suez and the United Nations’ 29 September 1956, text of a speech given to the Foreign Press Association Luncheon, London, 17 September 1956. 210 Hugh Gaitskell, 12 September 1956, HC Deb (1955–56), vol 558, cols 15–24. 211 Rhodes James (1986) 558–60. 212 Kyle (2003) 388–9. 213 Eden, 30 October 1956, HC Deb (1955–56) vol 558, cols 1274–5. 214 Eden, 30 October 1956, HC Deb (1955–56) vol 558, col 1381.

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Eden’s government. Parliament’s suspicions were confirmed by information leaking through to the House from the United Nations. Kyle records how it was George Ivan Smith, the Australian head of the UN information office in London who was so crucial to transmitting events at the United Nations. He supplied transcripts ‘at great speed’ to the House of Commons, which were then picked up by Labour members and ‘put to good use’.215 The Foreign Secretary, Selwyn Lloyd, could not explain Britain’s divergence of behaviour to Parliament’s satisfaction. He tried to argue that the US-sponsored Security Council resolution, vetoed by Britain and France, would have meant pronouncing judgment against Israel at once.216 He then reiterated Eden’s position, which was that the Security Council was not yet a world government and could not take action and produce practical results with sufficient rapidity, and therefore British and French action was entirely justified.217 The debate closed for the day. When it re-started the following day, such was the rancour and discord that the Speaker was prompted to remind the House that it should behave in a way creditable to Parliament and that he would be forced to adjourn the debate if disorder continued to persist.218 The debate began with a motion that ‘this House deplores the action . . . taken against Egypt in clear violation of the United Nations Charter, thereby affronting the convictions of a large section of the British people, dividing the Commonwealth, straining the Atlantic Alliance, and gravely damaging the foundations of international order’.219 After a lengthy speech, the motion’s proposer gave way to the Prime Minister who sought to move that the motion be replaced with ‘[the House] approves of the prompt action taken . . . designed to bring hostilities between Israel and Egypt to an end and safeguard vital international and national interests, and pledges its full support for all steps necessary to secure those ends’.220 The Labour motion was defeated by 52 votes and Eden carried Parliament with his own amended version by 320 to 253. It was a victory for the government which widened the gulf between the opposing sides. Following this vote the House continued to debate the crisis, but now from the perspective of policing the massive demonstrations that were taking place outside the Houses of Parliament. Conservative MP Edwin Leather claimed that these were ‘youthful’ mobs that were clearly, by both the banners they carried and the slogans they shouted, ‘organised Communist groups who were there to make trouble’.221 In the subsequent debate on 5 November, the Conservatives again sought to link opposition to British military action with communism, drowning out the

215

Kyle (2003) 362 recording an interview with Smith in 1987. Selwyn Lloyd, 31 October 1956, HC Deb (1955–56) vol 558, col 1567. Selwyn Lloyd, 31 October 1956, HC Deb (1955–56) vol 558, col 1571. 218 Mr Speaker, WS Morrison, 1 November 1956, HC Deb (1955–56) vol 558, col 1626. 219 Motion put before the House by James Griffiths (Labour, Llanelly), 1 November 1956, HC Deb (1955–56) vol 558, col 1631. 220 Eden, 1 November 1956, HC Deb (1955–56) vol 558 col 1639. 221 Edwin Leather, Conservative MP for Somerset North, 1 November 1956, HC Deb (1955–56) vol 558 col 1745. 216 217

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Parliamentary Clerks as they read a petition from the public by shouting ‘Pravda’ at the petition’s sponsor, Tony Benn and the Labour Party.222 Yet Benn and, in particular, Nye Bevan had managed to get hold of an authorized broadcast from Radio Britain that threatened Egyptians with bombing ‘wherever’ they were because they had believed Nasser’s lies. As Kyle observes, this ‘was not, strictly speaking, neutral, peacekeeping stuff ’223 and Bevan demanded that the government ‘stop lying to the House of Commons’.224 The attempt to delegitimize opposition by decrying communist influence could not be sustained, therefore, because of the government’s own apparent actions and international opinion ranged against the British. This opinion consisted of Britain’s US ally and crucial Commonwealth countries such as Canada, India, and New Zealand. Gaitskell referred to this opposition in debate. He suggested that the House was ‘astonished’ by Lloyd’s statement seeking to explain Britain’s abstention to the General Assembly vote on a ceasefire resolution.225 When Eden eventually announced the British ceasefire it only served to demonstrate the correctness of Gaitskell’s and other opponents’ stance regarding the United Nations. It appeared that Britain had been browbeaten by world opinion into accepting the need for retreat. The political attempts at linking opposition with communism and appeasement, although influential as a counter-narrative, were undermined by these wider factors. This appeared to have been in large part because of the publication of events at the United Nations and reporting of world opinion which was harnessed by political actors to secure legitimacy and undermine Eden’s credibility. The use of worldwide opinion calling for legal reactions to Nasser’s nationalization was arguably unprecedented in British Parliamentary history. Also unprecedented was the extent of public protest against the use of force.

3.3.3 Public opinion Public opinion, as recorded in the Gallup poll for August, supports the contention that Nasser’s act was seen as illegitimate. Asked whether the nationalization was or was not within Egypt’s rights, 68 per cent answered it was not.226 It can therefore be argued with some degree of certainty that the legal question over nationalization did not figure as a concern for the British public or press in the first few days of the Crisis. In private policy circles it was acknowledged that Nasser may well have had legal grounds for nationalization,227 but the government was concerned neither with arguing over that point, nor incorporating it as an element of policy. Instead Britain

222

Petition, 5 November 1956, HC Deb (1955–56) vol 558 col 1918. Kyle (2003) 451. 224 Nye Bevan, 5 November 1956, HC Deb (1955–56) vol 558 col 1965. 225 Gaitskell, 5 November 1956, HC Deb (1955–56) vol 558 cols 1958–9. 226 George Gallup (ed), The Gallup International Public Opinion Polls, Great Britain, 1937–1975, Vol I (Random House, 1976), August 1956, ‘Suez Canal’, 383. 227 See eg Reginald Manningham-Buller to Selwyn Lloyd with Memo ‘Draft of what it is suggested might be said to be the legal position in the debate on Suez’ attached, 1 August 1956, PRO LCO2/5760. 223

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was to base its policy on the risk to British and international interests, and with the threat to use force in the last resort. On the question of the use of force, early opinion did not appear to follow government policy, nor did it appear as ‘bullish’ as much of the press reporting. The ‘Suez Canal’ poll of August 1956 asked whether respondents approved or disapproved of the calling of an international conference to discuss the Canal problem.228 90 per cent approved of that action. When asked whether Britain should take military action if Egypt did not accept the decision of the conference, support for military action dropped off to 33 per cent, with 47 per cent supporting economic and political actions.229 Significantly, 27 per cent of 33 per cent (that is, effectively 82 per cent of those supporting military action) favoured ‘going ahead on our own’ if America was not prepared to support such action.230 These poll results suggest that a significant minority of public opinion were determined to see off Nasser’s threat with the use of force but that, overall, the public had not demonstrated widespread support for the use of force given the other available options. Opinion could be seen as reflective of party political splits and also of ideological arguments over the future of Empire and foreign policy, in other words, Britain’s role in the world. There was a similar split in the media between ‘go it aloners’ and those who saw such a policy as outdated and foolish. Papers such as the News Chronicle and Manchester Guardian along with other centre-left papers, and to some degree The Times, argued that it would be folly to ‘go it alone’ and that this view represented an outdated way of conducting foreign policy.231 The News Chronicle, publishing the Gallup poll results, reported that the figures meant that the nation backed Eden, but short of war.232 The paper feared that Eden was forgetting himself: it quoted Eden saying (in 1951) ‘There is no alternative to the rule of law. The United Nations is the only way’.233 The paper was concerned that there had been no mention of the United Nations in Eden’s broadcast and was further troubled that historically he had argued ‘agreements that are worthwhile are never made on the basis of a threat’.234 The News Chronicle argued it was ‘the ostentatious beating of the war-drums, the ridiculous threat of “going it alone” the gratuitous awakening of all the old ghosts of colonialism which had done this country’s long term interests such incalculable harm’.235 This comment came under the larger heading of ‘Path of Patriotism’ therefore demonstrating that part of the public debate involved carving out new expressions of nationalism and a new vision of Britain in the wider world: a moral Gallup Poll, August 1956, ‘Suez Canal’ 384. Gallup Poll, August 1956, ‘Suez Canal’ 384. Gallup Poll, August 1956, ‘Suez Canal’ 384. 231 For example, News Chronicle, 2 August 1956, Leader Comment ‘Firmness but not Folly’. 232 News Chronicle, 10 August 1956, front page. 233 Statement made by Eden on 20 August 1951. This was also the subject of a satirical cartoon in the Daily Mirror published on 14 September 1956, titled ‘You have been warned’. 234 News Chronicle, 10 August 1956, 4 ‘The Man who Forgot Himself ’. 235 News Chronicle, 13 August 1956, Leader ‘The Path of Patriotism’. 228 229 230

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leader rather than an imperialist power. This counter-narrative sought to dislodge itself from charges of ‘disunity’ fuelling the enemy and from the appeasement legacy. The tenor of public debate later changed as events moved on, beginning with a quiet call for international action as opposed to ‘going it alone’, to a later clamour to engage with the United Nations. These polls indicated a divide in opinion, and one which increasingly concerned the government. The Suez Canal poll for September asked whether, in the immediate aftermath of the nationalization, Britain and France should or should not have taken military action without ‘wasting all this time talking’.236 In response, 22 per cent said that they should have acted, whereas 65 per cent said they should not.237 The phrasing of the polling question is striking in its terms. The support for calling a Conference was endorsed in the subsequent question, with 52 per cent saying that Britain had been right to call a Conference, in comparison with 39 per cent who said that ‘we should have referred the matter to the UN’.238 With 69 per cent support for taking military precautions, and 67 per cent support for Britain’s insistence on international control, it seemed as if the government was winning the propaganda war, at least in terms of signalling that force would be used as a last resort, despite the public’s positive approach to a negotiated, peaceful settlement. Despite the apparent success of the ‘force as last resort’ position, Eden was arguably becoming trapped by his own vacillating arguments and promises. For instance, he continually stressed that Britain was not preparing to use force unless in the last resort, and that he favoured international cooperation to reach a peaceful settlement. He did not call for UN action, instead favouring the Conference format. But during September it was clear that the issue of UN involvement was becoming increasingly difficult to avoid. Indeed 81 per cent of respondents approved of referring the matter to the United Nations if Egypt did not agree to international control of the Canal. Furthermore, even if faced with Egypt’s deliberate interference with the free passage of shipping in the Canal, the polls only registered 27 per cent approval for taking military action in response, compared with 64 per cent support for referring the matter to the United Nations.239 Finally, 49 per cent disapproved of the proposition that Egypt be given an ultimatum threatening force, whilst 34 per cent approved of such a proposal. It is possible that the public were increasingly confused by the seeming doublespeak240 of the PM and his politicians. As reports came in of Britain’s position at the UN being isolated and tenuous, the public were confused about how Eden

236

A wonderful example of the subjectivity of polling questions. Gallup Poll, September 1956, Suez Canal, 390–1. Gallup Poll, September 1956, Suez Canal, 391. 239 Gallup Poll, September 1956, Suez Canal, 391. 240 On the origins of the term, which has links to George Orwell’s notion of ‘doublethink’ in 1984 (1st edn, Penguin, 1954) see George Orwell’s essay ‘Politics and the English Language’ in Shooting an Elephant and Other Essays (Secker & Warburg, 1950). For a contemporary examination of the term, see Edward S Herman, Beyond Hypocrisy: Decoding the News in an Age of Propaganda: Including a Doublespeak Dictionary for the 1990s (South End Press, 1992). 237 238

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could be arguing for protection of international interests and yet be so vilified in the United Nations. This public mistrust that Gaitskell had voiced in Parliament, led to more questions as to the real motives for British action. It seemed that public opinion was behind the government’s public stance early on, but that as it became increasingly obvious that world opinion was against it, and that the United Nations was being avoided, the government lost significant support. On 1 November 1956, mass demonstrations took place outside the Houses of Parliament to protest against British action. These could be heard in the House of Commons during the debate and served to inflame passions in the House. The demonstrations chanted the Labour party slogan ‘law not war’ and leaflets were distributed which highlighted the Commonwealth’s condemnation of the act, and the United States’ stern disapproval.241 The protests were the result of coordinated grass-roots activism from Labour party members, trades unions and (to a much smaller degree) religious organizations. The campaign was arguably so effective under the slogan ‘law not war’ because it resonated strongly with what many believed had been a paradigm shift in world politics and Britain’s conduct of foreign policy. Gaitskell’s claim that without action through the United Nations, world politics would descend into international anarchy, spoke to a grander narrative in which international law was central to world peace. The claim correlated with Labour’s core foreign policy values because it emphasized the need for development of a world authority to avoid the predominance of power considerations.242 It also played to the growing acceptance that Britain’s power would, in the future, be built on moral leadership rather than material strength, a reference back to Labour’s policy of non-intervention in the Middle East whilst in government. It did not take long for the left-leaning press to pick holes in British policy and start questioning the British action further. The Manchester Guardian and Daily Herald decried Eden’s announcement of an ultimatum and demanded his resignation.243 The Observer’s assault was heralded as the most celebrated attack on a government since 1945 and it was arguably influential on public opinion.244 Gaitskell’s broadcast on 4 November, the day after another mass protest (which the popular Nye Bevan had addressed), argued that Eden had to resign. He called it a tragic day not just because of news coming out of Egypt, but also out of Hungary. By Britain’s ‘criminal act of folly’ it had lost the moral leadership to be able to denounce the crushing of a ‘liberty-loving people’ in the face of ‘flagrant, ruthless, savage aggression’.245 Gaitskell argued that Britain had taken the law into its own hands and could not be seen, and evidently was not seen by the world, as a policeman. He denounced 241 ‘Law Not War’, Labour Party Pamphlet, Papers of Morgan Phillips (Secretary), Labour Party Archive, Manchester G3/SUEZ/56. 242 Phythian (2007) 56. 243 Manchester Guardian, 5 November 1956, Leader ‘To Quell the Flames’; Daily Herald, 3 November 1956, front page leader ‘He Must Go’. 244 Shaw (1996) 75. 245 Gaitskell Broadcast, 4 November 1956, Papers of Morgan Phillips (Secretary), LPA G3/SUEZ/12.

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Eden’s ‘new’ idea of making way for UN forces as preposterous given that there had been no mention of this previously and that it was merely a means of guaranteeing forceful action to resolve the Canal dispute. This, he argued, had violated the Charter and created deep division in the Commonwealth.246 Further pamphlets were produced that highlighted Britain’s ostracization from world opinion and argued that ‘it must be law not war’ [original emphasis].247 In the November 1956 poll, 44 per cent thought that Britain had been wrong to take military action in Egypt, whilst 37 per cent thought it had been right.248 Further, when asked whether Britain was ‘right to decide for ourselves or should we have let the Security Council of the United Nations decide what action should be taken’, 49 per cent voted for the Security Council, whilst 36 per cent supported Britain’s deciding for itself.249 This was a divided public and there was no ‘rally round the flag’ momentum to carry majority support for the government, as one would have expected.250 Instead, the public continued to demonstrate against the British action and it was only with the calling of the ceasefire that calm was restored. The Prime Minister was advised of public opinion via the Conservative Research Department in memos dated 2 and 6 November.251 In these memos Oliver Poole, Conservative Party Chairman, relayed the concerns the party had about public opinion on the Suez issue. His main concern was that people were ‘bewildered by the speed of events and confused by the lack of knowledge of what is really happening’.252 Further, he felt that the socialist campaign under the slogan ‘law not war’ was bound to have some impact given the concern being felt across the country.253 He felt that the way to counteract this was for Eden to go on television as soon as possible. Eden delivered a broadcast to the nation on 3 November which played heavily on his image as a man of the United Nations. But it did not have the required effect on public opinion, not least because information continued to reach the press, Parliament, and the public that British actions at the United Nations were duplicitous, counter-productive, and creating worldwide hostility. Public opinion appeared to shift following the announcement that UN forces would take over. By the December Suez poll, support for the government had increased. When asked, the split in the public had reversed, with 49 per cent saying Britain had been right to take military action, and 36 per cent saying it had been wrong.254 When asked if Britain and France, having begun military action, should 246

12.

Gaitskell Broadcast, 4 November 1956, Papers of Morgan Phillips (Secretary), LPA G3/SUEZ/

247 See Pamphlet ‘It must be law—not war!’, LPA G3/SUEZ/13. The archives also include reference to a number of other leaflets and posters produced for the campaign. These included ‘Suez Crisis: Back Labour’s Fight for Peace’, ‘Cry Havoc’, ‘Act of Folly’, and ‘Join Labour’s Fight for Peace’. These are undated but list early dates for demonstrations in November 1956. 248 Gallup Poll, November 1956, ‘Egypt’ 395. 249 Gallup Poll, November 1956, ‘Egypt’ 395. 250 Mueller (1973). 251 This was not the first time that Eden had become aware of public opinion, as his careful crafting of press reporting early in the Crisis makes plain. But, it is in an important record of how to manage opinion at the very height of the Crisis. 252 Oliver Poole to Anthony Eden, 2 November 1956, PRO PREM 11/1123. 253 Oliver Poole to Anthony Eden, 2 November 1956, PRO PREM 11/1123. 254 Gallup Poll, December, ‘Egypt’ 398.

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have continued until they had occupied the whole Suez Canal or did they agree with their accepting the ceasefire, 34 per cent said they should have continued, as opposed to 53 per cent who agreed that it had been right to accept.255 Following the furore, it appeared that the public were happy to see the crisis finally coming to an end and it seems the legitimacy which Eden had wished to be attached to military action by the United Nations taking their place, had indeed influenced public opinion. This poll suggested a legitimacy ‘boomerang’ for using the United Nations to take over and, in essence, provide the opportunity for the action to be spun as ‘endorsed’ by international forces. Therefore, despite the fact that British goals were not part of the withdrawal settlement, the UN action gave a gloss of respectability. This did not protect Eden, however, from calls for resignation and for the legacy of Suez being one of ‘folly’ and failure in the face of worldwide indignation and outrage.

3.3.4 International discord In some ways, the effect of international discord sits uncomfortably in ‘public discourse’ because of the numerous private channels of opinion and negotiation between various powers that had an undoubted effect on the formulation of policy and the construction of public justifications for using force. Whilst certain aspects of international influence were explored in considering ‘policy discourse’, and are initially reflected upon again in this section, the following analysis traces the public effect of knowledge about the divergence of opinions, as expressed in the institutional setting of the United Nations, and as reported as ‘world opinion’. The infiltration and influence of ‘the international’ into ‘the domestic’ speaks to the artificiality of viewing these arenas as ‘closed’ systems, a point to which Chapter 5 returns. Privately, there appeared to be a degree of Great Power consensus regarding the need to contain Nasser’s influence in the Middle East. However, there was also a tension in that the United States sought to enhance its influence not only in the region, but also against the crumbling British and French Empires. Nutting claims that Eden initially confessed to Eisenhower that he wanted war.256 When this provoked indignant protests early in the Crisis, the US President was treated as an unreliable ally. The more he warned Eden that American and world opinion would not support him if he appeared to be trying to browbeat a smaller nation into submission, the more determined Eden became to conceal his hand.257 As Rhodes James points out, the Americans were most concerned with seeking legal and moral justification for Britain’s stance, particularly in view of the fact that its position would have to be presented to the Security Council.258 On this point, the Americans were in complete agreement with Gaitskell and at odds with the government. The Daily Mirror commented that Eisenhower viewed Suez as ‘a small 255 256 258

Gallup Poll, December, ‘Egypt’ 399. 257 Nutting (1967) 111. Nutting (1967) 111. Rhodes James (1986) 483.

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thing’ in which there was ‘no need to wave sticks and threaten people’.259 America’s response to the climax of the Crisis, particularly in light of the Soviet invasion of Hungary, can be seen as reflecting an emerging international role which would seek to oppose all forms of ‘old’ imperialism whether communist or European. On 12 September Eden wrote a letter to the Security Council informing it that Egypt’s refusal to accept the eighteen-power proposal (the outcome of the London Conference in August) aggravated a situation which, if allowed to continue, would constitute a manifest danger to peace and security.260 On the same day Eden announced in Parliament the setting up of a Users’ Association to help enable users of the Canal to exercise their rights.261 But Parliament, the press, and the public appeared distrustful of his motivations. Thus, the announcement came to be viewed as a dangerous prelude to the government later seeking to justify the use of force. This view appeared to be shared by ‘world opinion’. The problem for Eden was that his hatred of Nasser was not very well concealed. His continual use of threats if a solution was not reached to ensure international control of the Canal, was treated as an exercise in colonial domination. The United States could not publicly support such a position and, at the United Nations, the United States was keen to ensure that newly emergent states did not stray to the communist bloc in search of supporters for their nationalist anti-colonialist ambitions. The public isolation and antagonism at the United Nations contributed to the unprecedented decision to hold meetings between Security Council members throughout October in secret session. Unfortunately for Eden, Eisenhower was so determined to see a peaceful outcome to the dispute that his White House press statements came out emphatically on the side of the United Nations, despite the fact that in private he had said he appreciated the long-winded nature of the negotiations at the organization.262 These statements were widely reported in the press and served to add flame to the fire of opposition to threatening force. In a radio broadcast on 5 October, Eisenhower recognized that no country should suffer economically under a ‘sword of Damocles’, referring to Nasser’s action, but that world opinion was clearly against using force in this situation; that to maintain the fight for peace and justice, the Security Council now had to face a crucial test.263 Dulles continued to irritate the pro-force press in the United Kingdom with his statements linking the Canal problem to colonialism. The Times accused Dulles of gross misrepresentation and grave disservice to Anglo-American unity.264 However, despite this very public disavowal of British policy, Eden and hawkish members of the Cabinet, such as Harold Macmillan, were confident that Eisenhower would

259

Daily Mirror, 8 August 1956, back page. Letter 12 September 1956 from representatives of France and the United Kingdom, UN Doc S/3645. 261 Eden, 12 September 1956, HC Deb (1955–56) vol 558, cols 10–11. 262 Letter Eisenhower to Eden, 8 September 1956, extracted in Eisenhower: Waging Peace (1965) 669–71. 263 Text of radio broadcast, also sent out as press release by Eisenhower, dated 6 October 1956, PRO FO 371/119153. 264 The Times, 6 October 1956, 2. 260

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support any military action taken by the United Kingdom, particularly as the US Presidential elections were coming up and there was an important Jewish vote to take into consideration.265 This was a huge miscalculation. From the American perspective, supported by world opinion, no case existed which justified a resort to force and ‘the use of force by France and Britain alone would almost certainly involve them and the Western world in incalculable risks’.266 Eisenhower appeared concerned about the effects that might be felt because of negative public opinion on the issue: I regard it as indispensable that if we are to proceed to the solution of this [Suez] problem, public opinion in our several countries must be overwhelmingly in its support. I must tell you frankly that American public opinion flatly rejects the thought of using force . . . I must say frankly that there is as yet no public opinion in this country which is prepared to support such a move, and the most significant public opinion that there is seems to think that the United Nations was formed to prevent this very thing.267

These views and public statements were widely circulated among the press and quoted in Parliament. Eisenhower’s press conference speeches on Suez were collected by Gaitskell and used in Parliamentary debates and extra-Parliamentary speeches, including at the Labour Party Conference, to demonstrate the strength and correctness of the principled stand against the government’s policy on Suez, and to discredit the gunboat Tories’ out-dated imperialist stance.268 There was also widespread reporting of ‘world opinion’ over Suez. The Daily Mirror reported that three shipping countries demanded that Britain go to the United Nations: Denmark, Sweden, and Norway, despite the undoubted slowdown of the Canal following nationalization.269 Richard Crossman270 wrote for the Daily Mirror whilst touring Canada and reported a great deal of ambivalence over Britain’s initially bellicose reaction, which then appeared to come down strongly in favour of UN involvement and against the use of force. He said that Canada was bewildered at the sight of Eden waving the big stick and was embarrassed and anxious about troop movements and do-or-die speeches by Eden.271 The press reported particular concerns amongst Commonwealth countries, because the Commonwealth had always stood for respect for the rule of law and strict obedience to the UN Charter.272 India was particularly critical of Eden’s military ‘precautions’ and Nehru made several speeches condemning the threats to use force.273 It was felt that India’s plan for a negotiated settlement was far more preferential and achievable than the London Conference 18-power 265

Bowie (1974) 58. New York Herald Tribune, Saturday 15 September 1956, 4 ‘Today and Tomorrow’ by Walter Lipmann. 267 Eisenhower Waging Peace (1965) 667–70. 268 Press cutting of New York Herald Tribune, Saturday 15 September 1956, 4 ‘Today and Tomorrow’ by Walter Lipmann, UCL GAITSKELL/C152.5. 269 Daily Mirror, 17 September 1956, back page. 270 Richard Crossman was a leftwing member of the Parliamentary Labour Party, member of the National Executive Committee of the Labour Party from 1952 until 1967, and Chairman of the Labour Party between 1960 and 1961. 271 See eg Daily Mirror, 13 August 1956, ‘Crossman says . . . ’ 4. 272 See eg Daily Mirror, 13 August 1956, ‘Crossman says . . . ’ 4. 273 Daily Mirror, 9 August 1956, back page ‘World Spotlight’. 266

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proposal, which everyone knew Nasser would reject. The later Dulles Plan for a Users’ Association incorporated much of the substance of India’s first proposal and it was on this compromise basis that, by October, it appeared a peaceful settlement was imminent. In October, on the eve of invasion, Eisenhower sent a personal plea to Eden not to take military action, which the White House then leaked to the press. In it the US President expressed the earnest hope that the United Nations would be given the fullest opportunity to settle the controversy.274 The Express reported that the United States and Russia were united in opposing British and French action but that Britain was confident it was acting in the United Nations’ interests.275 The Manchester Guardian was more critical accusing Britain of vetoing the ‘American move at the UN’, even if the paper equivocated over the rightness of troop deployment.276 At this climax to the Crisis the US Administration sought to voice publicly and unequivocally their anger at having been duped by Britain and France. They refused to heed the UK Ambassador to the United Nations, Pierson Dixon’s pleas for more time, and instead ranged the United States against the two countries in the emergency resolution vote in the Security Council. In a television statement on 31 October Eisenhower said he believed the Anglo-French actions to have been taken in error and that he did not accept the use of force as a wise and proper instrument for the settlement of international disputes. He ended with a ringing endorsement of the United Nations and an assertion that there could be no peace without law.277 International condemnation of Britain’s position undermined Eden’s attempt to justify the strong stance of the government: if this was indeed an international waterway of vital concern to the whole world, why not deal with the matter internationally? Why threaten British prestige and reputation by conducting unauthorized and deeply contested military action? As a ‘man of the United Nations’ it is possible that Eden felt hamstrung in justifying his secret motivations on the international stage. He may have considered that such motivations would be bound to lose the argument and that he would consequently suffer a loss of prestige and reputation both at home and abroad. However, it may also have been the American influence behind the scenes which convinced him of the need to persuade world opinion of the ‘rightness’ of Britain’s actions and therefore invoke the UN paradigm to justify his position. British and French justifications for action were further undermined by the Soviet invasion of Hungary at precisely the moment Anglo-French troops invaded the Canal Zone. Though Soviet actions in Hungary apparently took some heat out of the UN antagonism ranged against the British, the press were concerned that Britain should be labelled as no better than the communists. In Parliament,

274 275 276 277

As reported in the Daily Express, 31 October 1956, front page. As reported in the Daily Express, 31 October 1956, front page. Manchester Guardian, 31 October 1956, front page. Quoted in Kyle (2003) 386.

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Douglas Jay MP (Labour) asked the Foreign Secretary whether he noticed that the Russians had stated that they were carrying out a police action in Hungary. Jay wondered whether Eden realized that ‘most of the British public regard him as personally guilty of this tragedy’ in Hungary.278 The invasion also made support for Britain’s actions more difficult for international allies, particularly the US government which was developing the public face of its foreign policy as protector of democracy and custodian of law and order through the United Nations. A key credibility problem facing Britain and France was that their charade, of imposing an ultimatum on both warring parties to cease fire or they would intervene, was based on the Tripartite Declaration of 1950 to which the United States was also a signatory. This traditional treaty-based approach to disputes in international affairs had been characteristic of the start of both world wars and the United Nations had been set up to take over from such volatile and unstable regimes. The fact that the United States was against these moves was problematic but perhaps more so was the fact that UN members were actually in session and attempting to resolve the Crisis in the face of inexplicable Anglo-French hostility. Britain and France’s use of the veto against the US-sponsored Security Council resolution which called for an immediate ceasefire, was catastrophic both at the United Nations and at home. The American delegation pressed for an emergency session of the General Assembly to be held and for members to use the Uniting for Peace Resolution to overcome the British and French veto. The Resolution had first been used over Korea and was linked to Soviet intransigence in the Security Council. The likening of Soviet and Anglo-French actions would rise considerably given simultaneous events in Hungary. The records of the 749th meeting of the Council demonstrate the weakness of the Anglo-French position. In resisting the US resolution which called on both parties to cease fire, the French representative argued that the Council could not condemn Israel in view of the openly affirmed Egyptian policy of annihilation of Israel, the expansion of Egyptian imperialism and open intervention in French internal affairs (a reference to Algeria). This justification for vetoing the resolution was not strong because it appeared, in American eyes, to seek judgment whereas the key goal at that stage was for the Council to keep the matter on its agenda and ensure a ceasefire.279 The use of the veto resulted in the transfer to the General Assembly, where the US sponsored a resolution which was eventually passed 64 to 5 in the early hours of 2 November. Pierson Dixon had warned London that voting against the US was causing real problems, as the US position was the expression of UN opinion. He was worried about the consequences of remaining for long ‘in open defiance of the UN’.280 It seemed to Dixon and other delegates that Britain would either have to leave the United Nations or climb down.281 His instructions from London were 278 279

Douglas Jay, 5 November 1956, HC Deb (1955–56) vol 558, col 1955. United Nations Security Council Official Records [SCOR], 11th year, 749th meeting, 30 October

1956. 280

Dixon to FO, tel 1001, 1 November 1956, PRO FO371/121746/VR1074/461. Edward Johnson, ‘The Diplomats’ Diplomat: Sir Pierson Dixon, Ambassador to the United Nations’ in Kelly and Gorst (eds) (2000) 178–98 at 185. 281

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that Eden was preparing to address Parliament and announce that the United Nations would be assuming some responsibility in Egypt.282 The confusion was that it was still not clear whether troops had actually landed yet, despite British claims that they had. The message from Eden intrigued Dixon as it threw a lifeline to what appeared to be a steadfastly sinking ship.283 He was assisted by the resolution vote itself: Canada threw a further lifeline by publicly abstaining from the US-sponsored resolution which demanded that an international force be put in place as the only means of guaranteeing the ceasefire. Dixon endorsed Canada’s position and repeated Eden’s offer to the Assembly that Britain would merely be securing the ceasefire and would happily make way for UN forces to take over.284 Canada appeared to be bringing Britain around to America’s line by pushing for a UN force to take over ‘police action’, but in reality Eden did not see a UN force as restraining British occupation of the Canal, rather, the opposite. He believed that he could link the UN force to British goals, if not of removing Nasser, then at least resolving the Canal question.285 He also believed that UN forces following AngloFrench would put a gloss of respectability on the policy.286 However, just when it looked like the antagonism was to end, Hammarskjöld published a report, given the severity of the situation, that non-military targets were to be attacked by Britain.287 This completely undermined Dixon’s efforts. He wrote perhaps the most candid telegram to London in which he emphasized that Britain would have to leave the United Nations if such force were used, that their word would count for nothing and their actions would alienate the whole world.288 What followed was an apparent race to get Anglo-French forces in before the UN forces. The General Assembly had gained an unstoppable momentum such that none of Dixon’s attempts at amending the resolution to link with Eden’s desired objectives—Canal settlement and peace for the Middle East—could be proposed successfully. Instead, Selwyn Lloyd instructed Dixon to abstain from the vote and from a similar ‘Afro-Asian resolution’ which sought to reaffirm the earlier US-sponsored Security Council resolution. Kirkpatrick cabled Dixon with uncomfortable news, acknowledging that it would not make his task easy. Anglo-French forces would land as scheduled on the morning of 5 November in order to ensure later leverage over Nasser.289 The United States responded with increased pressure on the Eden government and especially on British sterling. Further, by the time the forces were landing, Britain’s conditions for avoiding military force had been met so that they could no longer justify military action. The British press reported this fact and it was picked

282 283 284 285 286 288 289

Lloyd (1978) 200. Dixon to Lloyd, tel 1009, 2 November 1956, FO371/121747VR1074/473. UN [GOAR] 1st emergency special session, 562nd meeting, 2 November 1956. Aide-memoire by Bishop, 2 November 1956, PRO PREM11/1105. 287 Johnson (2000) 184. Johnson (2000) 187. Dixon to FO, tel 1035, 3 November 1956, PRO FO371/121747/VR1074/491. Kirkpatrick to Dixon, tel 1563, 5 November 1956, PRO FO371/121747/VR1074/503.

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up by Gaitskell in Parliament. He argued that now, ‘all possible justification for armed intervention . . . disappears’.290 At the United Nations, Britain was forced to climb down and Dixon was sent a series of telegrams on 6 November instructing him that British forces would cease fire at midnight (GMT).291 The pressure on Britain at the United Nations was both exacerbated, yet at the same time eased, because of events in Hungary. Throughout July and up until October 1956 Hungarians had been protesting against Soviet interference. The US President had been in communication with Soviet officials emphasizing that the United States would not seek to bring Hungary into NATO if the protests were successful in overthrowing the communist government, and to reassure the Soviets that the uprising could be resolved peacefully.292 It seems that up until 30 October the Soviets were considering a back-down of sorts. The Security Council meeting of 28 October indicated that it might be possible to avert a second Soviet intervention. However, documents reveal that events in Egypt had a galvanizing effect on Soviet policy.293 On 31 October Krushchev announced that the Soviet Union should take the initiative to restore order in Hungary. His argument was based mainly on the need to defend the Soviet empire’s prestige and he reportedly said that if the Soviet Union departed from Hungary, it would give a great boost to the Americans, English, and French; ‘the imperialists’. To Egypt, they would then add Hungary.294 UN pressure on Britain was exacerbated because of the obvious parallels being drawn between crushing nascent independence with imperialist power. Dixon messaged London that in fact events had meant that the stinging focus of vitriol was now also being directed towards the Soviets, which gave him some personal respite. From his perspective, Hungarian events were a welcome relief to scrutiny over Egypt, but this did not mean that pressure completely dissipated. Further, the impact of the two crises occurring simultaneously severely undercut British prestige (in terms of world opinion and self-image) and had a strong impact domestically. Over the course of the next month America continued to pressurize Britain to evacuate Egypt, and the UN held firm that Anglo-French forces could not remain as part of a UN military presence. Lloyd informed the United Nations that Britain had decided to withdraw and that a timetable would be agreed with the UN force commander and the British military. The public humiliation could not be spun in a positive light and Eden, now extremely ill, left for the Caribbean only to return in January 1957 to announce his resignation.

290

Hugh Gaitskell, 5 November, HC Deb (1955–56) vol 558 col 1912. FO to Dixon, tels 1614, 1615 and 1624, 6 November 1956, PRO PREM11/1105. 292 Malcolm Byrne (ed), The 1956 Hungarian Revolution: A History in Documents (National Security Online Briefing Book: 2002) available online: . 293 Byrne (ed), (2002) available online: . 294 Byrne (ed), (2002) available online: . 291

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3.3.5 Other factors influencing public discourse Whilst the analysis of public discourse has focused on the role of media, Parliamentary debate, and public and ‘world’ opinion thus far, two further factors may have played a role in shaping public discourse. Indeed, the analysis of discourse does not claim to contain an exhaustive consideration of all factors, but concentrates on those that appear to have left ‘traces’ allowing for the generation of a map of discourse. The following brief sections consider the role of scholarly opinion and the influence of the United Nations as an institution on public discourse. In fact, it appears that in relation to scholarly influence, the Suez Crisis suggests more of an absence of influence, instead suggesting influence through policy elite channels, as discussed previously. This factor is included in this section, however, as a counterpoint to the analysis of the Iraq War in Chapter 4, which suggests a very different role for scholarly intervention in public discourse.

3.3.5.1 Scholarly intervention The Suez Crisis is striking, particularly in light of the Iraq War experience, for the lack of public engagement by legal scholars and experts. Only a handful of letters were written to editors of the press. Although there was an early intervention (in early August) by Professor Goodhart, this was not picked up on by the press and did not reflect or seem to influence public opinion. The only other letter appeared after the height of the crisis, on 8 November 1956. Georg Schwarzenberger wrote to The Times arguing that approval or disapproval of Franco-British intervention in Egypt could not depend on the judgment of the issue in the light of international law because international law lacked the stabilizing influence of a strong public order. The intervention had to be decided on the levels of either interest, or moral duty.295 Interestingly, this comment related to international law in the abstract theoretical sense. It did not address the publicly expressed centrality accorded to the United Nations in resolving the crisis, nor did it engage with Labour’s claim to be standing for ‘law not war’. The only public, group-led scholarly intervention was by a collection of historians, economists, and political scientists who protested against the government’s actions as being ‘in defiance of the United Nations, against the principles of international morality, and in violation of the dictates of common prudence’.296 Though this intervention was published, it was not accompanied by any feature-length reporting of their views and it is not clear from the archive that this had any impact on policy or public discourse. The fact that legal scholars did not engage in public discourse suggests either that private influence was more important in affecting the decisionmaking of government, or that legal scholars did not see a place for international 295 Georg Schwarzenberger, Reader in International Law, UCL, Letter to the Editor, The Times, 8 November 1956. 296 See Letter to the Editor, The Times, 3 November 1956 (A Nation in Two Minds—Means to enforce UN Decisions).

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law but rather considered the Crisis in moral terms. Yet, this latter point, as expressed by Schwarzenberger, was contradicted by Robert Jennings’ private letter to the Home Secretary and, of course, by the legal advice provided within Whitehall. Despite this lack of public engagement, there is some evidence that views such as Lord McNair’s (ex-President of the International Court of Justice and then member of the House of Lords) were discussed in the Foreign Office and in Parliament.297 This supports the idea that private communications were a more influential path to government policy-making. In terms of influencing public opinion, therefore, it may have been more significant that such a wide-ranging group of scholars came together to protest government action. The intervention by this eclectic group may have demonstrated the cross-cutting and fundamental nature of the Crisis, which threatened so many aspects of British life, and which threatened to ostracize Britain from efforts at avoiding world war. It should be said, though, that Parliamentary discord and international antagonism at British actions was more crucial to opinion than scholarly intervention. The attitude of international lawyers suggests they viewed themselves as set apart from public discourse, being part of a small transnational community of experts where reputation was based on objectivity and separation from domestic and international political processes. This contrast in self-perception is made evident when we consider that Rhodes James records the Suez Crisis as illustrating a major period of intellectual ferment with petitions at universities, and public stances against using force being taken by leading academics.298 In a sense, therefore, international lawyers appear to have seen themselves as operating on a different ‘plane’, one in which the ties to domestic politics were limited to advising governments or acting as experts in international institutions.

3.3.5.2 International institutional influence? The question that arises in assessing the significance of legal justifications during the Suez Crisis, is what role the United Nations had in raising the burdens on government. On one hand, it merely provided a platform for the expression of world opinion, and this was exploited to full effect, particularly in the General Assembly. Yet, it also appeared to embody a set of principles underpinning international affairs, a symbol of a shift in how to conduct these affairs which asks for a closer scrutiny of its role, as an institution, during the Crisis. During the early period of the Crisis, the United Nations was largely referred to in the abstract and was often equated with the ICJ as the appropriate ‘arbiter’ to the dispute. This elision frustrated Fitzmaurice who complained that the public appeared not to understand that its role was to avoid conflict and promote peace, rather than adjudicate disputes. In any case, the calls for UN action were assisted by 297 See Fitzmaurice’s reference to McNair’s proposed statement, Fitzmaurice to Coldstream 6 September 1956, PRO FO 800/748. 298 Rhodes James (1986) 552.

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the US support for peaceful settlement. With the failure of the Menzies mission, the United States appeared to take the lead by proposing a Users’ Association, the precise nature of which would need to be negotiated at the United Nations. In early October the News Chronicle reported that the Security Council would be meeting in secret for the first time in its history, at Selwyn Lloyd’s request, in order to provide a less formal atmosphere to consider steps to be taken in the dispute.299 By 9 October it appeared that Selwyn Lloyd was hopeful that the parties were close to reaching a negotiated agreement, supported by Dr Mahmoud Fawzi’s300 address in the Security Council, in which he indicated agreement with the first two (from three) of the key points and was confident that ‘quiet diplomacy’ was bringing the parties closer together.301 Just at the point where a negotiated settlement looked possible, however, it seemed that Britain and France were losing interest. Hammarskjöld later recalled that he and Fawzi sensed a curious divergence between Lloyd and Pineau, with Lloyd seeking agreement with Fawzi, and Pineau, aware of the collusion between London and Paris, bored with the whole procedure.302 Following partial agreement, a revised Anglo-French resolution of 13 October formed the basis of what was agreed would be a continuation of negotiations in Geneva on 29 October. Incidentally, Fawzi agreed to the revised agreement by letter to Hammarskjöld that day (29 October) but this final settlement was then overtaken by the Israeli invasion of Egypt. According to Nutting, ‘No.10, foreseeing that our Embassy in Washington would be under severe cross-examination once the news of Israeli troop concentrations broke, had decided that it would be better that they should know nothing’.303 This is attested to by Dixon’s telegrams sent to London. On 30 October, Dixon conveyed that he had had a meeting with the Secretary General, and US and French representatives and all appeared to be moving towards Council condemnation of the Israeli incursion. However, he was subsequently instructed by urgent telegram to ‘not say anything to imply that we agree with the present United States line or with their resolution’.304 These instructions left Dixon confused and isolated as the United States continued to press him throughout the day to agree terms of the draft US resolution to end the fighting. He was explicitly instructed to ‘play for time’ and try to ensure that no resolution was submitted or discussed. Apparently the reason was that Britain and France were likely to ‘take steps on their own to call an end to hostilities’.305 He made an unconvincing figure, consistently referring to the need to confirm instructions from London, whilst in the meantime Dulles and others

299

300 Egyptian Foreign Minister. News Chronicle, 6 October 1956, front page. News Chronicle, 9 October 1956, front page. 302 Bowie (1974) 49. 303 Nutting (1967) 111. 304 Telegram from Foreign Office to Washington, 12:50pm on 30 October 1956, PRO FO 371/ 121746. 305 Telegram from Foreign Office to Washington, 12:58pm on 30 October 1956, PRO FO 371/ 121746. 301

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became aware that Eden was issuing an ultimatum, completely ignoring UN processes. The pressure Dixon was put under and his privately outspoken views on the need to agree to the UN ceasefire demonstrate the institutional influence on policymaking during the crisis. Clearly it was far easier for Britain to criticize the United Nations than the United States, but there was a real, practical difficulty in facing the General Assembly in such an antagonistic environment. The most damaging problem was the split between the United States and Britain, and between its Commonwealth nations. This left Britain more exposed to the newly independent countries, Dixon disturbingly referred to as ‘rats’, who would make trouble for Britain in future GA meetings.306 Further, he warned that Britain was viewed ‘in the same low category as the Russians in their bombing of Budapest’, and the General Assembly, outraged at British military action, were ‘in a very ugly mood and out for our blood’.307 The fact that this isolation and comparison with the Soviets was reported by the press and debated in Parliament had a significant impact on public opinion and arguably resulted in Eden’s capitulation as it appeared that Britain’s position was no longer tenable. The Foreign Office archives provide further evidence of the influence of the UN as international institution. During the crisis the Secretary General had infuriated British policy-makers. He had taken a public stand, officially rebuking Britain and France for the use of their vetoes during the debate in the Council.308 Dixon was seriously concerned about Hammarskjöld’s role, particularly as it had been through the General Assembly rather than controlled by the Security Council.309 He had been able to take political decisions over the formation of an emergency force (UNEF), the composition and mandate of which expressly excluded the British. In what Johnson termed a ‘barbed epithet’,310 Hammarskjöld was described by one House of Lords member during a debate on the Suez Canal in May 1957 as the ‘umpire on whom the sun never sets’.311 Given the signal that the Suez Crisis sent as to the collapse of formal Empire, this epithet served to highlight the eclipsed source of imperial power vis-à-vis the new institutional regime. Three months after the climax of the Crisis, the Foreign Office determined to severely undercut any future influence for the Secretary General.312 This resistance to Hammarskjöld was not simply personal, it was also directed at the General Assembly. Ivor Pink313 complained that Britain had been like ‘a man with his back to the wall facing a pack of Afro-Asian jackals’.314 He believed that this body was essentially irresponsible and none of the safeguards of Great Power negotiation existed.315 To 306

Dixon to FO, tel 1026, 2 November 1956, PRO FO371/121747/VR1074/489. Telegram from Dixon to FO, no 1071, 5 November 1956, PRO FO 371/121748/VR1074/517. 308 Johnson in Smith (ed) Reassessing Suez (2008) 171. 309 Note from Dixon to Kirkpatrick, 22 December 1956, PRO FO371/119189/JE14214/401/G. 310 Edward Johnson, ‘“The Umpire on Whom the Sun Never Sets”: Dag Hammarskjöld’s Political Role and the British at Suez’ 8 Diplomacy & Statecraft (1997) 249. 311 Lord St. Oswald (Conservative), 23 May 1957, HL Debates (1956–57) vol 203, cols 1221–5. 312 ‘The United Nations—A Stocktaking’, 7 February 1957, PRO FO371/129903/UN2251/27. 313 Superintending Undersecretary for the Foreign Office’s UN Department. 314 Pink’s note to Paul Gore-Booth, 30 March 1957, PRO FO371/129903/UN2251/36. 315 ‘The United Nations—A Stocktaking’, 7 February 1957, PRO FO371/129903/UN2251/27. 307

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this end, the new policy would seek to remind Hammarskjöld that he was welcome as ‘partner’ not ‘master’ of the Great Power ‘enterprise’. It would also seek to enhance Britain’s role in the Security Council to ensure its continued centrality in international decision-making.316 It seems that the Foreign Office neglected to consider the impact of American financial pressure which had arguably had just as debilitating an effect on British policy-making during Suez. The reaction perhaps demonstrates just how effective the United Nations as international ‘site’ may have been in impacting upon world and domestic opinion, both in policy and public discourse.

3.4 Reflections on the Suez Crisis In reflecting on the Suez Crisis and the politics of justification perhaps the most intriguing historical ‘gap’ is the absence of any formal investigation of the conduct of government, despite widespread rumours and suspicion of collusion. Why was it that no formal inquiry, or even private ‘lessons learned’ review, was ever instituted? Despite repeated Parliamentary campaigning and media interest, the truth about collusion emerged in pieces and long after events. Suez rumbled on in the public imagination but discourse never again reached the heights of discord and debate recorded at the climax of the Crisis, or indeed in the months leading up to invasion. In the immediate aftermath of the Anglo-French invasion, there were already Parliamentary demands for an inquiry. On 22 November 1956, R.A. Butler ruled out the possibility of an inquiry when faced with demands from the Opposition, on the basis that the Crisis had been ‘primarily the responsibility of Government’.317 It is striking that in these demands for an inquiry reference was made repeatedly to ‘world opinion’ and to evidence presented by The Times, the Manchester Guardian, the Washington Post, and The New York Times.318 Gaitskell asserted that information on collusion, and the apparent deceit of Selwyn Lloyd’s 31 October assurance to the House denying collusion, was being reported in the ‘press of the world’.319 In December Parliamentary demands for an official history were repeated. Eden responded that he could see ‘no reason’, adding that the documents were there and would continue to be there should anyone want to ‘dive into them’.320 In the light of the conclusion that Eden or a No. 10 private secretary or Norman Brook must have destroyed the British copy of the Protocol of Sèvres,321 this response to Gaitskell appears all the more distasteful. Yet the question of collusion would rumble on throughout Harold Macmillan’s Premiership.322 In his first television

‘The United Nations—A Stocktaking’, 7 February 1957, PRO FO371/129903/UN2251/27. R.A. Butler, 22 November 1956, HC Deb (1955–56), vol 560, cols 1932–5. 318 See Mr Swingler (Lab) 22 November 1956, HC Deb (1955–56), vol 560, col 1932. 319 Hugh Gaitskell, 22 November 1956, HC Deb (1955–56), vol 560, col 1934. 320 Prime Minister Eden, 17 December 1956, HC Deb (1955–56) vol 562, cols 926–7. 321 Beck (2009) 616. 322 Macmillan took over following Eden’s resignation in January 1957. He won the subsequent General Election of 1959 returning with an increased majority. 316 317

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address as Prime Minister, in January 1957, he made passing reference to Suez, saying only that ‘history [would] justify’ what the government had done.323 Macmillan would hardly have sanctioned an official history or indeed public inquiry into Suez, as he had been a hawkish member of Eden’s war cabinet. Indeed, he managed to place an internal ban on any ‘lessons learned’ reflections being conducted by any Whitehall departments.324 The ban was only lifted in 1980, as departments prepared for the impending release of the archives in 1987.325 Similarly, when Sir Alec Douglas-Home became Prime Minister in 1964 he ruled out an inquiry, even in the wake of Pineau’s admission of collusion and the resultant furore amongst the Labour and Liberal opposition.326 Politicians appeared only too conscious that looking back over Suez might harm current foreign policy interests, a belief that Beck claims was underpinned by official advice.327 Whilst politicians involved in Suez were keenly aware of the dangers of opening up a ‘Pandora’s box’ should an official history or inquiry take place,328 parts of Whitehall remained particularly aggrieved by the Suez Affair. Beck argues that frequent private references by diplomats to ‘the lamentable example’ of Suez, highlighting how official advice had been bypassed, continued to exercise a hold on officials.329 Yet it is intriguing that during Wilson’s first Labour government, Michael Stewart, the Foreign Secretary between 1965 and 1966, and then his successor, George Brown, were each persuaded by Whitehall officials to oppose the demands for public inquiry because of the inevitable political sensitivities involved.330 The man charged with such persuasion was Paul Gore-Booth, by this time the Permanent Under Secretary, but during Suez Deputy Under-Secretary of State beneath Sir Ivone Kirkpatrick, staunch supporter of Eden’s regime change (and collusion) policy. This official advice seems to have been driven by the concern that Suez would have a detrimental effect on the conduct of contemporary British policy, particularly in its international relations with the Middle East and the United States. The failure of Wilson’s government to act on Suez was in stark contrast to his public position before entering office. In Parliament he had repeatedly warned Douglas-Home that the truth about Suez would eventually come out and that a recent book by an American academic suggested that Parliament had been grossly misled over Suez. He demanded that such a serious issue be settled by an inquiry.331 Despite Wilson’s failure, the controversy continued to be the subject of Parliamentary and public campaigning. This was not appeased by either the

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324 Beck (2009) 612–15. Beck (2009) 610. Intriguingly, Peter Beck notes that Suez did not even make the shortlist of ‘case studies’ to be analysed internally, from a ‘lessons learned’ perspective. Instead, Whitehall produced a detailed study of the Abadan Crisis of the early 1950s. See Peter Beck, ‘The Lessons of Abadan and Suez for British Foreign Policymakers in the 1960s’ The Historical Journal 49(2) (June 2006) 525–47. See also Beck ‘Britain and the Suez Crisis: The Abadan Dimension’ in Simon C Smith (2008) 53–67. 326 Prime Minister, 14 May 1964, HC Debs (1964), vol 695 cols 599–603. 327 Beck (2009) 612. 328 Beck (2009) 615. 329 Beck (2009) 616. 330 Beck (2009) 615. 331 See eg Harold Wilson, 4 May 1964, HC Debs (1964) vol 695 col 673. 325

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newly introduced Thirty Year Rule332 or the announcement of a peacetime series of official histories, as Suez obviously would not qualify. Whilst Wilson did not want to pursue an all-out investigation into Suez, in part because of the lingering fear that Labour would be portrayed as having been unpatriotic, dividing the nation at a time of crisis, he nevertheless publicly asserted that Parliament had clearly been misled by ‘inaccurate statements’ made in 1956.333 As the tenth anniversary of the Crisis approached, the campaign for an inquiry was reinvigorated by the prospect of a full-scale Parliamentary debate of Suez. This would demand official statements by Eden, and Lloyd amongst others. Beck notes that draft speeches were agreed upon amongst Eden, Lloyd, and Macmillan which sought general justification of their Suez policy on the basis that ‘modern history had shown both the folly of appeasing dictators and the fact that diplomacy cannot always be open’.334 But, despite intense media speculation, the debate never took place, again largely because of the persuasion exercised by Foreign Office officials who emphasized that there would be very great danger to British foreign interests in pursuing an inquiry. In finally putting to rest the prospect of an inquiry, and indeed of official disclosure through Parliament, the Labour government appeared further persuaded that Suez remained a controversy only amongst the media, academics, and in policy circles. The ‘general public’ appeared to think Suez was ancient history and that Labour would be in danger of appearing to be unpatriotic. So, despite Suez’s continued resonance in ‘elite’ discourses, it seems that there was little public or government appetite for revisiting its controversies. What remains a puzzle is how Suez came to play such a ‘prominent role in contemporary political vocabulary’.335 It seemed to cast a long shadow over policy-makers’ thinking and became wedded to the image of British imperial decline. It captured the essence of a critical point of rupture, seen as ‘epitomising in a few weeks all the conflicts of a decade’.336 As the following chapter reveals, Suez reared its head again in 2003 during the controversies over British military action in Iraq. So much for the aftermath of Suez, but what about its significance for revealing the politics of justification? Writing in 1974 on the role international law had played in the Suez Crisis, Robert Bowie claimed that ‘Nasser provoked the Suez Crisis of 1956 by a formal decree and a fiery speech’.337 This characterization of Nasser as precipitator of the Suez Crisis formed the foundations of international and domestic discourse, both in policy circles and in the public realm. What is so interesting about the Crisis and its legacy is that this framing and interpretation was never challenged and that all participants in international and domestic discourse were dominated by this miscalculation as to the cause of the Crisis. Indeed, it remains a characteristic of many of the historical accounts. For instance, Robert 332 Introduced by Wilson’s government, the Thirty Year Rule shortened the length of time official records were kept secret. 333 Beck (2009) 622. 334 Beck (2009) 625. 335 Peter Beck, Using History, Making British Policy: The Treasury and the Foreign Office, 1950–1976 (Palgrave Macmillan, 2006) 9. 336 Beck (2009) 605. 337 Bowie (1974) 1.

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Rhodes James338 claimed that the ‘volatility throughout the Middle East’ which concerned Conservative members of the House of Commons was Nasser’s fault.339 In fact, the historical backdrop to the lead-up to the Crisis suggests that it was European imperialism giving way to superpower bipolarity that may have been a more significant source of the crisis. In the first days of the Suez Crisis, there was unanimous outrage at Nasser’s act, both in Parliament and the press. This outrage was reflected in widespread support for government action, in particular in calling a Conference to discuss the issue. However, there were immediate cracks in this consensus, which were initially papered over, and then vehemently condemned, by the right-wing press. The liberal and left-wing press set out their position, and that of the Labour opposition early on, when it argued that force could only be considered if part of concerted UN action, and that the issue was one which must be resolved through the peaceful instruments of the UN Charter. This division appeared to be influenced heavily by the political parties’ concept of Britain’s wider role in the world: the right deplored the loss of imperial power and the left championed the ushering in of a ‘new era’ of post-colonial politics and obedience to the rule of law, as envisaged in the peaceful principles of the UN Charter. One explanation of the national divide on the issue of Suez was the high degree of uncertainty that was at the core of the debate. On one hand, Britain sought to establish itself as a champion of democracy, yet on the other, expressed imperialist outrage when another nation dared to defy Britain’s interests or goals.340 This was in the historical context of a division of the country that had not been seen since the 1938 Munich Crisis, and it was a striking feature of Parliamentary debate and reporting in some sections of the press that Munich and the legacy of appeasement featured so heavily as a ‘warning from history’. What emerges from analysis of the government’s attempts at justification is that there was a misguided approach to dealing both with the media and through it, the public. Eden’s government was to assume that the fervent outcry at nationalization, documented in the press and demonstrated in the early debates in Parliament, would easily translate into widespread support for the use of force against Egypt. It fundamentally misjudged the mood and failed to ensure deployment of other arguments for using force. UN proceedings were reported back to the domestic public, which only served to fuel the opposition to Eden’s moves. This demonstrated public engagement with international politics and undermined Eden’s credibility and claim to be acting in the name of international peace and security still further. In this respect government tactics were fundamentally flawed: in trying to dress the invasion and preliminary build-up to using force in the language of international law, it had raised international and domestic expectations to a point where the government could no longer control the shape and course of the debate. It was

338 Junior Clerk to the House of Commons who attended all the Suez debates and Question Times and later wrote a biography of Anthony Eden. 339 Rhodes James (1986) 442. 340 Anthony Adamthwaite, ‘Suez Revisited’ International Affairs 64(3) (Summer 1988) 449–64 at 454.

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now subject to world opinion and other countries’ interpretations of legal argument and right process. As Sir Charles Keightley remarked in his secret ‘lessons learned’ appraisal of the Suez military campaign: The one overriding lesson of the Suez operations is that world opinion is now an absolute principle of war and must be treated as such. However successful the pure military operations may be they will fail in their object unless national, Commonwealth and Western world opinion is sufficiently on our side.341

In terms of justifying force, Eden appears to have appreciated the facilitative aspect of international law. He sought to demonstrate his high regard for rules of international law to command support for and minimize opposition to his political claims to invade Suez. He married this with the legacy of statesmanship during the Second World War and post-war peaceful settlement. This was a conscious effort to undermine Labour’s appeals to law so that publicly he could continue to claim to be a ‘man of peace’ whilst privately architect of the Protocol of Sèvres and the impending military action. His concept of international law was as the law of the Great Powers, the victors and shapers of the post-war world. Yet, Tony Shaw suggests that Eden’s real problem was that he raised the prospect of military action in the early stages of the Crisis, only to face what Jack Snyder would well recognize: a propaganda boomerang.342 Shaw suggests that one of the key reasons why Eden colluded with the French and Israelis was to fulfil the expectations of his own propaganda campaign which had demonized the Egyptian leader, raising expectations among his own Conservative Party, certain parts of the press, and sections of the public.343 The case study therefore suggests that the Crisis was not somehow a victory for international law that produced a legacy of compliance with norms on the use of force. It was a victory of a broader type: the battle over the end of formal Empire was arguably won by the Labour Party. Labour used the spectre of global conflict to win the argument. The United Nations served as a representation of this global paradigm shift, from colonial justifications for action, to avoidance of total war and the recognition that Great Power contest had to be contained within the UN paradigm to maintain peace. This was a battle about the fundamental principles of international interaction and definition of national interests. The legacy of Suez cannot therefore be assumed to result in the embedding of legal norms per se but it speaks to the catastrophic consequences of rejecting this shift in paradigm and in acting against allies and against world opinion. This is a more nuanced legacy than simply suggesting that the events of 1956 socialized Britain to prohibitory norms on the use of force. It suggests that Britain could become socialized to action through the United Nations as a representation of underlying legal principles of international law, and ideological commitments underpinning these legal principles. This process could, however, be co-opted 341 Sir Charles Keightley, ‘Lessons of Suez’, Part II, 4, 12 November 1957, PRO AIR 8/1940, Annex to JP(57) 142 (Final). 342 Snyder (1991). 343 Tony Shaw (2nd edn), (I B Tauris, 2009) Preface ix.

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through public confusion and reliance on government to transmit information from ‘the international plane’ to ‘the domestic’. Public statements by world leaders could override this stranglehold on information, with the press informing the public realm, and politicians challenging the government in Parliament. The legacy of Suez is one where world opinion influenced debate as well as the domestic political processes of contestation. Eden’s reputational dilemma also cannot be ignored, likewise the personal concerns expressed by members of policy elites such as Fitzmaurice and Dixon. Although these private concerns may not, ultimately, have affected Britain’s decision to use force, they did impact on how government justified force and arguably had a profound impact on Whitehall and foreign policy in later years. The legacy of Suez reflected, in part, the fact that politicians had failed to consult officials and had, in fact, become entrapped by their own aggressive justifications for using force, even where, or perhaps because, such arguments utilized international law as a basis for decision-making. This cast a long shadow over British policy-making, leading one civil servant to comment in 1965 that a public inquiry could not be held into the affair as it would open up an extremely damaging Pandora’s box.344 When the official records were finally opened to the public thirty years later, it was striking, but perhaps unsurprising, that there was no government record of the Protocol of Sèvres. Yet, legacy’s construction and meaning remains somewhat out of reach, always subject to redescription and capture by new moments. Perhaps it was not until the invasion of Iraq in 2003 that the legacy of Suez became one of ‘folly’ and ‘illegality’?

344 Paul Gore-Booth, 13 July 1965, PRO FO370/2807/LS13/4 (Gore-Booth had been Deputy Under-Secretary of State in 1956 and had warned Sir Ivone Kirpatrick of department disquiet over Suez. He was Permanent Under Secretary from 1965–69).

4 The Iraq War This chapter begins by setting out an historical backdrop to the invasion of Iraq in 2003 and, as with the Suez study, situates the resulting conflict in a broader history, of colonialism, Cold War containment, and US hegemony. This was also the context for the Gulf War of 1990–91 which resulted in an extended policy of disarmament monitoring by the Great Powers through the UN inspections regime. The inspections and sanctions regime of the 1990s represented a UN-sponsored policy of containment which dealt with transgressions by targeted use of force, particularly with the establishment of ‘no-fly zones’, but had not been without some legal controversy. Weapons inspectors had been obstructed in their work and they were eventually ejected in November 2000. A few months later, there was a shift in US policy towards Saddam Hussein’s intransigence, both as a result of an incoming Republican administration and later the effects of 9/11. Having set out the historical background, the chapter considers policy discourse. Although the nearness of time means that there is no archival material to draw upon, private decision-making can be pieced together from the large volume of declassified materials released as part of the Chilcot Inquiry. These materials, combined with witness statements and testimony from the hearings, provide a partial window onto decision-making, though there are notable absences.1 A number of other government documents were leaked to, and reported by, the Sunday Times immediately prior to the 5 May 2005 General Election. These became known as the ‘Downing Street Memos’. There have also been periodic investigations by various media into the decision to go to war, that have revealed further elements of war planning, intelligence, and policy-making. These materials provide key insights into behind-the-scenes decision-making, in particular, the extent of military planning and the emphasis on ‘preparing’ public opinion. The strategic uses of legal justification based on the Attorney-General’s legal advice are also examined, and how these directly contradicted advice provided by the government’s international lawyers in the Foreign & Commonwealth Office (FCO). 1 See for instance the controversy surrounding the Inquiry’s request that messages between Bush and Blair be published and referred to in the Report. This request was refused, repeatedly. Reported in the Daily Telegraph, 21 January 2011, ‘Iraq inquiry: Tony Blair tells Sir John Chilcot that notes to George Bush were “very private” ’ ; see also Sir John Chilcot’s Letter to the Prime Minister of 13 July 2012, updating as to progress with the completion of the Inquiry’s Report .

The Politics of Justifying Force. Charlotte Peevers. © Oxford University Press 2013. Published 2013 by Oxford University Press.

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The analysis of public discourse begins from July 2002 as it was during this period that military force was publicly threatened by the United States. This section considers the question of the media’s role during this discourse. It appears that during the build-up to war there were phases of discourse, and the media contributed to this by framing the conflict in particular terms. These are explored and questions raised, in particular, in relation to media adjudication of the public divisions over war. One example of public challenge to government policy was the role of experts and legal scholars in public discourse. This appears to have been as a consequence of three processes. First, a number of legal challenges were brought against the government by non-governmental organizations. The lawyers acting on their behalf were quoted in the press which may have increased coverage of the question of legality. Second, the government’s insistence on their priority of getting a second resolution appeared to send a signal that in order for their actions to be legitimate, they would necessarily need legal justification premised upon a Security Council mandate. Lawyers therefore entered the public arena to pronounce on the legal issues raised by the government’s position. Third, the media appeared to play a significant role in these processes of adjudication of expertise. Parliamentary debate and party political splits are also explored as feeders into discourse. Public discourse was, in fact, characterized by an absence of institutional political opposition or discourse. Another factor influencing public discourse may have been the emergence of ‘global public opinion’. Again, media’s role here is crucial and the section examines whether the media acknowledged this apparent ‘transnationalized public sphere’, or whether the media was unable to explain the context and ideological aspects of transnational protest. Finally, consideration is given to whether the UN institutional framework had any influence over discourse outside the traditional, relatively closed, process of international political actors navigating the international–domestic divide. Differences of policy and public opinion over the efficacy of the United Nations as Security Council are explored, and distinguished from the generally positive public opinion of the UN weapons inspections regime, as bureaucratically legitimate guarantor of impartial and objective evidence. Finally, the chapter reflects upon the aftermath of the war and what the mapping of discourse reveals. As in the case of Suez, there appeared a sharp divide between public justifications and private decision-making. Of note here is the presence of broader, framing narratives and policy motivations underpinning the Iraq War justification, for instance the desire to remain close to the US ally, and appeals to the ‘benign’ aspects of liberalism via human rights and moral justifications. The media played a significant role in framing discourse and contesting government narratives, not simply through transmitting information, but also in legitimating certain actors in domestic debate. This role allowed scholars a widely reported public intervention into discourse and marked a shift in how experts engaged public opinion, which was distinct from the Suez Crisis. The legacy of this intervention, both over a short and longer time frame, is also considered in the conclusion to this chapter.

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4.1 Historical context The historical context of the Iraq War is heavily embedded in legacies of Western imperialism, through the League of Nations Mandate system, and through British interference—first with attempts at direct rule, then through indirect rule—in Iraq and in the wider Middle East. The modern state of Iraq was created by the British and its allies as part of carving up the spoils of the defeated Ottoman Empire.2 During the First World War and in its immediate aftermath, the British engaged in direct rule over Iraq’s territory. Yet this foreign occupation met with violent resistance, culminating in the nationalist revolution of 1920.3 A Class A Mandate was imposed under Article 22 of the Covenant of the League of Nations, initially awarded at the San Remo Conference of April 1920, but not formally confirmed until Turkey agreed to the terms of the Treaty of Lausanne three years later. Britain set out its plan for Iraq in 1921,4 imposing the deposed ruler of Syria,5 Faisal Hussein, as first monarch of Iraq, and ensuring that it would retain substantial influence through advisers and military presence; and the negotiation of the Anglo-Iraqi Treaty of 1922 in which Faisal agreed to Britain’s ‘administrative presence’ and control over foreign and military affairs for a period of twenty years (though this was later reduced to four years). In 1927 new oil fields were discovered, which formed part of the backdrop to the conclusion of a further agreement, the Anglo-Iraqi Treaty of 1930, signed by Nuri esSaid, the new Prime Minister of Iraq. This agreement ensured the entrenchment of British forces in Iraq to protect these new vital interests, but it also began the process of Iraq’s entry into the League of Nations by ending the mandate system.6 Despite the apparent promise of independence, there was widespread opposition to the new treaty and to the continued British imperial presence. British indirect rule was characterized by a disinterest in Iraqi sovereignty and popular representative government. Indeed, British officials intended that Iraq simply ‘rub along in a corrupt, inefficient, oriental sort of way, something better than she was under Turkish rule’.7 In 1941 the Iraqi military launched a coup to end British influence in the country. In response Britain reinstalled by force Nuri es-Said and Faisal’s successor, Prince Abdul Ilah. The British recognized the ever-present threat of social revolution in Iraq, which manifested in 1948 in full-scale rebellion, but which was suppressed largely by the repressive policies of Said.8 The revolution finally came 2

See Art 3(2) of the Treaty of Lausanne 1923. See further Rashid Khalidi, Resurrecting Empire: Western Footprints and America’s Perilous Path in the Middle East (Beacon Press, 2004). 4 At the Cairo Conference of 1920. 5 Deposed by the French in their effort to engage in direct rule over their mandate in Syria. 6 Phebe Marr, The Modern History of Iraq (3rd edn) (Westview Press, 2012) 33. 7 Henry Dobbs, letter to Shuckburgh at the Colonial Office, 28 December 1929, PRO CO730/ 150/12, 1929 Iraq, 4–5 cited in Usha Natarajan, ‘Creating and Recreating Iraq: Legacies of the Mandate System in Contemporary Understandings of Third World Sovereignty’ Leiden Journal of International Law 24 (2011) 799–822 at 810. 8 Kyle (2003) 58. 3

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in 1958 when the army, apparently inspired by Nasser and the Free Officers Movement of 1952, took control of government and ended the Baghdad Pact alliance. The bodies of Nuri es-Said and the King and Crown Prince ‘were dragged naked round the town’.9 In fact, Said had warned at the time of Suez that British actions—particularly the suspicion of collusion—would make his position, and Britain’s continued influence, untenable.10 In the wake of revolution, Britain, and now the United States, sought to reassert influence over Iraq, not least to protect its vital oil interests.11 Another crucial determinant of Western policy towards Iraq was the US-led policy of containment and the dominance of the Cold War paradigm. This demand for influence over Iraq drew on the colonial legacy but sought to use more sophisticated methods of indirect rule. There is strong evidence that the CIA sponsored Saddam Hussein’s early coup attempts in the 1960s and that this policy of covert regime change was a key limb of containment of Soviet influence and ensuring access to Iraq’s vast oil reserves.12 These contexts also found expression in Western policy towards the Iran–Iraq War during the 1980s. The United States initially backed Iran in the war against Iraq, despite the fact that the Iranian Revolution of 1979 was hostile to US policy, and the fact that US embassy staff had been taken hostage. The reason for this support was Soviet containment: Saddam Hussein was using Soviet-supplied weaponry against the Iranians.13 However, as the war continued, the United States became increasingly concerned about the Basra region of Iraq. This area was the world’s largest oilproducing area and the United States feared it would be subject to an Iranian theocracy. In 1987 the United States therefore began to supply weapons and military aid to Iraq. Within a year Iran and Iraq agreed to comply with UN Security Council Resolution 598 calling for a ceasefire. Both had suffered huge numbers of casualties and Iraq in particular was economically destroyed. Saddam Hussein believed that he had fought the war on behalf of all Arab nations and expected relief from the debts incurred in fighting the war. Kuwait, he alleged, had violated the OPEC quotas agreement to regulate oil production, oversupplying the market with its oil, thereby reducing Iraq’s capacity not only to meet its debt obligations, but to rebuild economically.14 Less than a month before the invasion of Kuwait on 2 August 1990, US ambassador April Glaspie had a meeting with Saddam. He told her that Kuwait’s borders were drawn in colonial days and that he had always been an anti-colonialist. 9 Wright to Selwyn Lloyd (FO), Immediate Secret, 17 July 1958, PRO FO 371/134199 cited in Louis (2006) 874. 10 Louis (2006) 397. 11 Marion Farouk-Sluglett and Peter Sluglett, Iraq Since 1958: From Revolution to Dictatorship (3rd edn) (IB Tauris, 2003). 12 Farouk-Sluglett and Sluglett (2003); and Salim Yaqub, Containing Arab Nationalism: The Eisenhower Doctrine and the Middle East (North Carolina University Press, 2004). 13 See Mark Phythian, Arming Iraq: How the U.S. and Britain Secretly Built Saddam’s War Machine (Northeastern University Press, 1996) esp 24–9. 14 Bishara A Bahbah, ‘The Crisis in the Gulf—Why Iraq invaded Kuwait’ in Phyllis Bennis and Michel Mousabeck (eds), Beyond the Storm: A Gulf Crisis Reader (Olive Branch Press, 1991) 50–4.

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According to Robert Fisk, she replied: ‘We studied history at school . . . They taught us to say freedom or death. I think you know well that we . . . have our experience with the colonialists. We have no opinion on the Arab-Arab conflicts, like your border disagreement with Kuwait.’ In a post-war press interview, Glaspie admitted that the Americans had ‘never expected [Iraq] would take all of Kuwait’, but appeared to have expected at least a chunk of Kuwait to be annexed.15 Indeed, the Secretary General had been made aware of Iraq’s, primarily, economic grievances against Kuwait in July 1990.16 Despite this behind-the-scenes ambivalence towards proposed aggression against Kuwait, the United States immediately condemned the invasion and the UN Security Council quickly followed suit.17 In the ensuing months, the Security Council imposed economic measures18 and eventually authorized the use of military force to end Iraq’s occupation of Kuwait.19 Yet, it transpires that during the period between November 1990 and January 1991, Saddam Hussein had signalled his acceptance of diplomatic negotiation. The problem, as he conveyed it to the Secretary General Perez de Cuellar, was that the Americans were not interested in a ‘neutral’ policing operation, they demanded continued military presence. It was this shifting of the goal posts, and the American disinterest in a diplomatic solution, that arguably led to the launch of coalition forces against Iraq.20 Following the ensuing Gulf War, a series of ‘ceasefire’ resolutions21 were passed by the Security Council which sought to impose reparations and demilitarization of the Iraqi state.22 As part of the programme of disarmament, several resolutions imposed sanctions and weapons inspections. This resulted in periodic re-assessment of the disarmament situation in the form of reports by the International Atomic Energy Agency (IAEA) and weapons inspections team (UNSCOM) to the Security

15 This account is relayed in Robert Fisk, ‘Saddam Hussein: The Last Great Tyrant’ in the Independent, 30 December 2000. 16 Bahbah (1991) 54. 17 Resolution 660 (1990) Adopted by the Security Council at its 2932nd meeting, on 2 August 1990 (S/RES/0660 (1990)). 18 See S/RES/0665 (1990) (25 August); S/RES/0666 (1990) (13 September); and S/RES/0670 (1990) (25 September). 19 S/RES/0678 (1990) 29 November 1990—authorizing the use of force following the passage of the 15 January 1991 deadline. 20 Phyllis Bennis, ‘False Consensus: George Bush’s United Nations’ in Bennis and Mousabech (1991) 112–26 at 121. 21 The objection to the earliest ‘call for an end to hostilities’, Resolution 686, in March 1991 was that it did not call for a ceasefire. Further, Resolution 687 imposed such hostile conditions, that the Yemeni Ambassador, al-Ashtal, remarked that this ceasefire was a continuation of war, not peace. Resolution 687 would also claim to resolve the disputed border between Iraq and Kuwait, unresolved since 1963, which Iraq and other Security Council members argued ought to be decided by the International Court of Justice. See on these issues Bennis (1991) 124–5. 22 The relevant resolutions were: S/RES/678 (1990) ‘Authorizes Member States . . . to use all necessary means’ to bring Iraqi compliance with previous resolutions demanding an end to invasion; and S/RES/687 (1991) declaring a formal ceasefire, sanctions, and UNSCOM regime of weapons inspection.

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Council. These were interrupted on numerous occasions by Iraqi suspensions of inspections and US and British uses of force to impose compliance.23 Iraq presented a long-standing ‘problem’—an ‘object’ of Security Council authority—having been subject to UN-authorized use of force by Allied forces in 1991 and recurrent uses of force, notably in 1993 and 1998. These recurrent military actions were deeply contested among Council members but did not appear to generate sustained public discourse either in the United Kingdom or other European countries. What does seem to have been a strong catalyst for public debate, and for behind-the-scenes war planning, was the rhetoric of the ‘War on Terror’ following the 9/11 terrorist attacks.24 The bombing of Afghanistan did not prove nearly as divisive as Iraq but the attempt made by US officials to link Iraq and terrorism was strongly rejected in Europe and Britain (though it did prove persuasive to American public opinion). The terror rhetoric and that of the ‘axis of evil’ (Iran, Iraq, and North Korea) coined in Bush’s State of the Union address on 30 January 2002, served to challenge publicly the US policy of containment and signalled a shift in foreign policy. The Crawford meeting between Bush and Blair in April 2002 signalled a ratcheting up of war rhetoric. In July 2002, Bush’s statement that Iraq posed an ‘imminent threat’ to the United States and the world served as the catalyst for sustained public discourse over the prospect of war.25 The announcement of an ‘Iraq Summit’ between the United States and Britain also signalled impending military action.26 Given this background, the analysis of policy discourse begins slightly earlier than the systematic analysis of public discourse.

4.2 Policy discourse The war on Iraq was a war of choice which, as a consequence, provoked more public debate than is usual.27 In the private sphere of government decision-making and legal advice, this question of choice—getting rid of Saddam—was the focus of discourse. One strategy was to accept that a choice existed and then persuade public opinion that that choice was necessary to ensure freedom and security. This strategy could be dovetailed with the narrative of the ‘War on Terror’. The strategy was more successful (in terms of public support for invading Iraq ‘alone’ if necessary) in the United States than Britain, in large part because of the recent 9/11 terrorist 23 For example S/RES/1154 (1998) violation by Iraq of the UNSCOM and IAEA efforts would have ‘the severest consequences’; S/RES/1205 (1998) decided that Iraq’s ceasing of cooperation was a ‘flagrant violation’ of 687. 24 For a detailed account of the terror narrative as rhetoric see Herbert W Simons, ‘Rhetoric’s Role in Context, Beginning with 9/11’ Rhetoric & Public Affairs 10(2) (summer 2007). See other articles in the same volume, Smith (ed), Special Issue: ‘Rhetoric and the War in Iraq’. 25 Bush’s statements to US military as reported in the Observer, 21 July 2002, ‘Bush rallies US for strike on Iraq’. 26 The Observer, 14 July 2002, ‘PM and Bush plan Iraq war summit’. 27 For a detailed discussion of the impact of ‘choice’ on debate, see George Packer, The Assassin’s Gate: America in Iraq (Farrar, Straus, and Giroux, 2005).

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attacks.28 These attacks created a siege mentality, which allowed for the predominance of ‘crisis rhetoric’ which presented conflict in the simplistic terms of pure good versus pure evil.29 At the start of 2002, the Bush administration took the opportunity to sketch out a new foreign policy which rejected containment, and which characterized a number of ‘rogue states’ as an ‘axis of evil’.30 The US ‘public education strategy’ was therefore premised on framing choice as necessary to protect domestic fundamental freedoms. In Britain, that framing strategy was deployed, but was not so successful. In private, policy- and decisionmakers were led by the US policy position. They discussed how to dress up the question of choice, whilst openly recognizing the fact that ‘the international community would find it difficult to stand in the way of the determined course of the US hegemon’.31 This meant a concerted effort to prepare public opinion by emphasizing the threat posed by weapons of mass destruction (WMD) and affirming the necessity of UN inspectors and Security Council action. It appeared that the hidden goal was regime change, but the stated objective would be compliance with UN disarmament. The leaking of secret government documents and legal advice shortly after invasion may be an indicator of the strength of opposition to Britain’s decision to invade Iraq and of the concern in Whitehall at the way decisions were taken. The timing of the leaks was also critical. The first batch of memos was leaked to the Daily Telegraph Defence Correspondent Michael Smith in September 2004. These related to policy considerations in the run-up to the April 2002 Summit at Crawford between President Bush and Tony Blair. However, it was the second batch, received immediately prior to the May 2005 General Election, and first printed in the Sunday Times on 1 May 2005 (Michael Smith had by this time moved over from the Daily Telegraph), that caused domestic and international outcry.32 In its assessment of the election outcome, the Sunday Times suggested that anger at the war had been one reason for the smaller government majority, but did not directly attribute the election result to the leaked documents.33 The paper instead focused on how the leaks had generated a huge internet response, and were being picked up by American activists and politicians. 28 For an analysis of how 9/11 played to the interests of neo-conservatives and of others in the Bush administration who had long campaigned for forceful removal of Saddam Hussein, see Packer (2005), Chs 1–4. See also James Mann, Rise of the Vulcans: The History of Bush’s War Cabinet (Viking, 2004). 29 Elisabeth Anker, ‘Villains, Victims, and Heroes: Melodrama, Media, and September 11th’ Journal of Communication 55 (2005) 22–37. For a more general discussion of the effect of crisis rhetoric, see David Domke, God Willing: Political Fundamentalism in the White House (Pluto, 2004). 30 See President Bush, State of the Union Address, 30 January 2002. Text available at the New York Times . 31 Cabinet Office Briefing Paper, Iraq: Conditions for Military Action 21 July 2002, published in the Sunday Times, 12 June 2005; see also full documentary archive of the Downing Street Memos at . 32 For Michael Smith’s account and analysis of the memos, see . 33 See Sunday Times, 12 June 2005, ‘The leak that changed minds on the Iraq war’ by Michael Smith.

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Later in 2005, Channel 4 obtained confirmation of the request for early retirement of a senior legal adviser, Elizabeth Wilmshurst, from the FCO. Though the full reasons for her decision to retire early were not confirmed until she gave evidence before the Chilcot Inquiry in January 2010, the part-published letter served to demonstrate the extent of legal opposition within Whitehall. The evidence from Sir Michael Wood and statements by other leading international lawyers before the Chilcot Inquiry provided further demonstration of the splits in policy circles over legality. Consideration is given to the advice tendered by the FCO legal advisers and by the Attorney-General, whose apparent change of opinion became the subject of so much public speculation immediately before the invasion in March 2003.

4.2.1 Government decision-making behind closed doors The ‘problem’ of Iraq, like Nasser’s Egypt, did not erupt overnight but was the subject of long-standing policy discourse and formulation. Nevertheless, it does appear that before the Bush Administration took office in January 2001, and certainly before the terrorist attacks of 9/11, British policy was to pursue containment.34 Crucial to the shift in policy were two factors that find traces in the evidential record and media reporting. The first was the British government’s commitment to following US policy, an issue explored further below. Second, and significantly, was the demonstrable shift in the tenor of intelligence produced for government, particularly throughout 2002. The reliance placed on intelligence did not appear, however, to precede private policy formulation and discussion between a small group of government Ministers and officials. Indeed, the subsequent criticism of this period of policy formulation and its public presentation centred on the way policy appeared, in many ways, to lead intelligence production and that this then produced a kind of ‘vicious cycle’ of misperception as to the threat posed by Saddam Hussein’s Iraq. What is striking when considering the documentary record and evidence before the Chilcot Inquiry is the nature of government dealings with intelligence officials, particularly when compared with, say, legal advisers. There were numerous personal meetings between No. 10 and members of the Joint Intelligence Committee,35 mostly Dearlove himself, whereas face-to-face meetings between government and legal advisers were rare.36 Clare Short, in her evidence before the Chilcot Inquiry, and with reference to the Attorney-General’s evidence that he was excluded from many meetings, considered that the exclusion from meetings was a form of pressure on legal advisers.37 This structural aspect to the conduct of 34 See for instance Sir Richard Dearlove’s transcript of private evidence (part 1) before the Chilcot Inquiry, 4. 35 For a government-produced explanation of the ‘intelligence’ framework in government, see The National Intelligence Machinery (2001) available at . 36 The nature of government–legal advisers relations during the 2002–03 period is discussed in detail in the next section. 37 Clare Short, Transcript of Evidence, 2 February 2010, 26, Chilcot Inquiry.

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policy-making during Iraq is striking. It also raises the question of how such conduct was translated for public consumption: the absence of regular meetings with legal advisers which might have acted as reins or oversight over policy; compared with the continual briefings and documentary correspondence on intelligence which was deployed as yet further evidence of the immediate threat posed by Saddam Hussein. In addition, the quality of intelligence appeared to change over the course of policy consolidation amongst key government officials during 2002. For instance, Dearlove made plain in his private evidence to the Chilcot Inquiry that in 2001 the intelligence on Iraq was ‘sporadic’.38 Following the meeting between Bush and Blair in April 2002 at Crawford, Dearlove had a meeting with the Prime Minister concerning the alleged links between Iraq and Al-Qaida. In Dearlove’s heavily redacted evidence it appeared that the tenor of the intelligence was that there was ‘no cooperation’ between Al-Qaida and Iraq.39 In relation to biological and chemical weapons, he said that during the summer of 2002 there was a steady build-up of intelligence on that front. By the time of the writing of the ‘September dossier’ (produced to ‘make the case for war’, more on which follows in the discussion of public discourse), there was ‘certainly more substance available than some of us had expected’.40 It is puzzling that Dearlove characterized this influx of material as more than had been expected. On 18 March 2013, BBC Panorama broadcast ‘The Spies Who Fooled the World’ in which the intelligence ‘trail’ was the subject of investigation.41 The programme pointed out that in the wake of the public shift in US policy intelligence was actively sought, both in the United States and the United Kingdom, from sources in foreign jurisdictions, including in Germany, which had already been treated as lacking in credibility and likely unreliable. In the 2004 Butler Report, the Committee hinted at precisely the problem that appeared to emerge in the formulation of intelligence-based policy over the threat from Saddam Hussein. It noted that the process of assessing intelligence ‘must be informed by an understanding of policy-makers’ requirements for information, but must avoid being so captured by policy objectives that it reports the world as policy-makers would wish it to be rather than as it is’.42 Given the revelations of the BBC Panorama programme of March 2013 as to the two prime sources relied upon by the Secret Intelligence Service (SIS), it now seems rather over-generous of the Butler Committee to have concluded that these sources were ‘believed at the time to be reporting reliably’.43 This is particularly so in light of the frank recollection of

38

Dearlove, Transcript of Evidence part 1, at 4, Chilcot Inquiry. 40 Dearlove, at 37, Chilcot Inquiry. Dearlove, at 36, Chilcot Inquiry. This programme was by no means the first time that questions had been raised about the nature and quality of intelligence but it revealed for the first time the main sources of intelligence on Iraq and engaged interviews with foreign ministers and intelligence officials that cast significant doubt on British intelligence services. Further, the Butler Review had considered the intelligence at length in its report of 2004. 42 Review of Intelligence on Weapons of Mass Destruction, Lord Butler (the ‘Butler Report’) (HMSO, July 2004) para 58. 43 Butler Report (2004) para 355. 39 41

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the Head of German Intelligence that he personally made plain to SIS the lack of reliability of one of these sources.44 So much for the intelligence picture; what of the evidence of government policy? As in Suez, the publicly available evidence demonstrates there was a clear government policy of regime change, and that secret preparations for war had begun as early as March 2002. The purpose of regime change was to ensure ‘control over Iraq’s future’ by ‘imposing a new government’.45 The first consideration policymakers had to consider was what sort of Iraq they wanted.46 Although the March 2002 ‘Iraq Options’ paper acknowledged that there was no greater threat posed by Saddam’s apparent WMD than in the recent past, and that evidence was insufficiently robust to convince the Security Council of a breach of Resolution 687, it stated that the US had lost confidence in containment. In a subsequent letter to Jack Straw (Foreign Secretary), Peter Ricketts47 explained that the truth was that what had changed was not the pace of the WMD programme, but the tolerance of them post-11 September. He admitted that as far as intelligence was concerned, the programmes had not in fact been stepped up at all.48 This therefore represented a policy shift and it seems that in order to legitimate such a shift, legal justification was sought. Ricketts’ advice was that, given the clear illegality of following a policy of regime change, the government would find it easier to justify it in terms of international law by ‘de-personalis[ing] the objective’ by focusing on ‘elimination of WMD’, and showing that the government was ‘serious about UN Inspectors as the first choice means of achieving that’.49 This would help ‘sensitise the public’, through a media and information campaign, to the threat posed by Saddam.50 It would also ensure European support and position Iraq as a ‘problem for the international community as a whole not just for the US’.51 The framing of the problem as one for the United Nations would mean that any disagreement among members would likely result in recriminations and claims that it was failing in its duty to maintain peace and security. This strategic framing demonstrated a far more sophisticated approach to public opinion control and information management than Eden’s attempts during the Suez Crisis. Another striking aspect of decision-making revealed by leaked memos and declassified documents, is how deeply ‘Presidentialized’ was the decision-making process. There was no discussion of how or whether to get Cabinet members on board. Although this study is reliant on a partial documentary record, the dismissive attitude to Cabinet decision-making is attested to by Robin Cook’s diary notes and BBC Panorama, ‘The Spies Who Fooled the World’, 18 March 2013. Text of the Iraq Options Paper, Memo from Overseas and Defence Secretariat, Cabinet Office, 8 March 2002, Downing Street Memos. 46 Iraq Options Paper, 2002 . Downing Street Memos. 47 Political Director, UK Foreign & Commonwealth Office. 48 Letter Peter Ricketts to Jack Straw, 22 March 2002 regarding advice to relay to the Prime Minister, Downing Street Memos. 49 Ricketts letter 22 March 2002, Downing Street Memos. 50 Iraq Options Paper, 8 March 2002, Downing Street Memos. 51 Ricketts letter 22 March 2002, Downing Street Memos. 44 45

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comments by Clare Short, two members of the government. Both complained that members’ advice was never sought and that Blair avoided meeting until after decisions had been taken.52 In her evidence before the Chilcot Inquiry, Short explained that Cabinet meetings were ‘very short’, often without papers, and more in the form of ‘chats’; that they did not work in the way that ‘constitutional theory’ expected.53 She did not recall that any ‘substantive discussion’ had taken place in Cabinet in March 2002, when government policy was said to have started to shift.54 Her evidence was significant because in earlier testimony before the Inquiry, Tony Blair claimed that at that time there had been ‘substantive discussion’ of the Iraq policy framework, but not the specifics of the Iraq Options paper.55 The 2004 Butler Report commented that without the benefit of documents being distributed with enough warning, Cabinet was unable to bring individual expertise and viewpoints to bear on government decision-making.56 In her evidence, Short said she believed Butler had been right to discuss this period as one of ‘sofa government’.57 It appeared that Blair’s decision-making circle was extremely small and that, according to Short’s evidence, he failed to consult ‘Arabist’ experts in the FCO because he knew they would disagree with his views on Iraq.58 Tony Blair’s personal role needs further exploration, not least because many statements, particularly the ‘45 minute’ claim59 had an influence on press coverage and public opinion. One significant reason for this was that he staked his personal prestige and reputation on the decision to go to war, both in the build-up to invasion and, most notably, in the aftermath (and indeed years later). His personal ‘honour’ and openness about emotions was a characteristic feature of the way he dealt with criticism over the whole period of his leadership. For instance, in November 1997, immediately following his election which had promised a new way of doing politics, he was accused of accepting inappropriate Formula One motor racing donations in an early scandal which threatened his credibility. He responded that he had been ‘hurt and upset’ by the allegations and that people who knew him thought ‘he was a pretty straight kind of guy’.60 During public discourse, Blair presented himself in the media as a man trying to ‘do the right thing’ in difficult circumstances. For instance, he appeared on Newsnight on 6 February 2003 and said ‘I don’t feel that I’m doing the wrong thing and 52 See Robin Cook, Point of Departure (Simon & Schuster, 2003) esp. 115–6, recalling events on 7 March 2002. See also reference to Clare Short in Phythian (2007) 136. 53 Clare Short, 2 February 2010, Transcript of Evidence, 3, lines 12–21, Chilcot Inquiry. 54 Short, 2 February 2010, Transcript of Evidence, 3–4, Chilcot Inquiry. 55 Tony Blair, 31 January 2010, Transcript of Evidence, 22, lines 9–14, Chilcot Inquiry. 56 Butler Report (2004), Ch 7.4 ‘Machinery of Government’ 146–8 in particular para 610 (available at ). 57 Short, 2 February 2010, Transcript of Evidence, 4, line 1, Chilcot Inquiry. 58 Short, 2 February 2010, Transcript of Evidence, 20, lines 19–24, Chilcot Inquiry. 59 Blair made the claim that Iraq’s weapons could be launched within 45 minutes of an order, implying that this posed a direct international threat. See Tony Blair, 24 September 2002, HC Deb (2001–02) vol 390, cols 1–7. 60 Tony Blair interview on BBC 1 On the Record, 16 November 1997; covered by, for example, the Independent, 17 November 1997, ‘Blair: I think I’m a pretty straight sort of guy’.

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I may not be doing the easy thing but I do believe I’m doing the right thing’. He continued that he faced a tough decision here, not least because the country was also facing a threat from terrorism. He went on that even if he was the only person left saying it, he would say it.61 The huge public opposition he faced now played to his advantage in that he portrayed himself as a principled man under siege. He staked his personal prestige on making a hard choice. He supported this by referring to secret intelligence which made him convinced of the case against Iraq. This was personality plus privileged access to information. This was also almost a direct corollary to Eden’s use of his image as man of peace and man of the United Nations. It reinforced the significance of personality and reputation on the course of decision-making and public discourse. This is something that remains unaccounted for in the theoretical consideration of justificatory politics. It seems that either decision-makers publicly emphasized their law-abiding credentials, or they appealed to their internal morality and sense of duty for legitimacy. In each case, international law provided the language and tools for persuading public opinion, rather than necessarily acting as a constraint on policy-making. An additional aspect of decision-making that did not make it into the public domain, but which was suspected by the press, commentators, and activists against the war, was the extent of war planning. Indeed, many in Cabinet did not know of the full extent of the government’s war planning. The leaked memos indicate how legal justification would fill the gap in ‘lead time’ which was considered to be six months to a ground offensive, and allow the government to establish international support, build up the pressure on Saddam, and sensitize the public to war. As early as March 2002 the government was preparing to create the impression of a staged approach and to avoid any suggestion that war was inevitable (contrary to their private conclusions).62 By July 2002, British officials had concluded that Washington now saw military action as inevitable: regime change would be justified by the conjunction of terrorism and WMD.63 The United States wanted to start a military campaign as early as November 2002 but British officials judged it would be unlikely to start until January 2003.64 This was due to the time needed to reach consensus in Washington and for climatic (ie military, logistical) reasons. The British government should therefore use this time to give full coverage to the threat posed by Saddam.65 British officials suggested that the intelligence and facts needed to be fixed around the policy.66

61 Newsnight, 6 February 2003, transcript available at . 62 Iraq Options Paper, Memo from Overseas and Defence Secretariat, 8 March 2002, Downing Street Memos. 63 Memo re: Prime Minister’s Meeting, 23 July 2002, Matthew Rycroft, Downing Street foreign policy aide to David Manning, UK Foreign Policy Adviser, 23 July 2002, Downing Street Memos. 64 Cabinet Office Briefing Paper, 21 July 2002, Downing Street Memos. 65 Cabinet Office Briefing Paper, 21 July 2002, Downing Street Memos. 66 Memo, 23 July 2002, Rycroft to Manning, Downing Street Memos.

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The Times, political briefing on 25 July 2002 is testament to how little public knowledge there was, even among normally well-briefed journalists, as to the extent of war planning set out in the documentary record. The briefing asserted that ‘despite all yesterday’s conspiracy theories [a reference to Prime Minister’s Questions the day before and a Parliamentary Labour Party meeting] there is no evidence that the United States either on its own or with allies, is likely to attack Iraq over the next three months . . . such action would involve a lengthy and visible build up. So there would be ample time for Parliament to be recalled [for consultation]’.67 Unlike the Suez Crisis, we do not yet know the source of this report. Was it ‘sanctioned’ or even promoted by government sources? Was this self-censorship? Whatever the source, the conspiracy theories were, apparently, right. In fact, the memos demonstrate that the United States had already begun military ‘spikes of activity’ to put pressure on Saddam’s regime.68 Further, they also prove that a timetable for military action had already been set. Initially the United States had wanted a November campaign, but political and logistical reasons had delayed this until January 2003. The claim that military action could be launched within three months was not therefore conspiracy theory. Further, Tony Blair’s claim in front of the House of Commons Select Committee on Foreign Affairs on 23 July 2002 that the country had not yet reached the point of decision on military action was, at the very least, linguistic gymnastics.69 When questioned by Sir Martin Gilbert before the Chilcot Inquiry, Blair sought to justify his comment, that ‘no decisions had been taken’. Gilbert had raised the fact that many decisions had, of course, been taken, including military and US liaison planning. Blair explained that the problem was that the government did not want people thinking they were going down a path to war: ‘[the] trouble was people kept writing, “They have decided. They are off on a military campaign and nothing is going to stop them”’.70 In his evidence, he stated that Britain was committed to getting America to go through the United Nations and get a resolution, but that he knew it might be difficult to get the Security Council to agree. Whilst this is one interpretation of the leaked memos and de-classified documents, it is also an example of the public face of policy planning, which was committed to regime change and supporting the United States at all costs. On this crucial issue, the private messages between Bush and Blair would have been immensely helpful in assessing the credibility of Blair’s explanation to the Inquiry, yet these remain classified. One further aspect of decision-making that is reflected in the memos and Chilcot evidence was the attitude towards UN inspectors and the strategy of seeking a Security Council resolution.71 Jack Straw believed that a new mandate would 67

TheTimes, 25 July 2002, Political Briefing, 11. Rycroft to Manning, 23 July 2002, Downing Street Memos. 69 For reports of Blair’s comments before the Committee see the Daily Telegraph, 26 July 2002, ‘Blair refuses to promise vote on Iraq’, 4, and TheTimes, 26 July 2002, ‘Invasion of Iraq is not imminent, says Blair’, 12. 70 Blair, 31 January 2010, Transcript of Evidence, 93, Chilcot Inquiry. 71 Not the ‘second resolution’ which became such a prominent aspect of public debate, but the private considerations involved in seeking to obtain agreement among Council members to set a 68

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strengthen the legal case for war and would also protect against the danger of a draft resolution against military action with 13 in favour and two vetoes against, which would play ‘very badly’ in Britain.72 This reflected legal advice that did not support the US contention that implied authorization from previous resolutions could be a basis for military action.73 The government decided that the strategy would be to invoke the legitimacy of the United Nations by setting a new deadline leading to an ultimatum. As a first step, an ultimatum could be drawn up in terms which Saddam Hussein would inevitably reject but which did not appear unreasonable to the international community.74 This rejection of an ultimatum could provide the pretext for war in strikingly similar fashion to the ultimatum constructed by Eden’s government during the Suez Crisis. This rhetorical ‘formula’ highlights the dubious relationship between legal justification and private motivations. However, in the event that Saddam Hussein did agree to the re-admission of inspectors, the government believed that his inevitable fettering of access—to be determined by the interpretive authority of war planners—would also provide justification for military action as evidence of breach.75 The policy position that a breach could allow the lawful use of force without a further ‘authorization’ did not strictly follow legal advice which, until 7 March 2003, indicated that a second resolution, in addition to Resolution 1441, would likely be necessary to ensure action was lawful.76 Moreover, the government clearly recognized that inspectors would need time to establish the monitoring and verification system under Resolution 128477 which was likely to hinder any plans for early deployment of forces. They acknowledged it would take at least six months, so that even if they began today (ie 23 July 2002), by January 2003 they would only just be completely set up. The briefing concluded that once fully operational, Saddam Hussein would inevitably obstruct its operation which, again, would provide the pretext for military action.78 It appears that policy-makers were therefore convinced of the need to go through the United Nations, not because of any particular socialization to international norms and normative regimes per se. Or, in other words, socialization towards ruleguided behaviour does not take us very far as an explanation for why legal deadline and ultimatum for Saddam Hussein to comply with disarmament (which became Resolution 1441, agreed on 15 November 2002). 72 Jack Straw to Tony Blair, 25 March 2002 Downing Street Memos. 73 See Sir Michael Wood’s letter to the Private Secretary, dated 26 March 2002, Chilcot Inquiry. Note also this was circulated to the ‘News Department’ as it made reference to the fact that Ministers ought not to be drawn on legal arguments until the advice of the Attorney-General had been sought. The inclusion of the News Department suggests that this need for obtaining legal advice could have been relayed in press briefings or more informally to journalists. 74 Cabinet Office Briefing Paper, 23 July 2002, Downing Street Memos. 75 Cabinet Office Briefing Paper, 23 July 2002, Downing Street Memos. 76 See Wood to Catherine Adams (Attorney-General’s Office), 9 December 2002, Chilcot Inquiry, and Wood to Foreign Secretary ‘Iraq: Legal Basis for the Use of Force’, 26 January 2003, Chilcot Inquiry. See also Attorney-General, Draft Advice ‘Iraq: Interpretation of Resolution 1441’, handed to the Prime Minister on 14 January 2003, Chilcot Inquiry, in particular the conclusion at para 13 that ‘1441 does not revive authorisation to use of force’. 77 S/RES/1284 (1999) . 78 Cabinet Office Briefing Paper, 23 July 2002, Downing Street Memos.

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justification was pursued. Instead, theirs appeared to be a rhetorical strategy deployed to ensure the validity of their legal justification for going to war: a claim to internationalized authority to discipline Iraq. The coalition allies needed a more recent Security Council resolution to rely on a reviving authorization to use force (see legal advice below). The leaked memos and Inquiry evidence therefore demonstrate the conscious utilization of the Council’s procedures to enhance domestic and international authority and legitimacy and conceal other motivations for military action, namely regime change. This utilization arguably demonstrates not simply rhetorical manipulation but also an apparently deep-seated belief that opinion would need convincing and that the United Nations would be a legitimate means of convincing such opinion. The significance of the United Nations gives us a window into the perception of legitimacy and authority manifest in the international institution, a theme that resurfaces towards the end of this chapter. One final consideration refers back to personality, this time not with reference to the style of government but, perhaps, the ‘style’ of foreign policy and relationship to hegemony. According to Robin Cook, a primary motivation for choosing war was to demonstrate to the United States that Britain was its closest and most reliable ally.79 In fact this reflected as much the personal preferences of Tony Blair as much as general policy. An unnamed Cabinet member claimed that ‘supporting the Americans was part of Tony’s DNA’.80 This policy preference was not, therefore, a hidden motivation. Blair was explicit in his support for the Americans throughout the Iraq discourse. On 24 September 2002 Blair told the House of Commons that he had always believed (but believed it more strongly following the terrorist attacks) that the British ability to partner America in difficult times was in the country and wider world’s best interests.81 This wider frame in which Blair consistently linked American, British, and world interests would become a key feature of his public justifications. It seemed to lay the groundwork for developing another shift in policy, this time towards pre-emptive self-defence in line with elements of the Bush Doctrine. Whilst this was one aim of the government’s policy on Iraq, Blair and several of the ‘war planning’ Ministers were well aware of the challenges in meeting their public goal of a legally justified war. The next section considers the advice that was provided to government and how this advice filtered into legal justifications made in public.

4.2.2 Whitehall and the legal advisers The wider role of Whitehall departments in the formulation of policy over the Iraq War is somewhat difficult to trace given the partial view provided by the current public evidence. Yet, a clear picture has emerged about the role of legal advisers and 79 Robin Cook, BBC Panorama, Iraq: Tony & the Truth broadcast 20 March 2005. Transcript available at . 80 Mark Phythian (2007) 134. 81 Prime Minister Blair, 24 September 2002, HC Deb (2001–02) vol 390, col 21.

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government’s responses to advice. These sources are the legal advice tendered to government over the course of 2002 and early 2003, and the intelligence provided to government over the same period (already discussed above). The picture that emerges is one in which legal advisers appeared to represent a challenge to legal justification and to the formation of policy on Iraq, whilst intelligence briefings provided the substance with which to persuade public opinion of the threat posed by Iraq. The consideration of legal advice not only focuses on the evidence of what these sources provided to government, but also how these sources were treated by government. For instance, there seems to have been an active avoidance of legal advisers, with few face-to-face meetings; whereas intelligence officials had regular meetings with the Prime Minister, as well as passing volumes of material in documentary form. On 26 March 2002 Sir Michael Wood wrote to Jack Straw’s Private Secretary to give an early indication of his views on the legal issues in relation to using force against Iraq. Whilst this was not ‘formal advice’ he made plain that self-defence was not a realistic prospect as none of the conditions—armed attack or an imminent attack—could be met, and that to act under authorization of the Security Council would require a new resolution, as reliance could not be placed on a 1990 resolution. He said that a legal argument premised on existing authorization would ‘find no support’.82 In any case, he was glad to see that the Foreign Secretary was ‘avoiding being drawn into legal issues’ and that the Attorney-General’s advice would have to be sought ‘before Ministerial decisions on actions or public statements’.83 Yet it seems that other Ministers were being drawn into the legal issues which led advisers to correct some of the legal positions set out in television interviews, press statements, and Parliamentary debates. In a sense, this was a kind of private ‘policing’ of legal justification to ensure that any statements made were in accordance with advice. On 28 March 2002, for instance, the Attorney-General wrote to Geoff Hoon, Defence Minister, following Hoon’s interview with Jonathan Dimbleby. Goldsmith had ‘read the transcript’ and noted that Hoon had stated that the United Kingdom would be ‘perfectly entitled to use force without a specific United Nations resolution and that there was no legal necessity to go back to the Security Council’.84 Goldsmith emphasized that the Law Officers’ opinion had not yet been sought and that he had therefore not offered any view. Goldsmith was concerned that the ‘authoritative way’ Hoon had addressed legal justification put him (Goldsmith) ‘in a difficult position’.85 In order to reach a definite view, the Attorney-General said he would first need to consult advisers in the FCO, Hoon’s own Ministry, the political and military assessments of senior Ministers, and the underlying intelligence and other material. At this stage, Goldsmith warned that he saw no basis for legal justification for force 82 83 84 85

Sir Michael Wood’s letter to the FO Private Secretary, 26 March 2002, Chilcot Inquiry. Sir Michael Wood’s letter to the FO Private Secretary, 26 March 2002, Chilcot Inquiry. Goldsmith to Hoon, 28 March 2002, Chilcot Inquiry. Goldsmith cc’d Jack Straw at the FCO. Goldsmith to Hoon, 28 March 2002, Chilcot Inquiry.

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premised on self-defence, and he foresaw real difficulties in justifying action through collective security without authorization by the Security Council. He repeated previous advice provided in 1997 to the same effect in relation to the Council authorization point.86 Legal justification for military action in Iraq would therefore be reliant on evidence that Saddam Hussein’s weapons programme posed a significant and immediate international threat. Evidence of past behaviour could be used to bolster the argument that Saddam posed such a threat but government lawyers emphasized the need for incontrovertible proof, preferably from inspections, because intelligence was so poor and as things stood from March 2002 until at least July 2002, remained unconvincing.87 In the absence of a credible threat any argument in favour of using force, whether through the Security Council or, even more speculatively, on the basis of self-defence, could not be sustained. As to the argument that existing Security Council resolutions provided authority to use force, there was an about-turn by the Attorney-General which became the source of widespread conjecture and controversy. In his Advice of 30 July 2002 he was clear that the existing resolutions on Iraq could not amount to authorization to use force because of the passage of time.88 In the draft Advice that Goldsmith circulated to the Prime Minister and other restricted recipients on 14 January 2003, he maintained that Resolution 1441 could not be the legal authority for using force. Somewhat unusually, Goldsmith submitted this draft advice for discussion, which ultimately resulted in a very different approach in his formal Advice of 7 March 2003.89 The Attorney-General had apparently been asked not to give his formal advice until asked, and it seems that it was left to the very last minute to obtain his formal advice, ‘as if it was an impediment to get over’.90 The Attorney-General’s draft Advice mirrored the opinion of the FCO Legal Advisers, as reflected in the numerous memos produced by Sir Michael Wood including those of 15 August, 4 October, 17 October, and 6 November 2002, and 22 January 2003.91 In October 2002 Wood was also asked by the Foreign Secretary to produce a formal advice in the event that military action was taken without lawful authority. He thought this a very ‘curious request’92 but nevertheless proceeded to set out the rather dire legal implications if military action were not legally authorized.93 It remains unclear why he was asked to produce this advice, and certainly he 86

Goldsmith to Hoon, 28 March 2002, Chilcot Inquiry. See eg Memo from Sir Michael Wood, FCO Legal Adviser to Steven Wright, Permanent Secretary, 15 August 2002, ‘Re: Iraq, Legality of the Use of Force’, Chilcot Inquiry . 88 Memo from the Attorney-General to the Prime Minister, 30 July 2002, ‘Advice on Iraq’, Chilcot Inquiry . 89 It was unusual according to Elizabeth Wilmshurst, see Transcript of Evidence, 26 January 2010, 32–3, Chilcot Inquiry. 90 Wilmshurst, Transcript of Evidence, 26 January 2010, 24–5, Chilcot Inquiry. 91 See de-classified material of the Foreign and Commonwealth Office, Chilcot Inquiry, . 92 Wood, 26 January 2010, Transcript of Evidence, 41, Chilcot Inquiry 93 See Letter from Wood to P/S Foreign Secretary, 15 October 2002, ‘Iraq’ documenting that the Foreign Secretary had asked for his ‘urgent preliminary views’ on the practical consequences of acting 87

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did not seem to have known the purpose, though he believed it had been intended to ‘go to No. 10’. Indeed, he understood that, having been received by No. 10, their response was ‘why has this been put in writing?’94 In Clare Short’s opinion that question from No. 10 spoke ‘volumes about the way they were closing down normal communication systems in Whitehall’.95 Wood’s unambiguous position, akin to that of Fitzmaurice during the Suez Crisis, was repeated in a letter similarly sent to the Foreign Secretary on 24 January 2003 in which he stated that a further decision of the Security Council subsequent to 1441 was necessary if force was going to be lawful. He asserted that using force without such explicit authorization would amount to a crime of aggression.96 This letter was sent in apparent response to Straw’s ‘completely wrong, from the legal point of view’ press conference with the US Vice President in which Straw had sought to link Iraq with the ‘precedent’ of Kosovo. Wood gave evidence to the Chilcot Inquiry that Straw and he had a rare face-to-face meeting about the issue and though it was ‘amicable’, Straw accused him of being ‘very dogmatic’ and said that international law was ‘pretty vague’.97 Straw followed this up with a formal Minute to Wood in which he argued that everyone knew that international law was uncertain and that, therefore, reasonable and honestly held differences of opinion could be held.98 He thereby justified rejecting the FCO legal advisers’ advice. For a Foreign Secretary to draft such a Minute was, according to Wood, ‘quite unusual’ and to receive such a frank rejection of legal advice was unique. Wood commented that ‘this was probably the first and only occasion’ that his advice was not accepted.99 Wilmshurst echoed the ‘unusual’ nature of a formal Minute from a Foreign Secretary challenging his legal advisers’ advice. When asked by Sir John Chilcot whether Straw’s challenge may have had to do with the fact that he was a trained lawyer, she rather infamously retorted that he was ‘not an international lawyer’.100 This comment was picked up by the press in its reporting of the Inquiry’s evidence.101 It is intriguing, when trying to unpack the influence of advisers over justificatory politics, that Straw’s Minute to Wood was responded to by the Attorney-General, Lord Goldsmith. He wrote to the Foreign Secretary indicating support for Wood’s drafting of advice and drew attention to the fact that he was faithfully abiding by his without international lawful authority, including the possible legal consequences in domestic law, the ICC, and the ICJ. 94 Wood, 26 January 2010, Transcript of Evidence, 41, Chilcot Inquiry. Though this can only be speculation, this may have been an example of Straw asserting the centrality of international law as a rhetorical device over US policy, in essence seeking to influence No. 10’s justificatory position. 95 Short, 2 February 2010, Transcript of Evidence, 27, lines 8–12, Chilcot Inquiry. 96 Letter from Sir Michael Wood to PS/Ministers etc, 23 January 2003, ‘Iraq: Legal Basis for Use of Force’, Chilcot Inquiry. 97 Wood, Transcript of Evidence, 26 January 2010, 30–1, Chilcot Inquiry. 98 Letter from Foreign Secretary Jack Straw to Sir Michael Wood, 29 January 2003, ‘Iraq: Legal Basis for Use of Force’, Chilcot Inquiry. 99 Wood, Transcript of Evidence, 26 January 2010, 33, lines 5–6, Chilcot Inquiry. 100 Wilmshurst, Transcript of Evidence, 26 January 2010, 8, line 10, Chilcot Inquiry. 101 See for instance Daily Telegraph, 26 January 2010, ‘Inquiry told Jack Straw ignored advice that invading Iraq would be illegal’ (online); Guardian, 26 January 2010, ‘Lioness gives Chilcot inquiry teeth’ (online).

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role as adviser.102 Wood recalled that he was ‘very pleased’ to have been supported by the Attorney-General in this way.103 Straw responded to Goldsmith by recognizing that Wood was entitled to his opinion, but emphasized that an adviser’s role was to set out all the possible interpretations of law, not just to provide his honestly held view. He emphasized that this—the interpretation of resolution 1441—was an uncertain area that could be interpreted differently.104 This exchange of correspondence provides a fascinating window upon the tensions between government and legal advisers, and indeed over the production of an archive of justification. In other words, Straw appeared to seek consciously to craft the difference of legal opinion as yet another, historical record-oriented, facet of the politics of justifying force in Iraq. Goldsmith’s subsequent assessment of legality, literally days before the outbreak of war, was two-pronged. First, the 7 March 2003 Advice argued that existing resolutions implicitly authorized the use of force by member states in the event of Iraq’s continued and persistent non-compliance with Resolution 1441. Second, and alternatively, Iraq’s failure to comply with the ceasefire requirements set out in Resolution 687 would justify renewed use of force as authorized under Resolution 678, without further authorization.105 His Advice pointed to previous US–UK attacks on Iraq, in 1993 and 1998 in particular, which suggested that such military interventions were condoned by the Council. In so doing, the argument ran, the Council had endorsed a system of non-explicit authorization to use force in the face of continued Iraqi intransigence, which could be interpreted as a form of legal precedent (at the very least in procedural terms). In essence, this limited such a system of implied authorization to Iraq rather than as general principle, suggesting that the exceptional character of the Iraq problem could be solved exceptionally. Goldsmith’s interpretation placed significant emphasis on the approach of the Secretary-General to prior authority. It highlighted the Secretary-General’s comments in relation to the air attacks carried out in January 1993 in the Iraqi ‘no-fly zone’.106 The Secretary-General’s view was that the action taken conformed to the resolutions of the Security Council and conformed to the Charter of the United Nations.107 The argument was therefore made that, as head of the UN organization, the Secretary General’s own view carried significant legal weight and supported the argument of ‘revival’ of prior authorizations. However, this stance was criticized and contradicted by the subsequent Secretary-General’s comments on actions relating to 102 Note from Attorney-General Lord Goldsmith to Foreign Secretary Jack Straw re legal advice and law officers, 3 February 2003, Chilcot Inquiry. 103 Wood, Transcript of Evidence, 26 January 2010, 35, Chilcot Inquiry. 104 Letter from Foreign Secretary Jack Straw to Attorney-General Lord Goldsmith replying to note from 3 February 2003, 20 February 2003, Chilcot Inquiry. 105 See ‘Attorney-General’s Advice on the Iraq War “Iraq: Resolution 1441” ’, 7 March 2003, ICLQ 54(3) (July 2005) 767. The UK government’s position is summarized by Julian Knowles, Barrister ‘The Case for War: Skeleton Argument on behalf of Legal Inquiries Support Group (LISG)’, para D.20, in George Farebrother and Nick Kollerstrom (eds), The Case against War: The Essential Legal Inquiries, Opinions and Judgments concerning War in Iraq (Nottingham: Institute for Law and Peace, 2003) 40. 106 Secretary-General Boutros-Boutros Ghali. 107 Christine Gray, ‘From Unity to Polarization: International Law and the Use of Force against Iraq’ EJIL 13(1) (2002) 1–19 at 12.

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the ‘no-fly zones’, most notably in 1998 and 2001. Kofi Annan stated that only the Security Council could determine the legality of actions in the ‘no-fly zones’ and assess whether their resolutions provided the legal basis for other military acts.108 During the US and UK air strikes (‘Operation Desert Fox’) from 16–19 December 1998, the Security Council had gathered to discuss the situation and issued a press release detailing the course of discussions. The Russians rejected the justification for ‘entirely unprovoked attacks’ by the United States and United Kingdom, arguing that it was for the Council alone to determine the steps that should be taken to maintain or restore international peace and security. The statement went on to reject the justification of the use of force by the United States and the United Kingdom on the basis of previous mandates.109 The Swedish Ambassador to the United Nations, Hans Dahlgren, stated that his government would be ready to support a decision by the Council on military action, as a last resort, but that it would be a decision for the Council.110 Furthermore, the Ministry of Defence, in its submission to the Chilcot Inquiry on ‘no-fly zones’, did not claim to base its legal justification for military action on revival of authorization, but on the overwhelming humanitarian necessity of the situation. The Defence submission referred to Geoff Hoon’s statement in the House of Commons on 26 February 2001 in which he said the following: The legal justification for the patrolling of the no-fly zones does not rest on Security Council Resolution 688. That has not been the government’s position. In terms of humanitarian justification, we are entitled to patrol the no-fly zones to prevent a grave humanitarian crisis. That is the legal justification in international law. It does not rest on Resolution 688, although that Resolution supports the position we have adopted.111

According to the Attorney-General’s 7 March 2003 Advice, Resolution 678 could be ‘revived’ as the Council had implicitly and explicitly declared, through previous military re-engagements by allied forces to enforce the ceasefire agreement of Resolution 687, that it retained Iraq on its active agenda. The argument was that, even if the ‘revival argument’ may not have been sufficiently persuasive previously, following adoption of Resolution 1441 any doubts could be removed. The position was that 1441 sought to re-assert explicitly, certain facts which had perhaps been inferred in the pre-1441 ‘revival argument’. For instance, in operative paragraph 1, the Council decided ‘that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991)’.112 It also decided, ‘to afford Iraq . . . a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council’.113

108 Unfortunately the UN record of this apparently ‘off-the-cuff ’ statement is no longer available online. For reference to the original web address and transcript of the statement see . 109 3955th Meeting of the Security Council, 16 December 1998, S/PV.3955, 4, col 1. 110 3955th Meeting of the Security Council, 16 December 1998, S/PV.3955, 4, col 1. 111 Ministry of Defence, ‘No Fly Zones’, para 35, drafted for the Chilcot Inquiry in November 2009. 112 S/RES/1441 (2002), 3, para 1. 113 S/RES/1441 (2002), 3, para 2.

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Resolution 1441 had explicitly recognized the relevance of previous resolutions to the ongoing disarmament process and later re-emphasized that Iraq would face ‘serious consequences’ if it was found to have violated its obligations.114 However, it is arguable that the Council had specifically limited action to ‘an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process’.115 This may be why the Attorney-General added numerous caveats to this legal opinion. He also added that what would, in the end, be crucial to legal justification would be the factual assessment of non-compliance by Iraq. He argued that Britain would need to be able to demonstrate hard evidence of noncompliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA would be highly significant. He went on that in the light of the latest reporting by UNMOVIC, the government would need to consider extremely carefully whether the evidence of non-cooperation and noncompliance by Iraq was sufficiently compelling to justify the conclusion that Iraq had failed to take its final opportunity.116 Finally, he recognized that legal cases may be brought against members of the British government or military personnel, and that it was not certain that they would not succeed.117 According to Elizabeth Wilmshurt’s letter requesting early retirement, this legal advice, though acknowledging the need for factual confirmation of breach, marked a shift in the Attorney-General’s opinion and was unsupported by FCO legal advice. She could not agree that it would be ‘lawful to use force against Iraq without a second Security Council resolution to revive the authorization given in SCR 678’. Most damagingly of all she said: My views accord with the advice that has been given consistently in this office before and after the adoption of UN Security Council resolution 1441 and with what the attorney general gave us to understand was his view prior to his letter of 7 March. (The view expressed in that letter has of course changed again into what is now the official line.)118

Wilmshurst’s concerns echoed directly the advice provided to government by Sir Michael Wood. For instance, in a letter circulated to Peter Ricketts amongst others, and dated 4 October 2002, Sir Michael Wood stated that the use of force under Chapter VII powers had to have explicit authorization in order to be lawful.119 He also repeated his advice sent to No. 10 in April 2002 that authorization from four years ago was too old to be relied upon and therefore a new finding of breach would have to be made by the Security Council.120

114

115 S/RES/1441 (2002), 3, para 2. S/RES/1441 (2002), 3, para 13. Attorney-General’s Advice on the Iraq War: Resolution 1441 (7 March 2003), ICLQ 54(3) (2005) 767 at para 29. 117 Attorney-General’s Advice at para 35. 118 That italicized portion of the resignation letter was redacted by the FCO but subsequently obtained by Channel 4 News in 2005. See BBC Online . 119 Letter from Sir Michael Wood to PS/Ministers etc, 4 October 2002, ‘FAC: Iraq: International Law’, Chilcot Inquiry. 120 Letter from Sir Michael Wood to PS/Ministers etc, 4 October 2002, Chilcot Inquiry. 116

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In her evidence before the Chilcot Inquiry, Wilmshurst confirmed that she first considered resignation when she saw the Attorney-General’s advice of 7 March.121 She said she did not agree with the advice and that she felt she could not support the government’s legal position ‘in the various international fora in which she worked’.122 Wilmshurst’s reference to her international role paralleled the concerns expressed during the Suez Crisis by Gerald Fitzmaurice, and speaks to the significance of reputation in advising government and the role of a government legal adviser. As far as the reason for the shift in the Attorney-General’s advice is concerned, it may be that this resulted from the influence of the Bush Administration’s legal opinion. In a highly unusual move, Lord Goldsmith was sent to Washington by Jack Straw in February 2003 to meet with senior White House officials and apparently ‘put some steel in his spine’.123 On 11 February Goldsmith met William Taft, a former US ambassador to NATO who was then chief legal adviser to the Secretary of State, Colin Powell. Goldsmith then met the US Attorney-General, John Ashcroft, followed by Alberto Gonzales, Bush’s chief lawyer at the White House. Goldsmith also met William Haynes, the Defence Secretary Donald Rumsfeld’s chief legal adviser, and John Bellinger, legal adviser to Condoleezza Rice, then the National Security Adviser. According to the Observer, Bellinger is alleged to have said: ‘We had trouble with your Attorney; we got there eventually’.124 The Attorney-General prefaced his 7 March advice with the following: I have had the benefit of discussions with the Foreign Secretary and Sir Jeremy Greenstock (the then British ambassador to the UN), who have given me valuable background information on the negotiating history of resolution 1441. In addition, I have also had the opportunity to hear the views of the US Administration from their perspective as cosponsors of the resolution.

At the very least, this comment suggests he may have changed his mind as a consequence of the visit to Washington. However, the implication is disturbing and was likely one catalyst for Wilmshurst’s letter. One reason that this was disturbing for other legal advisers, was that to rely on British and American interpretation of events and behind-the-scenes agreements on the scope and precise meaning of 1441 did not accord with recognized practice in relation to legal interpretation. Interpretation of Security Council Resolutions, according to Sir Michael Wood’s analysis, could mirror treaty interpretation such that the travaux could be used to assist with meaning and scope. But that negotiating history would have to take account of all signatories, as with treaty interpretation.125 In his evidence before the Chilcot Inquiry, Wood was asked about his own view of the interpretation of 1441. He said that looking at the document as a whole, 121

Elizabeth Wilmshurst, Transcript of Evidence, 26 January 2010, 23, lines 6–7, Chilcot Inquiry. Wilmshurst, Transcript of Evidence, 26 January 2010, 23 lines 18–25, Chilcot Inquiry. 123 Jack Straw quoted by an official and reported in the Observer, 1 May 2005, ‘Iraq, the secret US visit, and an angry military chief ’. 124 Observer, 1 May 2005 ‘Iraq, the secret US visit, and an angry military chief ’. 125 Michael Wood, ‘The Interpretation of Security Council Resolutions’ Max Planck Yearbook of United Nations Law 2 (1998). 122

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what was said at the time of its adoption in the formal record of the Council’s meeting, and the negotiating history—not just the history as recounted by Sir Jeremy Greenstock, Britain’s UN Ambassador—none of that made anything like a clear case for authorization.126 He said that the ‘preparatory work confirmed the view that a further decision of the Security Council was needed’ and that the statements during the 8 November meeting (at which the resolution was adopted), together with the later tripartite statement issued by France, Russia, and China clearly indicated that it would be for the Council to pronounce on breach and on military authorization.127 Wood suggested that the Attorney-General’s Advice at this point was more advocacy than advice.128 The move from adviser to advocate, in large part generated by the imminence of war and last-minute request for formal advice, is one which appears to have struck Wood, and Wilmshurst, as deeply problematic from the perspective of how they viewed their role in government. Wood emphasized that he had a duty to the rule of law and to international law in his capacity as government legal adviser. In particular, he had a duty to the system because as a government lawyer one was ‘setting precedents by the very fact of saying things and doing things’.129 He, like Wilmshurst, was also well aware of the reception of legal justifications by the government in other parts of the FCO and international forums. Wilmshurst recalled that they were well aware of the views of the ‘Iraq experts’ in the FCO and that these experts saw military action without a second resolution as a ‘nightmare scenario’.130 This awareness of expert opinions and engagement with other, international opinion through advisory work echoed many of Fitzmaurice’s, and indeed Dixon’s concerns, during the Suez Crisis. The US legal position was, as illustrated above, distinct from the FCO’s legal opinion and, until the last moment, the Attorney-General’s. The United States argued that states could, whether within or without the collective security framework, legitimately wage a pre-emptive war of self-defence in anticipation of threats perceived as imminent according to their own judgment.131 For the American legal advisers, the impact of 9/11 on international law was to expand the notion of an armed attack still further, to include an inherent right of self-defence in response to preparatory acts or threats. In terms of US public opinion, advisers and government officials sought to frame the threat from Iraq within the paradigm of the ‘War on Terror’ and therefore create a link between Saddam Hussein and terrorist groups such as Al Qaida.132 This made any search for a second resolution superfluous to the decision over military action because the government justified its

126

Wood, Transcript of Evidence, 26 January 2010, 23, Chilcot Inquiry. Wood, Transcript of Evidence, 26 January 2010, 24, Chilcot Inquiry. 128 Wood, Transcript of Evidence, 26 January 2010, 60, Chilcot Inquiry. 129 Wood, Transcript of Evidence, 26 January 2010, 34, Chilcot Inquiry. 130 Wilmshurst, Transcript of Evidence, 26 January 2010, 11–12, Chilcot Inquiry. 131 See eg the Bush Administration’s National Security Strategy published on 20 September 2002 available at . 132 For an analysis of the ‘melodramatic crisis narrative’, see Simons (2007) 183–94. 127

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action in terms of both self-defence, terror rhetoric and, to a lesser extent, humanitarian concerns. Policy-makers in the British government utilized the rhetoric of human rights to bolster the campaign to win over public opinion. This was not an explicit argument seeking justification of humanitarian intervention on the same ‘legitimate’ basis as Kosovo. In fact, the arguments over human rights, humanitarian concerns, and humanitarian intervention demonstrated elision between these different concepts in international law, and highlight how their doctrinal definition in legal terms was subsumed by their cultural meaning in public discourse. Humanitarian issues presented a dilemma to liberal democratic voters. It would be increasingly difficult to oppose military action to end a brutal regime, if the government framed the choice as either murderous dictator or liberated Iraq. This strategy, just like the policy of going through the motions at the UN, illustrated the rhetorical manipulation of international legal argument to justify the use of force, whilst acknowledging the requirement of at least plausible justification. It did, however, also demonstrate the awareness of the need to package justification with cultural meaning in order to provide a legitimate basis for government action. That public discourse became legalistic on some levels may have, on the face of it, appeared to be empowering in constraining government to act ‘within the law’ but the story is more complex. Despite the majority consensus terming the war illegal, this did not prevent military action, nor did it necessarily decide the issue of whether the war was right or wrong. Indeed, the government continued to claim, long after the invasion, that the war was legal, but that there were reasonable differences of opinion. In this sense, law was successfully deployed by government to justify policy and eventual military action. It allowed government the opportunity to rationalize its claim to sovereign right through an appeal to the authority of law. The ‘success’ of law, here, is measured in terms of its utility as strategy. In that sense, law functioned to vest a deeply contested claim over jurisdiction with a cloak of legitimacy that would have been denied had regime change been the public face of justification (at least in the British experience). Despite this, there was some degree of ‘boomerang’ felt as a consequence of the public support for the UN process. It seems that the Blair government understood the limited public support it would win for outright regime change but that it could rely on a strong base of support if it used the UN aims of disarmament to furnish the necessary context for military action. The successful framing of the intervention by the government meant that, on its argument, the use of force became the only legitimate alternative to ‘doing nothing’ in the face of apparent intransigence. This approach sought to engage not only the legal opposition to war, but also the general pacifist tendency that was apparent in public opinion polls. It recast the government as custodian or guardian of UN collective security values and of world peace against outliers, prepared to enforce those values and rules if others refused their moral duty owed to the ‘international community’. This justificatory stance clearly paralleled the language of Great Powers seen during the Suez Crisis.

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4.3 Public discourse Public discourse over Iraq did not have a clearly defined starting point, in comparison to Suez. However, July 2002 marked an increase in coverage of the Iraq issue which mirrored statements by US and British government and officials. Early indications were that there was apparent policy consensus that something had to be done about Saddam Hussein’s unwillingness to submit to further weapons inspections. Media reports of the breakdown in negotiations between the United Nations and Iraq over the return of inspectors in July 2002, was relatively bullish in its stance. The Times argued that the Secretary-General’s meetings with Iraq officials in Geneva had represented ‘the last drink in the last chance saloon’.133 Following the breakdown in negotiations, the Daily Telegraph reported numerous stories highlighting how Saddam was living on borrowed time,134 and that there would now be no alternative but to ‘topple’ him.135 However, the Guardian reported that talks had only broken down hours after the New York Times published a Pentagon plan for the invasion of Iraq. It demonstrated that preparations were at a much more advanced stage than had been thought previously.136 The leaked plans forced the UK government to address the press as to its position vis-à-vis the Pentagon. The Times reported that British officials were quick to express reservations about Pentagon plans, saying that they wanted to deal with things, but in the international community.137 An early feature of this discourse was the concern that decisions be debated before any military action was embarked upon. Many reporters commented on the fear that Parliament would not be consulted and so demanded the recall of Parliament. There appeared to be a fear that military preparations would create a fait accompli. This concern to debate the issues was linked to divisions between newspapers and commentators about the threat posed by Saddam Hussein both to the United Kingdom and the wider world. The Guardian leader of 13 July 2002 asserted that Britain was in danger of ‘sleepwalking to war’ and that there would have to be debate about the ‘looming conflict’.138 Meanwhile, Guardian commentator Hugo Young warned that there were significant issues of ‘justice, proportionality, tenuous casus belli and a lack of international support, making debate even more necessary’.139 According to the Observer, unlike Bush, Blair was understood to be concerned that Britain could ‘make a legal case for intervening in Iraq to remove Saddam, 133 The Times, 4 July 2002, ‘Arms and the man—the last chance for Iraq to comply properly with the UN’, 21. 134 Daily Telegraph, 12 July 2002, ‘Saddam lives on borrowed time’. 135 Daily Telegraph, 12 July 2002, ‘Bush sets the clock ticking for war’, 14–15; Leader, ‘After Saddam’, 27. 136 Guardian, 2 July 2002, ‘UN and Iraq fail in weapons talks’. 137 The Times, 6 July 2002, ‘War on Terror: Arms talks deadlock brings Iraq invasion closer’, 16. 138 Guardian, 13 July 2002, Leader, ‘Sleepwalking to War’. 139 Guardian, 11 July 2002, Comment, ‘We need to talk about the war on Iraq before it begins’, 18.

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because of concern that his support for the war could split the Cabinet and lose the support of the Parliamentary Labour Party’.140 These domestic political concerns appeared to fuel the search for legal justification as a means of securing support for any decision to go to war. Securing such support arguably led Blair to order the preparation of a report which would provide the ‘legal framework’ for any war against Iraq.141 The allusions to this report (soon to become known as the ‘Iraq dossier’) appeared to irritate commentators and politicians, who began to argue that it should be made public to allow for debate of the substance of the arguments. The frustration and sense of foreboding increased following widely reported statements by US officials making war with Iraq seemingly inevitable. The mapping of public discourse explores the general complaints that Blair’s system of governance sought to bypass Parliamentary scrutiny through its emphasis on press briefings and media ‘management’. The bipartisan approach created a vacuum of political opposition which had significant consequences for public discourse. Politicians such as the Conservative party leader Iain Duncan-Smith eschewed any debate over this US policy and instead sought to concentrate support on meeting the apparent challenge from Saddam Hussein’s threat to the region and international interests. It was as if the wider context might expose the hegemonic liberal ambitions behind using force, something the opposition apparently sought to avoid. Three significant consequences appear to emerge as a result of this structural context. Both media and public intellectuals sought to fill the political space by challenging government claims and framing the debate in particular terms to constrain government decision-making. The section further examines the influence, or otherwise, of so-called global public opinion. This opinion took many forms and consideration is given to the significance of reporting ‘world opinion’. As in Suez, this reflected policy elite opinion as expressed by world leaders. However, unlike Suez it also reflected mass opinion. The section maps out some of reasons for this, including the way opinion was framed by media, and how domestic actors characterized themselves as representing transnational public concerns. It also explores the influence of transnational advocacy networks and their impact on both domestic institutional process and domestic discourse. Finally, this section considers the extent of international institutional influence on domestic public debate. Just as tracing media, scholarly, or transnational influence is complex and uncertain, so too here. The discussion attempts to draw out some of the processes in order to better understand the interaction between international regimes or bureaucracies and domestic publics. The evidence from Iraq paints a complex picture which suggests that domestic actors at some points idealized the United Nations, whilst at other times they viewed it as a cynical tool of rhetorical manipulation. Some of the reasons for these findings are explored and linked to the information available about secret decision-making. A key determinant of its influence appeared to be its credibility and legitimacy as an objective knowledge producer. Where this challenged government claims, it appears that 140 141

Observer, 21 July 2002, ‘Bush rallies US for strike on Iraq’. Observer, 21 July 2002, ‘Bush rallies US for strike on Iraq’.

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domestic actors used the UN bureaucratic regime of inspections as a resource to strengthen opposition to the war. However, when government utilized national security intelligence, domestic actors prioritized these claims, even though they remained deeply controversial. Further, domestic actors appeared to have divided loyalties to the United Nations in that they could support weapons inspectors, whilst at the same time decry the political and illegitimate machinations within the Security Council.

4.3.1 Media reporting and the role of media Media ownership had changed significantly in Britain during the period from the Suez Crisis until the Iraq War. In a very broad sense, and particularly since the 1980s, there had been a drive towards market efficiency and media consolidation. By 2002, this meant that eight corporations owned the country’s leading newspapers, which included not just national dailies, but also regional and local papers. In addition, many corporations also held interests in broadcast media, the most notable being Rupert Murdoch’s News Corporation, whose subsidiary News International, owned The Times, Sunday Times, The Sun, and News of the World. The newsprint holdings of News International amounted to around 35 per cent of total market share based on circulation and, in addition, such companies also traded on international media assets and holdings. In 2008 the House of Lords Select Committee on Communication produced a report on media ownership which highlighted some of the concerns with market models of ownership and the potential for influence and bias in media reporting.142 It highlighted four forms that influence could take: direct intervention by an owner; indirect influence of an owner through the appointment of an editor who shares his views; the influence of the business approaches that an owner can take; and different approaches to journalism.143 Addressing the first form, the Report commented that the hands-on proprietor was personified by figures such as Lord Northcliffe, Lord Beaverbrook, and the first Lord Rothermere, some of whom we encountered in Suez. These men were as much interested in the opportunity to convey their own political philosophies direct to the electorate and the government as they were in the money-making potential of their newspapers.144 Interestingly, the Committee noted that the only contemporary owner willing to admit to direct influence over editorials was Rupert Murdoch, and yet his own Editor at the time, Rebekah Wade, insisted that whilst he had his say, hers was the final decision.145 The Report concluded that direct influence was perhaps more rare, but that indirect influence, for instance in the appointment of an Editor, was significant, as was the owner’s ‘business model’. Many owners were committed to turning a 142 House of Lords, Select Committee on Communication, 1st Report of Session 2007–08, ‘The ownership of news’, vol 1: Report (‘the Ownership Report’) available at . 143 Ownership Report (2008) para 119. 144 Ownership Report (2008) para 120. 145 Ownership Report (2008) para 123.

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profit, but it seemed that many were also involved because of prestige—and influence over politics—and by public service. This latter motivation was highlighted in relation to the Scott Trust, owner of the Guardian and the Observer.146 Finally, owners influenced reporting through the style of journalism adopted. Murdoch was recorded as not wishing to disturb the establishment with investigative exposés such as Watergate affairs, whereas the Guardian Editor recorded the paper’s commitment to specialist reporting and non-interference from the Scott Trust.147 It is striking that in explaining the lack of influence of the Trust, the Guardian’s Editor commented that this was partly due to the ownership structures, with no board or proprietor to report to, which left the paper free to pursue its journalism.148 The Committee commented that the ‘Scott Trust model is unique and probably does provide a degree of protection for journalistic independence . . . it is unlikely that another newspaper will ever choose to recreate the Scott Trust model’.149 In addition to the question of ownership, the Report also noted the significance of changing patterns of news consumption, media circulation and readership, and shifting notions of the role of media. The Report recognized that many believed that newspapers were no longer sources of news but were instead sources of views, providing comment and analysis instead of seeking to compete with the multiplying sources of news information.150 Yet at the same time, the Committee noted evidence from a number of editors of leading papers that their special correspondents, particularly in foreign policy, had been scaled back because of market pressures, and that, again because of market pressures, greater reliance was placed on public relations ‘press’. In other words, there was an increased reporting of public relations (PR) sources of news (and presumably therefore views) that placed heavy reliance on, for instance, government press statements.151 This last point no doubt has significant influence on how public discourse played out in the politics of justification in the United Kingdom. Intimately connected to the question of ownership is the relationship between media and the state. The Ownership Report noted that the reason media ownership mattered was that the ‘fewer owners, the greater their potential political power’.152 It had heard evidence from Alastair Campbell which was: clear that senior politicians consider the press an important tool in shaping public opinion and work hard to try to ensure positive coverage. This suggests that there is a danger in allowing one individual to amass too much control of the media, in case they use that power to influence government policy.153

146

147 Ownership Report (2008) paras 144–9. Ownership Report (2008) para 139. Ownership Report (2008) para 155. 149 Ownership Report (2008) para 212. It should be noted, however, that the Trust itself is premised on an absence of political affiliation and upholding journalism, and also upholding the liberal tradition. In this sense, it ought not to be seen as apolitical, non-ideological, or ‘neutral’. 150 See for instance the Independent Editor’s comments to the Committee, ‘A newspaper’s role would be to interpret, to analyse, to comment on but, if you like, to provide the views beneath the news’ (Question 683, and para 47, Ownership Report). 151 Ownership Report (2008) paras 51–7. 152 Ownership Report (2008) para194. 153 Ownership Report (2008) para 194. 148

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Yet, despite the obvious importance of the relations between senior Ministers and proprietors, editors, and senior journalists, the Committee noted this area proved utterly opaque and subject to significant secrecy.154 These issues of ownership, news production, and media–state relations had significant impacts on the way the Iraq War was debated in public. It was clear that some papers, such as The Sun, would support the government policy of regime change, regardless of legal justification. Other centre-right papers, such as The Times, Daily Telegraph, and Daily Mail, were generally supportive of government policy, but did reflect growing public disquiet over the apparent sidelining of the inspections regime and support for UN channels of authorization. The Guardian and the Daily Mirror were the most consistent opponents of the war. It is interesting that it was the Guardian in particular that seems to have reported, far more than others, the significance of international law in any decision over military action. These positions are set out in greater detail and examined below. Media’s role in public discourse is reflected in how these papers narrated Iraq discourse, how they framed the debate, and how they reported upon events. By analysing their content, we can see how structures oriented the discourse. In addition to this framing influence, the media also signposted key moments and events in the build-up to war. These included Tony Blair’s ‘dossier’ presentation to Parliament on 24 September 2002, Colin Powell’s address to the United Nations on 5 February 2003, and the failure to obtain a second resolution. The highlighting of key events shaped discourse around particular issues such as the reliability and persuasive value of government intelligence, or the centrality to be accorded to the United Nations and weapons inspections. Media itself, as institutional actor, became a participant in public discourse by emphasizing particular social actors or experts and seeking to cast itself as impartial adjudicator between government and public opinion, and between government and experts. The aim may have been to describe the terrain on which public opinion could be heard and interpreted, but one consequence may have been to fail to report upon and interpret the wider challenge to government justification and actions. Media framing may have been one reason why it appeared that the Iraq debates engaged contest over interpretation of international law. At critical points in public discourse, for instance on production of the Iraq Dossier on 24 September 2002 and later reports by Hans Blix to the Security Council, international law peppered a larger proportion of articles than at other points of the crisis. It seems that the international law frame appeared where there was institutional challenge to government justification, either through Parliament or the United Nations. This observation suggests that legal arguments may have come to the fore where institutional legitimacy was at stake and media sought to canvas domestic and international expert interpretation in order to transmit such expert knowledge into public discourse. A further media frame was the issue-linkage with the ‘War on Terror’. In the United States the impact of terrorism discourse was much stronger than in Britain.

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It was Al-Qaida’s stated aim to bring down the United States, waging a direct war of terrorist aggression against it. The ‘politics of fear’ and narrative of crisis rhetoric may have resulted in a heightened sense of the immediacy of the threat posed by Iraq, thereby creating the means for simple and effective media narratives. The American public may therefore have been influenced to be more responsive to arguments advocating the ‘strike-first’ doctrine as part of the ‘terror narrative’. The experience in Britain was distinct. In many cases reporting on Iraq was, indeed, within the context of the ‘War on Terror’. Visually, this meant that in a number of broadsheets, special sections were devoted to the terror threat. Particularly up until early 2003 when war appeared to be inevitable, Iraq often featured within this frame. This was true of the pro-war press such as the Daily Telegraph and was, perhaps surprisingly, also true of the Guardian coverage which opposed the war from a very early stage. Once the United Nations became central to debate, from late September 2002 onwards, the narrative frame appeared to have shifted in the media. This framing of the debate was a discursive device which impacted upon the definition of the issue so that argument was now channelled through the UN paradigm.155 An example of how the press interpreted events and policy in distinct ways is illustrated by media reports of Colin Powell’s meeting with David Frost in early September 2002. The Sun reported that Powell had said that the United States would provide the world with evidence of Saddam’s secret weaponry.156 This supported their pro-war position that Saddam posed a threat, and that inspections and UN action would not provide a solution. In the Daily Telegraph Powell’s statement was reported as focusing on support for Tony Blair’s line that inspectors must go in as a first step, with the fact of American revelation of Iraq’s weapons as secondary.157 This supported the Telegraph’s position that in principle the United Nations was the appropriate forum for determining a threat, but the United States and Britain could legitimately garner justification for war based on their own intelligence. The Guardian reported the interview as concentrating on Colin Powell’s softening of the US policy line, and in particular noted the support for the return of inspectors over any other further policy move.158 This supported the Guardian’s editorial that inspections were central to legal legitimacy and that there were divisions in the Bush Administration which needed to be exploited by Blair if he was to avoid an ‘illegal’ war. All three papers had different interpretations of the acknowledged ‘dove’ in the US administration which led them to conclude that Powell had validated each of their positions. It appeared that they were all engaged in using Powell as a legitimating resource within domestic debate to bolster their particular positions on military action. This made them participants in public discourse and demonstrates the difficulty in relying on media sources as simply 155 For fuller examination of the definition of issues through framing, see Nelson, Oxley, and Clawson, ‘Media Framing of a Civil Rights Conflict and its Effect on Tolerance’ American Political Science Review 91 (1997) 567–83. 156 The Sun, 2 September 2002, ‘We’ll Show World the Secrets of Saddam’s Weaponry’, 2. 157 Daily Telegraph, 2 September 2002, ‘Powell backs British line over Saddam—UN inspectors “must go in as first step” ’, front page. 158 Guardian, 2 September 2002, ‘White House in disarray over Cheney speech’, front page.

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reflecting ‘public discourse’, because such opinion and discourse represented a complex of interpretations and frames, and of course elite interests. The media’s response to the government’s additional justifications for war— namely Saddam Hussein’s human rights record—is of further interest in tracing media’s influence over public discourse. The human rights-based argument rested on the already-established brutality of the Iraqi regime, particularly in relation to minority groups within its own territory. In that sense, it fell short of a justification for humanitarian intervention, though it did appear to invoke the legacy of the Kosovo intervention. The Times noted that arguments involving human rights were a postscript, although an ‘important tailpiece’, if not forming part of the American casus belli: ‘It remains one of the Administration’s stronger arguments, although used only diffidently, a partial answer to those who say that it is “all about oil” or that the threat, as presented, is not sufficient to justify attack.’159 The ‘humanitarian’ evidence was put forward in the British government’s second dossier Saddam Hussein: crimes and human rights abuses which was published on 2 December 2002.160 According to Jack Straw, the Foreign Secretary, it made for ‘harrowing reading, with accounts of torture, rape and other horrific human rights abuses . . . [t]he aim is to remind the world that the abuses of the Iraqi regime extend far beyond its pursuit of weapons of mass destruction in violation of its international obligations.’161 This again evoked the paradigm of benign liberal democracy, or freedom, versus tyranny; or in other words the civilized versus the barbaric. Yet, perhaps the most powerful and condemning evidence supporting the need for some form of military intervention, that of the gassing of the Kurds at Halabja, was also deeply controversial, not least because of the passage of time (occurring in the 1980s) and the indifference the West had shown whilst Saddam Hussein remained an ally against Iran. The human rights arguments were not strictly legal justifications. They were, perhaps, making use of the earlier ‘precedent’ of military action in Kosovo. In a press briefing at Downing Street, the Prime Minister said that: It was not unreasonable for the Government to illustrate how Saddam had used WMD against his own people and why he needed them for his own internal repression as part of the argument as to why the international community had to act to disarm him. That was what was happening today with the publication of the dossier in question.162

But it led to accusations of hypocrisy, given that many of the abuses had been played down at the time,163 and did not appear to assist in defeating arguments that many of the motivations for using force were not based on morality. 159

The Times, 6 February 2003, Foreign Editor’s Briefing: Iraq. The full report is available at 161 Jack Straw speaking at the Atlantic Alliance. Reported in The Times, 3 December 2002, ‘Human rights groups scorn dossier on Saddam brutality’. 162 Downing Street press briefing, 2 December 2002, note of briefing available at . 163 See report of The Times, 3 December 2002, ‘Human rights groups scorn dossier on Saddam brutality’. 160

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In response to this second dossier, human rights groups such as Amnesty International charged the government with using the allegations as propaganda to justify a future war to overthrow Saddam. They said that it was nothing but a cold and calculated manipulation of the work of human rights activists.164 The dossier was also condemned by the Guardian which commented that ‘there is little or no international support for deposing Iraq’s leader or any other national leader by external force, however richly he or she may deserve it’. The problem with the humanitarian intervention argument, so the paper opined, was that it appeared not to strengthen the case for invading Iraq because if the conclusion of the report was to overthrow Saddam, it would amount to ‘regime change’, and this was not only illegal in international law but loudly denounced in world opinion.165 However, the human rights-based argument did force opponents into a difficult catch-22 liberal dilemma. They could not support British action but, because Blair had framed part of the rationale on the human suffering of Iraqi civilians, many opponents could not stomach what was put forward as the inevitable outcome for ordinary people living under Saddam Hussein’s regime. The de-classified documents and evidence before the Chilcot Inquiry demonstrate that the government was well aware of the lack of any legal justification premised on either the Kosovo ‘precedent’ or humanitarian intervention more generally.166 The explicit advice provided throughout 2002 and early 2003 presents something of a puzzle, a further moment at which we might pause to consider the assumed ‘progressiveness’ of justificatory politics premised on law. The production of the human rights dossier and invocation of rights abuses as further justification for war was knowingly put forward without any legal authority. Yet the public packaging of that justification at least implied lawful authority. In any event, it presented a direct challenge to those opponents of war, by invoking liberal principles of freedom, democracy, and rights which appeared to ‘trump’ other deficiencies, whether these were evidential or legal deficiencies. This concerted effort at packaging information and ‘managing’ the public did not, of course, go unnoticed, and may have fuelled media ‘activism’ in public discourse. Nick Cohen argues that there was a consensus among Westminster journalists that all news from No. 10 was contaminated, and it was their job to pick apart the lies.167 This may have led media to seek alternative, authoritative sources to report on. It may have led to a focus instead on academic and expert disquiet rather than exhibiting its own open distrust of government claims, as the media sought to frame itself as impartial adjudicator. This focus on expert debate was in fact a reflection of the media’s own rejection of government policy. In this 164 Irene Khan, Amnesty’s secretary-general, quoted in The Times, 3 December 2002, ‘Human rights groups scorn dossier on Saddam brutality’. 165 Guardian¸ 3 December 2002, Leader ‘Straw has not thought it through’. 166 See for instance Wood’s correspondence of 15 August, 4 October, 17 October, 6 November 2002, and 22 January, 26 January 2003 by way of examples. In particular see his direct response to the Foreign Secretary’s public reference to justification ‘a la Kosovo’, Letter from Wood to PS/Ministers etc, 23 January 2003, ‘Iraq: Legal Basis for Use of Force’, Chilcot Inquiry. 167 Nick Cohen, Pretty Straight Guys (Faber & Faber, 2004) 108.

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sense, it was a form of media activism. The framing of this knowledge, as necessarily requiring expertise to interpret, impacted upon the definition of the Iraq issue. This may have been fuelled by disquiet amongst journalists’ policy elite sources, most infamously in the example of Andrew Gilligan’s source David Kelly.168 Further, UN inspectors may have become identified as the more trustworthy guardians of objectivity, particularly given the mistrust of government intelligence sources. This reporting of ‘the international’ may have had at least two discernible effects on public discourse. First, it may have challenged government authority and thereby legitimacy. It posited an alternate source for such authority and legitimacy, overriding government claims to secret knowledge, through a vesting of authority in UN inspections. Second, it may have resulted in privileging certain actors over others. For one thing, UN officials and the bureaucratic regime of disarmament became an important influence on discourse. Further, it allowed for international experts to interpret and adjudicate the contesting claims to legitimacy, authority and, ultimately, legality. Although expert actors did not enter public discourse in a coordinated manner, there did appear to be a trend in media reporting. Early in public discourse, commentators at papers such as the Observer emphasized the ‘chorus of dissent’ against government policy.169 As explored above this may have been because of the lack of institutional challenge or elite influence on policy-making in the early stages of the crisis, particularly while Parliament was in recess. This demand for debate and consultation can be seen as a reflection of liberal ideals of deliberation and political contestation, but the focus on experts is not explained by such a reflection. In January 2003 the media began to refer to ‘the great Iraq debate’, reporting that academic and elite protest had been joined by ‘street’ debate. This was not an accurate reflection of protest organization, as demonstrations had taken placed throughout late 2002. The Observer ran a feature-length article which argued that Britain was on the brink of war: ‘As the diplomatic and military stand-off continues, another struggle is being fought—to win public support. Here, in a special investigation, the Observer tests the mood of the nation and asks: are we ready to back military action?’ The article went on: As the diplomatic and political drama is played out on the world stage, the reality of Britain edging towards war is provoking growing debate among ordinary people. The concerns and issues that are dividing politicians and academics are also being scrutinised in homes, bars and cafes.170

The Times also appeared to highlight the different ‘spheres’ of this discourse. In its leader column of 1 January 2003 it said that a war with Iraq would ‘have a

168 Evidence of media distrust of government claims later led to the Hutton Inquiry into the BBC’s reporting over Iraq (though formally the Inquiry was into the circumstances surrounding the death of Dr David Kelly). See report . 169 Anthony Sampson writing in the Observer, 22 September 2002, ‘Why Blair must listen to the chorus of dissent’, 17. 170 Observer, 19 January 2003, ‘So what do Britons think about a war with Iraq?’, 15.

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profound effect not only on the high politics of international relations but popular sentiment in the most lowly stations’.171 This is not to suggest that the depth of debate was somehow manufactured by media commentators. Such a claim is not supported by the polling data which demonstrates a divided public with a majority opposing war. What can be highlighted, however, is the use and interpretation of apparent ‘mass’ opinion in framing the debate. That ‘ordinary people’ were debating Iraq sent a message which framed the debate as central to the life of the nation; it spoke to the enormity of the situation. In doing so, whether or not this was accurate, media validated its own legitimacy in giving such widespread coverage to discourse. Indeed, the Daily Mirror actively pursued a ‘campaign’ against war that purposefully engaged ‘ordinary people’. For instance, on 21 January 2003 the paper ran with a front page headline ‘You are NOT powerless. You DO have a voice. NO WAR’. Below the headline was a cut-off-and-sign petition which stated ‘Mr Blair, I hereby register my opposition to any war with Iraq not justified by unequivocal UN evidence’.172 The petition was signed by over 220,000 people. The Daily Mirror’s critical stance against war occurred around the same time as it had rebranded as a ‘serious paper with serious news’173 to challenge the competition from The Sun, and try to reverse the long-term decline in the paper’s circulation. To meet that aim, the paper had, in early 2002, recruited a number of high-profile, outspoken journalists such as John Pilger, the Guardian’s Jonathan Freedland, and Christopher Hitchens. In the lead-up to the 15 February London protest the paper published numerous features on the preparations, maps of the route, and instructions on how to get involved. It also paid for a video screen in Hyde Park at the end of the march and printed thousands of ‘No War’ placards.174 Yet, this activist stance did not stem the tide of decline, and as soon as the war started the paper moved to a ‘support the troops’ position, identifying less and less with the anti-war movement.175 What is striking about the Mirror’s anti-war coverage is that it was not only a significant break with ‘tabloid’ traditions of being pro-war and ‘patriotic’, it also addressed its opposition towards ‘the ordinary public’, rather than focusing on elitelevel or expert dissensus (although it did report these expert controversies). This was in stark contrast to the Guardian’s anti-war stance which highlighted repeatedly the significance of expert contest and elite disquiet over the government’s Iraq policy. This translated into repeated coverage of academic challenges to government’s legal justifications, and to ‘expert sources’ questioning both the wisdom and legitimacy of the government’s policy. As war became inevitable in many people’s eyes, the ‘broadsheet’ media again foregrounded policy elite and expert contest. The authority and democratic credentials of this contest were enhanced by repeated reference to the ‘groundswell’ of The Times, 1 January 2003, Leader ‘A Year for Mutual Tolerance’. 173 Daily Mirror, 16 April 2002, Editorial. Daily Mirror, 21 January 2003, front page. Des Freedman, ‘ “Smooth Operator?” The Propaganda Model and Moments of Crisis’, Westminster Papers in Communication and Culture 6(2) (2009) 59–72 at 65. 175 Freedman (2009) 66. 171 172 174

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opinion. In this sense, expert participants were portrayed as educating mass opinion through their expertise, whilst at the same time purporting to represent legitimately the public’s own views. This reframing of protest did not give voice to the widespread divergences in mass opposition to the war which covered the whole political spectrum. An example is how the Guardian’s coverage of the 15 February 2003 protests was subsumed within an expert attack on the government’s intelligence dossier. Reports can be traced prior and subsequent to the protests to demonstrate that mass protest was used as a tool to legitimize resistance to government policy by multiple domestic actors. In early February 2003 sections of the press reported that the government’s September dossier on WMD had been exposed as based upon a Canadian student’s dissertation and not, as claimed by the government, on secret, authenticated intelligence. The Sunday Times reported how senior civil servants and Labour politicians accused the government of cheap spin.176 ‘Experts’ called the dossier a sham.177 The Guardian also published a letter from 37 politics and international relations scholars which appeared in the paper that day, condemning any war against Iraq, as well as the manipulation of academic research in the government’s dossier of evidence against Iraq.178 This was an embarrassing blow to the government as only days previously Colin Powell had made reference to the dossier during his 5 February presentation to the Security Council, calling it a ‘fine paper’ detailing Iraqi intransigence in ‘exquisite detail’.179 The foregrounding of expert opinion continued in coverage of mass protest. On the day before the 15 February protest, the Guardian reported that senior academics were against the war and the paper had taken out a full-page advert in the paper calling on people to join the protest.180 Media coverage of the protest focused on ‘high profile attendees’ such as Charles Kennedy, Mo Mowlam, and Tony Benn.181 The focus of reports was on numbers with occasional reference to high-profile speakers, for instance Ken Livingstone in London, and Susan Sarandon in New York.182 There was no reporting of the motivations or beliefs of protesters, other than to highlight their heterogeneous nature or their ‘Middle England’ qualities.183 It seemed that this heterogeneity was its power in emphasizing the message of mass opposition challenging the democratic legitimacy of government actions. Following the protest, emphasis on experts remained in the foreground. On 18 February ‘academia’ apparently said ‘no to war’,184 as did students Sunday Times, 9 February 2003, ‘No 10 under attack over “ramping” of Iraq dossier’. Guardian, 7 February 2003, ‘UK war dossier a sham, say experts’. 178 Guardian, 14 February 2003, ‘Academics take anti-war stance’. 179 Guardian, 7 February 2003, ‘UK war dossier a sham, say experts’. 180 Guardian, 14 February 2003, ‘Academics take anti-war stance’. 181 See BBC Online ‘ “Million” march against Iraqi war’, 16 February 2003 . 182 See BBC Online ‘Millions join global anti-war protests’, 17 February 2003 . 183 See The Times, 17 February 2003, ‘Middle England packs a picnic and sets off to change the face of politics’ and Sunday Telegraph, 16 February 2003, ‘One million march against war’. 184 Guardian, 18 February 2003, ‘Academia says no to war’. 176 177

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and academics at Oxford and Cambridge.185 Politicians and academics opposed to the war were again quoted in a Guardian article on 27 February, saying that what people were really angry about was being lied to.186 On 7 March 2003, the Guardian ran with a front page warning to Blair that lawyers said war would be illegal. A number of senior international legal scholars had written a letter to the Prime Minister which was published in the letters section, as well as being the basis of the front page story.187 The intervention was followed by a public response from another group of lawyers who challenged the claims made in the Guardian letter.188 This published exchange of opinion was an expertised, adversarial discourse played out in public and as such was a shift in the way the media had portrayed opinion on the Iraq War prospect. Up until this point, experts had been used as adjudicators on the claims being made by government whether they related to intelligence, strategy, or policy-making. Now the debate became more complex, particularly when, on 17 March 2003, the Attorney-General set out a synopsis of his legal advice.189 The public intervention of lawyers coincided both with publication of the government’s legal advice and the invasion of Iraq such as to enhance the airplay given to these experts. A number of legal scholars appeared in radio and television debates arguing over the legality of the war. The apparent inevitability of war arguably created the space for legal expertise, challenging the decision on legal grounds to highlight the potential legal consequences of military action. The public intervention by experts may have reflected a desire to prevent conflict and in this sense it used a media platform to publicize its activist stance. The authors of the 7 March letter were condemned for doing so by a member of the House of Lords who, whilst recognizing ‘that people have their own agenda and positions on controversial issues’, expected them ‘to have the intellectual honesty not to use the cloak of academic cover to claim . . . a very doubtful objectivity’.190 Earl Russell objected to this characterization, arguing that ‘in academic matters disagreement is frequent and normal. It is more easily resolved if we do not call in question the honesty of those with whom we disagree’.191 Clearly, the intervention had impacted upon debate within Parliament and the figures of that intervention became the subject of debate. This was in many ways unprecedented and certainly to be contrasted with the situation during the Suez Crisis in which academic commentary appeared to be a private policy concern. Perhaps, however, the legacy and impact of a more legalized debate is overplayed. Results from a Newsnight poll conducted a year after the invasion serve as a useful critique to the perhaps simplistic suggestion that legal expertise dominated 185

Guardian, 20 February and 6 March 2003. Guardian, 27 February 2003, ‘What people are really angry about is being lied to’. 187 Guardian, 7 March 2003, Letter ‘War would be illegal’. 188 The Times, 19 March 2003, Letter, 23. 189 Advice of the Attorney-General, 17 March 2003, HL (2002–03), vol 646, Pt 65, WA2–3. 190 Baroness Ramsay of Cartvale (Labour), 17 March 2003, HL Deb (2002–03) vol 646, col 74. Ramsay was a former diplomat and Labour Party peer. 191 Earl Russell, 17 March 2003, HL Deb (2002–03) vol 646, col 74. Lord Russell was a hereditary peer and Labour Party member who was an active campaigner for CND. He retired from the Lords in 2004. 186

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reporting and determined public opinion. In the poll, 37 per cent believed the war was legal, 39 per cent believed it illegal, and 24 per cent did not know whether it was legal or illegal. In comparison, 48 per cent believed that military action had been ‘right’, 43 per cent thought it had been wrong, and only 9 per cent did not know.192 The fact that a quarter of respondents could not offer a view on legality cuts both ways. The ‘expertised’ aspect of discourse may have cut off public opinion from judgment by using the language (or excluding discourse) of international law. Alternatively, legality was an issue that did not concern them and the more significant question was whether military action had been right or wrong. Use of international law as a resource in that analysis may appear more of a government tool to justify war than an opposition tool to prevent war. In any event, it is not a benign tool that facilitates political contestation without also exercising its own forces on discursive legitimacy and authoritative practices of ‘speaking the law’. This perhaps demonstrates the difficulty in not only tracing the impact of international legal norms, but also the contours, context, and content of discourse, which mainstream constructivists claim are indications of a norm’s saliency. The above analysis shows that discourse is difficult to unpack, and it is subject to complex political, cultural, and social contests of power. It is also mediated through frames and narratives which may have independent, or at least complicating, impacts on public discourse. As a consequence, it is difficult to see the value in abstracting to a simplified model which fails to appreciate this contextualized and power-relational aspect of discourse.

4.3.2 Parliamentary and party political division Public discourse between July and September 2002 was characterized by a paucity of party political activism (largely due to Parliament’s summer recess) and a public ‘chorus of dissent’. Since the end of July discourse over Iraq had been raging through the media, with retired diplomats, politicians, bishops, and academics adding their views to those of columnists and editors. MPs had made only sporadic protests on radio or in newspapers.193 Liberal Democrat leader Charles Kennedy complained in early September that Blair had been answering questions everywhere except from elected representatives.194 These general arguments pointed to the fear of marginalization of Parliamentary politics through the domination of political briefings and media ‘management’. Another reason for demanding public debate was that military action would have represented a fundamental shift in British foreign policy. Menzies Campbell, Liberal Democrat Foreign Affairs spokesman, wrote that such a dramatic shift in policy required an explanation by Tony Blair, which would need to include not 192 Newsnight poll, 10–14 March 2004 Iraq Survey, . 193 Anthony Sampson writing in the Observer, 22 September 2002, ‘Why Blair must listen to the chorus of dissent’, 17. 194 Sampson writing in the Observer, 22 September 2002, 17.

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only evidence justifying the change, but also clear legal authority.195 It seemed that Blair’s statement that any action against Iraq would not require a new UN Security Council Resolution entrenched calls for Parliamentary debate as this represented a departure from the policy of multilateralism.196 However, Iain Duncan-Smith, Conservative leader of the opposition, appeared to want to avoid challenges to the policy shift from Saddam Hussein’s containment to British-backed US hegemonic intervention. He argued that Britain’s relationship with the United States and whether it was following their policy line was irrelevant. The real question was what threat Saddam posed to British interests and international order.197 Arguably, the two issues were intimately linked, and in not challenging the grander narrative (or hegemony paradigm) of British foreign policy, deeper contest over fundamental principles was avoided. Yet, this policy shift was exactly what the Liberal Democrats wanted on the agenda because they appeared to link the US–British relationship to a breakdown in the dominating paradigm of international law being wedded to peace (rather than war). Without institutional political engagement through democratic, constitutional channels, media commentators arguably reflected public unease about any decisions being taken without proper Parliamentary oversight and deliberation. On 10 September, Tony Blair addressed the TUC conference and gave his public support to US plans to topple Saddam.198 This was followed by a formal address to Parliament on 24 September 2002. He provided the long-awaited ‘Iraq Dossier’ three hours before the debate. This document sought to make the substantive case that Iraq posed a real and immediate threat to the United Kingdom and the world, and that force was therefore justified. The dossier referred to ‘certain facts’ provided by key intelligence as to Saddam Hussein’s threat. These facts included the intelligence claim that chemical and biological weapons could be launched within ‘45 minutes’. The dossier presentation precipitated a sustained public debate about the imminence of the threat posed by Saddam Hussein. In late September an ICM poll revealed that, when asked what approval should be sought by the British government before committing forces to an attack, 86 per cent of respondents thought they should seek Parliamentary approval.199 Demands for debate could also be interpreted as a hostile reaction to US policy, which was increasingly vociferous in denouncing the Iraqi regime and threatening the use of force. A majority of Britons did not appear to support military action, though a significant percentage (37 per cent) did support it.200 Interestingly, however, in a MORI poll take on 26 September 2002, 62 per cent of respondents said the dossier Tony Blair produced to prove the necessity of military action against Iraq, had had 195 Guardian, 29 July 2002, Comment, Menzies Campbell ‘There should be no war in Iraq without more jaw-jaw’, 18. 196 The Times, 18 July 2002, ‘MPs seek vote before troops go into Iraq’, 15. 197 Iain Duncan-Smith, 24 September 2002, HC Deb (2001–02) vol 390, col 7. 198 The Sun, 11 September 2002, Leader, ‘Blair’s Right’, 8. 199 ICM September Poll, 20–22 September 2002, available at . 200 ICM September Poll, 46 per cent opposed military action, with 37 per cent in support.

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little or no effect on whether they supported or opposed military action against Iraq.201 Yet, behind the scenes, government had pursued the production of a dossier to convince public opinion as early as February 2002. There had been repeated delays in its production, the causes of which remain unclear. By September, however, intelligence officials were producing more evidence of Saddam Hussein’s threat. It is interesting to note that the Joint Intelligence Committee (JIC) did not, apparently, see their role in the dossier as involving the ‘making of the case’. In their evidence to the Butler Inquiry, they stated that they believed the government was making public the intelligence assessments on Iraq’s threat. But Jack Straw’s evidence to the Butler Inquiry made plain the government’s view on the role of the dossier: that this was about making the case for international action over Iraq’s ‘threat’.202 The Butler Inquiry’s assessment of the production of the dossier is intriguing. It recognized: [t]he advantage to the Government of associating the JIC’s name with the dossier was the badge of objectivity that it brought with it and the credibility which this would give to the document. We have noted that Mr Alastair Campbell said in his minute to the Chairman of the JIC on 9 September, following a meeting to discuss the drafting of the dossier: The first point is that this must be, and be seen to be, the work of you and your team, and that its credibility depends fundamentally on that.203

The Butler Report went on, that the ‘[g]overnment wanted a document on which it could draw in its advocacy of its policy’.204 It is highly significant that the Butler Report went on to conclude that intelligence officials continued to treat the document as a public statement of their assessments, not a document for making the case for war.205 In fact, this was contradicted directly by Major General Michael Laurie’s private evidence to the Chilcot Inquiry. Laurie was Director General for Defence Intelligence Collection, and stated that when evidence for the first incarnation of this dossier—back in February/March 2002—was collected, it had been rejected because it failed to make the case for war. He said that the intelligence services knew that the document’s purpose was to make the case for war.206 Indeed, evidence was taken from Laurie following his submission to the Chilcot Inquiry in response to Alastair Campbell’s evidence of 12 January 2011. In Campbell’s evidence he had emphasized that the dossier was not produced to make the case for war. Laurie stated that he, and ‘those involved in its production saw it exactly as that, and that was the direction we were given’.207 When Tony Blair presented the dossier to Parliament on 24 September 2002, it was a ‘case-making’ presentation. He emphasized that the evidence within it proved 201

202 Butler Report (2004) para 315. GMTV/MORI poll 26 September 2002. 204 Butler Report (2004) para 327. Butler Report (2004) para 323. 205 Butler Report (2004) para 327. 206 Major General Michael Laurie, Head of Defence Intelligence Service, Transcript of Private Evidence, 3 June 2010, 6, Chilcot Inquiry. 207 Major General Michael Laurie, Submission, 12 May 2011, Chilcot Inquiry. 203

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‘beyond doubt’ the threat posed by Saddam’s Iraq. Further, he implied that it was the seriousness of the threat which had pushed the government into disclosing the JIC’s assessment, something unprecedented in British history.208 He asserted that the ‘picture presented to me by the JIC in recent months has become more not less worrying’.209 Yet, in light of the public material available about government decision-making and intelligence, this statement seems far more dubious in its claim to objectivity: Laurie has described how intelligence was under extreme pressure to come up with more evidence in light of the ‘failure’ of the March 2002 dossier to make a convincing case for war. In the House of Commons debate that followed, the focus was on the issue of UN authorization. In reply to the Prime Minister’s statement, Charles Kennedy argued for the ‘overriding supremacy’ of the United Nations, as had been indicated by sections of the government’s Iraq Dossier, which he went on to quote back at the government.210 This was an attempt to constrain action with the government’s own words. He stated that such primacy appeared to be in stark contrast to statements emanating from the US administration, in particular the notion of a ‘decapitation strategy’.211 He applauded the government’s apparently differentiated stance but warned that given UN supremacy, the inspectors would be ‘best placed to assess the situation, and that is why the political emphasis must be on getting the UN inspectors back in’.212 It was a warning that government would be held to its own rhetoric. Kennedy sought to tie the Prime Minister to the United Nations as objective assessor of determining not only the scale of threat posed, but also the means to find a way out of the crisis, thereby enhancing the opportunities for resolving the dispute peacefully. He emphasized the United Nations’ legitimacy as representative of peace and order under law, as well as being an objective bureaucracy tasked with informing the public as to the evidence of Saddam Hussein’s threat. Kennedy’s deployment of international law-as-resource, as a form of representational ideal, resonated with the public and was reflected in the polls. In a September poll, 86 per cent felt that Britain must seek UN approval before committing troops, notwithstanding the fact that a similar number, 78 per cent said they did not believe Saddam Hussein when he said he would let UN inspectors back into the country. However, Kennedy’s party was at the margins of political power, particularly in light of the bipartisan consensus over Iraq. The preference for UN involvement may have resulted from at least two factors at play in British public discourse. The first was the domestic structural context of debate. The bias towards institutions and governance based on rational–legal authority may have gravitated domestic actors towards the legitimacy of the UN inspections regime. By demanding that knowledge, evidence, or information of

208 209 210 211 212

Tony Blair, 24 September 2002, HC Deb (2001–02) vol 390, col 3. Tony Blair, 24 September 2002, HC Deb (2001–02) vol 390, col 3. Charles Kennedy, 24 September 2002, HC Deb (2001–02) vol 390, col 10. Charles Kennedy, 24 September 2002, HC Deb (2001–02) vol 390, col 10. Charles Kennedy, 24 September 2002, HC Deb (2001–02) vol 390, col 11.

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Iraq’s threat be channelled through the bureaucratic regime of inspections, domestic actors did not only accord inspectors greater legitimacy. Second, they contested the power of the government to control the flow of information. Access to information and authority to legitimately interpret ‘evidence’ was a crucial aspect of the public discourse over Iraq and demonstrated that domestic contests over the power or authority to interpret and access information sought to utilize legal norms to trump other actors’ claims or challenge government claims to unique authority in military decision-making. From the internal party political perspective, Blair had been warned by Jack Straw as early as March 2002 that the Parliamentary Labour Party (PLP) did not support military action.213 Further, Cabinet could not be counted on to support an aggressive policy towards Iraq without substantial persuasion. To that end, in preparation for the Cabinet meeting of 7 March 2002, Straw arranged for the preparation of an ‘Iraq Briefing’ paper to be distributed both to the PLP and to Cabinet. The essential points of the paper were that Iraq posed a demonstrable threat to the region through its continued pursuit of WMD, that the United Kingdom was working hard to establish a new framework with UN partners on securing compliance with disarmament, and that Saddam Hussein not only posed a threat to the region, he had an appalling human rights record.214 Robin Cook claimed that this Cabinet meeting in early 2002 was ‘the last meeting . . . at which a large number of ministers spoke up against the war’.215 The picture Cook painted of Blair’s behaviour in the meeting recalls the characterizations of his style of government earlier in this chapter. In his diary, he noted that Tony avoided having discussions in Cabinet until decisions had already been taken and he treated the discussion in ‘this supreme body of collective government’ like a ‘Q & A session’ at a party branch. He was ‘unfazed’ that the summary of the contributions pointed in the opposite direction to his policy stance.216 Clare Short echoed this picture of Cabinet ‘management’ in her evidence to the Inquiry, emphasizing that Cabinet’s advice was never sought. Members were kept informed but there was no collective decision which was thrashed out in honest debate and to which the Cabinet then adhered.217 This picture of managing members of government is described strikingly in David Blunkett’s218 memoirs. At the same March 2002 meeting he recounts how Blair said ‘Look, the management hasn’t lost its marbles. We do know these things. We are not going to rush in’.219 Government had become managers—of ‘employees’, advisers, and the public. As war appeared imminent, Blair faced the largest rebellion by a governing party in Parliamentary history. On 26 February 2003, 121 Labour MPs rebelled against 213

Straw to Blair, 25 March 2002, Downing Street Memos. 6 March 2002 Sedwill to Rycroft, ‘Iraq—Cabinet Meeting’ letter with PLP brief, Chilcot Inquiry. 215 Cook (2003) 116. 216 Cook (2003) 115–16. 217 Clare Short, An Honourable Deception? New Labour, Iraq, and the Misuse of Power (Free Press, 2004) 150–1. 218 Home Secretary 2001–04. 219 David Blunkett, The Blunkett Tapes: My Life in the Bear Pit (Bloomsbury, 2006) 359. 214

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the motion supporting war against Iraq. Although Cabinet formally agreed to the government’s use of force in its final meeting before invasion, the government was subsequently criticized for failing to disclose the full Advice from the AttorneyGeneral to Cabinet. This was a breach of the Ministerial Code and meant that members were unaware of the caveats and qualifications attached to Goldsmith’s full, thirteen-page Advice. Clare Short believed that the failure to disclose his full Advice was a deliberate misleading of Cabinet.220 On 18 March 2003, 139 Labour MPs voted against the government again. According to Cohen, the party was split between yes-men wanting to hold onto their jobs and their passionate opponents.221 Among the leaders of the revolt were ‘serious politicians’ who had accepted ministerial positions, in particular Clare Short who led the charge against the government only to yield to pleas for her to stay on. Yet, she was derided in the press for backing down and commentators suggested she was a broken woman in a broken government.222 Straw made it clear to colleagues that the issue now was not Iraq but whether they wanted to keep the government in business.223 This ultimatum forced party members to choose between unity and principled opposition. This choice reflects a further nuance to the domestic structural context model, one which accounts for political costs and benefits for various actors. In the case of Iraq, the country was governed by a traditionally anti-war party, which had been in opposition for eighteen years. Opposition may have been constrained by internal political considerations, including a keenness to keep the party in power, perhaps at the cost of traditional party values or principles. Equally, right-of-centre parties not in government did not provide any actual opposition to military action and in fact exercised their power by demanding action from the governing party. The burden on the Labour government was raised in favour of action because of the risk of appearing weak and ‘losing face’. In any event, the government safely rode out the storm of the rebellion because of the support from the Conservative benches. This Conservative backing did not, however, represent all members’ views. Kenneth Clarke was a significant voice of opposition, but his was a minority view in the party, which was still haemorrhaging from an historic defeat and perhaps uncertain or fearful of making a stand. Interestingly, Clarke did not oppose the war because of any particular affinity to the UN argument, as the Liberal Democrats emphasized. Instead, he maintained that the government had failed to give a convincing account of Iraq’s threat and that the case remained unproven. He voted for both the rebel motions in Parliament on 26 February 2003 and 18 March 2003 (which were nevertheless defeated).224 Clarke’s view was therefore one which challenged the government’s 220

Short, 2 February 2010, Transcript of Evidence, 24, Chilcot Inquiry. Cohen (2004) 105–6. 222 For a fuller account of the turmoil in the Labour party, see Cohen (2004) Ch 5 ‘The Second Battle for Stalingrad’ 101–34. 223 Cohen (2004) 106. 224 Record of Parliamentary division for 26 February 2003 vote available at: . 225 Former Leader of the House (and earlier Foreign Secretary from 1997–2001). 226 Robin Cook, 17 March 2003, HC Deb (2002–03) vol 401, col 726. 227 Robin Cook, 17 March 2003, HC Deb (2002–03) vol 401, col 726. 228 Robin Cook, 17 March 2003, HC Deb (2002–03) vol 401, col 726. 229 Ann Clwyd, Labour MP, 26 February 2003, HC Deb (2002–03) vol 400, cols 319–21.

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appeared to find some support but it was not the open policy of the government to argue for regime change, even if this was the obvious outcome of any action. It appeared that a world ‘policeman’ could be allowed to follow a policy of regime change but the argument was over who should then carry the consequences of such intervention. And such a policy could not be, at least in the United Kingdom, the basis for military action; it could be its outcome, but not its purpose. Britain’s moral leadership in a way became waging war and regime change for peace and world order. Though media commentators challenged Clwyd to explain ‘why Iraq’, why not worse regimes, the human rights concern posed a fundamental challenge to liberal politics. Ultimately, opponents of the war were left without institutional political representation or organization. The Liberal Democrats quickly adopted an anti-war stance, but the mainstream parties, despite some public rancour from significant politicians, did not coordinate domestic opposition to the war. The absence of mainstream party activism had significant consequences for public discourse and was in stark contrast to the Suez experience. In his scathing critique of protest against the war, Cohen claims that the gormlessness of well-intentioned marchers, who allowed themselves to be organized by the communists and Islamic fundamentalists who ran the Stop the War coalition brought a predictable disgrace to the anti-war movement.230 He claims that the reason for this hijack was an absence of positive ideas beyond a pure opposition to Western power, and that this continues to plague the public’s engagement in domestic and international politics. He argues that liberal opinion would not have worried if sanctions and bombing had continued, as long as it had been short of ‘regime change’.231 He claims that the left failed to face up to the reality of Iraqi people’s suffering and that this left them ideologically impoverished. Yet, Cohen has fallen victim to the classic mistake of reading ‘traditional’ political structures and organizations as at the centre of the protest movement. Further, Cohen’s critique fails to discuss the impact that international legal argument might have had on this opposition movement. It seems that opponents were at once aware of the traps into which government had strategically engineered them to fall. For instance, the deployment of the human rights/humanitarian intervention argument created a catch-22 liberal dilemma. It played to the underlying reality that liberal democracy was fundamentally contradictory in its stance towards other nations, that it was peace loving but would fight for an abstract freedom and that in defending itself it was, in fact, liberating others. This form of split consciousness had historically allowed for British imperialism to be regarded as ‘civilizing’ and part of the moral spread of the rule of law. Not only that, the absence of political leadership arguably disempowered mass opinion and activism because there was an absence of institutional challenge to government justification. Finally, Cohen does not seek to analyse the claim that marches were dominated by particular, traditional political groupings. These may have been the

230

Cohen (2004) 273.

231

Cohen (2004) 276.

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most recognizable aspects of protest, but as is examined later in this chapter, this may have been a consequence of media reporting rather than an accurate reflection of the various groupings and interests involved. As has already been discussed, and is explored in more detail below, discourse over Iraq was in many respects a contest over framing, in terms of framing legality, framing policy-making, but also framing ‘popular revolt’. Cohen failed to recognize his own bias against the domestic organizers of the debate as being representative of public protest as a whole. He failed to identify the paradigmatic challenge posited by the transnational anti-capitalism activists who had coordinated the 15 February 2003 protests around the world. These voices appeared to represent a counterhegemonic, subaltern challenge232 which was either dismissed or misrepresented by media and commentators such as Cohen. The media instead highlighted the dispersion of interests as being a powerful challenge to government, rather than the concentration of interests and ideas that the protests instead encompassed. It was the power of numbers rather than the power of paradigmatic ideas that mattered. The absence of strong institutional party opposition, akin to that seen during the Suez Crisis, was a striking feature of public discourse, which arguably led to a focus on ‘the public’, legal issues, and elite dissensus.

4.3.3 Public opinion Dick Cheney’s speech to the Veterans of Foreign Wars 103rd National Convention on 26 August 2002 raised public consciousness about the Iraqi situation. He argued that the risk of inaction over Iraq was greater than action and that Iraq posed the greatest threat to world peace, along with, and perhaps acting together with, AlQaida terrorists. He had committed attacks on his own people and had a Hitleresque desire for territorial control of the entire Middle East region.233 This policy frame suggested a ‘with us’ or ‘against us’ dichotomy, playing on the legacy of appeasement and Hitler’s rise to power. In evoking the spectre of appeasement it sought to construct a simplified historicist account of the experience and lessons to be learned from the Second World War. The legacy of appeasement had, of course, been seen as the ultimate trump card during the Suez Crisis. The speech was widely reported in the British press, as were comments following up this bullish stance from the US Defence Secretary Donald Rumsfeld.234 Rumsfeld repeated the likening of Saddam Hussein to Hitler and said that like

232 Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (Butterworths, 2002). 233 Vice President Dick Cheney, Address to Veterans of Foreign Wars 103rd National Convention, Press Release issued by White House on 26 August 2002, available at . 234 The Times, 27 August 2002, ‘Attack on Saddam cannot wait, says Cheney’, front page; Guardian, 27 August 2002, ‘Cheney waves White House war banner: Vice-President gives support to pre-emptive strike on Iraq’; The Sun, 28 August 2002, Leader, ‘Wise Words’, 8; Daily Mirror, 28 August 2002, Leader, ‘War of Words’, 6.

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Churchill, President Bush was prepared to go it alone and stand up to appeasers.235 The US affirmed its right to attack Saddam Hussein on the basis of pre-emptive self-defence, having regard to his alleged stockpiling of WMD and apparent links with terrorist groups.236 The overarching theme of US policy on the issue was one of ‘regime change’, a policy which did not enjoy the support of world opinion, including British public opinion. In a poll published by ICM/Guardian 52 per cent of respondents believed that US policy on Saddam Hussein was ‘running along the wrong lines’,237 whilst the same percentage, 52 per cent, thought that Blair should not support US policy, compared with 30 per cent arguing that he should.238 The Guardian argued that any future UN ultimatum would be hamstrung by the US Administration’s oft-repeated intention to pursue ‘regime change’ irrespective of UN inspections, thus removing any incentives for Saddam Hussein to comply.239 This wariness of ulterior motives for pursuing military action in Iraq may have been a further reason why the public supported explicit United Nations authority, because in one respect the international organization became the ‘arbiter’ in a complex and multi-motivational intervention. Only such an internationalized structure to authorize force could be relied upon to reflect the interests of collective security, whatever other arguments may have been employed to bolster the arguments to use force. An overwhelming majority of public opinion in September 2002 considered that inspections were working and should be given more time, in accordance with the Council’s own stated aims over the entire period of disarmament. In a poll conducted for the Daily Mirror and GMTV by ICM Research, 71 per cent rejected any military action without UN involvement.240 A Newsweek poll was also cited in the Guardian in which 81 per cent of US respondents said it would be important to gain the formal support of the United Nations for any military action, and 86 per cent said it was important to get support from most of its European allies.241 Another September 2002 poll echoed approval of the United Nations, as well as indicating continued resistance to military action, and overwhelming support for Parliament. 86 per cent thought that, before committing British forces to an attack on Iraq, the British government should seek UN approval. Significantly, this was despite the fact that in the same poll (and indeed the very next question) 78 per cent 235 Again, widely reported on 29 August 2002 in The Sun, ‘Rumsfeld: America’s right like Churchill—Rallying call over Iraq’, 2; Daily Mirror, ‘George Bush is no Churchill’, 8; The Times, ‘Rumsfeld recalls Churchill’s stand against tyranny’, 18. 236 As demonstrated by numerous media reports including Daily Telegraph, 6 July 2002, ‘US plan to invade Iraq with 250,000 troops’, 16; The Times, 11 July 2002, ‘Allies remain lukewarm’, 15; The Sun, 30 July 2002, Leader, ‘So Wrong’, 8. 237 ICM/Guardian Poll, August 2002, available at . 238 ICM/Guardian Poll, August 2002. 239 Guardian, 2 September 2002, ‘White House in disarray over Cheney speech’ front page. 240 Daily Mirror, 2 September 2002, ‘It’s Not our Fight’, Mirror/ICM/GMTV Poll (archived article available at ). 241 Guardian, 2 September 2002, ‘White House in disarray over Cheney speech’, front page.

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did not believe Saddam Hussein when he said that he would allow weapons inspectors back into Iraq without any conditions.242 It was not simply the case that the public desired UN authorization because of the legitimacy-pull of the organization. It must also have reflected a desire on the public’s part to note convergence of world opinion, as expressed in such an international forum. This is distinct from allocating discursive and legal legitimacy to the United Nations itself as an international organization. The implication was that domestic actors could use the United Nations as a resource to challenge government policy and authority and provide objective facts on which to base any military action. There is evidence that the government’s strategy of re launching weapons inspections as a prelude or pretext to military action may have backfired to some degree, providing support for the idea that boomerang or blowback effects had emerged out of the politics of justification and impacted upon government justificatory strategies later on in discourse. Much of the media coverage was premised on the extent of threat posed by Iraq, and on collective action through the United Nations and the inspections regime. This focus on UN action, together with the importance attached to obtaining Resolution 1441, may have signalled to the public that the United Nations was crucial to any justification. It may have been difficult for the government to control completely the way public discourse developed around this justificatory premise once expectations were raised, though there is, of course, plenty of evidence from government’s public statements that they sought to emphasize their belief that a second resolution and explicit Security Council authorization would only be preferable, rather than necessary. In the lead-up to invasion it was clear that a majority of the public (81 per cent) believed that it was essential for Britain and America to get a fresh mandate from the United Nations before launching military action.243 This was arguably as a result not only of widespread opinions that Resolution 1441 did not explicitly authorize force, but also prompted by the British government’s own attempts to secure agreement on a second resolution. This was notwithstanding the qualified rationale given by the government that it was merely ‘desirable’ to have a further resolution, rather than legally essential. Even when, in February 2003, respondents were given the choice of approving military action if supported by ‘countries such as the United States, Britain, Australia, and Spain but not all members of the UN Security Council’, 58 per cent disapproved, as opposed to 31 per cent who registered approval.244 One interpretation might therefore be of an institutional bias towards the UN Security Council being accorded legitimacy as a resource against government. Another interpretation might suggest that such a small ‘coalition of the willing’ reflected the absence of world consensus leading to greater risks of condemnation from numerous other states. The importance of obtaining UN approval was a recurring 242

ICM Poll, 20–2 September 2002, Question 3. Guardian/ICM Poll January 2003. 244 ICM/Guardian Poll, 14–16 February 2003, available at . 243

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theme of public discourse. For instance, in September 2002, a MORI poll put public support for UN-approved action led by America at 71 per cent.245 This had risen to 77 per cent by January 2003.246 In a poll commissioned by The Sun on 17 March 2003, 74 per cent said they would support the war but only if the two conditions of UN backing and weapons inspectors’ evidence were met.247 It seems that the widespread opinion among the public and commentators was that if the United Nations was to authorize an attack on Iraq, it had to be satisfied that its rules really were broken. In a way, the public reflected a sense in which the UN took ownership of the law on collective security and would ultimately judge upon the threat posed and action necessary. It was the United Nations that had to declare the failure of containment and that no means short of military action could achieve enforcement.248 The Guardian leader article of 2 January 2003 asserted that Bush had failed to persuade the United States and the wider world that Saddam Hussein posed a significant military threat to the region or the United States and that the inspections had not been impeded, as had been predicted. On that basis Bush had ‘no just cause’ for waging war.249 By January 2003, many of the arguments over the use of force against Iraq had been rehearsed and discourse had crystallized towards two extremes: on one hand were those that argued that Saddam could not be allowed to stall the Council with ‘too little too late’ tactics of compliance with weapons inspections. They argued that regardless of the outcome of inspections he represented a clear and present danger to the Middle East region and international community. This echoed the government’s evidence about the alleged threat, likely influenced by Blair’s infamous ‘45 minute’ claim made in Parliament on 24 September 2002.250 On the other hand were those that demanded inspections, were circumspect about the government’s ‘evidence’ of non-compliance, and those that, in any event, were against war even if non-compliance could be established. By February 2003, the country appeared to remain fundamentally split over the issue of inspections, with 50 per cent arguing that it was a good plan to send more inspector, as suggested by Germany and France; and 44 per cent believing that sending more inspectors was a diversion, not a solution.251 However, the public remained unconvinced by the compound of arguments related to self-defensive use of force (as opposed to strictly adhering to the collective security line), with 60 per 245 MORI/GMTV Poll, 26 September 2002, available at . 246 MORI Poll 21 January 2003. 247 The Sun/IPSOS Mori Poll, 17 March 2003. 248 The Times, 1 January 2003, Comment, Simon Jenkins, ‘There is no reason for Britain to go to war’. 249 Guardian, 2 January 2003, Leader ‘Call off the war’. 250 This was published in the Iraq Dossier (the September Dossier as it also came to be known) on 24 September 2002 and was referred to by Tony Blair at the recall of Parliament: 21–24 September 2002, HC Deb (2001–02) vol 390, col 3. This became the subject of the Hutton Inquiry which involved investigation into the BBC’s role in claiming that the September Dossier had been ‘sexed up’, including an exaggeration of the intelligence relating to the 45-minute claim. For a fuller analysis of those issues, see Walter G Runciman (ed), Hutton and Butler: Lifting the Lid on the Workings of Power (Oxford University Press, 2004). 251 ICM Poll, ‘Britain Decides’, February 2003.

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cent believing that Britain and America had failed to prove their case of Saddam’s WMD programme, compared to 33 per cent who believed they had succeeded.252 There was a strong pacifist tendency in public opinion which was reflected in a February 2003 poll. The poll appeared to disregard the legitimacy question of the United Nations and the legalities of war, challenging the argument that legality was central to the public discourse. The poll highlighted that, to many people, the war would be wrong regardless of the legalities, and went beyond the argument that war was illegal. In the poll, 45 per cent responded that the United Kingdom should ‘not go to war, with or without a fresh mandate from the UN’.253 This reflected a more general anti-war attitude which then engaged opponents of this position in a fight over the legacies of pacifistic tendencies. For example, The Sun, US administration ‘hawks’, and various American media characterized detractors as ‘appeasers’ to be likened to Chamberlain versus Hitler.254 This rhetoric appealed specifically to the legacy of the Second World War. Charged with appeasement, many opponents of war engaged in a similarly historicized discursive contest. They argued that the allegation of appeasement had been used before, to manipulate a situation in which it could not be legitimately levelled: the Suez Crisis.255 They also challenged the characterization as evidentially unsound by rejecting the government’s and US claims that Saddam Hussein represented an immediate threat to international security. These broader paradigms of division at once tallied with the legal–illegal split but nonetheless represented a distinct trend in public opinion. This observation provides some limitation to the argument that the Iraq War discourse was, more than anything else, a legal discourse. It suggests that such a characterization is an over-generalization: what mattered to large elements of public opinion was the evidence or otherwise of threat, and how best to meet that threat. Information was a powerful tool that could nevertheless be utilized within a legal framework to achieve greater discursive power.

4.3.4 Global public opinion This section questions the claim that global public opinion emerged as an expression of so-called ‘global civil society’. Rather than expressing ideals or value connected to the idea of global civil society, global public opinion in fact represented a challenge to institutional framing of the public discourse over Iraq. It therefore represented a challenge to traditional constellations of state and media power. Media and political actors appeared to interpret the globalization of protest as an expression of the spread of liberal democratic ideals, such as accountability politics and the rule of law. They used this spread of values as an indication of the breadth of opposition to war. It was the apparent heterogeneity of the protesters’ identities that was so powerful. In fact, much of the organization of transnational 252 254 255

253 ICM Poll, February 2003. ICM Poll, ‘Britain Decides’, February 2003. The Sun, 12 February 2003, ‘Who are you kidding Chirac?’ See, for instance, the Guardian, 19 February 2003, ‘Blast from the past’.

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protest appeared to emerge from transnational activists engaged in paradigmatic contest over fundamental principles of liberal democracy and neoliberal economics. Whilst the scale and breadth of opposition was significant, this deeper contest over government policy did not surface in public discourse, largely because it was not reported in the mainstream press. The failure to report this aspect of opposition poses interesting questions about the role of media in challenging government justifications vis-à-vis other actors. The importance of world opinion was explicitly referred to by the Prime Minister in response to Charles Kennedy’s questioning in Parliament. He confirmed that the government saw it as ‘very important that [they] mobilise international opinion through the United Nations’.256 This was world opinion as expressed through the United Nations, and did not represent a political attempt to accord legitimacy to the United Nations itself. This position on world opinion echoed media treatment of the United Nations as expressing ‘world opinion’ and echoed government’s behind-the-scenes discussion of how to persuade world opinion. Some commentators claimed that, measured by polls, and set against and contrasted with the positions of governments, the United Nations had dramatically altered the terms in which the debate over Iraq had been conducted, taking both advocates and opponents of military action into new territory. Perhaps for the first time members of the Council argued on behalf of peoples using opinion polls as would-be clinching arguments outside the chamber if not within it.257 This included reference to how the massive anti-war rallies across the world were demonstrable of the fact that the ‘international community’ did not want military action in Iraq.258 Media commentators also reported on world opinion by carrying articles on worldwide press coverage of the Iraq debate. As with Suez, sections of these articles were devoted to reporting on opinion in particular countries, such as the United States, France, Australia, and India. Interestingly, reports of the anti-war statements following a March 2003 meeting of the Non-Aligned Movement (NAM) also carried critiques of whether the NAM retained any relevance in the post-Cold War world.259 Reporting of US views was somewhat complicated because of the clear distinction between Britain and America over the predominance of ‘War on Terror’ rhetoric and openness about the policy of regime change. There appeared to be widespread concern at the aggressive posturing of US policy and the public appeared to react against this, as reflected in the above polls. In the United States itself, it appeared that a majority of the American public was opposed to the Bush Administration policy of regime change and, in particular, the 256

Tony Blair, 24 September 2002, HC Deb (2001–02) vol 390, col 11. Guardian, 14 March 2003, Martin Woollacott, ‘The UN has at last become the forum of global opinion’. 258 I am grateful to Usha Natarajan for highlighting the speeches recorded during the two-day debate in the Security Council on 19 February 2003, convened at the request of the Non-Aligned Movement. See further, Security Council Record of the 4709th Meeting, 19 February 2003 (resumed); UN Press Release SC/7666. 259 Guardian, 2 March 2003, ‘Whose side are you on?’ 257

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arguments put forward for pre-emptive self-defence even though the public accepted the argument about weapons of mass destruction (WMD). As early as February 2002, 80 per cent of Americans polled thought Iraq already had or was developing WMD. They felt that fact constituted a ‘direct threat’ to the United States.260 Richard Perle argued that the next stop should be Iraq as it was ‘simply a matter of time before [it] acquire[d] nuclear weapons’.261 In August 2002, 83 per cent believed that Saddam Hussein had WMD and was preparing to use them against the United States. American polls such as the one conducted by CBS/New York Times in September 2002, demonstrated that the public perceived the threat posed by Saddam Hussein was one that faced the United States directly.262 86 per cent of those polled viewed the threat he posed as ‘imminent’ in terms of WMD. However, in a CBS/New York Times poll conducted in October 2002, 56 per cent of Americans thought that a country should not be able to attack another unless it was attacked first.263 This poll demonstrates that when asked in the abstract, public opinion did not support the principle of pre-emptive selfdefence but when threatened with particularized risk, support for military action could jump. This ‘risk-based’ rhetoric—playing on a direct and imminent threat— did not play as strongly in British discourse, although Blair did at times use somewhat similar language. The comparison with the United States, though not systematic, does suggest that narrative and framing played a crucial role in the politics of justification. It suggests that narratives deployed in the United States were compelling, as with the ‘War on Terror’ rhetoric coupled with the ‘axis of evil’ paradigm. These narratives could override legal arguments, according domestic politicians with super-legitimacy. As Nathaniel Berman has argued, governments could use force as an act of defiance necessitated by the imperatives of the situation.264 The British government’s difficulty in constructing such narratives appeared to be both a function of historical context and the way the debate was framed in other countries. The government sought to distance itself from the more belligerent aspects of Bush’s rhetoric and therefore emphasized the threat posed by WMD to international stability rather than the threat from terrorism or the ‘open’ or publicized policy of regime change. This was not defiance but a contest over what it meant to comply with international law. One aspect of the Iraq discourse which may have represented a significant shift both in the media’s role and status was the impact that new technology had on information access, on organizing protest and publicizing opposition across the 260 CNN/USA Today Poll, February 2002, available at . 261 Guardian, 16 November 2001, Martin Woollacott ‘Saddam will be the next US target, one way or another’ in which the commentator made reference to Richard Perle’s address to the Foreign Policy Research Institute on 14 November 2001 (a copy of Mr Perle’s address is available at ). 262 CBS/New York Times, September 2002. 263 CBS/New York Times Poll, 3–5 October 2002, available at . 264 Berman (2005).

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world.265 Of particular note is how transnational protest was characterized (or not) and how ‘global public opinion’ appeared as an apparently new concept. Papers such as the Guardian which were the most sceptical of government actions, failed as equally as pro-war papers to identify the larger narratives and ideological motivations of transnational advocates coordinating the worldwide protest of 15 February 2003. Pro-war papers emphasized that a number of ‘hard-Left’ groups dominated the front of the march with many stewards apparently admitting to being members of the Socialist Workers Party.266 The institutional media’s interpretation gave greater coverage and discursive space to what were in many respects fringe elements of protest. This was not a phenomenon restricted to the British experience. Duncan Kennedy has written similar observations of anti-war marches in Boston.267 The Guardian emphasized the global character of the protest by vague assertions of global public opinion and also drew the ‘Middle England’ narrative seen in The Times commentary. It seems that media took the idea of global civil society as reflective of, simply, a globalization of liberal values and democratic processes of protest. The coordination of the protests was arguably a significant development in political and social expression that required explanation, yet was either ignored or misrepresented. The idea for staging an internationally coordinated protest appears to have emerged at the November 2002 European Social Forum (ESF) in Florence.268 Here the anti-capitalist transnational group, Globalise Resistance, had a central role in proposing that a call be sent out to European activists to organize a coordinated protest. At a subsequent meeting in Copenhagen, ESF participants were joined by delegates from newly formed anti-war groups from across Europe and from the US Uniting for Peace umbrella organization. In mid January the call was expanded to address a global audience when ESF participants at the World Social Forum in Porto Allegre, Brazil held a workshop specifically relating to 15 February protest plans. An email circuit was set up which included all the newly created peace movements as well as many of the 5,000 participants at Porto Allegre.269 The activists agreed on a universal symbol (a missile crossed out with the words ‘Stop the War’) and on three slogans: ‘No War in Iraq’, ‘No Blood for Oil’, and ‘Not in My Name’.270 The notable absence in these slogans, particularly when compared with the Suez Crisis, was of the word ‘law’; seemingly a rejection of the 265 This book focuses on a systematic accounting of newspaper media and so this aspect has been underexplored in the case study. The newspaper observations may serve as a useful comparison for future research into online discourse and the influence of wider access to global networks and so-called ‘new media’. 266 Sunday Telegraph, 16 February 2003, ‘One million march against war’. 267 Duncan Kennedy, ‘Teaching from the Left in my Anecdotage’, NYU Review of Law & Social Change 31 (2007) 449. 268 Joris Verhulst and Stefaan Walgrave, ‘Protest and Protesters in Advanced Industrial Democracies: the case of the 15 February global anti-war protests’ in Derrick Purdue (ed), Civil Societies and Social Movements: Potentials and Problems (Routledge, 2007) 124–43. 269 Verhulst and Walgrave (2007) 124–43. 270 Andrew Murray and Lindsey German, Stop the War: The Story of Britain’s Biggest Mass Movement (Bookmarks Publications, 2005).

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paradigm that sought to counterpoise law against war. The reference to oil indicated the belief that the invasion had economic, capitalist motivations (and had been a slogan deployed during the Gulf War). The final slogan arguably sought to delegitimize the liberal democratic values expressed by government decisionmakers in the United States and Britain, by appealing to the principle of the democratic mandate, and how it was absent in this case of war planning. It represented the sense in which the people, from whom democratic legitimacy ought to have derived, had no voice in government decision-making, and not enough influence to prevent military action. The coordination of slogans also arguably expressed a solidaritist motivation which expressed a moral and legal resistance to American foreign policy.271 The inference of these three slogans was that using force was no surprise to the critics of hegemonic liberalism: the slogans sought to expose the contradictions within the grander liberal narrative. International law for these actors was complicit with hegemonic domination because it was used to justify war, not prevent it. Further, international law was deeply enmeshed in the post-war settlement that included the spread of neoliberal economic policy and the globalization of trade. For such activists, international law did not represent a just or pacifist paradigm, but instead represented the shift from explicit colonialism to the new hegemonic order.272 Despite this clear narrative, mainstream media reports concentrated either on the protesters’ leftist credentials or on their ‘mass’ power, as a heterogeneous swell of broad-based, ideologically incoherent opposition to war. None of the mainstream media outlets recorded why or how the protests had been coordinated in this transnational way. Indeed, the protest was termed an expression of a new global superpower, of ‘street power’ by one New York Times commentator.273 In Britain, global public opinion was similarly referred to as the ‘other’ superpower in conflict with US hegemony.274 Academic study has likewise termed the global protests an expression of a peaceful superpower.275 This suggests a paradigm whereby global protesters were only united in putting forward a grand narrative that was largely pacifist, and which rejected recourse to force. Yet, this was just one reading of the many motivations drawing global protesters together. Given the difficulties in characterizing a movement of over ten million people on this global day of protest, it was perhaps inevitable that the media would report its power as lying in its heterogeneity. Further, the timing of the protests, when war appeared to be inevitable, exerted pressures on media reporting as narratives appeared to be increasingly framed around transmitting fast-moving international

271 See Carlo Ruzza and Emanuela Bozzini, Anti-Americanism and the European Peace Movement: The United States Contested (Routledge, 2006). 272 Murray and German (2005). 273 Patrick E Tyler, ‘Threats and Responses: News Analysis; A New Power in the Streets’ New York Times, 17 February 2003, A1. 274 Jonathan Schell, ‘The Other Superpower,’ The Nation (27 March 2003), available at 275 See David Cortright, A Peaceful Superpower: The Movement against War in Iraq (Fourth Freedom Forum, 2004).

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events, both in the Middle East and at the United Nations. What remains significant is that such a transnational movement emerged in a relatively short time and was effectively coordinated through new networked channels of communication. It may be that future discourse will be impacted by this legacy of transnational protest and global concern. This aspect of legacy, as is the case in relation to scholarly debate, would be a fruitful area for further research, particularly as it involves consideration of broader impacts of technology, globalized media, and shifting political constellations.

4.3.5 International institutional influence The centrality of the United Nations to public discourse on the war has various elements and is joined by an analysis of how events at the United Nations were reported in the press. Politicians demonstrated a bias towards UN-mandated action, and therefore concentrated their opposition on the failure to obtain a second resolution which explicitly authorized force. Government also signalled the importance of the United Nations for legitimizing their legal justification for military force. This section examines how events such as Security Council meetings and inspectors’ reports became part of public discourse, and investigates whether media reports of events at the United Nations constrained government in any way, and what may be the legacy of this interaction on future decision-making. Following adoption of Resolution 1441, the Security Council offered Iraq ‘a final opportunity to comply with its disarmament obligations’276 which echoed the language of previous resolutions. Michael Byers claims that Council members had agreed to disagree: that the language of the resolution was capable of both sets of interpretations regarding automaticity.277 John Negroponte, the US Ambassador to the United Nations, upon adoption of Resolution 1441, ambiguously claimed that there were no ‘hidden triggers’ and no ‘automaticity’ with respect to the use of force, but that if there was an Iraqi breach reported to the Council by UNMOVIC, the IAEA or a Member State, the Council would have to act. If it did not, the resolution would not constrain any member from acting to defend itself against the threat posed by Iraq or to enforce relevant UN resolutions and protect world peace and security.278 Instead of agreeing to disagree, it could be argued that actors merely ensured they had linked their justificatory arguments to a form of legal process. That legal process was an engagement in the institutionalized politics of disarmament through collective security. By doing so, actors enhanced their legitimacy of action. By using the language of the Charter paradigm (collective security) they sought to position themselves squarely within the international community of ‘socialized’ states. What 276

S/RES/1441 (2002), 3, para 2. Michael Byers, ‘Agreeing to Disagree: Security Council Resolution 1441 and Intentional Ambiguity’, Global Governance 10 (2004) 165–86. 278 US Ambassador to the United Nations, John Negroponte, Meeting of the UN Security Council, 8 November 2002, S/PV.4644, 3 col 2. 277

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mattered was the potential for discursive legitimacy that could be harnessed by Council members to transmit winning arguments to domestic publics. However, the very fact that arguments had to be transmitted and that public opinion mattered, both in the international and domestic arena, meant that governments could not guarantee total control or management of public discourse. On 22 January 2003, The Sun reported the finding of a chemical weapons ‘haul’ in Iraq and that this provided the grounds necessary to attack immediately. It demonstrated that Saddam had not complied with Council resolutions demanding full disclosure of weaponry.279 This intensifying of pressure came as President Bush, who had made the revelation, asserted that weapons inspections were failing and that Saddam Hussein had already made life difficult for the inspectors. He argued that, on that basis, it was time for the Council resolutions to be enforced.280 This posturing was in anticipation of UNMOVIC and the IAEA’s 27 January 2003 progress report. Bush’s argument sought, in many respects, to pre-empt any findings of compliance and determine the outcome of the reconvening of the Council before discussion and debate could take place between members. This is all the more interesting when we consider that the British government (and presumably therefore the US administration) knew that inspections would take several months to be effective.281 Hans Blix’s 27 January report did not provide the grounds for launching a military attack. He stated that, as far as cooperation with inspections had gone, ‘Iraq has on the whole cooperated rather well so far with UNMOVIC in this field . . . ’ but that there were some ‘problem issues’ which needed to be addressed for the inspections to continue to provide a service to the Council. He ended by addressing the Council President that the ‘inspection apparatus’ had the ‘capability which has been built up in a short time and which is now operating, [and] is at the disposal of the Security Council’.282 The IAEA’s conclusion was similarly restrained and guardedly optimistic. Mohamed ElBaradei said that there was no evidence that Iraq’s nuclear programme had been revived and, given continuing cooperation, that the IAEA would be able, ‘within the next few months to provide credible assurance that Iraq has no nuclear weapons programme. These few months . . . would be a valuable investment in peace because they could help us avoid a war’.283 To some extent the argument that UNMOVIC and the IAEA should be given time to work was the key part of the popular appeal of the anti-war demonstrations and slogans. Among the Stop the War Coalition (StWC) organizers there was apparently an appreciation that this represented the broadest aspect of public opinion. Discussion 279 280

work’. 281

The Sun, 22 January 2003, ‘Iraqi weapons haul shows we must act’. Bush quoted in the Guardian, 23 January 2003, ‘Impatient Powell says inspections will not

See, in particular, Cabinet Briefing Paper, 23 July 2002, Downing Street Memos. The Security Council, 27 January 2003: an update on inspection, Executive Chairman of UNMOVIC, Dr Hans Blix (as given), available at ; also available in S/PV.4692. 283 UN Security Council 4692nd Meeting, 27 January 2003, S/PV.4692, 12. 282

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relating to whether or not force could be justified if authorized by a further Security Council resolution would only fracture the broad base of opposition.284 The organizers’ acknowledgement of the need to broaden the appeal of protest as wide as possible meant that many of their own views, in particular that war would have been unjustified with or without a second resolution, sat in the background of public activism. This was why there had been some debate as to whether or not Charles Kennedy, leader of the Liberal Democrats, would address the London anti-war demonstration on 15 February 2003.285 The Liberal Democrats had taken the position that the inspections should be allowed to work but that if a second resolution was passed by the Council, theoretically they would support an attack on Iraq. Earlier, following an emergency motion passed at their 2002 party conference, they had demanded evidence that Saddam Hussein was a threat,286 insisting military action against Iraq should only be taken as a last resort and with UN and Parliamentary backing.287 This differed from many in the StWC and other anti-war activists’ positions which stood adamantly opposed to war, whether or not a second resolution were passed. In Colin Powell’s address to the Security Council of 5 February 2003, the Secretary of State assured his colleagues and the worldwide audience that, ‘ . . . every statement I make today is backed up by sources. Solid sources. These are not assertions. What we are giving you are facts and conclusions based on solid intelligence’.288 He focused on this presentation of evidence to make a compelling case for military action and substantiate the alleged threat from Iraq. The speech can be seen, in part, as a response to UNMOVIC’s report which had suggested that inspections could work, but that patience was needed to ensure continuing compliance.289 The speech therefore constituted a direct challenge or contest over facts and evidence in order to legitimize the US policy position and demonstrate UN incompetence or naïvety in the face of Saddam Hussein’s intransigence. US media, and government spin, suggested that Powell’s address would create an ‘Adlai Stevenson moment’ comparable in drama and persuasion to the US government’s exposure of Russian activities during the Cuban Missile Crisis.290 Powell sought to upstage Hans Blix’s second report to the Security Council (scheduled for 14 February 2003) by emphasizing evidence from US intelligence without reference to inspectors. This sought to ‘trump’ the inspectors’ implicit claims to authority and legitimacy by reference to ‘secret knowledge’. Further, Powell asked the Council for nothing. This was an exercise in persuasion both for world opinion but, also importantly, for domestic opinion. For instance, he focused on 284

285 Murray and German (2005). Murray and German (2005). The Party simultaneously dismissing the government dossier on Iraq’s weapons as it did ‘not constitute evidence of an immediate threat’. 287 Guardian, 26 September 2002, ‘Blair’s dossier on Iraq offers no cause for war, says Campbell’. 288 Colin Powell, Security Council 4071st Meeting, 5 February 2003, S/PV.4701, 5. 289 For rhetorical analysis of Powell’s speech including a pedagogical diagrammatic breakdown of the text, see David Zarefsky, ‘Making the Case For War: Colin Powell at the United Nations’ Rhetoric & Public Affairs 10(2) (2007) 275–302. 290 See eg New York Times, 28 January 2003, Julia Preston, ‘Threats and Responses: Report to Council; U.S. Inspector Says Iraq Falls Short on Cooperation’. 286

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explicit links between Al-Qaida and Iraq, in particular noting the operations of Musab Al-Zarqawi in the north-east of Iraq, though this was not the main thrust of his speech.291 It may have had an important influence in the United States, even if it failed to persuade (and indeed may never have been intended to persuade) the other Council members.292 Its influence on British public opinion and media analysis may have been more negative than positive, as it did not appear to sway public discourse in substantiating a convincing case for war. The Times noted that the terror link was the ‘weakest part’ of Powell’s impressive ‘political advocacy’ for the ‘battle for popular opinion’.293 Furthermore, there appeared no change in the public’s approval of the war either on that basis or any other, with disapproval remaining at around half of respondents.294 On top of this, in a televised Newsnight interview on 6 February 2003, Blair made sparse reference to the link with terrorism and instead emphasized the central issue of the evidence of Iraq’s weapons plans. For instance, he said ‘I’m not sitting here and saying to you that’s the reason [the “historical link” with Al-Qaida is] why we’re taking action against Saddam, it isn’t. But it would not be correct to say there is no evidence linking Al-Qaida and Iraq’.295 Tony Blair expanded his arguments to centre on the threat of WMD and attempted to challenge the sole authority of Hans Blix to determine the scale of the threat posed.296 At the same time he asserted that, though Resolution 1441 did not expressly authorize force, it was clear that the United Nations would be compelled to act, by that resolution, if a breach occurred. This attempt to separate the United Nations itself from legitimate authority again did not appear to have any effect on public opinion, with only 12 per cent thinking that the inspectors should not be given any more time to find weapons.297 In his 14 February 2003 address to the Council, Hans Blix cautioned that ‘UNMOVIC is still expanding its capabilities, both in terms of numbers of staff and technical resources . . . ’ which suggested that the inspectors would need more time but could be entrusted to ensure disarmament.298 The Guardian interpreted the report as kicking away the stool supporting the already wobbly US-British case for war, saying that Mr Blix ‘had presented a picture of a viable, increasingly effective, ongoing inspections process’. This, according to the paper, contrasted 291 Reported by various newspapers including The Sun, 6 February 2003, ‘Iraq still hiding weapons’; The Times, 6 February 2003, ‘Foreign Editor’s Briefing: Iraq’, and the Guardian, 6 February 2003, ‘Powell’s evidence against Saddam: does it add up?’. The text of the speech is available via the United Nations reference S/PV.4701. 292 See, for instance, the Independent, 30 January 2003, Rupert Cornwell, ‘Iraq the Threat of War: Powell to Present “Proof” ’ of Saddam’s Banned Weapons’, anticipating the impact Powell would have despite perhaps not having the same dramatic impact as Stevenson’s presentation. 293 The Times, 6 February 2003, ‘Foreign Editor’s Briefing: Iraq’. 294 52 per cent compared with 29 per cent approval, ICM Poll, February 2003. 295 Newsnight interview, 6 February 2003, transcript at . 296 Newsnight interview, 6 February 2003, transcript at . 297 Guardian/ICM Poll February 2003. 298 See for text of the Council briefing by Blix, 14 February 2003.

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sharply with Powell’s ‘moment of truth’ presentation.299 Later it appeared that Blix had, in a characteristically diplomatic way, set himself at odds with the US Administration’s line by indicating in his February and March 2003 reports that the solution to disarmament could be entrusted to UNMOVIC and all that was needed was time.300 On 7 March 2003, he said ‘How much time would it take to resolve the key remaining disarmament tasks? While cooperation can, and is, to be immediate, disarmament and, at any rate, the verification of it, cannot be instant’.301 In the Council, the response to Blix’s comments began with Germany. Representative Fischer (German Foreign Minister) said that ‘[t]he aim of the international community remains the complete disarmament—and only the disarmament—of Iraq to finally eliminate the international threat posed by Iraqi weapons of mass destruction’.302 Yet, Colin Powell argued that: not much has changed. Iraq’s current behaviour—like the behaviour chronicled in Mr. Blix’s document—reveals a strategic decision to continue to delay, to deceive, to try to throw us off the trail, to make it more difficult, to hope that the will of the international community will be fractured, that we will go off in different directions, that we will get bored with the task, that we will remove the pressure, that we will remove the force.303

Further, he argued that the Council would be failing in its responsibilities if it did not act to enforce disarmament.304 The fault lines in debate were clear: either disarmament was working, but slowly, or it was not, in which case the Council was compelled to act. This was a difficult argument to sustain for the British government because the public had demonstrated a clear commitment to allowing the inspections more time and that it should be the inspectors who took the lead on determining compliance. In a poll taken in mid February 2003, 78 per cent believed the inspectors should be given more time, the length of which ranged from a few weeks to longer than a few months.305 The legitimacy of inspections was in sharp contrast to the mistrust of government, and of US policy. This element of trust, as well as role of guardian of objective facts, may have been a reason why the White House’s biggest fear early in May 2002 was that UN weapons inspectors would be allowed back into Iraq.306 One explanation for this widespread support of the inspections was that it represented a means of identifying objective evidence about Saddam Hussein’s threat. The inspectors’ role and any evidence they found (or lack of it) could be used by domestic actors, nominally excluded from international affairs, to contest government claims to be acting legitimately and authoritatively on the basis of secret intelligence. Another interlinked possibility is that domestic actors viewed the Guardian, 15 February 2003, Leader ‘No case for war: Mr Blix makes the case for more time’. See 4707th SC Meeting, 14 February 2003, S/PV.4707 and 4714th SC Meeting, 7 March 2003, S/PV.4714. 301 7 March 2003, S/PV.4714, 6. 302 7 March 2003, S/PV.4714, 9. 303 S/PV.4714, 16. 304 S/PV.4714, 16. 305 Guardian/ICM Poll, February 2003. 306 Senior US foreign policy aide quoted in Time magazine, 13 May 2002, 38 (European edn). 299 300

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inspections regime as a form of institutional bureaucracy. As such, the regime benefited from a legitimacy-pull because of its function as a rational–legal authority. The influence of the UN on public opinion and framing was always subject to a similarly influential rejection of its role. In this sense, its influence can be seen as double-edged. This rejection was characteristic of the hawks’ position in the US administration and it was also evident among sections of the British press. Though not echoed in public opinion polls, pro-war papers took a principled position that the United Nations was a failure because of its over-emphasis on ‘talking’ which was ‘cheap’. The Sun claimed that Hans Blix had been ‘cavalier’ in his press conferences and was going to continue to be soft on Saddam. In the wake of this ineptitude, the United Nations had failed its duty and the principal villains were to be the French.307 For such commentators what was so damaging was the failure of unity, and this would be ridiculed by the world’s despots and dictators. This was the classic rhetoric of Great Powers and invocation of the legacy of appeasement. Unpacking these various charges, there are two clear themes. The first was an underlying assumption that the paradigm of ‘us’ and ‘them’ was one where liberal democracy was ‘good’ and everything else was ‘evil’. This allowed The Sun to conflate UN deliberation with failure, as it represented compromise with evil. This background narrative framing also influenced the second theme which was that the United Nations had to be unified, that disunity somehow gave succour to terrorists and dictators. This fell into the broader paradigm of reifying the post-war settlement and the centrality of Great Powers, painting anyone opposed to that settlement as opposed to liberal, democratic values and therefore constituting an inherently de-legitimized ‘other’. These background principles were also shared by opponents of the war, but they found expression not through lambasting the United Nations but in according the Security Council a degree of legitimacy that, on a substantive analysis of its history, function, and structure, was perhaps over-generous. This reflected a bias towards multilateralism which likewise reflected the dominance of Western liberalism. It also reflected liberalism’s domestic structural context. The predominance of institutions and bureaucratic governance arguably had socialized the domestic British public to support UN engagement in dispute resolution. One explanation for the public support for the inspections regime was a vesting of authority in bureaucratic regimes of accountability and legitimacy. However, it seems that certain UN actions were accorded greater legitimacy than others, which is not easily explained solely by reference to grand narrative and underlying principles. Security Council behaviour appeared to be treated in some sections of the press and public opinion, as distinct from the inspections regime. Any generalized conclusions are tentative because of the clear differences in public opinion between, say, Britain and the United States. However, it appears from the analysis of British discourse that the United Nations had a legitimating force that ran somewhat counter to government expectations. This therefore meant

307

See eg The Sun, 7 March 2003, ‘The end game’.

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that appeals to legal justification were subject to challenge because of the institution’s failure to agree over that legal justification. This suggests support for the claim that international norms (and the regimes within which they may be embedded) may well raise the burden on government in the politics of justification. However, it should also be noted that this is not a simple case of legitimacy contest. The evidence from Iraq suggests that whilst particular elements such as inspections were foregrounded, this was at the expense of interrogation of the broader historical framework and avoided the question of whether inspections themselves were legitimate. This, like the legalized aspects of public discourse, may have displaced paradigmatic challenges to narratives, with more microcosmic, regulatory frameworks.

4.4 In the aftermath of war In the immediate aftermath of the invasion of Iraq in March 2003, there was a noticeable shift in public discourse. An indication of how the ‘mood’ of discourse shifted following invasion can be summed up by the Daily Mirror’s striking move from trenchant opponent of war, to supporter of ‘our troops’ once war got underway. This pattern of realignment of media reporting, towards a more patriotic position was hardly novel and, again, was likewise seen in the immediate aftermath of the climax to the Suez Crisis. Yet what did appear to continue simmering away were the questions and controversies over the formulation of government policy and the justifications for military action. Tracing the longer aftermath of the Iraq War is, in many ways, like writing a history of its legacy before it has been settled. Whilst the ‘Iraq legacy’ remains an on going (hi)story, the shifts in discourse from 2002 to today pose interesting questions about the politics of justifying force. In the decade following the invasion a striking feature of the Iraq War was its repeated entrance onto the stage of public discourse. Part of the reason for this must have been that the war, so prematurely declared ‘won’, continued to engage British forces, keeping Iraq on the ‘news agenda’. Further, and of more interest for this research study, revelations continued to emerge about how the decision to go to war had been taken. In particular, the creation of several inquiries into distinct aspects of the decision to go to war, whether addressing the actions of the BBC and its reporting of a ‘sexed-up dossier’ (the Hutton Inquiry of 2003–4), WMD intelligence (the Butler Review of 2004), or the widest remit of all, Sir John Chilcot’s Iraq Inquiry into the lessons to be learned from Britain’s involvement in Iraq from 2001 to 2009 (the Chilcot Inquiry),308 suggested a ‘legalised fallout’ to justification.309 The contrast with the Suez Crisis is striking: whilst some policy officials and members of government voiced the benefits of a ‘lessons learned’ inquiry into Suez—years 308

Available at . It is also striking how many legal challenges there were to the government’s decision to go to war and on the subsequent conduct of the war in Iraq. These challenges have created a jurisprudence of the Iraq War that deserves careful attention in future studies. 309

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later of course—the idea was jettisoned quietly and unceremoniously, as officials remarked that it would open a ‘Pandora’s box’.310 This case study does not engage in a systematic analysis of each of these inquiries, nor does it spend significant time reflecting on the comparison with the Suez ‘fallout’. Instead, one interesting question relates to the process of inquiring into Iraq: what it meant for the legacy of the Iraq discourse to chronicle government decision-making through this particular institutional form. During this process, and most particularly in relation to the Chilcot Inquiry, significant changes occurred in the way the war and its decision-making was debated and discussed in public. For instance, during the hearings, international law was discussed more than at any other time during the at times intense discourse over military action in the immediate build-up to war. As the media reported these legal arguments, so international law entered centre-right onto the stage of debate over justification, this time in 2009, seven years after the initial justificatory politics. Whilst the Chilcot Inquiry held its hearings, the press reported many of the more ‘spectacular’ revelations. There was a great deal of focus on Tony Blair’s evidence, and in particular the fact that he was asked to return to give further evidence. In an intriguing parallel to Eden’s trouble with legal advice over Suez, Blair emphasized in his second giving of evidence that although his comments on UN authorization had made the Attorney-General ‘uncomfortable’, he had not been making a ‘legal declaration’ but a ‘political’ case.311 The process of inquiring into the decision to go to war therefore raised a number of controversies in the press that had simmered away since 2002. There was widespread reporting of the legal advice controversy and the Inquiry’s revisiting of intelligence issues, the subject matter of the Butler Review, appeared to revive the press interest in the relationship between intelligence and policy. As the tenth anniversary to the Iraq invasion approached, media reported several exchanges between government officials and the Inquiry panel which had contributed to the delays in publishing the report. These centred on disclosure contests around the messages between Blair and Bush in 2002. The resultant delays in the Report, which cannot all be attributed to this issue of evidential publication,312 generated the sense of ‘saga’ in media reporting of the Inquiry. The sense of saga hit a crescendo around the March 2013 anniversary as numerous articles decried the continuing delays in publication. This reporting also occurred at a time of further media revelations about intelligence sources. As referred to earlier, the BBC’s flagship investigative programme, Panorama, broadcast a detailed examination of these intelligence sources, including interviews with foreign intelligence

310

Paul Gore-Booth, 13 July 1965, PRO FO370/2807/LS13/4. Tony Blair, 21 January 2011, Transcript of Evidence, 73, Chilcot Inquiry. Sir Martin Gilbert suffered serious illness following the hearings of evidence. In addition, Sir John Chilcot indicated that the Report would be extremely long, around one million words, given the wide scope of the Inquiry’s mandate. 311 312

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agencies which cast the use of this intelligence in an even murkier light than had hitherto been utilized, not least by the Butler Review into intelligence.313 Interviewed on the programme, Lord Butler considered that Blair may have ‘misled himself ’ as to the state of intelligence, a rather puzzling conclusion given the programme’s main thrust that the Blair government had been made fully aware of the weakness of the available intelligence, and been advised not to use the sources being advocated for in their policy statements. The interview suggested an institutionalized deference to government decision-making, and emphasized that this was an ‘honest mistake’. Again, it is rather puzzling that the deployment of ‘honesty’ ought to have become the yardstick by which to judge a claim to authority which paid lip service to a democratic mandate, yet appeared entrenched in a mode of claim to sovereign right. What is striking about the media reporting of both the Chilcot Inquiry and the intelligence controversies is that there was no recognition of the role of media in the very process of justification that it sought to shine a light on. In other words, what emerged was a reaction to government justifications that sought to blame either intelligence or government directly for misleading the public, without acknowledging the very real influence media had in this process. It should be noted that at the time the Chilcot Inquiry was announced many sections of the press hailed the opportunity to scrutinize government decisionmaking. These initial high hopes of holding government to account were probably misplaced. As Alan Doig and Mark Phythian note, ‘[o]fficial or parliamentary inquiries are remarkably reluctant to confront governments over cases where the national interest appears to be involved, and thus avoid unpicking the nature of the political and intelligence decision-making processes behind them’.314 Indeed, the Hutton and Butler Reports did not blame politicians, despite the fact that each inquiry was charged with investigating allegations of pressure and undue influence. In other words, none of the inquiries acknowledged how intelligence was fixed around policy, as Sir Richard Dearlove had himself reported privately in March 2002.315 Whilst an inquiry seeks to chronicle events and assess evidence in an impartial and remit-limited way, its process can be likened far better to a saga. That is, the process of inquiring, as reported by the media, and as a spectacle itself, is highly dramatic, full of twists and turns, ‘moments’ worthy of comment, and speculation, not least as to outcome and final reporting. Of course this aspect of inquiries is hardly unique to the legacy of Iraq, but it is a striking aspect to the process of rewriting the historical account of the decision to go to war. What these final inquiry reports lacked in bite was in some ways made up for by the narratives produced during their staging and their disclosure of policy discourse—producing new moments and new meaning. Albeit BBC Panorama, ‘The Spies Who Fooled the World’, 18 March 2013. Alan Doig and Mark Phythian, ‘The National Interest and the Politics of Threat Exaggeration: The Blair Government’s Case for War against Iraq’ The Political Quarterly 76(3) (July 2005) 368–76 at 371. 315 Alan Doig, James Pfiffner, Mark Phythian, and Rodney Tiffen, ‘Marching in Time: Alliance Politics, Synchrony and the Case for War in Iraq, 2002–2003’ Australian Journal of International Affairs 61(1) (March 2007) 23–40 at 36. 313 314

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partial, the window onto private decision-making and the evidence submitted to all three inquiries proved far more interesting than their eventual Reports,316 imbued with unsurprising deference to government judgments and authority. The outcome of the Butler Report in particular was to provide a platform for government to be able to blame intelligence for the failures over the Iraq policy. And this Blair and members of his Cabinet happily did.317 At the heart of the inquiring process, therefore, lies a dilemma which is hardly acknowledged but which directs the eventual assessment of sometimes explosive evidence of the politics of justification. That dilemma reflects the paradoxical qualities of liberal democracy in Britain. Harden and Lewis write that ‘alongside expectations about openness, democracy, public accountability and the like there have developed strong traditions and practices concerning the day-to-day doing of the nation’s business which live very uneasily with those expectations’.318 As Doig and Phythian note, ‘defence and international relations . . . ignore the constitutional niceties of parliamentary accountability and the political constraints of party policy if it feels that such decisions serve the strategic interests of the UK state in international matters’.319 This structural aspect to justifying force is further premised upon what Burch and Halliday call a system of governance that is ‘infused . . . with important residues from earlier, pre-democratic times’.320 It seems that much of the ad hoc-ism, and exceptional authority status of Prime Ministerial governance is alive and well, long after the Suez Crisis. Of course, the shadow of Iraq did not fall squarely over the stage of inquiry. It also appears to have fallen over subsequent decision-making in relation to other foreign policy considerations. Yet this aspect of justifying force is a far more problematic influence to trace than the formal institutions of inquiry. Most immediately, this related to the West’s confrontation with Iran over its nuclear power programme during 2003 and 2006. That confrontation continues to simmer away, but there was a sustained period of activity in reporting and apparent ‘international engagement’ during this period. The United States sought to meet nuclear confrontation and evidence that Iran was fuelling Shia insurgency in Iraq by ‘keeping all options on the table’. In a phone call with Jack Straw, Joschka Fischer (German Foreign Secretary) said that Straw was desperate to avoid a ‘second Iraq’. This led to an EU initiative to defuse the confrontation whilst at the same time the US administration enhanced its threatening stance towards Iran.321

316 At the time of writing, the Chilcot Inquiry has yet to produce its anticipated one-million-word Report. 317 See, for instance, Blair’s ‘apology’ to the Labour Party Conference in 2004, and the Lord Chancellor’s apology on the Today programme around the same time. Documented in Doig and Phythian (2005) 374. 318 Ian Harden and Norman Lewis, The Noble Lie: The Rule of Law and the British Constitution (Routledge, 1988) 11. 319 Doig and Phythian (2005) 370. 320 Burch and Halliday (1996) 10. 321 For a detailed account of these relations, see Iran and the West a three-part documentary produced by the BBC which aired in February 2009. In particular see Part 3: Iran and the West: Nuclear Confrontation.

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In Autumn 2005, Straw hosted the US Secretary of State Condoleezza Rice to discuss how the divergent policies on Iran were splitting the US–UK relationship apart. He said that she needed to understand that there were not any circumstances in which this British government or indeed, in his view, any British government could be involved in military action against Iran. He believed it was completely inappropriate and counter-productive and given the ‘background of Iraq’ the British government ‘would have been involved in a political firestorm’ if they had given even a hint that military action was a possibility.322 But quite obviously, it was not solely the ‘Iraq legacy’ that affected Britain’s decision to take military action off the table, even if the strength of opposition to the Iraq War may have fuelled government reference to future crises as potentially becoming a ‘second Iraq’. Although on the face of it, this reaction to a ‘new’ international crisis— namely containing any nuclear threat from Iran—could suggest that Iraq cast a long shadow over policy choices to such an extent that war was taken out of the policy options available, such a conclusion is neither inevitable nor irresistible. Indeed, such a conclusion necessitates an assumption: that the reference to a ‘second Iraq’ referred explicitly to the difficulty in justifying force, rather than, for instance, the practicalities of launching further military action when already in action in Afghanistan and Iraq. Nevertheless, there is no doubt that the experience of justifying the Iraq War must have had some impact on later decision-making. The question is whether this, in perhaps a similar way to the Middle East crises of 1958—when Britain and the United States sought to protect Lebanon from the influence of Nasser’s newly created United Arab Republic; and contain the fallout from the Iraqi Revolution—the previous experience of a ‘difficult action’ (in the 1958 case, the ‘ghost of Suez’), might have oriented decision-making towards particular policies that did not involve the explicit use of military force. On one hand, this might well constrain governments in seeking to use force, but on the other might nevertheless endanger ‘international peace and security’ such that the very premise or foundational element to the prohibition on the use of force, namely peace and stability, is jettisoned by more covert acts which avoid the image of explicit ‘militaristic’ invention. This is hardly an unproblematic progress narrative of constraint and order through law. In the longer frame, the 2011 NATO-led action in Libya can be seen as, in some way, debated ‘in the shadow of Iraq’. As this book has sought to make plain, comparing wars across time and space directly is not what is of interest, not least because of such a study’s inevitable slippage into anachronism. Yet, how might the Libyan intervention challenge the progress narrative premise of Goodman’s analysis of the politics of justification? Debate over the Libyan intervention, which began with the United Kingdom leading NATO forces in establishing a ‘no-fly zone’ in March 2011, was perhaps most noteworthy for its back-to-frontness when compared to Iraq. There was far less public debate over military action in the run-up to intervention.323 Then, a month into the intervention, debate escalated as the media 322

BBC Interview with Jack Straw, Iran and the West: Nuclear Confrontation. This is not to suggest there was no public contest over the prospect of intervening in Libya, but nothing on the scale of Iraq. 323

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reported shifting tactics in the coalition’s mandate, and claims began to surface that the UN-sanctioned force—using ‘all necessary measures’ to protect civilians—was being interpreted too loosely to include a clear determination to get rid of Colonel Gaddafi. In other words, the claim emerged relatively early on once military action had begun that humanitarian intervention was morphing into regime change. One reason why there may have been less controversial and extensive debate in the run-up to intervention was that the establishment of a ‘no-fly zone’ was mandated expressly by the UN Security Council by adopting Resolution 1973 on 17 March 2011. Although Russia and China abstained from the vote, the language made clear that such action was authorized by the Council as long as it was in furtherance of protecting civilians from regime attack.324 This resolution was not, however, the first occasion on which the Security Council had spoken on the emerging, escalating conflict in Libya. On 26 February 2011 the Council unanimously adopted Resolution 1970 (2011) in which it stated that, acting under Chapter VII, it had referred the ‘situation in Libyan Arab Jamahiriya’ to the International Criminal Court (to investigate charges relating to events taking place after 15 February), imposed travel bans and sanctions, asset freezes, and an arms embargo.325 On the very short example of Libya, it could be argued that humanitarian-based claims were far easier to make, and subject to far less controversy and public debate because of the legacy of Iraq. Libya could be easily contrasted with the ‘pretext’ accusations over Iraq, and yet there is no doubt that there were a number of other motivations, including quite obviously regime change, that drove the legal justifications for humanitarian intervention. The humanitarian justification cohered with a grand narrative about the current purposes of the international collective security system, and thereby the interpretation of the purposes of the ‘exceptional’ framework for using force. To that extent, ‘crusading liberalism’ was not constrained by the Iraq legacy in seeking the protection of others in distant places. The implication from Libya may be that constructing forceful intervention as ‘in the national interest’ or on the basis of some aspect of self-defence (whether preventive, preemptive, or otherwise) no longer provided the authoritative language for governments engaging in military action. Yet, such preliminary and necessary brief observations rely on ‘thin’ description and further research is needed to consider the legacy of Iraq on subsequent military action in the contemporary world. Even so, the question of legacy, of extended ‘blowback effects’, leads us to question the progress narrative that underpins the existing research on the politics of justification. Current trends in warfare suggest the continuing story of war through law. Whether this relates to ‘humanitarian intervention’ in Libya, the widespread use of drones across the peripheries of the world system, or the ‘at-arm’s-length’ approach to the Syrian civil war.326 Again, reflecting upon Suez might suggest a certain similarity to Iraq’s legacy. In the aftermath of Suez we saw a return to

324 UN Security Council Resolution 1973 (2011), available at . 325 UNSC Res 1970 (2011), available at . 326 This was the position at the time of writing in May 2013.

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covert interference in foreign states, particularly the Middle East, and the deployment of deniable, counter-insurgency forces in areas such as the Yemen. Likewise, in the aftermath of Iraq there has been an exponential growth in drone deployments and an ever-disappearing line to the battlefield in the ‘War on Terror’. Yet, in addition, we can see another aspect of justification, one which is framed around the risk of threats which demonstrates continuity with Iraq: the deployment of facts as evidence of non-compliance, thereby claiming authority to determine obedience to international law, and ultimately laying the foundation to a claim to authority to discipline intransigence, whether through criminalization or forceful intervention. In confronting the apparent nuclear threat from North Korea in early 2013 David Cameron, the British Prime Minister, used precisely the rhetorical justification for Iraq in making the case for the continuation of the Trident nuclear defence programme in Britain.327 Such statements serve to underpin the sovereign right to wage war, a claim to an authority no longer vested in a democratic claim to governance, but in a guardianship role. These developments would hardly be described as ‘progressive’ yet the grand narrative underpinning many existing approaches to understanding international law, and in particular the politics of justification, appears unable or unwilling to address this darker side to law’s relationship to matters of fact, matters of history, and matters of authority.

4.5 Reflections on the Iraq War The mapping of British discourse over the decision to go to war against Iraq is a complex process or set of processes to trace. This study has focused on several crucial aspects of discourse, in order to better understand the processes through which international law operates. The study began by setting the Iraq invasion in a broader historical context. The reason for doing so was in fact to highlight the absence of such contextualized treatment of the conflict within policy and public discourse. Although this may be, in part, due to the crisis nature of debates, which were concerned with immediate rather than longer-term issues, it suggests that historical context was framed around the domestic narrative experience of past encounters, rather than reflecting an orthodox historian’s accounting of such encounters. Aspects of policy discourse were then considered, which included government decision-making and legal advice. There is sufficient public material to provide a clear, if partial, picture of what lay behind public justifications for using force. What is striking about this material is how the policy of regime change was veiled behind the twin logics of collective security and, to a lesser extent, self-defence. Human rights-type arguments were also deployed to support a coherent grand narrative—a liberal paradigm—which endorsed crusading liberalism. The other striking feature about the public material is how legal advice changed as a consequence of political actions. This suggests that not only was legal justification malleable, but so were the actors providing legal advice behind closed doors. Finally, the documents reveal the impact of personality and political style on 327

Independent, 4 April 2013, ‘David Cameron: North Korea nuclear strike could hit UK’.

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the politics of justification, which suggests the importance of reputational concerns and images, and the concentration of information in central corridors of power. When considering public discourse, on one hand it appeared that the discourse was one dominated by experts and by the elitist, excluding language of international law. On the other hand, however, the idea that law predominated was simply one interpretation of discourse. It is also clear from public opinion polls that there were challenges to government justification on the basis of lack of evidence of threat and a general tendency towards pacifism, which cannot be explained by arguing that law was paramount. These characteristics do not necessarily indicate uniqueness about the Iraq discourse but they do serve to demonstrate some more general features of contest over the use of force in a Western liberal democracy such as the United Kingdom. The mass media became the decisive platform on which war as spectator sport was engaged.328 Government was aware that success was contingent on public acceptance. Their response to sharpened moral and political exposure was to call in their own lawyers.329 The government’s legal justifications for the use of force against Iraq changed over the period of discourse and developed distinct aspects, with each aspect reflecting precedents set over the period since the end of the Cold War. In terms of how government and international political actors, in particular the United States, sought to frame their justifications, there was a clear determination to characterize Iraq as an imminent threat to world peace. Once this could be established, the argument could be made that, as such, Iraq threatened international security to such an extent that either the United Nations would be duty-bound to authorize the use of force to maintain stability, or a ‘coalition of the willing’ (as had been the case in Kosovo) could legally and legitimately claim to be acting to safeguard security in response to imminent danger. What is clear is that this argument met trenchant resistance, not least from former weapons inspectors and members of the intelligence communities. This generated extensive policy and expert contest which was conducted in public, with the media as narrator, adjudicator, activist, and government supporter in varying measures. The media’s role was particularly important in transmitting information about what was going on both in the build-up of military presence, and events at the international level. A feature of the opposition elements of the press was to give more coverage to legal arguments and to global protests than the pro-war press. This suggests that the media themselves played a role contesting government discourse, again in public and often using the strength and depth of public opinion, and using law, as resources to challenge government justifications. The publication of academic and experts’ opinions, relating both to intelligence and to legality, served to frame debate and challenge government over its legitimacy and sole authority to use force. Legal justification, in this sense, identified alternate actors

328 For a related observation in relation to terrorism and war see Michael Ignatieff, Virtual War (Vintage, 2001) 148. 329 Ignatieff (2001) 148.

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with legitimacy and authority to contest government policy in public discourse and therefore could be seen as raising the burdens on government. However, there were important limitations on this, not least that by challenging legal justifications, broader critique was subsumed beneath a technical sub-paradigmatic challenge.330 In addition, it was the government who led the policy of legal justification precisely because it could facilitate its hidden policy of regime change, and provide an authoritative language with which to enhance its exclusive authority to determine the national interest and foreign policy. The legacy of the Iraq War discourse remains to be seen. It may be that expert intervention will become a feature of public debate on foreign policy and that the media will continue to revert to expertise in order to adjudicate between opinion and government. It may also be the case that public opinion will expect governments to justify action in legal terms and that their knowledge of legal issues will have become enhanced by the Iraq ‘lesson of history’. Yet, it ought to be borne in mind that what may have been rather unique about the Iraq War discourse was the extent of elite-level dissensus that generated such widespread contest of government policy. This dissensus did not mean that international lawyers engaged in widespread disagreement. In fact, as has been previously noted, the striking aspect of the discourse over Iraq was how much international lawyers agreed on the ‘illegality’ of waging war, at minimum on the basis of the lack of explicit authorization from the Security Council. The reference to elite dissensus speaks more to the breakdown of elite relations with power: in other words, conflict within the elite institutional framework of domestic politics led to deeper contest of government’s exercises of authority through justification. It was because there were differences within elites that spaces were opened up for public debate. But those spaces could not be assumed to be ‘inherently emancipatory’ spaces of challenge, as some theories which assume the progress narrative of international law would have us believe. In fact, by articulating policy through the discourse of law, discursive authority and legitimacy was circumscribed and elite-oriented, and the institutions tasked with holding government to account—namely the media—were so heavily wedded to the institutional structures of British governance that the press were hardly in a position to reflect the challenges to policy in any other terms. The legal case made against the Iraq War has arguably had a strong legacy, not least because debate still rages over ten years after the invasion. The debate has continued in media commentary, book publications, and in legal institutional forums such as contentious cases and public inquiries. All these institutional processes, though unlikely to result in a final determination that the Iraq War was, definitively, ‘illegal’ in international law, may nevertheless serve to raise the burdens of justification for future governments. Legal justificatory arguments may therefore have a longer-term effect on public debates on the use of force, which may indeed constrain governments in the future because of domestic structural processes 330 Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (Butterworths, 2002).

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of accountability. The precise opposite may also be the case: that past engagements provide the framework and rationale for future uses of force. It remains the case that British governments continue to engage in military action—most recently in Libya—despite the apparent long shadow of Iraq. The deployment of history at each new moment of crisis or decision, suggests the need for an attentiveness to the meaning of events, history, and, ultimately, of law. At such moments, certain ‘formulas’ of justification and of claims to authority appear to surface to orient the politics of facing new ‘threats’. Such an observation asks us to rethink history as a rhetorical device that exerts a structural, discursive force over the politics of justification, inviting reflection not just on the theoretical and comparative implications from these two case studies, but also on the very nature of historical inquiry and its relationship to law.

5 Reflections on the Politics of Justification The mapping of the politics of justification in the Suez Crisis and the Iraq War case studies provides a basis from which to think again about how legal justification works. This mapping asks us to consider again whether or not this politics constrains government decision-making and, ultimately, whether or not it has the potential to reduce the incidence of military action. An additional aspect of the case study analysis has been to subject to empirical examination the theoretical claim that through discourse international norms become embedded in domestic society, socializing states to comply with international law. The case studies demonstrate that although legal justification and legal discourse may indeed play a central role in domestic politics, the reasons and implications are more complex and contingent than existing theories have suggested. The case studies illuminate three elements of the current approaches to understanding international law’s role in justifying force, which have hitherto been elided and set up as compound hypotheses. When scholars examine the domestic impact of international law and they look to discourse as a reflection of its impact, what they are really asking is three different but related questions. First, does constraint arise from the politics of justification? Second, does it arise from the politics of legal justification? Third, does constraint arise from international law? When writers like Goodman examine ‘the politics of justification’ this seems to be shorthand for legal justification. Yet, the research underpinning ideas about ‘blowback’ and constraint, refers not to legal justification, but to the political processes of justification. This may well, of course, involve law, but Goodman’s analysis of this politics has assumed that law can be transplanted onto justificatory discourse, without transforming the politics and discourse that emerge. When writers like Cortell and Davis examine ‘domestic impact’ their analysis appears to refer to international law with legal formalist assumptions as to the qualities or nature of law, obligation, and compliance. They gesture to the significance of discourse about international law without attending to the constitutive discursive processes that arise. Such an attention raises the question of international law’s place in the politics of justifying force. This chapter acknowledges the significance of at least four interpretations of the politics of justification that emerge from the case study maps. There may, of course, be other aspects that readers of the case studies identify and wish to pursue. In part, the ‘thick’ description in the case studies is premised on the idea that such an account can provide multiple opportunities for ‘thick interpretation’ and

The Politics of Justifying Force. Charlotte Peevers. © Oxford University Press 2013. Published 2013 by Oxford University Press.

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consequent ‘thick meaning’.1 The chapter focuses on four interpretations: (i) the significance of the distinction between spheres of ‘privacy’ and ‘public’; (ii) secrecy; (iii) international influence; and (iv) mediated discourse. These four interpretations form the main sections of this chapter. The issues raised often overlap and they represent perhaps the most intriguing, but certainly not the only, reflections from the case studies. Whilst the first two of these interpretations the public–private split and secrecy, are significant contributions to unpacking the politics of justification, it is the role of media which is the most significant outcome of the case study maps. The fact that discourse is ‘mediated’ leads us to think again about a number of additional aspects to legal justification. These include consideration of the media’s function as knowledge producer; its connection to state and elite power, involving a consideration of its political economy; and its narrative role in framing discourse, producing a particular set of meanings and lessons from history as imagistic, as imagined, as always ready to change with each moment of rupture. This importance of media invites, therefore, an attention to how media constructs and propagates particular narratives, and drives discourse. When justificatory arguments are made, it is unsatisfactory to see media as simply an impartial ‘mediator’, adjudicating opinions. It is more plausible to suggest that justifications invite responses from media that can be overtly activist—strongly opposing or supporting government policy—or more disguised activism, by seeking reaction from actors who might contest government authority and legitimacy to justify force. The case studies, particularly the case of Iraq, suggest that this is a form of media activism and thereby can be seen as a form of elite, institutional contest. Media have, in this way, an important function as narrators and framers of the politics of justification which places media at the heart of both institutional context and discursive contest. We have seen that the frames for military action are powerful rhetorical tools for governments. The role media plays in echoing or challenging these frames has important implications for the politics of justifying force. There is also the intriguing way in which Suez proposed a historical narrative in the debates over Iraq. This historical legacy was used as a resource by those opposing war. What is so interesting about this is how the explicit link between international law and Suez was exploited by opponents of the Iraq War so that the meaning of the Crisis was distilled into a cautionary tale of illegal action. The fact that Suez, as a simplified legacy, entered Iraq War discourse at all, poses significant questions to theorists seeking to determine how the politics of justification works, and how international law is associated or disassociated from its social and political economic context in discourse. It also poses interesting questions to accounting for history: how to understand shifting meanings and the discursive potential of history, exerting its force(s) at moments of crisis.

1

See Ponterotto (2006) 543.

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There is also an important implication relating to hidden motivations and wider framing that is linked to the role of media, and which is underexplored in existing literature. Hidden motivations can be revealed by examining the difference between private decision-making and public justification. Where international law and legal justifications cohered with grand narratives, they may have been more persuasive and had greater influence over domestic politics than when they did not. Equally, even where legal justification did not convince or take hold, efforts to constrain governments may have failed because of the latter’s unique access to information. This observation reveals a problem with the underlying assumptions of the politics of justification as currently framed. There is an apparent acceptance of the dominant ideological narrative that liberalism is peaceful and that legal justification will result in fewer wars. This narrative reveals an assumption that once norms are embedded in society, states will comply with international law. This embedding will encourage the socialization of states towards compliance and legal justification as corollaries of each other. Overall, this will result in the reduction of conflict. The case studies demonstrate, however, that legal arguments could be used as much to justify war as to oppose it (if not more) and there was varied ‘success’ in their use in opposition. These ‘ambivalent’ outcomes may be down to structural considerations, that is, the context within which discourse took place, or may be a function of discourses of international law, that is, a consequence of the operation of the prohibition on the use of force, as expressed through discourse. By examining these additional factors in the maps produced through the case studies, we may come to starkly different conclusions about whether, and how, norms become embedded in domestic society, and how governments are constrained, or not, from using military force. In the following analysis, where existing theories have proposed factors in their examination of the politics of justification, these are included in brackets after the section headings.

5.1 The public–private split (cf. rhetoric) The ‘split’ between private policy-making and public justification is highly significant and overlaps in many ways with the significance of secrecy. This section considers the public–private split from various perspectives. This includes consideration of hidden motivations, which is picked up again in the section on secrecy; the way government dealt with legal advice; the way government dealt with policy elite disagreements; and the style of government, which again overlaps with institutional mechanisms of secrecy. What is striking about both case studies is the sharp distinction that can be drawn between the private acknowledgement amongst government that their policy was of questionable legality, and the self-confidently authoritative face of policy they presented to the public. A focus on rhetoric has two aspects, first the ‘dressing up’ of policy with legal justification; and secondly, the ‘personal appeals’ underpinning rhetorical discourse. In relation to this second aspect, Suez and Iraq highlight the importance of personality

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and style of politics. Reputationally based arguments sought to enhance the rhetorical value of legal justifications by wedding them to images and representations of what a leader (more generally) ‘stood for’. In Suez, Eden emphasized his credentials as a ‘man of peace’ and a ‘man of the United Nations’ to bolster his claim to be acting according to both UN principles and the spirit of international law. In Iraq, Blair emphasized his credentials as an ‘honest’ man who was pursuing a policy he believed was ‘right’. This claim bolstered the appeal to the United Nations because it portrayed other actors involved in exercising the powers of collective security as somehow sullied by their political posturing, rather than being men of principle. The influence of personality may have been greater in the realm of security politics because of the style of politics which emerged in private use of force decision-making. Coordination was limited to small groups who appeared to reflect leaders’ views, either in general policy terms or in practical war planning and policy. This scaling down away from wider Cabinet involvement was not simply a justification issue, but was also a constitutional issue. It prevented wide-ranging behind-thescenes debate by limiting the spread of government information and excluding sections of government and policy institutions from decision-making processes. In the absence of constitutional oversight in the realm of military decision-making, the potential for constraining influences through legal justification were narrowed, and the facilitative aspects of legal justification came to the fore. During the Suez Crisis, privately Eden had been open about the lack of legal justification to respond militarily to Nasser’s nationalization of the Canal. He was clear that getting rid of Nasser had to be the primary goal. However, this primary goal could be achieved by demanding international control of the Canal. This was a means to an end. Eden was certain that Nasser would not agree to international control and that when he did not, Britain would be justified in using military force to safeguard British (and international) interests. The motivation for regime change was hardly hidden because it was the basis of the ‘go it alone’ side of the public debate. However, Eden felt unable to be explicit about this in public, not least because it was reminiscent of British imperialism and the United States had privately advocated a ‘slowly slowly’ approach to getting rid of Nasser, which would avoid stoking Arab nationalist sentiment or sending the Middle East to the Soviets. A further characteristic of behind-the-scenes decision-making was how legal advice was treated by Eden and his War Cabinet. Eden was exasperated by Fitzmaurice’s and Manningham-Buller’s repeated reminders of illegality. He chose to rely instead on the Lord Chancellor to furnish legal justification for military action and at the very least implicitly rejected Fitzmaurice’s and the Law Officers’ advice. This came to a head in the days following invasion, with the Law Officers and Foreign Office Legal Advisers demanding clarification of the government’s reasons for going to war with Egypt. What bothered them so much was that the government had claimed publicly, and to Embassies in the Middle East, that they were acting on the highest legal authority. As it was their duty to provide advice, and they had provided advice that determined any military action

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would be illegal, they considered resignation. This would have been a disaster for Eden and so he reassured them that the decision had been made on the basis of policy considerations, not law. This served to placate the legal advisers, which is somewhat surprising given their persistent insistence on illegality. Similar points can be made from the evidence that is available about private decision-making over the intervention in Iraq. Of particular note was the role of bureaucratic, behind-the-scenes politics and the importance of splits within the realm of policy-making elites. The memos of Sir Michael Wood to the government, in striking similarity to Fitzmaurice, illustrate that the legal advice from the government’s international lawyers was clearly against the public line taken on justifying force, and indeed against the legal advice finally concluded by the Attorney-General in the immediate foreground of war. Further evidence of private decision-making highlights that the primary goal of any Iraq invasion was the removal of Saddam Hussein. Again, regime change was hardly a completely hidden motivation because anti-war opinion suspected as much, the United States was explicit in its policy aims, and a large minority of British public opinion endorsed, or at the very least acknowledged, the policy. However, the question of regime change remained in the background, with legal justifications in the foreground. It is worthwhile, whilst acknowledging some similarities in justification and motivation, to consider the differences in personnel and personality between the two crises. The fact that Jack Straw, the Foreign Secretary, and Tony Blair were both trained as lawyers may have influenced how central law was to public justifications for using force. This is compared to Eden who had been trained as Foreign Secretary during Churchill’s war years and been part of the post-war negotiations over the future of international politics. He may have had little difficulty in ignoring (and positively avoiding) Fitzmaurice’s advice as overly technical and legalistic. President Bush had no similar qualms about legalities, having been privately recorded as saying, as early as September 2001, that ‘I don’t care what the international lawyers say. We are going to kick some ass’.2 In the British case, transnational legal process approaches might have tended towards expecting that professional legal training would have socialized Blair and Straw towards compliance with international law. Or, that exposure to legal advice would have acted to constrain their policy and limit the resort to force. Yet instead, it seems that legal training empowered Straw to contest as an equally competent authority, the advice proffered by Sir Michael Wood, and to emphasize the inherent indeterminacy of international law. The effects of socialization therefore appear distinctly ambivalent when we consider the evidence of the public–private split in policy. What is more certain is that both episodes demonstrate the significance of Whitehall divisions over foreign policy shifts. The Foreign Office during Suez was generally deeply sceptical about military action, in large part due to their expert knowledge of the Middle East and their physical involvement in international 2 Quoted in Richard A Clarke, Against All Enemies: Inside America’s War on Terror (Basic Books, 2004) 23–4.

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bureaucracy. Both Fitzmaurice and Dixon (UK Ambassador to the United Nations) demonstrated the importance of this reputational aspect of private decision-making. Fitzmaurice was deeply concerned that Britain’s Embassies abroad would consider that he had given the legal go-ahead to military action. Further, he was extremely perturbed that his re-election to the International Law Commission would be negatively affected. For Dixon, the government’s stalling tactics made his presence at the UN intolerable and he eventually pressurized the government into accepting Canada’s compromise fig leaf. This was partly saving face on a personal level, for him as UK representative, as much as saving face for the country. It seems that within the close-knit sphere of ad hoc war planning, Eden underestimated these external influences on government departments. In the case of Iraq it similarly appears that war planning was conducted by a very small circle of senior Ministers and advisers, and that the full Cabinet was rarely made aware of either the details of legal advice, or the extent of military preparations underway. Yet, Blair seemed to be keenly aware of the need to ‘manage’ the product of secretive governance, by staking decision-making on trust, charisma, and prestige. It is important to highlight this aspect of personality and reputation which is unaccounted for in existing theories about the politics of justification. When the full archive on the Iraq War is opened, it might be possible to examine in more detail the wider policy considerations given to preparing reputation and personality for the tasks of justification. The management of policy divisions might also be further revealed. Divisions within the traditional foreign policy-making structures of government invited greater discussion of legal justification in order to placate officials and representatives overseas, and at the international level where they faced reputational pressure over government actions. This observation of the Suez and Iraq experiences in the United Kingdom might invite country comparisons, not least because of Richard Clarke’s observation in the American context that the ‘War on Terror’ and Iraq War illustrated a ‘culture clash’ behind closed doors that led to Presidential dominance and the sidelining of policy expertise and elites.3 What appears to be revealed in both case studies is the significance of managing elite dissensus within the policy-making realm. Legal justification may have been used to mask what was a significant shift in foreign policy, which would normally invite a high degree of Whitehall policy engagement. One reason for such divisive splits in both crises may be that governments were departing from newly agreed, or established foreign policy aims, which invited private critique and engagement by specialists and civil service experts in the field. The Foreign Office role, particularly in Suez, would have been crucial as it considered itself the expert, both on the ground and in policy terms. Indeed, Fitzmaurice had expressed his consternation that Eden was behaving unconstitutionally by referring to the Lord Chancellor’s legal advice, rather than to Foreign Office advice, with its clear expertise in international law and affairs. He

3

Clarke (2004).

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also highlighted the bypassing of the proper constitutional authority for legal advice, vested in the Attorney-General. By the time of Iraq, the role of Prime Minister appears to have moved even further towards ‘personal authority’ and closer to the model of US Presidents. Whilst Eden’s premiership no doubt also reflected this personal authority, this was in the context of an uncodified governance structure. Recall how in the 1980s a Ministerial Code was drafted for the first time and would insist on the seeking of legal advice for all government policy. The ‘Presidentializing’ of British politics had arguably begun in the late Thatcher years, though was perhaps constrained during the intervening early 1990s under John Major, who suffered from huge infighting within his government and the wider Conservative party membership. In 1997 Tony Blair brought in a new style of politics which was often criticized as ‘spin obsessed’ and Presidential.4 Critics claimed that decisions were often made outside and before Cabinet meetings with little oversight or interaction with government departments. The style of government in both case studies appeared to accentuate the sharp distinction between private policy-making and the conduct of decision-making, and public justification. In both cases, private motivations were reconfigured by appealing to international law to gain public legitimacy. Both cases also demonstrate how within the policy sphere, officials and other elites recognized that decisions could be taken on very different grounds to those that were publicized. Yet, the legal advisers in particular were at pains to emphasize the dangers of publicly justifying force when they had advised against legal justification. If these divisions of opinion could be managed, either by ad hoc-ism, ‘presidentializing’ decision-making, or by asserting ‘political or ethical grounds’ for force rather than legal grounds, then the dissensus in private could be hidden from public view.

5.2 The significance of secrecy—hidden motivations The evidence from the case studies shows a strong and significant divergence between the private sphere and the ‘public sphere’. This created two tiers of discourse and clearly had an important effect on how to judge legal justification in the light of such revelations. Secrecy was a multi-dimensional aspect of government decision-making. It acted as a structural context to governance, it formed the basis of claims to authority, and it provided the material products for rationalizing force (ie intelligence). The culture of secrecy5 was therefore an aspect of justification that at once cut across the issue of force, whilst at the same time was exacerbated by the conditions prevailing in ‘security politics’: the wide discretion ceded to government exercising authority ‘in the national interest’. In addition, the 4

See Phythian (2007) 129–32. David Vincent, The Culture of Secrecy: Britain, 1832–1998 (Oxford University Press, 1998) 9–18. 5

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significance of secrecy lay not only in domestic political processes, but also the structures of international politico-legal institutions. Both case studies demonstrated the prevalence of small-scale decision-making. This ad hoc war planning approach in both crises can be seen as acting as a structural form of secrecy. Recall Eden’s reliance on the Egypt Committee and a much smaller War Cabinet, as well as his active avoidance of Whitehall officials such as Fitzmaurice and Manningham-Buller. Likewise, recall Blair’s reliance on ad hoc decision-making processes, including personal briefings between the US Administration and No. 10, and the withholding of the Attorney-General’s full legal advice (which ran to thirteen pages) from the full Cabinet. The conduct of government in war planning—keeping true motivations closely guarded—can also be seen as having a specific public face. By reducing the scope for transmission of divisions within the elite policy-making sphere, government sought to better manage the presentation of its policy. This management of information towards engineering consent is an aspect of governance examined by political science literature on strategic communication.6 Strategic communication and the engineering of consent are two crucial mechanisms that might either pre-empt or limit constraint on government decision-making. In essence, strategic communication refers to the scientific engineering and targeting of messages that subordinate the ideals of deliberation and transparency to the achievement of narrow political goals.7 Strategic communication is an extension of public relations techniques seeking to engineer consent.8 Bennett and Manheim argue that this extension is characterized by the systematic adoption of methods for shaping images and promoting or undermining causes by political groups, public and private, left and right.9 They term the adoption of such methods ‘systematic corruption of public information quality’ and argue that this corruption reduces public deliberation on issues.10 Their analysis suggests that hidden motivations are to be taken as given and that all public justification should be assessed in the light of the broader culture of ‘spin’ within which politics takes place. The prevalence of strategic communication in domestic politics does not suddenly vanish when debating military action. Indeed, we can see in both Suez and Iraq that strategic calculations were made in order to enhance legitimacy and garner public support. In Suez it was clear that Eden miscalculated his ability to control the way discourse developed. This was as a result of the powerful narrative underpinning the ‘law not war’ campaign, the strong political leadership of Gaitskell and the Labour 6 See for example Edward S Herman and Noam Chomsky, Manufacturing Consent: The Political Economy of the Mass Media (Vintage, 1994). 7 W Lance Bennett and Jarol B Manheim, ‘The Big Spin’ in W Lance Bennett and Robert M Entman (eds), Mediated Politics (Cambridge University Press, 2001) 282. 8 Examples of the historic origins of public relations engineering of consent include Louis Bernays, Ivy Lee, and Walter Lippmann. See Stuart Ewen, PR! A Social History of Spin (Basic Books, 1996). 9 Bennett and Manheim in Bennett and Entman (eds) (2001) 282, referring to Edward Grefe and Martin Linsky, The New Corporate Activism: Harnessing the Power of Grassroots Tactics for Your Organization (McGraw-Hill, 1995). 10 Bennett and Manheim in Bennett and Entman (eds) (2001) 282.

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Party and, as explored below, the novel impact of media reporting. Whilst direct critique of government policy and actions was relatively limited, nevertheless the transmission of information of events at the United Nations served to produce knowledge of government actions that Eden could not control completely. In Iraq, there was a clear strategy that government deployed to seek to win support and delegitimize opposition. The real motivation of regime change—similarly to Suez—was dressed up in the language of primarily collective security, with some reference to self-defence. However, departing from the similarities with Suez, government also joined these arguments with human rights and moral duty discourse that, although not explicitly endorsing a legal claim to humanitarian intervention, nevertheless deployed the imagery and narrative of human suffering and duty to liberate from oppression in order to bolster its legal justifications for war. This was an assertion of guardianship of ‘international community’ premised upon liberal hegemony. The success of these legal justification strategies was perhaps three-fold, at times supporting some of the theoretical claims about ‘domestic impact’ and justification, at others departing significantly. First, the strategies acted to abstract the complex historical context of Iraqi non-compliance with weapons inspections into broader issues of self-defence and collective security in much the same way as Eden’s reimagination of Nasser’s nationalization of the Suez Canal. This exemplified a contest over defining compliance. The strategy sought to de-historicize events and decision-making by emphasizing legal justification which of course made reference to the past, but only in terms of identifying Iraq with ‘intransigence’ and ‘non-compliance’. In this sense, decision-making was abstracted to narrow technical points—to the question of disarmament—which served to occlude not only the hidden policy of regime change, but also the historical context between Iraq and the West that was, in fact, damaging to Western information management. This context included, for instance, support for Iraq during the Iran–Iraq War and the recognition that regional power balances between Iran and Iraq were the cause fuelling Iraq’s pursuit of weapons.11 This technique of de-contextualization and de-historicization through legal justification thereby served to occlude the political foundations of ‘security’: the management of ‘peace’ through executive functions. These political foundations to security in fact demonstrated strong continuities with imperialist (or hegemonic) international relations. The technical claims to exercising legal authority through collective security therefore served to hide how power had remained concentrated in the hands of the Great Powers.12 In one sense, therefore, the success of these strategies was that by deploying the language of international law, political actors veiled aspects of global politics from either scrutiny or contestation. This was part of a larger contest over the authority to pronounce upon and interpret compliance, and assert the consequent authority to define problems ‘for’ the ‘international community’. 11 See Hoon (Defence Minister) to Prime Minister, minute ‘Iraq’, 22 March 2002 prepared for Blair’s meeting with President Bush at Crawford in April 2002, Chilcot Inquiry. 12 In 1950 there appeared far more ‘openness’ about what the Security Council represented in international affairs. See for instance one contemporary example giving a description of the UN’s principal foundations: ‘the original San Francisco conception [of] the United Nations, under the leadership of the Great Powers, [acting] vigorously to enforce peace’. Thomas J Hamilton, ‘The U.N. and Trygve Lie’ Foreign Affairs 29(1) (October 1950) 67–77 at 67.

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Second, strategies employing international legal justification could ‘work’— could operate, or function—to achieve hidden motivations. The case of Iraq demonstrates, for example, how the mobilization of international legal discourse could legitimize otherwise apparently ‘illegal’ policy, such as regime change. However, regime change should not be understood as being ‘outside’ of international law. In the particular case of Iraq the weapons disarmament and inspections regime, instituted through the United Nations and supervised by the Security Council, arguably envisioned the possibility of regime change as a consequence of noncompliance. The disarmament and inspections regime was privileged ‘as law’ because of its identification with the legitimate operation of collective security, as the Security Council acting under Chapter VII. As discussed in Chapter 1 of this book, it is misconceived to suggest that regime change would not be an outcome of military action in the event of non-compliance. So, the issue of UN authorization therefore becomes somewhat secondary to the more significant insight that this study can shed light on: that the international ‘prohibitive’ framework of using force could be used as a legitimizing gateway to using force, even in cases that appeared as ‘extreme breaches’ of international law such as regime change. Justifications operated in this context as a claim to authority, to power, to use force that premised its authority on a distinction from illegality. This recalls Kennedy’s observations on sovereign right and legality through international law. He observes that the ‘proliferation of legally framed activity has made war and sovereign power into legal institutions’ bringing international law to the centre of the strategic play of war, playing upon legal distinction as part of war itself.13 Kennedy’s reference to ‘play’ takes on an added, theatrical connotation when cast in the light of backstage hidden motivations and the staging of strategies of consent management. This reading of the interplay between rhetoric, discourse, and international law contrasts with formulations made by mainstream constructivist writers. These writers argue that despite the rhetorical manipulation of law, compliance can still be produced by the spaces opened up by justification. Thomas Risse, for example, seeks to counter the ‘instrumental’ use of norms by claiming that adoption of their rhetoric can nevertheless provide ‘discursive opening for their critics to challenge [government] further’.14 This presupposes the ‘benign’ character of the norms being relied upon ‘instrumentally’. The whole premise of Risse’s approach is that rhetorical instrumentality is distinct from the norms themselves. However, the framework for using force as it is articulated and interpreted remains one that accords government a wide discretion to assert policy and pursue action through international law. The consequent discursive authority and legitimacy that flows through justifications premised on this framework therefore means that ‘discourse’ 13

Kennedy (2012) 161. Thomas Risse, ‘The Socialization of International Norms into Domestic Practices: Arguing and Strategic Adaptation in the Human Rights Area’; paper prepared for the conference on ‘Ideas, Culture and Political Analysis’, Princeton University, 15–16 May 1998, available at . 14

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ought not to be characterized in such ‘benign’ or ‘power-neutral’ form. Justifications already serve to orient the power dynamics of discourse towards power and authority. Finally, the strategy of legal justification can be seen as having been successful because even if other actors were able to challenge government to adhere to their own rhetoric, government access to international decision-making—the international spaces of authority—and to secret information—the secret spaces of authority—meant they remained in a privileged, authoritative position when it came to discursive contest. Secrecy was a powerful rhetorical tool and the distinction between ‘the international’ and ‘domestic’ spheres of negotiation and ‘diplomacy’ created specific issues which need to be engaged with by the existing literature on the politics of justification. Here two elements to secrecy emerge as significant, both institutions of secrecy and access to secret knowledge. Or, in other words, the structures of secrecy and the substance of secrecy. They are not always themselves distinguishable from one another. In terms of institutions of secrecy, there appears to be a cultural assumption made about the conduct of domestic security politics, and international politics, that decisions are taken in secret to facilitate compromise and cooperation. The international form of secrecy, manifest most obviously in the secret meetings of members of the Security Council, is just one innovation from one particular period. The Suez Crisis became the catalyst for a practice that has become de rigueur without any public reflection upon the implications for international governance and organization. The initial move towards secrecy during the Suez Crisis was, of course, an attempt to hide from public scrutiny the fractures in the Western alliance of Great Powers that threatened to bring down the whole UN edifice of executive authority vested in the Council. Yet, institutions of secrecy are not simply an international or diplomatic phenomenon. Modern British governments have always operated behind a veil of secrecy, through Cabinet decision-making and the accountability promised by ‘collective responsibility’. Decisions involving the ‘national interest’ such as intelligence, diplomatic correspondence, and ‘security’ have, further, been conducted in even smaller circles of the executive on the basis of their sensitivity. In addition, war is waged under the Royal Prerogative of executive decision, thereby entrenching the secret nature of such decision-making as it is unnecessary to obtain a vote to confer authority on government from Parliament. The cultural assumption about domestic governance is summed up by Peter Hennessy who observes that ‘[s]ecrecy is as much a part of the English landscape as the Cotswolds. It goes with the grain of our society. Its curtailment, not its continuity, would be aberrational. Whitehall . . . is only its greatest, not its sole monument.’15 Yet, as David Vincent points out, there is a danger in describing secrecy as ‘cultural’; that this description leads to a retreat from articulating secrecy’s features, its specificity, its practices.

15

Peter Hennessy, Whitehall (Free Press, 1989) 347.

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Secrecy does not operate in the absence of law. In fact, the legal regulation of secrecy is a significant component of its continued centrality to British governance. Clive Ponting, writing in 1990, noted that there were over 100 pieces of legislation restricting the flow of government information.16 But the legal regulation of secrecy is just one aspect, underpinned by a more general assumption that ‘good government is closed government’.17 There are also the ‘rituals’ of secrecy, for instance the signing of the Official Secrets Act by newly appointed Whitehall officials. Vincent describes this not as a legal performance—in fact the signing of the Act has no legal effect—but as a means of indoctrination, as a creation of an environment of secrecy.18 These rituals of secrecy, coupled with legal form, constitute part of the machinery of government. This machinery is further embedded in the wider political system: constitutional conventions, political culture and habits, and behaviour of civil servants.19 All these practices of secrecy operate as a structuring force on policy discourse. This domestic institutional context raises a dilemma for liberal democratic politics because there is no obvious means of securing accountability through transparency or even judicial oversight in relation to use of force decision-making. Consider for example the case of Marchiori in which Laws J held that ‘the law of England will not contemplate what may be called a merits review of any honest decision of government on matters of national defence policy . . . the court is unequipped to judge such merits or demerits’, it is unelected and it ought to be ‘to the democracy to decide its outcome’ (emphasis added).20 He went on to highlight, inadvertently, precisely the ‘lack’ in such democratic politics: the public may or may not be satisfied by government decisions in which case they ‘will sound in the ballot box’.21 The reference to an ‘honest decision’ raises the intriguing question of authority. Authority to decide, authority to rationalize decisions, authority in the form that decisions may take, an assumption of ‘good’ motives for decision-making. Yet this deference to such authority seems somewhat anachronistic when compared with the ideal of democratic governance. Indeed, such discretion to exercise so wide an authority, vested in the personal attributes of the decision-maker, seems distinctly archaic and authoritarian. Further, the reference to ‘honest decision-makers’ recalls the limits and boundaries of the public law oversight of political decision-making. This limitation to legal accountability is taken up further in reflecting upon the role of mediated debate below. Whilst these reflections on the politics of justification do not, and could not hope to, answer these far larger questions raised by the secrecy of governance, it is instructive to consider the role of such institutionalized, taken-for-granted contexts of secrecy for the practices of legal justification. Most obviously, it permits government to exploit the secrecy of private policy-making by pursuing certain agendas which remain hidden from view, and articulating ‘legal’ agendas as the public face to policy. This public 16 17 18 20 21

Vincent (1998) 10. Clive Ponting, Secrecy in Britain (University of California Press, 1990) 1. 19 Vincent (1998) 12. Vincent (1998) 12. Marchiori v Environment Agency & Another [2002] EWCA Civ 3 at 38. Marchiori v Environment Agency & Another [2002] EWCA Civ 3 at 38.

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rationalization of policy can by its invocation of international law’s discourse and its resultant authority, facilitate such obscuring of hidden motivations. The claim to secret knowledge, further, provides the evidential foundation for justifying ‘lawful’ force, whether through collective security or self-defence. As the Iraq War discourse demonstrated, whether through Blair’s statement to Parliament and presentation of the Iraq Dossier in September 2002, or Colin Powell’s attempted ‘Adlai Stevenson’ moment at the Security Council on 5 February 2003, claims to secret intelligence underpinned the assertion that Iraq posed an international threat which demanded a response. Whilst it later emerged that intelligence services had ‘fixed’ material around the policy, and that foreign intelligence services knew the evidence being presented was based on ‘faulty’ information, the claim during contemporary justification could not easily be disregarded by audiences of justification. The claim to secret knowledge—the access to secret information—rested upon the authority accorded to government to gain such access. On the other hand, during Suez it was not so much a claim to secret knowledge that was at issue, but rather a possession of secrecy that posed a challenge to justificatory politics: whilst there was suspicion as to military preparations in the lead-up to invasion, and indeed early on in the Crisis, the distribution of D-Notices and self-censorship by the press meant that the government could continue to manoeuvre towards realization of its primary motivation, whilst maintaining the façade of conciliatory gestures and attempts at peaceful dispute resolution. Similarly, the collusion with Israel and France was withheld from the public, Parliament, most of Whitehall, and government. Institutional and substantive secrecy (though the two are perhaps constitutive of each other) appear to have a complex relationship with international law, not just legal justificatory politics. Whilst it is always dangerous to try to distinguish the ‘nature’ of international law from its ‘users’ through whom it operates, there does appear to be at least one quality to international legal justification that deserves reflection in light of the significance of secrecy. Yet this does not suggest any inherent quality to international law. It relates to international law’s operative impact upon claims to authority, which in turn relies upon its operators. The invocation of international law placed the justifier, in these cases the government, in a privileged, sovereign sphere: he was able to speak in international law’s register because he transcended the domestic sphere, operating in the ‘high politics’ of international relations. The consequent internationalized authority that was claimed, therefore, seemed to act as a disciplining force on domestic political contestation. This presented justificatory audiences with the domestic face of international law, a face which proclaimed sovereign power, and thereby legitimated its invocations, its speakers, and its operations.

5.3 Wider framing and grand narratives (cf. domestic interests) Several reflections are drawn here as to the significance of wider framing and ‘grand narratives’ that emerged from the case studies. Whilst existing theory might refer to

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this as ‘domestic interests’ the choice of framing and narrative reflects more accurately the construction of interests through discourse. Wider framing refers to the placing of legal justification in a context which situates it in relation to existing knowledge and discourses. So, for instance, during the Suez Crisis the wider frame in which nationalization of the Canal Company was placed was in the threats to a declining Empire, and the lessons from past threats from dictators. This second threat made explicit reference not to the particularity of British interference in Egyptian affairs, but to the historic encounter with Nazi Germany and the dangers of appeasement. During the Iraq War discourse the wider frame within which Iraqi intransigence was placed was the threat from terrorism—a frame that, in the United Kingdom, was patchy at best—the threat to regional stability in the Middle East, and the latent threat to the ‘international community’ from rogue states like Iraq. Such wider framing to contextualize legal justifications also, however, made explicit reference to grand narratives. In essence, the use of grand narratives acted as a totalizing cultural narrative schema which sought to order and explain knowledge and experience.22 So, for instance, we could see the justifications debated in Suez as constituting a paradigmatic contest over Britain’s future role in the world: a grand narrative of purpose that justified imperialism by reference to policing the dangerous acts of newly independent states. This recalled the grand narrative of imperialism: civilizing the peripheries, moral leadership, and colonization through the rule of law. Similarly, in Iraq discourse the grand narrative appeared to be constituted by appeals to liberalism’s peaceful ends in seeking to discipline Iraqi outlaw-ism, to civilize the barbarous peripheries of the international community. Again, this constituted a grand narrative of purpose justifying a claim to international authority through collective security, in effect managing and disciplining the ‘international community’. Yet, such grand narratives were not exclusively ‘outward-looking’. They could also invoke long-standing domestic narratives. The most obvious example, that appeared to play out in both crises, was the underlying appeal to ‘sovereign authority’ which underpinned the expansive claims to authority over foreign policy decision-making and the definition of national interests. Another example was in the very act of justification which called to mind the inherent legitimacy of rationalized governance, and indeed governance through law. This inward-framed grand narrative made reference to the protective principles of governance, arguably invoking a ‘government knows best’ claim to ruling, nevertheless premised on apparent transparency and rational authority. In the British context, the widening of frames or articulation of grand narratives was specific to British memory and experience: what mattered were previous British engagements involving military force and how the British had characterized their 22 For a classic critique of ‘grand narratives’, see Jean-Francois Lyotard, The Postmodern Condition: A Report on Knowledge (translated by Geoff Bennington and Brian Massumi) (Manchester University Press, 1984) xxiii–xxiv. The phrasing here is taken from John Stephens and Robyn McCallum, Retelling Stories, Framing Culture: Traditional Story and Metanarratives in Children’s Literature (Garland, 1998) 6.

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opponents. In other words, these narratives represented a distinctly British memory and perspective of history. The appeasement legacy became the greatest ‘lesson of history’. Those that had sought compromise or co-existence with Hitler had been vilified in 1940 when Guilty Men was published by three radical Beaverbrook journalists writing under the pseudonym ‘Cato’.23 In 1948 Churchill had published a less than sympathetic assessment of the road to war.24 Ultimately, appeasement was seen as an act of folly, if not cowardice. This powerful legacy created the potential for a consistent rhetoric that warned against complacency in addressing international threats.25 The first deployment of this legacy was during the Suez Crisis and proved a powerful framing narrative. In his memoirs Eden wrote that it was important to reduce the stature of a dictator at an early stage and that if such action had been taken against Hitler when he moved to reoccupy the Rhineland it ‘would have made him pause’.26 It seems that in order to conceptualize the enemy, recourse was had to British historical memory, rather than referring to actual relations between Britain and Egypt. This was true as much of Gaitskell’s initial reactions as it was of Eden’s position throughout. Characterized as the Hitler of the South, Nasser was easily vilified in the press. Yet this early characterization quickly fell out of favour as it became increasingly clear that the comparison was misplaced and simplistic. This did not prevent, however, the de-legitimization of anti-war opinion by ‘go it aloners’ who argued that history should have taught them all the lesson of waiting too long to meet the enemy. Since Suez, the appeasement narrative has been deployed frequently, in particular against Saddam Hussein. In 199127 and 200328 British and US leaders warned of resisting the urge to appease aggression, and instead argued for active protection of domestic freedoms. The characterization of ‘the other’ as evil and the use of powerful images and rhetoric from the past sought to articulate the Iraq conflict and abstract hegemonic policy as a grand narrative of good versus evil. The narrative therefore functioned as part of the project of de-contextualizing military action, whilst at the same time reconfiguring context. Law came to the fore as a tool which assisted in appropriating historical meaning and abstracting to theory (or doctrine). In a situation of 23 ‘Cato’ [Michael Foot, Peter Howard, Frank Owen], Guilty Men (Victor Gollancz Ltd, 1940). For a detailed examination, see DC Watt, ‘The Historiography of Appeasement’ in Sked and Cook (eds), Crisis and Controversy: Essays in Honour of A.J.P. Taylor (Palgrave Macmillan, 1976). 24 Winston Churchill,The Second World War, Vol I: The Gathering Storm (Houghton Mifflin Harcourt, 1948). 25 See Sidney Aster, ‘Appeasement: Before and After Revisionism’ Diplomacy & Statecraft 19 (2008) 443–80. 26 Anthony Eden (Lord Avon), Full Circle (Houghton Mifflin, 1960) 431. 27 For instance, George HW Bush: ‘If history teaches us anything, it is that we must resist aggression or it will destroy our freedoms. Appeasement does not work. As was seen in the 1930s, we see in Saddam Hussein an aggressive dictator threatening his neighbours.’ Quoted in The Times, 9 August 1990. 28 On 28 February 2003, British Prime Minister Tony Blair declared that ‘The lesson we learnt [in the 1930s] was that if, confronted by a threat, we back away because we assume that our good and peaceful intentions are matched by those threatening us, the threat only grows and at a later time has to be confronted again, but in far more deadly and dangerous form.’ Quoted in The Times, 1 March 2003.

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uncertainty characteristic of crises, risk and consequent protection also came to the fore. Domestic opponents of war were forced to calculate the risk of being subsequently labelled apologists of ‘evil’, or rejecting the appeasement legacy altogether. This latter act was made more difficult because of a lack of access to secret knowledge or information. Each of the case studies in this book began with a section setting out the historical context within which both ‘crises’ took place. This background sought to highlight the long history of encounter between Britain and Egypt, and Britain and Iraq respectively. For instance, the Suez Crisis was placed in the context of Great Power contest in the Middle East, the break-up of formal British Empire, and interventions in neighbouring states, such as Iraq and Iran. Aspects of policy were highlighted, such as the US and British response to the Iranian nationalization of the Abadan oil fields and the fears over Arab nationalism that concerned the British and French in particular. As background to the Iraq War, Chapter 4 explored the colonial legacy as well as indicating the significance of the Iran–Iraq War and Gulf War with its legacy of sanctions, disarmament, and exile from the ‘international community’. From an historical and political perspective, these prior encounters shaped private decision-making and policy towards Nasser and Saddam Hussein respectively. Such private decision-making had a focus that appeared to reflect the historical context of encounter with these ‘rogue’ regimes but the public justification of policy made far ‘grander’ abstract reference to Britain’s history, rather than its historical encounters. This seemingly played to the public construction of historical narrative and memory. It served to ‘corrupt’ public information by obscuring the long history of colonial interference in Egypt, instead invoking the imagery of Nazi Germany and territorial ambition, and transplanting it on to Nasser’s nationalization. In relation to Iraq, in order to ostracize Saddam Hussein it was necessary for US and British policy-makers to distance themselves from a regime that was now considered ‘pure evil’. But the recent past threw up difficult obstacles such as Western support for Saddam against Iran in full knowledge of both his use of biological warfare, and his chemical weapons attacks against the Kurds in Northern Iraq. Added to this, opponents charged the United States and Britain with neoimperialism, arguing that the main purpose of regime change was to secure the Iraqi oil fields. This presented a difficulty to the policy of using force given the colonial legacy. Suez became, in this way, an example used by opponents to demonstrate the continuities with imperialist folly. Opponents highlighted particular events, such as the Suez legacy, which came to mean something very different to those debating Iraq than it had for those that had lived through the Crisis and its aftermath. This use of the past as a resource was clearly nothing new and has been a feature of most nationalist movements.29 Eric Hobsbawm claimed that the past can be looked to as a way of reconstructing

29

Benedict Anderson, Imagined Communities (Verso, 1991).

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the present30 and in this sense we can understand that public discourses, as well as government and policy elites, used history to construct an understanding of the present. What is interesting for this comparative study is just how much the appeals to the past during the discourse over Iraq mirrored the very same strategies employed during Suez. In both cases, legal justifications were crucial to this narrative reconstruction of the past. In order to bolster legal justification, whether for consumption by other world leaders, domestic political actors, or public opinion, government referred to historical analogies to shore up support and delegitimize opposition. Yet it wasn’t always necessarily a government strategy. If we compare public opinion in Britain and France during the Suez Crisis we see a very different narrative which framed public responses to the crisis, which was arguably deeply entrenched in French politics, with or without government strategy to deploy the narratives. French Gallup polls for the period April 1956 to July 1957 were dominated by the ‘Algerian Problem’. The Suez Crisis was therefore deeply embedded within public discourse about the Algerian insurgency.31 The wider frame for France located Nasser specifically in relation to the territorial losses of empire, and constructed his threat as far more direct to the nation, because of his embodiment of much of the spirit of Arab nationalism and assertions of independence in the decolonizing world. Much of this difference in framing and narrative therefore was to do with the domestic experience of foreign policy, invoking national memory as a context for discourse. The media played a crucial role in telling these narratives and establishing collective ‘memory’, a role considered later in this chapter. One final observation to be drawn from the case studies relates to the evolution of new frames and grand narratives or re-articulations of old ones. In other words, how to think about the generative processes of narrative and framing through justificatory discourse. A ‘paradigm shift’ at the domestic level appeared to have an important effect on how government appealed to international law, and whether or not domestic actors sought to use international law as a resource. In Suez we saw a realignment of foreign policy and domestic affairs such that ‘law not war’ resonated with political elites and public opinion as a campaign which stood for fundamental principles linking domestic interests with UN collective security. This realignment had deep political foundations: between 1945 and 1951 Ernest Bevin, Labour Foreign Secretary, had instituted a policy of non-intervention in the Middle East that continued to prove influential, not simply in policy circles but in the Parliamentary Labour Party, trade unions, and Labour’s grass-roots supporters.32 Coupled with the Labour Party’s ethical vision for future British power premised on the rule of law, this made a strong base from which to articulate 30

Eric Hobsbawm, On History (New Press, 1998) 34. July 1957 ‘Algeria’, Gallup Poll (France) from Gallup International Public Opinion Polls, France, 1939, 1944–1975 (Random House, 1976) 2 vols. 32 For a magisterial account of Labour’s policy in the Middle East during this period see Louis (1984), in particular Part III Ch 6 and Part V Ch 4 which relate to Labour’s policy on the Suez Canal Zone and Egypt more generally. 31

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international law as a campaign against government action. In this case, international law cohered with a strong and emergent grand narrative which more persuasively positioned Britain in a new world of indirect influence and ‘moral’ leadership. By the time of Iraq the wider frame to policy formulation appeared quite different. Policy elite and expert contest may have been fuelled because foreign policy appeared to be shifting from containment to interventionism. In a sense, this shored up the liberal dilemma by not just claiming that ‘doing nothing is not an option’ but that there was a legal obligation to do something.33 This shift suggested that the political foundations of legal principle, namely the collective security structure of the UN Security Council, were also up for debate. These contests over deeper meaning, or meta-narratives, to be attached to justification may have heightened the intensity of discourse, particularly among elites. Yet, such contest was not reserved to policy discourse alone, and spilled into public discourse through elite activism and, in particular, media coverage. This final observation recognizes the significant influence of ‘mediated discourse’ in any mapping of justification, but it also invites consideration of the influence of ‘the international’ in its many discursive forms.

5.4 International influence (cf. socializing forces) In mainstream constructivist and transnational legal process approaches, socialization refers to the internalization of norms through social processes that emerge when norms are debated, interpreted, and institutionalized, at both the international and domestic levels. This can include coercion, persuasion, and shaming.34 Essentially, socialization suggests that states comply with international law because a repeated habit of obedience within a social setting reconstructs their interests so that they come to value rule compliance.35 A ‘thin’ description of the case studies of justification might suggest that we see a distinct move towards socialization from Suez to Iraq. In other words, such a description might argue that the British government’s reliance on collective security as legal justification for using force against Iraq demonstrated the internalization of the ‘compliance obligation’ of international law. Such a description might compare this with Eden’s ‘purely pretextual’, cynical deployment of international law as a means to an (illegal) end, whereas Blair’s legal justifications, whilst layered upon a hidden policy of regime change, nevertheless demonstrated the need to appear to comply with the dictats of the prohibitory framework. Perhaps inevitably, this section challenges such an interpretation and instead suggests a far more ambivalent outcome to so-called socializing forces. In addition to considering the theoretical account of socialization, this section reflects upon some of the wider international influences that appeared to operate in the politics of 33 35

34 Keck and Sikkink (1998). Marks (2006) 344–6. Harold Koh, ‘Internalization through Socialization’ Duke Law Journal 54(4) (2005) 978.

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justification. These included not just institutional influence through different conceptions of the United Nations, but also the influence of ‘world opinion’ in its various expressions and interpretations. In both Suez and Iraq the United Nations posed a challenge to legal justification, but in distinct ways, and for different reasons. The Suez Crisis arguably represented the first real test of the collective security mandate of the Security Council.36 At the time of the Crisis the imperative underpinning the United Nations’ foundation had particular resonance. There was a lot riding on its success and the UN Charter promised to prevent the recurrence of total war. The two world wars had been the result of Great Power contest between Western, imperialist states. On one reading, Suez appeared to represent a similar threat in the sense that it could fracture the Western alliance and was based on imperialist policies of securing economic interests through military force and occupation. Furthermore, the United Nations symbolized the very dichotomy that resonated so strongly for the Labour Party opposition: ‘law not war’. The perception was of an institution at the heart of a new legal regime. This meant that it personified a way of doing international politics that was idealistic but was nevertheless a popular belief in the need to avoid global conflict. The success of the ‘law not war’ campaign was in large part due to the vague conception domestic publics and politicians had of the institution’s precise role. Rather than according it special legitimacy by recognizing its authority over particular issues, domestic actors appeared to interpret it as the embodiment of post-war stability and security. In this sense the United Nations came to represent a paradigm shift, from Great Power colonial conquest and contest, to constraint of naked imperial ambition through Great Power cooperation (as permanent members). This new paradigm was to avoid previous escalations of rivalry and ensure global peace and stability. The United Nations thus played a central role as a representation of this shift. Regardless of whether this period marked only the end to formal imperialism, the symbol was of the United Nations as personification of law and pacific settlement of international disputes. As well as representing a symbol of peaceful co-existence, however, the United Nations was increasingly seen as a significant forum for gauging and publicizing world opinion. This was not simply a perception held by the British public, but appears to have been reflected in policy discourse. For instance, there was great anxiety expressed about the increasingly vocal and coordinated expressions of anticolonialism voiced, in particular, in the General Assembly. Foreign Office and Colonial Office advisers were concerned that the General Assembly was coming to symbolize a growing movement for independence from imperialist rule; a Parliament of anti-colonial man. It seems that this policy discourse reflected a frustration that the institution had become too central as a barometer of world opinion. This 36 I leave aside the case of the Korean War as this was arguably deeply intertwined with immediate post-war concerns over the future of China and represented a Cold War splinter in the permanent five members. The Suez Crisis represented a much greater threat: the prospect of Great Power rivalry within the Western alliance.

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was not simply a privately expressed concern as media reports throughout the crisis had constantly referred to events at the Assembly (and of course the Council) as representing the views of the world. Further, Labour activists repeatedly condemned Eden’s government for failing to heed world opinion as expressed in this global forum. Yet, the influence of the forum could be deployed to justify force. One striking similarity between Suez and Iraq rests on the fact that both conflicts were portrayed as threats to international peace and security requiring Security Council engagement. Both crises were framed as direct challenges to UN authority—challenges to interpreted intransigence—by those seeking to wage war. In Eden’s eyes Nasser represented a new and emerging threat to stability both in the Middle East and to European economic interests, in particular affecting trade and access to oil. Eden argued that Nasser’s continued blockade of Israeli shipping constituted credible evidence that his nationalization of the Suez Canal Company would result in breaches to safe passage through the canal. This, he argued, demonstrated a flagrant disregard for the Security Council’s authority.37 In private, Eden hoped that Nasser would continue to resist international control of the canal and this would result in an enforced agreement by the Great Powers. However, he had not counted on US nervousness about appearing to be imperialist. Eisenhower had made it clear to Eden that it would not be in the Great Powers’ interests to publicly remove Nasser, though he had privately colluded in seeking Nasser’s overthrow. The reason for this antipathy was arguably both a domestic influence and an international one. Domestically, the United States had a tradition of anti-colonial stance and a culture which believed itself the champion of independence movements. Internationally, the General Assembly was increasingly populated by post-colonial states. Eisenhower believed that in order to prevent these newly emergent states seeking Soviet patronage, America should publicly champion the cause of the United Nations, as a representation of the Parliament of Man.38 By 2002/03 the image of the United Nations among both international political actors and domestic publics had clearly changed, though it is difficult to be certain what its new representation was. Iraq’s non-compliance with weapons inspections, and apparent ‘material breaches’ of previous Security Council resolutions formed a primary basis for arguing for military intervention. However, as was also seen in Suez, when the Security Council failed to authorize military action in response to the apparent challenge to its mandate for maintaining peace and security, those arguments were fundamentally and fatally undermined. During Suez, the failure was on the basis that it would be too slow and unwieldy to respond to the threat in the Canal Zone and was too politically hamstrung by the threat of a Soviet veto.

37 In particular Resolution 95, 1 September 1951, calling on an immediate cessation of the blockade which had been retaliation for Israeli attacks on Gaza, see . 38 The phrase is taken from Paul Kennedy, Parliament of Man: The United Nations and the Quest for World Government (Allen Lane, 2006).

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During Iraq, the failure was on the basis of what Blair characterized as the threat of an ‘unreasonable veto’. Yet in both cases, the problem of the Security Council was that its members simply did not agree that there was a sufficient threat warranting military action. There was therefore a breakdown in the Great Power consensus on security management. In Suez, Eden was undermined by public statements and media reporting of what had occurred at the Security Council and General Assembly meetings. Partly events were so catastrophic because he had sought to maintain a censorship-type control over information to hide the collusion with France and Israel from Parliament and the world.39 But, partly there was a degree to which defiance of process and procedure de-legitimized government justifications regardless of efforts to control the transmission of events at the international level. Similarly in the Iraq case study, it was the inspectors’ demands for more time to establish Saddam Hussein’s compliance, coupled with French and Russian insistence that a second resolution would be necessary to authorize the use of force that severely undercut the British government’s claims to be acting on the basis of the Security Council mandate. The specific claim to be acting according to the wishes of the Council was seriously undermined by the Council’s refusal to agree that there was a breach sufficient to invoke Chapter VII powers. An important response to this de-legitimating effect was to call into question individual Council members’ legitimacy by decrying the ‘unreasonable’ use of the veto. The United States and Britain also emphasized their role as world policemen enforcing the laws and morals of the ‘international community’ in the name of freedom and human rights, that is in accordance with wider (liberal) UN principles. In comparing the situation over the Iraq War to the Suez Crisis we can at least say that the spectre of global, total war had shifted from fear of Great Power contest, through the Cold War and mutually assured destruction, to US hegemony and/or the threats posed by international terrorism. This new ‘state of exception’40 was premised on the idea that stability had been achieved through multilateralism following the collapse of the Soviet Union. The greatest threat now facing international stability was from rogue or failed states harbouring, or incapable of defeating, Islamist terror networks.41 This narrative shift had international as well as domestic effects in how to conceive of the United Nations. In the United States this resulted in the United Nations remaining a necessary tool of multilateralism, but ultimately bound to fail because of a lack of will to face global threats; or as a representation of an outmoded regime of international policing that was incapable of minimizing conflict in the light of new realities of threat. In Britain, the picture was more complex because the ‘War on Terror’ rhetoric had less centrality to public and policy discourse than in the United States. Certainly there was a section of the media and public opinion 39

On this aspect see Shaw (1996). The phrase ‘state of exception’ is here borrowed from Giorgio Agamben, State of Exception (University of Chicago Press, 2005). 41 Agamben (2005). 40

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which considered the United Nations ineffective and constrained by power politics, but there was also an additional difficulty: the UN weapons inspections regime came to be viewed as a strongly legitimated enterprise that could enable the resolution of Saddam Hussein’s intransigence without coalition recourse to force. The centrality accorded to the inspectors may well have represented the use of the United Nations as a resource in public discourse, but its use also suggests a different concept of what the United Nations represented for the British public and domestic actors almost fifty years on from Suez. It is not as simple as saying that the public had a more refined and, perhaps more accurate, picture of the role of the United Nations than previously. Certainly there seems to have been a distinction made between the Security Council and the inspections regime (with a noticeable disregard for the General Assembly). But there also appears to have been a split between those that viewed it as an outdated relic of the post-war settlement and those who feared descent into chaos without at least the acquiescence of Council members to unilateralist use of force. To this extent, the grand narrative which the United Nations represented in the Iraq discourse sought to reconcile the rhetoric of hegemony with the liberal purposes underpinning collective security. In considering the institutional influence of international discourse, one obvious distinction between the periods of Suez and Iraq was the degree to which information could be transmitted far more easily between the arenas of political engagement by the time of Iraq. Yet this transmission of information about the institutions of international politics and the work of institutions was still subject to institutional secrecy. As previously noted, this secrecy meant that even though domestic knowledge about the role of the UN may have increased in general terms, there was still an information gap as to how governments acted out roles and sought support for their policy aims. It is significant that the first requests for secret meetings of the Council was made by Britain, and granted, during the Suez Crisis. The public debates in the General Assembly proved deeply embarrassing for the government and they were arguably surprised by the impact that ‘world opinion’ had as expressed through the institution. The United Nations during Suez represented a new framework within which to coordinate international affairs which publicly deplored violence and which sought to articulate the emergence of a new international community. A liberal Western state such as Britain was expected, not least by its domestic public and domestic political actors, to be a role model for newly independent states, not a ‘rogue’ state to be compared with Soviet repression and expansionism in Hungary. The continuity between the two case studies, of shrouding UN events in secrecy, therefore suggests that the UN forum did have an effect in providing a platform for global actors to publicize their opposition to British justification. This forum could not be controlled in the ways government had envisaged. This was at once a bureaucratic issue and a public relations issue. From the bureaucratic perspective, Britain’s representatives suffered extreme pressure and scrutiny throughout the late stages of the Suez Crisis. From a public relations perspective, world opinion coalesced in public with a public platform to criticize British actions. This appeared to enhance the legitimacy of such views. The audience for such criticism was obviously British

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representatives, but because of the media role in reporting events, the audience also became British domestic opinion. In some respects, many of these same processes appeared to be at work during discourse over Iraq, but were more skilfully managed by those seeking to justify war. Colin Powell’s address to the UN Security Council can be seen as both directed to Great Powers within the Council, but perhaps more so to domestic opinion not only in the United States but also in Britain and Europe. This duality suggests that the institution had some significance in the politics of justification. That was not simply as a stage for justification but as a stage where the acting out of justification could represent a claim to excess authority. In effect, an exercise of sovereign authority through the staging of ‘the international’, practised in a theatre of select actors. These actors appreciated the rhetorical value in making claims on such an international stage. The domestic audience may have been strongly influenced by evidence produced of secret weapons programmes on this stage. Although this may have remained unconvincing to Council members, it may have allowed governments to return to their domestic constituencies claiming the need to defy the Council because of its failure to act, despite clear evidence of a threat. The institutional stage became the legitimator of the member’s power and role in the world and at the same time a foil to brandish ‘non-players’ with, by decrying an ‘unreasonable veto’, the ‘wasting of time talking’, or the failure to react to rapidly changing events. Indeed, this is precisely what seems to have occurred in Iraq. Further support for this interpretation emerges from recriminations that occurred following the failure to obtain a second resolution. Instead of UN legitimacy holding government to their commitment to getting a second resolution, the public in the United States appeared to reflect the view that the United Nations was a highly political environment which could be subject to (illegitimate) political wrangling. Recriminations followed against Russia and perhaps surprisingly most aggressively against France for using the threat of an ‘unreasonable veto’ to avoid taking the ‘tough decisions’. In addition to the idea that the institutional stage exercised an influence over discourse, the bureaucratic legitimacy of part of the mechanisms of the United Nations may also have been significant. In Britain the UN inspections regime did appear to hold a certain legitimacy pull in discourse. This demonstrated a nuanced appreciation of the various functions the United Nations performed during Iraq, so that whilst acknowledging the highly political (and perhaps illegitimate) functions of the Council, domestic actors simultaneously recognized the legitimacy of a more bureaucratic function in the disarmament regime. This finding appears to support the theoretical work by Barnett and Finnemore on the legitimacy pull of bureaucratic international organizations.42 This may indicate there was an external constraint exercised on government policy through the legitimacy accorded to international bureaucracy.

42

Barnett and Finnemore (2004).

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Perhaps the bureaucratic legitimacy pull provided a direct link between domestic societies and international institutions. Traditionally, political representatives have been the only actors able to bridge the international–domestic divide as authoritative discussants in debates involving international institutions. Although transnational advocacy networks and NGOs also seek to bridge this divide by framing issues that will resonate with domestic concerns, what is missing from existing literature is the possibility that institutions themselves may make legitimacy claims, directly engaging public opinion as an audience to their actions. Both Hans Blix and Mohamed ElBaradei’s cautious reports and insistence on more time transmitted messages to British audiences which fuelled opposition to the Iraq War. These international officials did not have to engage in public discourse ‘actively’. In fact by emphasizing their need to be sure by taking more time, they were juxtaposing political motivations with their own focus on objective evidence premised upon fact-finding not fact-constructing or case-making. This ‘scientific approach’ contextualized disarmament firmly within a paradigm of recourse to force as last resort, which appeared to counter the tenor of US and British public statements and their seeming insistence on waging war against Iraq. The underlying claim to bureaucratic rationality (and neutrality) may have served to de-legitimize government claims of the necessity to act, instead positioning justification as a matter of choice with questionable motivations not seemingly premised upon evidence of threats. Although distinct from Suez, this appeared to be a further example of the institutional framework behaving in ways which were either unpredictable or uncontrollable by political actors. This may have been down to its representational legitimacy pull, as in the Suez Crisis, in which it embodied the principles of international ‘law and order’; or a bureaucratic legitimacy pull, as may have been present in Iraq. Indeed, representational pull may also have been operative in Iraq, in that a number of concerns were raised that without the United Nations there would be anarchy. However, as stated elsewhere, the contest over the grand narrative underpinning the centrality and authority of the UN may have undermined this representational aspect of legitimacy. Interestingly, this uncertainty as to image may not have affected the legitimacy pull of its bureaucratic function as a constraint on government legal justification. One final aspect of international influence relates to the significance of ‘world opinion’. On one hand, ‘world opinion’ may have been interpreted as more or less significant to discourse where countries appeared to adhere to common values and principles. That is, they were ‘socialized’ members of the ‘international community’, with liberal values and democratic political processes. So, for instance, the opposition of French and German governments, and publics, to the use of force in Iraq may have resonated more strongly with the British public than, say, opposition from Russia or China. Similarly, US opposition to the Suez intervention resonated more with the British public than, for example, Soviet opposition. Further, likening British actions to those of ‘rogue’ states may have served to undermine government justifications. This occurred when the Soviets crushed the Hungarian uprising at precisely the same time as the Anglo-French attack on Egypt. During the Suez Crisis, the media reported statements by political actors in other countries under the heading ‘world opinion’. This was elite world opinion which

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represented a challenge to government actions in the form of statements by world leaders. Yet, by the time of the Iraq War, media reported not just elite world opinion, as expressed in institutional forums or by political leaders, but also referred to ‘global public opinion’. For the first time in British history it seemed that opposition to using force had taken on a ‘transnational’ character. As explored in the Iraq case study, these protests were organized by transnational advocates whose networks were related to anti-capitalism. These actors saw a link between the military action in Iraq and their own central ideologies.43 Some argued that the humanitarian motives which governments used to justify actions hid a stark truth; imperialism remained a central feature of world politics and was intimately connected with globalization.44 However, media did not report these ideological aspects of the global protests. Instead, the power of transnational protest was seen to be in the sheer number of participants, rather than in their paradigmatic challenge to government’s liberal policy. Drawing on political science literature and sociology research, it could be argued that international law as a globalized set of norms might be inherently transnationalizing in its effect on the public discourse. On this account, the fact that such law is used as a resource across national boundaries may serve to bypass national political opportunities.45 Yet, the Iraq case study suggests that despite transnational shifts and the emergence of global social movements, the media, policy elites, and the government still dominated discourse. This excluded these ‘new’ actors through an attachment to the idea of the ‘domestic sphere’ and limited the possibilities for paradigmatic transnational challenge. This analysis casts doubt on the argument that international law’s nature as global in reach and international in outlook can be seen as inherently emancipatory for transnational modes of political contestation. Instead, the doctrinal distinction between ‘the domestic’ and ‘the international’ might serve to further re-entrench traditional or co-opted modes of contestation. And as we have seen in both cases, international law’s invocation, its diction, signalled a transcendent appeal over domestic politics, through the sovereign claim to ‘internationalized’ authority. The evidence from Iraq suggests that legal justification may not have enhanced greater paradigmatic challenge to government policies. In this way, oppositional narratives may have been hindered by the language of international law and the identity of those actors who were constituted as authoritative participants in justificatory discourse. This may result in a form of socialization that mimics civilizing discourse: it resolves to centralize the role (and role-model status) of liberal states regardless that their ideologies may increase the incidence of global conflict. This form of socialization, therefore, does not necessarily constrain government decisions to use force but will determine the actors destined to matter in 43 For a pre-Iraq war examination of the motivations of these actors, see Emma Bircham and John Charlton (eds), Anti-Capitalism: A Guide to the Movement (Bookmarks, 2001) esp Lindsey German, ‘War’, 123–32. 44 Bircham and Charlton (2001) 131. 45 For examples of this literature see Jackie Smith et al (eds), Transnational Social Movements and Global Politics—Solidarity Beyond the State (Syracuse University Press, 1997).

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discourse. This darker side to socialization draws attention to the force of legal justifications. They are premised on an implicit claim to authority, which rests on an authority to speak for international law. This authority appears to derive from the exercise of sovereignty in the international sphere. So, if we concentrate only on socialization through international interaction as a means of securing compliance, what we miss are the complex processes through which socialization—the invocation of international law as obligation—seeks to bypass the ‘lack’ of domestic authority conferred by so-called socialized, domestic behaviour. In other words, liberalism’s primary claim that the domestic state and its rule-guided operations socialize states on the international level towards compliance misses a significant point of analysis. International law, and the claim to be complying with obligations through justification in fact, can be seen as overriding fundamental premises about the liberal domestic state. In particular, in the case studies, this acted to plug the gap of democratic legitimacy and deny accountability for the exercises of authority through claims to sovereign right through international law’s diction.

5.5 Mediated discourse There are at least three key features of media influence over justificatory politics to reflect upon in light of the case studies. The first relates to the actual spreading of knowledge; transmitting and selecting information from different spheres of political engagement and how this affects the saliency of issues. Second, and intertwined with this role, is the way in which knowledge is framed. We see the use of narratives to structure such information, as well as reliance on policy elites and experts to interpret that information, and indeed to interpret and challenge the frames or narratives which are articulated in government justifications. Finally, the fact that media itself represents an aspect of the structural context of domestic society and particular interests or experiences is explored. How might this influence the choice of sources of information, the way conflict is framed and forms of narrative exercised by media as discursive participant and institutional, elite actor? This leads to a consideration of media–state relations that invites wider examination of media’s role in British politics, yet is directly relevant to its role in the politics of justification. The Suez Crisis represented an early challenge to the government’s ability to set the media agenda and control reporting. Eden in particular held especially strident views on media control. This was partly a consequence of having been a key member of the Churchill War Cabinet 46 and having been accustomed to media censorship and self-censorship, and government control of the BBC.47 To a large extent, therefore, he underestimated the influence media might have on public 46 He was Foreign Secretary from 1935 to 1955, serving under Stanley Baldwin, Neville Chamberlain, and Winston Churchill. 47 See Shaw (1996).

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opinion. In turn he underestimated the strength of support that the Labour Party would garner from public protest, and of course the reporting of that protest. Two factors in particular appeared to catch him off guard. The media reported world opinion and, in particular, events at the United Nations. Though there was a time delay because of technological limitations, this reporting fundamentally undermined Eden’s control over the flow of information, and exposed many of his statements as stretching the truth of events at the international level. In addition, the media reported the widespread divisions in the country and, in particular, the Labour Party’s ‘law not war’ campaign. This was initially led by the Labour-supporting press, which included the Daily Herald and to a lesser degree the Manchester Guardian, but the Liberal News Chronicle was also influential, as was (eventually) The Times. This provoked the Beaverbrook papers into charging these sections of the press with fuelling Nasser’s intransigence by failing to present a united front at home. Such charges recalled the legacy of appeasement. However, even this latter section of the press was not entirely supportive of government policy, but not because the government was being too aggressive. The Beaverbrook papers (the Sketch and the Express) likewise transmitted information about Britain’s moves at the United Nations but in a derisory fashion. This served to portray Eden as vacillating and indecisive, unable or unwilling to protect British imperial interests in the Middle East. The Suez Crisis therefore demonstrated how much influence the media could have by reporting and interpreting international and domestic events, rather than relying on government (censored) information alone. By way of comparison, the US approach to the media at the beginning of the Gulf War (1990–91) demonstrated an acknowledgement of the influence the media might have on public discourse. In particular, the US government sought to limit their role as information providers by making them reliant on government sources. They developed a new approach to war reporting that would see journalists ‘embedded’ with armed forces and reliant on military and government personnel for information. Captain Ron Wildermuth48 drafted a secret memo entitled ‘Annex Foxtrot’ which sought to manage the information flow such that the operation’s goals would be supported and the mistakes of Vietnam would be avoided.49 This attention to the management of media information thereby recognized its influence over public discourse, seeking to control that flow of information. This strategy was similarly deployed during the conduct of the Iraq War. The media’s role in informing the public is said to enhance public deliberation. By highly publicizing events and reporting widespread political contest over issues, public opinion is better informed to deliberate over policy concerns.50 This role appeared to pose a challenge to Eden’s justifications, on the face of it enhancing what Goodman calls ‘blowback effects’. To ‘deal’ with this influence, by the time of 48

Chief Public Relations officer to General H Norman Schwarzkopf. This was the story reported (belatedly) by the New York Times, quoted in John R MacArthur, Second Front: Censorship and Propaganda in the 1991 Gulf War (University of California Press, 2004), 7. 50 This proposition is on the basis of research conducted by the public opinion researcher and political scientist Benjamin Page. See Page, Who Deliberates? Mass Media in Modern Democracy (University of Chicago Press, 1996). 49

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Iraq the government had sought to carefully manage the information flows. But both cases demonstrate that control over information can never be entirely exercised. The idea that information enhances public deliberation is not simply a reflection of media–state relations. In fact, information is not neutrally imparted or transmitted in the form of ‘raw’ information. Instead, information is packaged, interpreted, and analysed as part of media reporting, for public consumption. This process is not solely a top-down media process, but will inevitably reflect audience expectations, as was discussed in Chapter 2. The packaging of information is significant, however, because it may reflect elite biases within the structure of media reporting. Two forms in which these found expression during the two case studies was in the way media framed debate, and in the way it reflected elite-level opinion. This attention to framing and bias does not assume that media led discourse, but the Iraq case study suggests that in the absence of institutional political leadership, media took on an even more significant role in justificatory politics. During the Suez Crisis opposition was led by an institutionalized political party with a clear paradigmatic message tying law to anti-imperialism, pacifism, and the new post-war order. This made the slogan ‘law not war’ resonate strongly as the two were viewed as diametrically opposed and enmeshed in a wider context of seeking order following chaos. This framing narrative was therefore largely dictated by political actors, rather than by media. The political differences between media outlets demonstrate that framing was largely the result of political contest. Yet this political drive to discourse was amplified as it was transmitted by the media to the public, which appeared to divide along similar lines. The Iraq War presented a very different picture, where sections of media reported much of public discourse as contests between lawyers, diplomatic experts, and policy elites or by highlighting the heterogeneous, apparently politically devoid nature of mass protest (the power of numbers). Information about opposition was therefore framed in terms of actor expertise and a groundswell of popular opposition. This type of framing of discourse was not apparently present during Suez because there was clear party political leadership of the anti-war campaign. The reason for this heightened influence was perhaps a combination of numerous factors. During the Iraq War discourse there was less political leadership in opposing military action. What characterized early discourse from July 2002, was the identity of those voicing concerns about military planning and government decision-making. These were either policy elites and other experts who challenged government sources of intelligence and the government’s interpretation of the apparent threat posed by Saddam’s Iraq, or the ‘chorus of dissent’ beginning to emanate from the groundswell of public opinion. Former members of the UN inspections teams were quoted as opposing threats to use force,51 as well as diplomats, military personnel, and Whitehall sources.

51

See eg Daily Mirror, 16 July 2002, Scott Ritter says it is wrong.

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So, one element of the frame was to inform the public of widespread discord in the policy sphere, in other words elite dissensus. This framing of reporting signalled the importance of debating the government’s policy because it appeared to be being pursued against expert advice. This deferral to expertise is explored in greater detail below, but is mentioned here to illustrate how framing was multilayered. This aspect of framing involved the designation of authority to participants in public discourse. As the discourse continued, this frame became increasingly important. Legitimate participants moved from experts to ‘the public’ or ‘Middle England’ and back again to experts, this time lawyers. Through this framing, media signalled the importance of debating force, by first indicating that there were strong policy elite disagreements. This served to raise questions of government claims that Iraq posed a threat, either through WMD or terrorism. If policy elites, who by implication had similar access to secret information, were unconvinced this raised the burden on governments to justify, why was military action necessary. Sections of the media then transmitted how central the debate had become by reporting on widespread polling concerns, and ‘the mood’ of public opinion. The public fixation with getting a second resolution and/or giving weapons inspectors more time arguably provoked new interventions by academics, or influenced media outlets to seek expert opinion on the public’s own views about intervention. The juxtaposition of elite and mass opinion, followed by expert intervention by scholars, cast discourse in a different light. Some of the opposition was now channelled through academic contest: both as adversarial against government, but also between academics. This media frame resulted in privileging certain actors over others, and in transmitting and thereby amplifying some aspects of protest over others. One reason for this is that this frame was embedded in larger narratives about legitimate governance and the special authority accorded to experts. One aspect of framing, therefore, was to interpret elite dissensus as a significant challenge to government justification. Yet, framing could also refer to providing a context to justification, and to discourse. This wider framing role related more explicitly to the media narrative function: in some ways, making sense of information by placing it in a recognizable narrative context. This narrating role of media in relation to foreign policy issues is a well-studied phenomenon in political communication literature. This literature argues that the Cold War produced a clear narrative fostering a common identity between the public and government (at least in studies of the US consensus).52 During the Cold War military engagements could all be framed as occurring within a clear paradigm. This paradigm represented a cultural prism through which complex military and political engagements across the world were portrayed.53 Not insignificant to this process, was that the frame reflected the government foreign policy narrative. Shapiro and Jacobs argue that the end of the Cold War decreased the visibility of foreign policy issues, making national security issues less urgent and (of particular importance to this

52 53

Samuel Huntington, ‘The Erosion of American National Interests’ Foreign Affairs 76(5) (1997) 31. Nacos et al (2000) 43.

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book) ‘made foreign affairs more complex to follow and interpret’ which served to create additional barriers to public attention to foreign policy.54 As explored in Chapter 2, the extent to which public opinion is rational ‘depends in part upon the political environment in which citizens find themselves, especially upon what opportunities for political learning and what quality of political information are provided to them by what we can call the “information system”.’55 But of fundamental importance in ‘sorting’ this knowledge feed is the extent to which frames are used as background and (sometimes hidden) foreground themes. The success of appeals to international law by domestic actors trying to hold government to its rhetorical promises may therefore be premised on how these specific, often technical, arguments related to wider frames and existing narratives. Theorists should not ignore the well-documented processes of strategic communication when considering the significance of governments justifying the use of force in legal terms. It may be more a consequence of the power and legitimating force of legal language that drives such justification rather than any particular socialization towards legal compliance. This is not to take a wholly cynical view of political discourse, but merely to highlight the cross-disciplinary insights that can be gained by richer analysis of the politics of justification. In the post-Cold War era it seems that narratives were not so clearly defined, either from government influence, or from the media itself. By the time of Iraq the Cold War consensus had broken down and was in flux, especially in relation to emerging discourses on the prevention of threats. In the United States, the media framing of Iraq within the context of the ‘War on Terror’ was a persistent feature of reporting. This frame was a government-led policy to link Iraq to international terrorism, and was contextualized within a broader narrative of fighting two interlinked wars: an ‘axis of evil’ connected with the ‘War on Terror’, both of them contrary to international peace and the international legal order. In Britain the frame was present, early on in the crisis at least, but as debate continued the issue of terrorism fell into disfavour, with the exception of The Sun’s coverage which remained strongly patriotic (thereby demonstrating the influence of government framing on some sections of the press). There are a number of plausible reasons for why the narrative did not resonate and was hardly used by the media. Early on the ‘War on Terror’ rhetoric did appear to cohere with the threats posed by Saddam Hussein and featured because of the prominence in reporting of the shift in US foreign policy. But early policy elite concerns coupled with government-led justification which centred on collective security and the threat from WMD distinguished the crisis from terrorism rhetoric. The framing of discourse as concerning collective security and, to a degree, self-defence therefore simultaneously reflected government narratives, as well as policy elite disquiet over the invasion. Interestingly, even in this context international law played a key role in media reporting in justifying non-intervention. 54 Robert Shapiro and Lawrence Jacobs, ‘Who Leads and Who Follows? U.S. Presidents, Public Opinion, and Foreign Policy’ in Nacos et al (2000) 240. 55 Page and Shapiro (1992) 389.

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In this way, it is possible to see how the government-led initiative to bring international law to the fore eventually became the reason for media to ultimately frame the debate around legality. This legalized frame narrowed down the narrative however, and was often interchangeable with the centrality given to inspectors, UN members, and world opinion. This somewhat muddled framing of discourse was perhaps indicative of what has been termed the ‘new world disorder’ following the end of the Cold War.56 Certainly, it highlights the distinction with the Cold War era, which was characterized by uncontested ideological certainties57 and which found expression in the consensus of containment and deterrence. In the light of a contested overarching narrative, it is arguable that two effects were felt in the Iraq politics of justification. First, the government was able to preempt and impose certain narratives which accorded with liberal ideals, even if they did not appear to accord with the UN Charter regime, and thereby trumped domestic (and international) opposition. For instance, the British government’s appeal to collective security, and somewhat implicit appeal to self-defence, was joined with a loose human rights argument that did not go as far as to explicitly argue for the right to humanitarian intervention, but nevertheless sketched out the boundaries of legitimate action and opposition. This set a frame whereby opponents of military action would be caught in a catch-22 liberal dilemma, unwilling to support government use of force, but goaded as supporters (or at least appeasers) of a murderous dictator. By the time of Iraq, it seems that ‘law not war’ had become ‘law justifies war’. It became difficult to challenge military action through an appeal to international principles of peaceful settlement and containment because these political foundations of legal principle were arguably now up for reconstitution. Instead, justificatory politics appeared to be underpinned by a grand schema which prioritized protecting human rights and promoting liberal values.58 This is not to suggest a ‘new world order’ any different from the structural aspects of Great Powers and imperialism through international law. Yet, in terms of political foundations, it seems that the rationale of democratic peace theory had become ‘uncontained’: that the liberal foundations to international law now demanded protection through intervention, and peace through war. Finally, the role of media as itself an institutional, elite actor requires examination. The cornerstone of a liberal democracy is said to be the institution of a free press, but media rarely fulfils the promised ideals of holding power to account or informing the public about serious issues of concern. Robert McChesney argues that it is the political economy of media, and its relation to elite power, that limits its goals of accountability and empowerment. Private ownership, the profit maximization drive, the power of elites to influence media coverage, and the division of

56 See eg Philip Taylor, Global Communications: International Affairs and the Media since 1945 (Routledge, 1997). 57 Everts in Nacos et al (2000) 191. 58 On this point, see Marks (2006) and Kennedy (2006) esp Ch 1.

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society along class lines all act as barriers to the ideal of media ‘promoting a participatory democratic political culture’.59 As McChesney points out, the ‘greatest test of a press system is how it empowers citizens to monitor the government’s war-making powers’.60 Yet, at this ‘moment of truth’ it seems, at least from the case studies, that media frequently fails to live up to its ideals. Tony Shaw has argued persuasively that the press during the Suez Crisis was far more supportive of government policy than the general public. He argues that self-censorship and influences from elites including government, Whitehall officials, and media owners contributed to the censoring of crucial information, particularly as to military manoeuvring. If the public had been informed of these military preparations, policy would likely have been even more vociferously contested and government justifications laid bare as pretexts to war. The evidence from the case studies supports Shaw’s argument. Whilst some sections of the press, most notably the Labour-aligned Daily Herald and the leftleaning Manchester Guardian and Observer, sustained a critical stance on government policy, others such as The Times and News Chronicle rarely came off the fence. The pro-war press toed the government line, and only criticized it when policy appeared to be too conciliatory. Yet, we are left with only a partial sense of what ‘mass opinion’ made of this media coverage and indeed government justifications. Whilst polling suggested widespread opposition to using force without first taking the issue to the United Nations, there remained a consistent one-third minority who favoured ‘going it alone’.61 Indeed, by December 1956 those supporting military action had gained the ascendency, with nearly half of respondents believing Britain had been right to use force, compared to around a third who believed it had been wrong.62 Similarly, during Iraq coverage, media may have in fact been more supportive of government policy than is generally perceived. Despite trenchant opposition from the Guardian and, until invasion, the Daily Mirror, the majority of the press reflected government framing and justification. In their content analysis of UK press reports during the prelude to the Iraq War, Piers Robinson and others state that: [m]ost reports making substantial reference to the WMD rationale for war reflected and reinforced the coalition argument—for example, by relaying the coalition’s claims regarding Iraq’s WMD capability in unproblematic terms. Less than 15 per cent actually challenged official narratives in this respect.63

They conclude that coverage of the war was narrated largely through the voice of the coalition, with much less attention given to other actors. Yet, in both case studies we can see that media was no monolith. There were those that opposed government policy. Of the small percentage who opposed 59 Robert W McChesney, The Political Economy of Media: Enduring Issues, Emerging Dilemmas (Monthly Review Press, 2008) 97. 60 McChesney (2008) 98. 61 See for instance Gallup Poll, September 1956, Suez Canal, 390–1. 62 Gallup Poll, December, Egypt, 398. 63 Piers Robinson, Peter Goddard, and Katy Parry, ‘UK Media and Media Management During the 2003 Invasion of Iraq’ American Behavioural Scientist 52 (2009) 678–88 at 684.

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government policy, frequent reference was made to international law as a powerful resource with which to challenge government justifications. A political economy approach reveals, however, that structure matters and that institutions matter. These shape journalism and media content directly and indirectly, with organizational structures and relations to elite power transmitting values—in other words, ideology—that are internalized by media elites.64 This results in a striking degree of deference to sovereign power and constructs the strongest oppositional claims to government justification around elite actors apparently on the basis of their more influential claims to legitimacy and authority. Considering further the political economy approach, an apparent structural shift from Suez to Iraq occurred in the globalization of media. Two aspects of this globalization included a globalization of structure—that is, of media’s political economy—and globalization through technological changes. This shift took media from having a purely domestic, national role, to being an increasingly globalized institution with enhanced access to instant information. This could be argued to have transformed its influence by the time of the Iraq discourse because it was able to transmit information from ‘the international’ to ‘the domestic’ far faster than previously, thereby increasing public awareness of government actions and international reactions. However, the globalized aspect to media does not necessarily entail a democratizing effect or enhanced blowback effects which could constrain military action. The globalized structure of media does not, of course, address the political economy point raised above. Indeed, if anything, media globalization premised upon neoliberal economics suggests an even closer alignment of media–state interests. The globalization of media did not, further, result in enhanced, nuanced coverage of transnational aspects of anti-war protest. Nor did it result in media commentators reporting on new social actors challenging government claims. In fact, the role of media remained entrenched in traditional modes of information transmission, reliant on policy elite and expert sources, and traditional narratives and framing, either from government elites or from experts, which served to entrench the distinction between ‘the domestic’ and ‘the international’. This entrenchment suggests that because of media’s nature as a structural actor, there was a bias towards particular, institutional forms of political contest. Martin Shaw argues that the media performs a dual-representational function, as both information provider and advocate, which places it at the heart of civil society.65 But the emphasis on reporting from ‘authoritative’ sources may have predisposed media towards status quo structures of political contestation and accountability. Its ‘dual-representational’ function ought not to be idealized. The emphasis on authoritative sources also foregrounded policy elite and expert challenge because these actors were seen as the most powerful challenges to government’s claims to authority and legitimacy. The identity of those creating ‘blowback effects’ may therefore invariably be civil servants, politicians, or experts; those with competing 64 65

McChesney (2008) 129. Martin Shaw, ‘Media and Public Sphere without Borders?’ in Nacos et al (2000) 37.

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validity claims to speak authoritatively about government policy-making and about law. The ‘identity’ question is an important consideration to add to existing theories because it influences the legitimacy of participants in discourse. The recognition that identity matters speaks both to the domestic structural context and the domestic salience (of arguments) over international norms. If this identity shifts in nature, what are we to make of ‘legalized’ discourse? This legalized discourse also shifts the identities of those ‘authorized’ to speak the law.

5.5.1 The politics of legal(ized) discourse There are at least three significant implications from the case study research about ‘legalized’ contest. First is the impact of bipartisanship or lack of political contest on debating the use of force. One point of comparison between Suez and Iraq is the extent to which, in the former case, politics drove public discourse. This has important implications for holding the government to account, and therefore would theoretically impact upon the construction of a model of justificatory politics. Second, the question arises whether the government benefited from unique legitimacy and authority to justify the use of force. Did this impact upon the authority of their legal justification? Is the politics of justification weighted against contestation by its very nature? This might give pause for thought on the ‘progress’ assumed in Goodman’s analysis of legalizing further exceptions to using force. Third, is the significance of law and distinction: between legal and illegal, between war and peace, and between the international and the domestic. During the Suez Crisis the Labour Party opposition drove the campaign against using force. The domestic structural context of political organization had undergone significant changes by the time of the Iraq discourse. During the Suez Crisis mass protest was coordinated by grass-roots organizations with ties to political parties. These included numerous trades unions, local Labour and Liberal Party activists, and student groups. It appeared that these organizations often represented similar interests, for instance, socialist groups, workers’ rights, and disarmament lobbies. Grass-roots activism was led by institutionalized political parties and by smaller-scale interest groups, which included the United Nations Association. This combination of ‘like-minded’ activism coupled with outspoken leadership from the Labour Party made it possible for a simple and effective campaign built on slogans such as ‘law not war’ and ‘stop this act of folly’ in opposition to government policy. Although sections of the press and some Conservative Party members deplored the opponents’ apparent fuelling of Nasser’s fires, and decried their ‘appeasement’, the opposition campaign nevertheless appeared to benefit from a strong legitimacy pull. This was because of its agglomeration of similarly oriented social actors who used institutional politics to get a simple message across. The campaign also reflected widespread disunity throughout the country, which opinion polls revealed was deeply divided over the question of using force. This would have been all the more influential given the recent experience of national unity during the Second World War. Further, the reports of scenes in Parliament being the most explosive

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that either reporters or politicians had seen, emphasized how significant were the concerns over Eden’s policy. The use of public spaces outside the House of Commons to demonstrate on consecutive days in early November meant that politicians could hear the slogans against government action, which fuelled discord in the House. The nature of protest over Iraq was fundamentally different. It was a Labour government which was seeking to use military force. This was significant as Labour had historically benefited from a more extensive and coordinated agglomeration of interest groups and grass-roots activism than the Conservatives.66 This meant that its coordination of protest theoretically would have been more organized than the Conservatives in opposition.67 Second, the Conservative opposition chose to support the government’s policy against Iraq. Whether because of its reduced Parliamentary presence and recent electoral failures, or because it sought continuity with Thatcher and Major’s strong policies against Saddam Hussein during the Gulf War period, the Conservatives would not lead political opposition to war. Although certain senior members such as Kenneth Clarke, former Chancellor, did rebel against the leadership’s line, divisions in the Party over issues such as Europe may have prevented more members from supporting Clarke’s position.68 This meant that political leadership was left to the significantly smaller and electorally unsuccessful Liberal Democrats. Although Charles Kennedy and Menzies Campbell did appear at a number of rallies and protests against the war, the party did not have the grass-roots capacity to coordinate protest or, indeed, lead the opposition. The absence of coordinated institutional political opposition left opponents of war reliant on a small opposition party and rebel members of the Labour Party for institutional leadership. This not only created a vacuum in political coordination, but also personalized much of the coverage on opposition. For instance, the resignation of Robin Cook, former Foreign Secretary, did have an impact on public debate, but equally Clare Short’s (Cabinet Minister and strong opponent of the war) failure to resign could be used by the government to demonstrate that she had been persuaded by their justifications for using force. This fractured political 66 For a detailed historical account concentrating on Labour Party grass roots, see Michael Worley, Labour Inside the Gate: A History of the British Labour Party Between the Wars (London: IB Tauris, 2005) and Worley (ed), Labour’s Grass Roots: Essays on the Activities of Local Labour Parties and Members 1918–45 (London: Ashgate, 2005). For a more general account, see Andrew Thorpe, A History of the British Labour Party (3rd edn) (London: Palgrave, 2008). In contrast, the Conservative Party has hierarchical norms which magnify the importance of leadership and tend to play down the significance of the mass membership. In terms of political power, the grass-roots of the Conservative Party have traditionally been considered as having little influence. See Robert McKenzie, British Political Parties: The Distribution of Power within the Conservative and Labour Parties (London: Mercury Books, 1964) 258; see also Paul Whiteley, Patrick Seyd, and Jeremy Richardson, True Blues: The Politics of Conservative Party Membership (Oxford: Clarendon Press, 1994). 67 However, Labour’s documented transformation of grass-roots membership would have hindered this organizational capacity (if Labour had been in opposition) through its appeal to voluntary membership and widened social base. See Patrick Seyd and Paul Whiteley, New Labour’s Grassroots: The Transformation of the Labour Party Membership (London: Palgrave Macmillan, 2002). 68 Kenneth Clarke was considered part of the Europhile section of the Party, which remained deeply divided both over further European integration and EU membership. He also represented the more centre-right, which was a further division in the party.

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environment may have generated ‘blowback effects’ that exercised less constraint on government action. In the absence of institutional political contest, not only was constraint on government not effectively deployed, legal justification arguably facilitated military intervention through its appeal to being beyond and/or above political divisions. The scrutiny or accountability vacuum may be one reason why the Iraq discourse was characterized more by the heterogeneity of protesters and by different expert groups seeking to lead or influence opposition. However, Suez itself does represent something of an anomaly in terms of the history of British military interventions. This is because, in many respects, bipartisanship is often linked to the importance of national unity and the need to present a united front to international enemies. The expectation of cross-party consensus in the realm of security politics may have meant that policy contest over using force was, by its very nature, less capable of challenging government justifications. That is not to say there will be no role for international law, but that its utilization to fill this political gap may not be as positive in terms of constraining actions as Goodman and others suggest. Suez and Iraq demonstrate, therefore, that institutional nuances in politics and historical factors played a dominant role. Further, Iraq shows how internalization of (or at least socialization towards) legal justification may have in fact facilitated war precisely because it operated through law. One interpretation of the Iraq discourse is that the general acceptance of the premise that international law mattered in deciding whether to use force may actually have contributed to ineffective constraint on government action by those opposing war. The reason for this has to do with which actors became legitimate participants in discourse utilizing international legal norms. In public discourse, government used Parliament to protect its legal position; it did not seek authorization for it. Such authorization could not, of course, be institutionally accounted for, as is attested to by the several legal challenges which ranged against government policy and actions.69 The courts recognized that they were ‘in no position to set limits upon the lawful exercise of discretionary power in the name of reasonableness’.70 To do so would be ‘damaging to the public interest in the field of international relations, national security or defence’.71 As Lord Bingham explained in R v Jones and Milling: the courts will be very slow to review the exercise of prerogative powers in relation to the conduct of foreign affairs and the deployment of the armed services, and very slow to

69 See in particular R (on the application of Campaign for Nuclear Disarmament) v Prime Minister and Others [2002] EWHC 2777 which sought the High Court’s ruling on the legal interpretation to be accorded to Resolution 1441, clearly with the purpose of attempting to force the government to seek a second resolution which explicitly authorized the use of force. See also R v Jones, Milling, and Others [2006] UKHL 16, criminal appeals against convictions arising from actions taken on the eve of the invasion of Iraq. The appellants contended that they were legally justified in those actions on the basis that they sought to impede the commission of the crime of aggression by Her Majesty’s Government. 70 R(CND) v Prime Minister at [47], citing Marchiori at [40]. 71 R(CND) v Prime Minister per Lord Justice Simon Brown at [47].

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adjudicate upon rights arising out of transactions entered into between sovereign states on the plane of international law.72 (emphasis added)

Legal justifications for waging war ultimately resulted in primacy to the government’s ‘voice’ of authority. Where contest was documented, voice was given to experts, including legal experts, far more than to public opinion and social activists. In the process, domestic actors may have lost an important tool for discursive contest. By appealing to international law, alternative resources for accountability and legitimacy deriving from other sources might have been overridden and excluded from debate. The public legalization of discourse arguably reflected the court’s institutional approach to questions of legal justification.73 As Lord Bingham’s comments in R v Jones and Milling make plain, the determination of legal justification was subject to an institutional architecture heavily weighted in favour of prerogative power and of exercises of sovereign authority. The court’s deference entrenched the distinction between the domestic operations of authority and power, and ‘the plane of international law’.74 What this image of the politics of justification presents is the domestic face of international law in the case studies. It appeared to be a disciplining face which entrenched the prerogative of sovereign right, paying only rhetorical lip service to democratic ideals in order to deploy law as legitimate authority. In other words, law’s vocabulary became strategy.75 In this sense, international law became the operative language with which to impose borders on political contestation. The unit of ‘the domestic’ became a body upon which a claim to ‘internationalized’ authority was straitjacketed. The invocation of sovereign right therefore not only relied upon a domestic claim of authority, but also upon a transcendent claim, which sought to override the domestic constituency’s right to respond. Here, the apparent physicality of political actors straddling two spheres of political interaction, finding articulation through the vocabulary of international law, worked to further structure government authority out of reach of the ‘ordinary’ life of politics, into a ‘high politics’ of sovereign right. This distinction operated to entrench further distinctions: between the authority to determine legality and illegality; and the authority to wage peace through war, and distinguish the two.

5.5.2 Expertise in public discourse The role of expertise, or perhaps more appropriately the ‘rule of experts’,76 is intimately connected to the observations made above in tracing a legalized discourse of justification. Scholarly interventions during the Suez Crisis took an ‘educative’ tone but did not directly engage other academics in public. The interventions were limited to initial comment on Nasser’s actions as interpreted 72

R v Jones, Milling, and Others [2006] UKHL 16 per Lord Bingham of Cornhill at [30]. Recall that R v Jones and Milling revolved around the question of legal justification for the appellants’ actions for which they had been convicted of criminal offences. 74 R v Jones, Milling, and Others [2006] UKHL 16 at [30]. 75 David Kennedy, ‘Lawfare and Warfare’ in James Crawford and Martti Koskenniemi (eds), Cambridge Companion to International Law (Cambridge University Press, 2012) 158–83. 76 Kennedy (2005). 73

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through international law and, following the invasion, comment that ‘international law [wa]s not . . . a regulative force in the realm of world power politics’ such that judgment on the Franco-British intervention could not be based on international legal principles.77 For such scholars, Suez raised a question of morality, not of international law. Further, such interventions solicited no commentary in the press. Of far greater importance and influence was the political debate, in which the Labour Party organized rallies in opposition on the principled basis of ‘law not war’. Further, it was divisions in Whitehall and between advisers and government which ‘tended to extend the lines of conflict to the general public’.78 This evidence demonstrates the importance of political contest and policy elite influence over expert public intervention. It did not mean there was no impact from such scholarly debate. Indeed, the Lord Chancellor drew upon AL Goodhart’s letter to The Times in his legal opinion on military intervention. Lord McNair’s comments in the House of Lords were also used by Labour activists and condoned in private amongst the government Law Officers and Foreign Office legal advisers, including Fitzmaurice,79 and commented upon in government and Whitehall. But this was a private, policy influence, not an engagement in public discourse. A major difference between Suez and Iraq was the public role of scholars in the latter debates. Iraq illustrated that this was not simply a challenge to government decision-making. It also became a contest amongst academics as to ‘authoritative interpretation’; in other words contesting claims to authority in speaking about international law. Scholars also sought, perhaps implicitly, to influence public perceptions about legality and therefore use law and public opinion as resources. This expert authority, combined with using international law as a resource against government policy, endowed scholars with greater legitimacy in public discourse. On the other hand, the government appeared keenly aware of the potential for differences of opinion. This represented the strategic use of experts, particularly lawyers, by government decision-makers, as well as the strategic use of international law. This nuanced approach to handling authority challenges was arguably a function of the government’s own recognition of their authoritative interpretive position and the adaptability of legal norms. The assertion of expertise is hardly surprising given the expectation that experts demonstrate their qualifications, through special knowledge, interpretation, or language. What is interesting about the development from Suez to Iraq is how activism played a strong part in interventions, and this activism based its legitimacy not simply on expertise, but also as members of a mass movement opposed to military action.80 The move from objective interpretation as outsiders (of public contest) to active participants in public discourse was arguably a shift in the way 77 The Times, 8 November 1956, Letter to the Editor from Georg Schwarzenberger, Reader in International Law, University College London. 78 LD Epstein, British Politics in the Suez Crisis (Pall Mall Press, 1964) 139. 79 Recall Fitzmaurice’s correspondence with Coldstream, 6 September 1956, PRO FO800/748. 80 Matthew Craven, Susan Marks, Gerry Simpson, and Ralph Wilde, ‘We are Teachers of International Law’ Leiden Journal of International Law 17(2) (2004) 364.

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academics viewed their role and identity in domestic political processes during the Iraq discourse. It suggests an acknowledgement that despite definitive interpretations published in their response to government action, there was an underlying awareness that certainty (or the lack of it) remained a tool with which to engage in public contest over military action. The analysis of scholarly intervention and its impact on the politics of justification is further complicated by considering the substance of the intervention. The appeal to abstract legal principle reflected biases and rules in international legal discourse which were not necessarily the scholars’ own theoretical positions within that discursive field. Yet, in trying to open up that field to public contest, and engage mass opinion behind their legal arguments, scholars appealed rather uncharacteristically to doctrinal certainties and theoretical coherence.81 The reasons for this may be tied up with the framing and transmission expectations of the media. But at the same time the substance of the intervention sought to ‘correct’ domestic interpretation of ‘the international’ and ‘the legal’, although remaining open about the limitations of international law to create a just world. For much of the period, public discourse had contested legal justifications by questioning evidence, being circumspect about the threat or necessity of military force, and seeking constraint on government through moral questions as well as appeals to UN centrality. The authors of the 7 March 2003 letter professed their own view that there was too much fixation with getting a second resolution and/or giving weapons inspectors ‘more time’.82 The intervention was not simply an attempt to prevent war, or to educate the public. It was also a reaction to government’s legal justification. The authors ‘had defended international law against those who would degrade it . . . [and] had reasserted the centrality of the prohibition on the use of force in international relations within the contemporary legal order’.83 The authors believed that the government’s repeated statements to be acting according to law gave them (as scholars) considerable mileage, yielding valuable rhetoric which could be the basis for demanding adherence to the government’s own professed commitments to comply with international law.84 What, if any, might be the longer-term impacts of expert public contest? It may be that an expectation has been generated that experts will be called upon, perhaps even required, to engage in the public discourse on legal justifications. Yet, as has already been hinted at in the reflections on the aftermaths of these crises, tracing longer-term ‘blowback effects’ raises a set of interrelated challenges that inhere in the puzzle that remains over the significance of legacy. In other words, it is still difficult to be clear about how certain previous discourses continue to exercise a structuring effect over political contestation, and how history is deployed in the face of contemporary justifications for war. 81 82 83 84

Craven, Marks, Simpson, and Wilde (2004) 364. Craven, Marks, Simpson, and Wilde (2004) 365. Craven, Marks, Simpson, and Wilde (2004) 366. Craven, Marks, Simpson, and Wilde (2004) 366.

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Rather than draw abstracted predictions about what expertise may mean for justifying force outside the case studies, it may be more productive to reflect upon the pull of expertise in public discourse. The case studies demonstrate that the invocation of expertise acted as a structuring force over discourse, translating its vocabularies and thereby re-orienting contestation. This translation and articulation raised the prospect that law’s authority, and specifically international law’s authority, could be claimed only by those deemed to be legitimate speakers of that authority. We might see this as a demonstration of the effects of guardianship through law. If law is to guard the guardians, and the guardians are those entrusted with leadership and authority in the national interest, lawyers as experts became the guard’s interpreter. Seeing expertise through the lens of guardianship obviously raises the wider prospect of questioning the operations of British democracy. Indeed, the significance of secrecy also raises this prospect. Though this study could not hope to do justice to this wider exploration of context and structure, international law and its practices of expertise must be part of any future examination of the practices of governance.

5.5.3 Legacy and ‘feedback’ (cf. cultural match) Chapter 2 explored the theoretical premise that international legal norms could become embedded in domestic society through various processes which included through the politics of justification. A number of factors were identified as being crucial to understanding the potential for, and extent of, internalization. The first was the domestic structural context in which norms were being debated, and the second was the salience of the particular norm(s). The implication from the case study analysis of Suez and Iraq is that these processes are more complex than theorists have acknowledged. This section argues that the domestic structural context is heavily influenced by previous debates and historical learning that goes further than the simplistic typologies of structural context, or the ‘cultural match’ with particular norms. Further, the salience of norms, as discussed earlier, is heavily reliant on previous discourses, framing, and information transmission. Whilst the case studies make it possible to identify ‘feedback’ as significant to any account of the politics of justification, it nevertheless remains something of puzzle as to how precisely feedback is generated and develops over time in a seemingly rupturous moment-oriented way. The appeasement legacy was a feature in both conflicts, despite being vastly different in character and being separated from the Second World War by (in the case of Iraq) over half a century. The failure to act in preventing the Holocaust also appeared in government justifications, again by alluding to the failures of appeasement, and by raising the recent events in Kosovo and the Balkans as further evidence of the dangers of ‘doing nothing’. Of particular interest for this study, the Suez ‘debacle’ legacy became part of the Iraq debate. The spectre of Suez had, in fact, haunted many subsequent British governments. When Labour retook office in the 1960s they were intent on reclaiming the ‘victory’ of Suez opposition, but were wary of ‘formalizing’ any investigation into

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Suez for fear of being labelled as unpatriotic or jeopardizing present foreign policy interests. Later, Margaret Thatcher recalled how the fiasco had signalled one long retreat in British foreign policy. She believed its legacy was one reason that the Argentine junta had invaded the Falklands: they had not believed Britain militarily, and more importantly politically, capable of using force.85 Her government was at great pains to emphasize Britain’s unassailable legal justification to act against outright aggression. She therefore sought to override the cultural legacy of Suez by distinguishing its ‘murky’ motivations and demonstrating (and in fact working extremely hard behind the scenes for) widespread international support, especially from the United Nations and the United States.86 The puzzle that remains, which the case study research does not resolve, is how and why these legacies emerge. On one hand, governments use such references to distinguish themselves from negative legacies, and promote themselves as the inheritors of ‘positive’ legacies. On the other hand, other domestic actors seek to use legacies to challenge government action. Suez continues to resonate strongly in British politics and yet how this has come about, and why it continues, is difficult to explain. What the case study research on Iraq does reveal is that elements of the media opposed to military action were especially vocal in making the link between Suez and Iraq on the basis of identifying imperialist ‘folly’ in military motivations.87 Such media actors may have seen themselves as especially placed to construct these historicized narratives in which to contextualize public knowledge about policy and proposed action. They seized the moment to produce a narrative that challenged government by realigning historical memory, creating new meaning from the past to inform present contestation. It may be that previous military interventions which have spurred wide-ranging public and policy discourse may continue to influence government decisionmaking, creating a kind of ‘feedback’. This could become a structuring force—a framing imperative—to justifying force. This could result in constraining military action, as Goodman argues, by involving a longer-term blowback effect. However, it could also provide government with a degree of learning, such that past justifications are avoided, or distinguished from current policies and justifications. One could argue that the failures of justification in Suez have been learnt by successive governments claiming justification to use force. Both in the Falklands War and the Gulf War British governments emphasized the enemy’s clear breach of international law and international institutional support (as well as supportive world opinion) for using force. Both the justifications and the presentation of facts—in the two post-Suez cases the facts emphasized territorial expansionism through annexation—distinguished the conflicts from the Suez debacle. Arguably, by the time of the Iraq invasion the British government carried over this learning and also wedded this to their experience in arguing over Bosnia and Kosovo. In doing so, particular forms of justification and rationalization of policies had become internalized and therefore helped to determine the structural landscape 85

See Margaret Thatcher, The Downing Street Years (Harper Collins, 1993) 173–85. For a dramatic account of her efforts, see John O’Sullivan, The President, the Pope and the Prime Minister: Three Who Changed the World (Regnery, 2006) esp 142–61. 87 See eg Martin Woollacott, After Suez: Adrift in the American Century (IB Tauris, 2006). 86

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of justification. For example, the government linked humanitarian issues to collective security to produce an intricately interconnected rationale for war based upon multiple legal and moral principles. This arguably illustrated a grand normative framework within which to position the Iraq conflict. The tactics used may well have been learnt from previous mistakes. Some may argue that the Iraq War discourse may well have a longer-term constraining impact on government foreign policy decision-making. This constraint could be illustrated by international relations between Iran and the West between May 2003 and September 2006, as referred to in Chapter 4. Whilst it is questionable whether it was solely previous debate that affected Britain’s decision to take military action off the table, nevertheless the strength of opposition to the Iraq War may have fuelled government references to the Iran confrontation potentially becoming a ‘second Iraq’. In this sense, the Suez debacle legacy was replaced by the Iraq debacle legacy. Yet, to assess this legacy in the absence of legal justifications deployed by government is somewhat artificial. We might speculate that such justifications would have focused on the issue of defiance of inspectors, but could not conceivably have argued an imminent or realistic threat, of a ‘45 minute’ nature. Such justification would have led invariably back to the Security Council and collective security. It would be difficult to challenge the twin foundations of containment and deterrence in the absence of an enhanced threat from Iran. It is also possible (though again this is conjecture, without benefit of documentary analysis) that legal advice would have ruled out military action. In that sense, military action was simply far less credible as a policy option, despite posturing from the United States, and so any argument that it was the Iraq ‘legacy’ that prevented war is at least up for further debate. Whilst the politics of justification may have raised the burden for subsequent government action, this was not necessarily anything inherent to legal justification, and it did not necessarily lead to enhanced compliance with international law, bearing in mind the ‘powers’ contained in the ‘prohibitory’ framework. Perhaps the significance to be accorded previous discourse is that by bringing international law to the foreground, constraint could be exercised on government when facing a situation in which military action might have had to be even more vociferously justified than Iraq. Without the benefit of legal justification, and in the ‘background of Iraq’, the government decided that military action against Iran would have involved an unwinnable battle on the home front. The post-2003 conduct of war, and justifications for ‘limited warfare’ further gesture towards a careful reading of the so-called constraining effects of legal justifications. An instructive example emerges from the US legal justifications for the use of drones. The ‘targeted killing’ of US citizens, such as Anwar Awlaki in a strike in Yemen in September 2011, was justified on the basis of self-defence. This legal justification was produced in an informal memo leaked to the US media prior to the confirmation of President Obama’s CIA director John Brennan.88 In it, 88 For the ‘White Paper’ see .

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the use of drones was justified on the basis that intelligence could reveal an imminent threat from an ‘operational leader’ of terrorism, but that it might be unfeasible to seek the capture, arrest, and trial of such an individual. Government officials publicly went on the offensive when challenged about the dangerous precedent this might set. Michael Leiter, a former Obama adviser who worked on the policy argued that the very nature of intelligence collected in the ‘War on Terror’ was such that it ‘really [wa]s unreasonable that the US will always have specific evidence about a plot’.89 In a speech on 23 May 2013, President Obama justified the use of drones and targeted killings as not only effective but also legal and moral. With reference to legality he said the following: . . . America’s actions are legal. We were attacked on 9/11. Within a week, Congress overwhelmingly authorized the use of force. Under domestic law, and international law, the United States is at war with al Qaeda, the Taliban, and their associated forces. We are at war with an organization that right now would kill as many Americans as they could if we did not stop them first. So this is a just war—a war waged proportionally, in last resort, and in self-defence.90

Whilst this legal justification for conducting drone warfare deployed the language of self-defence, Obama also made reference to justification on the basis of an unwilling/unable standard91 to be applied to many states which either harboured terrorists or whose geography or state governance limitations made it impossible for them to cooperate with US military action. This ‘unwilling/unable’ standard recalled much of the justificatory framework underpinning Great Power enterprise and the ‘civilizing mission’. The legal justification for drones hardly speaks to a constraining influence over using force in the conduct of foreign policy. Yet it is also hardly novel or unprecedented. Immediately prior to the Suez Crisis, and in its aftermath, both Britain and the United States pursued covert military action in a number of states, including Iran, Yemen, and Iraq to achieve their foreign policy objectives. The resort to covert force acted to shield such actions from the glare of domestic and international scrutiny, relying not only on institutions of secrecy, but also on the absence of the need to justify military action. In this sense, therefore, ‘feedback’ from the justificatory politics that emerged out of the ‘Iraq experience’ might have made the institutionalization of legal justifications more inevitable, but this can hardly be described as a progress narrative constraining the use of force. It resulted in a reconfiguration of the conduct of war to address the feedback of invasion and massive deployment of military force. 89 See interview broadcast on 5 February 2013 on NBC: . 90 President Obama, Speech on US drone and counterterror policy, 23 May 2013, National Defense University, transcript available at . 91 Justin Desautels-Stein identified and detailed this standard in ‘International Law’s Wheelhouse’, Conference Paper, Institute for Global Law & Policy, Harvard University, 3–4 June 2013.

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5.6 Conclusions There are a number of important points of comparison between Suez and Iraq which suggest that the existing theories on the politics of justification have a limited value, in particular with regards to the role of international law in the structuring and mobilization of justifications. To enhance the ‘domestic impact’ analysis, theorists might consider three aspects of the Suez–Iraq comparison. The differences between private decision-making and public justification; the framing and narrating of justification; and the role of secrecy, all need to be addressed if the model of justificatory politics is to come anywhere close to a navigable map of discourse. Suez demonstrates that, in private, international law was seen as part of a range of policy options, and that imperialist motivations were still (privately) considered legitimate. In public, this was more difficult to argue because of a paradigm shift in international relations following the Second World War, and the break-up of formal Empire. Domestic opinion was also strongly influenced by Labour Party discourse that maintained an anti-imperialist stance. This enabled a coherent policy to be drawn up that articulated ideology, paradigm shift, and international law in a grand narrative for Britain’s future role in world affairs. At the international level, Britain was able to ‘save face’ by expressing support for the United Nations’ own ‘police action’. It thereby retained its self-image of custodian of the rule of law, providing moral leadership whilst simultaneously dismantling formal Empire. In other words, Britain could retain its status as guardian of UN peace and order. During the Iraq discourse, the public–private split demonstrated how legal justifications were deployed to fill the gap in military preparedness and mask the primary motivation of regime change in order to ‘manage’ public opinion. This was distinct from Suez. During the Suez Crisis Eden appeared unaware of the strength of opinion—both domestic and international—that held deep suspicions about British foreign policy and he failed to recognize how much impact the US and UN negotiations could have on his own legal justifications. In a sense, he did not take law seriously, though he did recognize its rhetorical value when combined with his self-image as a ‘man of peace’. Tony Blair and Jack Straw on the other hand clearly recognized the importance of legal justification, from both a domestic and international perspective. The declassified government documents demonstrate the careful calculation of presenting military action as lawful despite clear advice from the FCO Legal Advisers to the contrary. These behind-the-scenes aspects of the politics of justification suggest that governments are aware of the rhetorical and manipulable uses of international law. It may be that Eden was somewhat caught off guard by his miscalculation about the shift in opinion that had coalesced around the need for compliance with law and the pacifist tendency to avoid war. Blair’s government, in comparison, prepared meticulously for challenges to their legal justifications. This latter development suggested that government was aware of the potential for ‘blowback effects’ and as such adapted legal arguments to a range of possible outcomes such that these effects channelled towards government policy. In a situation of uncertain

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information, they were in a privileged position to do so because of their unique access to intelligence. This knowledge surfeit gave them an advantage in justifying force that is under-acknowledged by theorists studying this aspect of ‘domestic impact’. The reflections suggest that ‘the international’ influenced policy and public discourse in a range of ways. These included as a resource deployed by government to claim sovereign right over ‘the domestic’. It also influenced policy by reflecting world (political elite) opinion, UN legitimacy (or illegitimacy), and global public opinion. The ‘resources’ presented by ‘the international’ are, however, complex and ever changing. For example, the domestic relation with the United Nations was distinct in Suez and Iraq. From the comparative perspective, one similarity is how the United Nations came to represent international law: that instead of conceiving of legal norms, the United Nations was seen as an embodiment of foundational principles of international law; a powerful symbol. This was particularly evident in Suez, where law was seen as the alternative to war. By the time of Iraq, this clear-cut relationship had degraded, not least because there was no superpower challenge to liberal dominance and so the use of force carried far less risk than previously. This lack of risk coupled with supremacy of liberal values allowed for the entrenchment of crusading liberalism in international affairs, which forged a coherent narrative with human rights discourse. This was protecting rights by using force to ensure freedom. Therefore, in contrast to Suez, war was seen as one way of institutionalizing law in liberalism’s image. In a sense, the underlying paradigm was one of ‘law means war’ in order to protect peace, the law/war distinction becoming ‘polar’ rather than fixed at opposite sides of the spectrum. One of the crucial roles played by media was in transmitting information. This is particularly significant when we consider the physical separation between public and politics and between the international and domestic sphere. The media’s role nuances the typologies of domestic structural context. Further, media affected the saliency of norms (as arguments) by spreading information, framing debates, and engaging certain actors in public contest over interpretation. The identity of these discursive actors is crucial to understanding both the structural context of debate and the saliency of the norms being debated. Because these norms occurred as representations, as legal arguments, the identity of those that challenged legal justification was crucial to understanding justificatory politics. It makes no sense to envisage blowback effects constraining government if we do not first try to identify why, how, and who is effecting the constraint or challenge. In Suez we saw a group of historians and economists voice concern in a letter to the Editor of The Times. By Iraq, we saw an increasing use of interventionist activities by legal scholars. On one hand, this suggests a legalization of discourse. On the other, it demonstrates how expertise may have stepped into the vacuum created by the absence of institutional political challenge. On this interpretation, it would seem that to some degree the media and experts had taken up the space left by political activism and participation, and that there were few institutionally recognized frameworks for the expression of other opinions. The excluded participants were no longer empowered to make valid claims to authenticity of

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interpretation or reasoned argument when international law became the language of discourse. The significance of expertise remains something of a puzzle and is perhaps best examined not simply as an issue of justifying force, but more generally as a tendency towards the rule of experts and the technical management of politics. A further puzzle that remains is the question of feedback. It is clear that processes of narrative-linking, historical learning (through ‘lessons from history’), and wider framing all play a role in shaping discourse over international law. The case studies demonstrate that history is never fixed, or just about ‘context’; its meaning is always in flux, and is constantly used. The studies suggest that when arguments involving international law could cohere with grand narratives and with fundamental, guiding principles, constraint through international law may have had some prospects of success. Suez demonstrates that British domestic opinion recognized law as part of a general framework to prevent global war, and as a restraint on explicit imperial adventure. This is not to argue that imperialism somehow ‘died’ with Suez, but merely to observe the ‘narrative’ of death. By Iraq, it seems the overarching framework was in flux, in which containment and deterrence could no longer be taken for granted as the political foundations to the legal regime of prohibition. And so, the British government sought to claim a matrix of justifications, with liberal values underpinning the rationale of intervention. This was the dark side to liberalism’s ‘democratic peace’. This chapter has outlined several critical implications from the case study research. Perhaps the most important of these is an examination of the role of media, the significance of secrecy, and the significance of the distinct boundaries generated between ‘the international’ and ‘the domestic’. By mapping discourse, both private and public, theoretical assertions have been revealed as requiring much deeper empirical analysis. The need to analyse private decision-making is perhaps the most significant contribution of this research, because it highlights the disjuncture between public justifications and secret motivations. By acknowledging this disparity, theories may perhaps show more reticence in arguing for the legality of further types of military action, because of the resultant authority and legitimating force that legal justification carries. The case studies force us to question the whole premise of justifications, once we acknowledge that these are not only always mediated acts but also based on claims of right—of authority—rather than obligation.

6 The Distinctive Force of International Law This study has centred upon moments of rupture, upon events which articulated a movement from peace to war. During these moments of distinction between war and peace, history was invoked to make sense of the present: distinguishing the past from the ‘now’, whilst invoking previous events to distinguish from or to equate with the present moment. In juxtaposing these two events the study itself has sought to highlight the distinctive discourses of history that featured in each politics of justifying force. In a sense, the study seeks simply to reflect a characteristic of that politics—the invocation of precursor events—but at the same time, the study necessarily engages a subjective juxtaposition: drawing together these mapped discourses generates certain routes to navigate the theoretical premises of justification; it produces a way of seeing these crises as in conversation, in comparison, in a process of redefining meaning. In addition, the study focuses upon two ‘faces’ of international law: one looking out onto the ‘international plane’; the other looking in at the ‘domestic realm’. As a result of this feature, the distinction between the outward and inward ‘gazes’ appears to have worked to reify the borders between the two ‘spheres’ of justificatory politics, and of law. These three images—of the distinction between war and peace; of looking back to history whilst simultaneously looking at the present (or presently arriving future), and of the ‘inward’ and ‘outward’ gazes of international law—evoke the symbolism of the Roman God Janus, whilst the symbolism of the Temple of Janus evokes, in particular, the distinction between war and peace. The Temple of Janus and the symbolism of its gates remind us of the power of such symbolism in distinguishing between periods of war and peace. The story of the Janualis gates, told in Chapter 1, gestures towards the significance of the distinction between war and peace, a distinction no longer symbolized by the physical closing or opening of gates, but perhaps signalled by the drawing of international law’s boundaries and the guardianship of an apparent peace by the authors of (and those authorized by) the current international legal regime. As argued in Chapter 1, we can think of the foundational ‘moment’ of the UN as an act carrying with it a symbolism akin to the ceremonious closing of the Janualis gates. From this perspective, the UN and its foundational legal text, the UN Charter— might be viewed as embodying and articulating the closure of the gates by the Great Powers as the guardians of the gates. In its mythologized foundation, and in this ceremonious moment, the Great Powers became the guardians of peace, the guardians of history, and the guardians of ‘the international’. This foundation

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appeared to operate in the politics of justifying force as an ‘end point’; a moment to end all moments, the ultimate justification for the need for war, mythologizing the narrative of good versus evil that emanated from the Second World War and postwar settlement. The symbolic found expression not just in the embodiment of the written form of international law as expressed in the Charter,1 but also, in part, in the acts of the guardians and the closure on contesting the past. By tracing this closure on contesting the past, this study has mapped the historical narrative(s) used again and again by Great Powers of ‘the international community’ to justify force. In articulating the justification for force, an implicit claim was made as to the peaceful status of politics prior to justification, and the need to re-establish that peaceful status following a period of war. Further, the articulation of legal justification acted as a claim to authority that looked forward to an era of peace, whilst looking back towards the historic need to wage war for peaceful ends. In the act of speech, therefore, justification brought international law into being, making international ‘work’ not only in the sphere of ‘the international’, or indeed of the symbolic, but also in the realm of ‘the domestic’. Justification demarcated the boundary between peace and war, between the past, the present, and the future, as well as distinguishing between those who articulated their authoritative status to justify, and everyone else. This final distinction raises the wider question of who will guard the guardians. Whilst several studies have already shown us how international law disciplines the decolonized world and the peripheries,2 this study forces us to think about the disciplining face of international law as it is deployed, practised, and exercised in ‘the centre’. This book has provided some detail to the features of international law’s ‘domestic face’ and in doing so highlighted its disciplining operations over political contestation: managing contest and containing challenge. This tracing suggests international law’s domestic aspect is not necessarily a benevolent or kindly face, one which builds upon moments of rupture towards a progressive future. Instead, the politics of justifying force appeared to play out as a contest over sovereign authority. Here, the force of legal justification lay in its claim to distinguishing an internationalized sovereignty over a domestic sovereignty. In particular, this authority, invoked to interpret sovereignty, entrenched the boundaries of international law in its field of operations, and in its interpretation of ‘legality’ or ‘illegality’. The distinctive disciplining aspect and force of defining legality traced in the politics of justifying force is not necessarily inherent to international law: the book’s focus has been on how international law is practised and used. This attention to usage disrupts, in particular, the compliance literature which, premised on legal formalism, asserts the inherent constraining force of law and thereby legal justifications. Justification premised on international law can facilitate war as much as, if not more than, it can constrain decision-making and action. A key insight from this study has been that constraint ought not to be assumed through law. International law is a crucial vocabulary through which governments seek to wage war and, indeed, to govern. The assumption as to the constraining effects of international law has led to a misleading and disorientated vision 1 Form here refers to the legal form of authority, namely the written legal text. On forms of authority, see further Dorsett and McVeigh (2012). 2 Anghie (2004); Simpson (2004); Orford (2011).

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of international law’s role in political decision-making as currently articulated by many international relations and international legal theorists. Yet, this does not mean that we should reject efforts to describe the politics of justification or the political and legal importance of such justifications. Two facets of the politics of justification emerge from the case studies that demonstrate the worth of continuing to puzzle over the role of international law in that politics. Both facets engage the question, and the pull, of compliance. First, the case studies illuminated how compliance was constructed. This construction was largely through rhetoric: claiming authority to determine non-compliance and deploying a range of techniques to ‘demonstrate’ or ‘prove’ non-compliance, whether through ‘facts’ (and indeed past behaviour) as evidence, or readings of international law consonant with interpreting intransigence. Second, the case studies illuminated how determining compliance could be contested. This contest was most striking in its manifestation of ignoring or seeking to displace legal opinions within government. Whether this was Eden avoiding Fitzmaurice or Straw jousting with Wood over legal interpretation, this contestation of advice spoke to a contest over authority and thereby illuminated a hitherto hidden aspect to the practices of law. These battles over legal advice were also joined by, or were part of a matrix of, battles over ‘facts’. In both battles not only did contest emerge as a contest of authority, but also of expertise. Yet, this was not necessarily an ‘even’ contest: what the case studies illuminated was the privileged position of government when debating force behind the scenes. Legal advisers imagined a certain ‘fixity’ to law, which appeared to be acknowledged by political actors. Recall how Eden’s first Cabinet meeting accepted they had to ‘face the legal situation’; or how Straw agreed that, at least in principle, the Security Council was tasked with the primary mandate of maintaining peace and security (though of course his view of international law as inherently vague and malleable might contradict this). In spite of this ‘fixity’, however, both advisers and politicians recognized their special authority in pronouncing upon the state of international law. Recall Wood’s evidence to the Chilcot Inquiry, that he owed a duty to maintaining the rule of international law whilst at the same time ensuring that government was properly advised. Indeed, Lord Goldsmith’s shifting of legal opinion demonstrates that advisers were keenly aware that they were there to serve government: not only to demarcate the boundaries of legal action, but to test those very boundaries, to legalize policy and action, to provide legal cover through advocacy. This inner life of law suggests far greater complexity in understanding how international law ‘impacts upon’ domestic politics. The premise of existing efforts to describe the politics of justification—the constraining influence of legal justification—is wedded to a commitment to international law expressed as an assumption about compliance and the progressive potential of legal discourse without paying attention to this inner life of legal practice and usage. The assumption about compliance manifests as a failure to engage with how compliance is contested, constructed, and interpreted. In existing accounts, it is simply ‘demonstrable’, or not, through a thin description of behaviour without accounting for who is interpreting that behaviour, and what is at stake in that interpretation. Similarly, the assumption as to the progressive potential of legal discourse ignores, or fails properly to attend to, the practices of law and the distributions of power that

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are articulated through discourses of law. This study has cast doubt on these assumptions by drawing attention to the manner in which international law was interpreted, articulated, and applied as part of government policy seeking to justify action; and how in the case studies other actors appeared to be set at something of a disadvantage in the consequent discursive contest over using force. By empirically mapping two case studies of justifying force, this study also added flesh to the bones of the critique that war is pursued through law. Up until now, critical analysis of ‘war law’—including both of the artificially separated doctrinal areas of use of force decision-making and the conduct of hostilities—has focused on a set of arguments that assert persuasively the interrelatedness of war and law. The most powerful of these observations is that ‘[w]arfare has become a modern legal institution’3 and that ‘law today shapes the politics, as well as the practice, of warfare’.4 In other words, war is not the ‘outside’ of law. The case studies presented here flesh out these assertions, placing them in an empirical context to allow for the tracing of the practices and operations of international law as they are deployed by its speakers. Justifying force in these two cases was an expressly legal practice, and such practice demands that we reorient our analysis of international law, paying attention to its ‘domestic face’ and the way in which it operates in the sphere of ‘the domestic’. Attending to justification also allows us to consider war’s discourses which take place at home and which ‘bring war home’. Despite being waged abroad, the mapping of justification allows us to navigate the structural effects of war (not just its physical landscapes5) in the traces left in institutions, discourse, and politics. The structural effects of legal justification, its artefacts strewn through discourse, orient the politics of ‘crisis’ and ‘rupture’ by providing the vocabulary through which to interpret and articulate understandings of these moments. Despite the seeming potential for the disruption of power and contests to authority and jurisdiction, both these moments of rupture can be seen as having become subsumed by the moment themselves. Part of that process is intimately connected to legal justification. So, far from becoming a language of progress or progressive constraint, legal justification can be seen as a crucial discourse to manage a process of policing authority and politics. To expose the progress narrative to critique, the case studies have demonstrated the value of historical research into international law’s past. Whilst it was clear during the Suez Crisis what international law ‘stood for’, by the time of the Iraq War it was no longer so clear: ‘the bright line between war and peace enunciated in the UN Charter had been blurred’.6 This historical account of international law’s significance suggests that international law does not hold particular, universal, or

3

4 Kennedy (2006) 9. Kennedy (2006) 7. Simon Norfolk’s work traces the physical landscapes created by war that do not simply reflect the battlefields of Iraq or Afghanistan but also structure space in the Outer Hebrides or the grounds of Blenheim Palace. See . 6 Mark Mazower, Governing the World: The History of an Idea (Penguin Press, 2012) 402. 5

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unchanging qualities, let alone an inherent ‘nature’. Rather it is always subject to capture and re-capture, to re-description and re-interpretation, and to the always changing context of its articulation and practices. The apparent shift between these events as to what international law stands for, or in other words the shift in the grand narrative underpinning its principles, casts doubt on the assumptions underlying existing accounts of international law’s ‘impact’ in domestic politics as somehow linearly and progressively realizable through the embedding of norms, and the socialization of states to international law. Therefore, whilst legal justification could, in theory, raise the burdens on government, what appears to matter more is the ‘feedback’ from previous discourses and this is not strictly limited to the operation of law, but reflects a rich and complex politics and law. The notion of feedback does not presume a linear or causal progression towards constraint, but instead envisages an additional set of discursive markers that might be deployed both to constrain and to facilitate government action, whether through homologizing or distinguishing the past, thereby amplifying or dampening feedback. Both aspects of this study; its theoretical engagement and empirical mapping, are useful tools with which we might come to a deeper understanding of international law’s role in political life. Further case studies might seek to develop a deeper understanding of the relationship between secrecy, the machinery of government, and the practices of international law through justification by drawing country and historical comparisons. In addition, whilst the case studies examined here have sought to reflect upon the media’s role, specifically in relation to legal justifications, this has inevitably resulted in a wider consideration of the media’s role in British politics more generally. This role remains unresolved and indeed remains the subject of contemporary controversy.7 While this study has not sought to resolve such an expansive issue, it has drawn attention to the mediated nature of justificatory politics and, thereby, to the importance of accounting for the media’s influence in any appraisal of international law’s significance. Although this study focused on justifying force, these theoretical and methodological tools might be used to reflect more widely on the role of international law in public policy formation and implementation. Beyond the use of force, further studies might consider the justifications for the conduct of war. For instance, the move towards the widespread use of drones to conduct the ‘War on Terror’, has been justified in a somewhat ‘patchy’ form, and only following disclosures of secret material. Much of the policy justification has taken place behind closed doors, subject to institutional secrecy even when disclosed to oversight committees.8 This type of conduct has arguably sought to remove or at least reduce the need for public justification, normalizing practices of extraordinary authority through a reliance on secrecy and removal of public contestation. When conduct has been justified, this has utilized a range of international law instrumentalities such as self-defence, as 7 See the Leveson Inquiry and its Report into the culture, practice, and ethics of the press, available at . 8 For media reporting on this issue, see eg .

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well as more ‘traditional’ discourses such as the ‘unwilling/unable’ standard recalling the structure of the imperial, liberal imagination of world community. Outside the realm of using force, further studies might focus on human rights, in particular the prohibition on torture. For instance, in 2002 a US government legal opinion sought to justify torture first in respect of Al Qaida suspects detained outside the United States, and subsequently in respect of those detained in Guantanamo Bay, Cuba.9 The Justice Department’s Office of Legal Counsel provided legal advice in response to requests from the CIA, which was subsequently relayed as guidance for the working group in the Defense Department set up by Donald Rumsfeld. In the advice, torture could be justified under international law principles of necessity or self-defence, though ultimately international laws prohibiting torture could be considered ‘unconstitutional’.10 Although the memos recognized that torture was itself ‘illegal’ and prohibited, legal advice sought to demarcate both the boundaries of the prohibition in relation to ‘defences’, and the boundaries of interpretation: advising that many ‘techniques’ would not necessarily meet the high threshold of torture, even if considered to be cruel, inhuman, or degrading treatment. Whilst it seems likely that similar inferences and conclusions might be drawn about the practices and operations of international law and how this impacts upon and interrelates with government decision-making, such reflections must, at this stage, remain speculative in the absence of detailed empirical research. However, the prospect remains that critical scholarship might be enhanced by the addition of mapping empirically the practices of advising, authorizing, and justifying public policy, and the consequent interaction of law and politics, together with an historical perspective on that interaction. The question that remains is the emancipatory potential in the politics of justification. Why should this matter? Largely because it serves as a moment to pause and reflect upon the progress narrative which has underpinned much of the theoretical work so far produced in this area. The mapping of justification in the two case studies illustrates that politics is always contested and that law is similarly contested. Legal justification does not simply operate to determine the outcome of politics towards any particular goal or progress. International law’s uses, practices, and operations may reconstitute the resulting politics in a particular way, but we cannot guarantee that this will push towards peace and constraint. Ultimately, through the process of revealing these different places in which international law operates, the different forms it takes, and the particular speakers authorized to speak it, the question of international law’s significance or otherwise remains somewhat unresolved. Yet, revealing the contextual complexities and the deeper conceptual

9 See Memorandum for Alberto Gonzales, Counsel to the President, written by John Yoo and signed by Jay Bybee, Head of the OLC (Office of Legal Counsel) on 1 August 2002, available at . 10 Memorandum for Alberto Gonzales, Counsel to the President, 1 August 2002. For a full record of the now-infamous ‘torture memos’ see Karen J Greenberg and Joshua L Dratel (eds), The Torture Papers: The Road to Abu Ghraib (Cambridge University Press, 2005).

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problems attached to legal justification itself is a productive means towards better understanding the shape of a world dominated by and described by law. The claim to authority expressed by those international actors authorized to speak for international law can ultimately be seen as a claim of right to power: or the power of naming.11 Here, therefore, we see how ‘international law confirms the violent expression of sovereign power as right’12 by performing and thereby instituting an internationalized authority over the domestic sphere. Such a productive practice of authority serves to reinforce the distinction of the two spheres of politics and law as a means of justifying sovereignty. What is most striking about the dual aspects and dual stances of international law’s usages is how a ‘lack’ in domestic authority is compensated for by an ‘excess’ in international authority. International law’s uses, its articulations, and its practices need to be understood not only in terms of disciplining the peripheries, but also in terms of disciplining the centre. It is at moments of rupture, therefore, that we ought to pay attention to the disciplining practices of international law, which seek to impose distinction— between the international and the domestic, between war and peace, between the past and the presently arriving future, and between law and politics—thereby displacing the potential that rests in ambiguity. The distinctive force of international law rests in the vision of the sovereign state that emanates from the imagining of a bordered politics of justifying force.13 Instead of retreating to law as a strategy for contesting government policy or constraining the use of force, actors might see the potential that rests in a return to the political, and to the politics of international law, to challenge the management of opinion and the distribution of power. That is not to say that law cannot be a force for constraint, but a strategy of returning to politics would recognize the dangers of taking for given the progress narrative of so many current accounts of international law’s operations. Paying attention to how legal justifications seek to co-opt and rein in challenge allows us to pause, to reflect upon the limits of ‘legalization’, and consider the wider range of forces that animate the politics of justifying force, and indeed the politics of governing in the contemporary world.

11 Pierre Bourdieu ‘The Force of Law: Toward a Sociology of the Juridical Field’ (transl. Richard Terdiman) The Hastings Law Journal Vol. 38 (July 1987) 805–53, 837–40. 12 Kennedy (2012) 160. 13 Bourdieu (1987) 838.

Postscript In the summer of 2013, as this book entered the final phases of production, yet another politics of justification emerged in the United Kingdom, this time in relation to Syria. In August, in the wake of an apparent escalation in the deployment of chemical weapons by the Assad regime during the Syrian civil war, the United States and United Kingdom sought to justify the use of force.1 They strongly condemned the clear breach of international law, arguing not only that the Security Council ought to act to authorize the use of force, but also that any military action could be justified on the basis of ‘unauthorized’ humanitarian intervention, invoking Kosovo as a seeming precedent for such action.2 In making this claim to authority the British government sought to define compliance, or more accurately intransigence, by reference to past behaviour— the small-scale deployment of chemical weapons—as evidence to support the latest manifestation of non-compliance: a large-scale use of chemical weapons.3 This past behaviour was presented as ‘undisputed fact’, though there was certainly some dispute about whether such weapons had been used and whether their use could be directly attributed to the Assad regime. This construction of intransigence provided the basis for measuring compliance through inspections. Inspectors arrived in Syria on 18 August 2013 to investigate allegations that chemical weapons had been used in June and July by the Assad regime. On 21 August an apparent gas attack on the outskirts of Damascus shifted the scope of that investigation. However, within a week of arriving the inspectors were withdrawn. It appeared that the amplification of calls for military action from the British and American governments had prompted their withdrawal.4 By September, inspectors were able to confirm that sarin gas had been used on 21 August.5

1 The United States led the calls for military action, together with the United Kingdom, but this book, and this short reflection on Syria, concentrates on British discourse. 2 New York Times, 23 August 2013, ‘Air war in Kosovo seen as precedent in possible response to Syria chemical attack’; The Guardian, 25 August 2013, ‘Nato members could act against Syria without UN mandate’. 3 The Telegraph, 26 August 2013, ‘William Hague says government “clear” that Assad is behind chemical attack in Syria’. 4 The Guardian, 29 August 2013, ‘UN orders its inspectors out of Syria in anticipation of strikes’. 5 Later still, Bashar al-Assad agreed to the admission of UN inspectors to dismantle his chemical weapons stockpile. This, similarly, provided the basis for long-term policing of intransigence of the Assad regime, through expert oversight and reporting to the Security Council.

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Despite the force of British (and American) government justifications which emphasized the prospect of ‘discrete and limited’ strikes as a proportionate response to the chemical weapons attack,6 and the emphasis on humanitarian goals of any military action,7 the British government was unable to persuade Parliament in a vote on 29 August 2013.8 Though Parliamentary approval was not a requisite of military action, the vote provided a strong indication of the difficulty the government would face in finding support for military action against the Syrian regime. Intriguingly, Ministers refused to contemplate any further vote taking place, instead decrying the ‘partisan’ approach of the Labour Opposition said to have prevented cross-party consensus supporting the government policy.9 The case studies mapped in this book suggest interesting parallels in the way that force was justified during this ‘snapshot’ of discourse. This is not to pronounce upon the ‘truth’ or otherwise of Syrian intransigence, but rather to pay attention to the forms that justification took, the tools deployed to persuade audiences of forceful policy, and the ensuing effects on discourse, politics and, of course, law. Perhaps most striking was the clear distinction drawn between Syria and Iraq. Recall the policy of ‘shock and awe’ heralded by Donald Rumsfeld in the invasion of Iraq, compared with Obama’s promised ‘discrete and limited’ strikes and avoidance of troops on the ground.10 Further, there appeared to be recognition amongst political actors of a mistrusting public as ‘feedback’ from Iraq that meant that the government emphasized the ‘undisputed’ nature of the chemical attacks and the multiple sources confirming their use, rather than a sole focus on national intelligence sources.11 Regime change was hinted at as the necessary outcome of any action, but it was the humanitarian aspects of force that were at the fore, rather than an outright declaration seeking to institute the legitimacy of regime change.12 And,

6 The Washington Post, online blog by Max Fisher, 27 August 2013, ‘Here’s why Obama is giving up the element of surprise in Syria’; see also The Guardian live blog ‘MiddleEastLive’, 30 August 2013, ‘Syria crisis: US isolated as British MPs vote against air strikes’ which highlighted how Obama would seek to legally justify such a limited and discrete action, if necessary. 7 Daily Mirror, 28 August 2013, ‘David Cameron: Britain must bomb Syria to prevent more devastating chemical weapon attacks’; The Telegraph, 28 August 2013, ‘William Hague: time for UN Security Council to act on Syria’. 8 See Division No. 70, Thursday 29 August 2013, HC Debs (2013–14) vol 566 no 40 cols 1551–55; see also The Guardian, 30 August 2013, Editorial ‘Syria debate: parliament did its job when it mattered’. 9 The Guardian, 2 September 2013, ‘Clegg blames “cynical” Miliband for blocking British intervention in Syria’; and ‘Syria intervention: Downing Street rules out new vote’; The Guardian, 1 September 2013, ‘Ministers reject calls for fresh debate over Syrian air strikes’. 10 The Guardian live blog ‘MiddleEastLive’, 30 August 2013, ‘Syria crisis: US isolated as British MPs vote against air strikes’. 11 The Telegraph, 26 August 2013, ‘William Hague says government “clear” that Assad is behind chemical attack in Syria’; The Guardian, 31 August 2013, ‘US set for Syria strikes after Kerry says evidence of chemical attack is “clear” ’. 12 The Guardian, 3 September 2013, ‘Obama hints at larger strategy to topple Assad in effort to win over Republicans’.

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like Iraq and indeed Suez, international law was used by the government to justify force, not to prevent it or constrain military action. As with Iraq, UN evidence-gathering was deployed to measure intransigence on the ground yet at the very moment of reaching the ground, inspections appeared, at least initially, to be cut short by the ramping up of justificatory rhetoric. In this case, the ‘guardians’ of international law, and of the Charter regime in particular, seemed reluctant to cede authority to alternatively legitimate sources: experts, bureaucrats, and the international institutional framework of the United Nations. Again, we saw a jealous guarding of authority to determine facts, evidence, compliance, and threats. The eventual deployment of inspectors in September 2013 with the mandate to identify and destroy Syria’s chemical weapons parallels the policing of intransigence seen in relation to Iraq; a policing that provided numerous opportunities not only for the measurement of compliance by UN experts themselves, but also opportunities for powers such as the United States and United Kingdom to use the inspections as a resource to justify continued policing, and potentially, the use of force. Further, and as part of this jealous guarding of authority, the ‘international community’ was invoked as a type of concerned ‘third party’, neutralizing the stakes of the conflict and presenting ‘guardian’ policy as impartial, careful management.13 The invocation of community also entailed a ‘do something versus do nothing’ dichotomy and the potential for naming and shaming proxy intransigence in that community, for instance, a failure by other powers to uphold their duties to that community. Finally, we saw the invocation of the past. Notably John Kerry (US Secretary of State) addressed the Senate Foreign Relations Committee stating that Assad’s use of chemical weapons was the latest example of dictatorial abuse, past examples including Hitler’s gassing of millions of Jews, and Saddam Hussein’s gassing of Iranians and his own people. Just ‘three people in history’ had acted in such a way.14 So much for government justifications, but what of the responses and challenges to those justifications? Did legal justification raise the burden on government in the way that Ryan Goodman and his predictions about ‘blowback effects’ and the politics of justification suggest? Did international law have a discernible ‘impact’ on domestic politics, perhaps emanating from the legacy of Iraq and its apparent ‘embedding’ of norms and socialization towards collective security? As this book has suggested, the picture is far more complex. Debating Syria in the shadow of Iraq was not as simple as international law raising the burdens on government to justify force. Personality played a role, as did Parliamentary politics, the use of public opinion, and the media. For instance, many commentators suggested that it was 13 Bourdieu (1987) 830. For press reporting, see The Guardian, 22 August 2013, ‘Syria: international community condemns alleged chemical attack—video’ . 14 For the full transcript, see The Washington Post, 4 September 2013, ‘Kerry, Hagel and Dempsey testify at Senate Foreign Relations Committee hearing on Syria’ .

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not the ghost of Iraq that haunted Parliament and its debate on Syria, but the ghost of Tony Blair.15 Numerous MPs made reference to Blair’s now-discredited presentation of ‘evidence’, and his apparent ‘duplicity’, which provided the basis for their calls for inspectors this time to be given more time.16 Press commentary on the Parliamentary debates, and indeed the substance of those debates, made repeated reference to Parliament’s resurgence in the face of executive policy: ‘feedback’ from Iraq that spoke more to the vacuum of political contest in that crisis, than simply legal impacts. In the 29 August 2013 Syria debate and consequent vote we saw the return of politics, though this is not to suggest that this politics was divorced from law. The coalition government (Conservative-Liberal) could not rely on a massive majority, or a united front, to win the argument over using force. Of particular interest to this study was the stance taken by the Labour Opposition, and indeed the position of a number of Liberal Democrat MPs who had been the only opposing voices in the debates over Iraq. In the ensuing political contest, international law was deployed in particular forms, first as a call for clear authorization; second as a deference to ‘objective’ evidence-gathering by the UN; and third, as a demand to see legal advice in full before any decision on military action was taken or approved.17 Whilst politicians and some media criticized Ed Miliband, Labour

15 See, for instance, Simon Hoggart’s Sketch, The Guardian, 29 August 2013, ‘Tony Blair’s spectre hangs over Commons as MPs debate Syria’. See also Daily Mail, 27 August 2013, ‘From billionaire’s yacht Blair urges Syria attack, but . . . This war monger is the very last man we should listen to’; The Independent, 28 August 2013, ‘The heir to Blair: PM makes “moral case” for attack on Syria’. 16 See, for instance, the comments of the Deputy Prime Minister (Nick Clegg) who stated that ‘[w]e are not in any way trying to hide anything from the House. That is precisely one of the lessons that we have learned from 10 years ago. That is precisely one of the lessons that we have learned from Iraq’. Deputy Prime Minister, Thursday 29 August 2013, HC Debs (2013–14) vol 566 no 40 col 1546. See also comments including how Tony Blair’s statements in the House represented a ‘political failure’ (Richard Bacon (Con), 29 August 2013, HC Debs (2013–14) vol 566 no 40 col 1451); the ‘dodgy dossier’ (Mr Newmark, 29 August 2013, HC Debs (2013–14) vol 566 no 40 cols 1503–04); Blair’s ‘dishonesty’ (Ben Gummer, 29 August 2013, HC Debs (2013–14) vol 566 no 40 col 1517); and his ghost haunting the debate (Mr Anderson (Lab), 29 August 2013, HC Debs (2013–14) vol 566 no 40 col 1535). Intriguingly, Anderson claimed that it was also the ghost of Hans Blix that haunted the debate: ‘We should have listened to him in 2003. We should have given him time and waited. We ignored the one independent voice in the arena. We should not do that again.’ Anderson, 29 August 2013, HC Debs (2013–14) vol 566 no 40 col 1535. Hans Blix’s views on Syria were also reported in the press: see The Guardian, 28 August 2013, Hans Blix: ‘Even if Assad used chemical weapons, the west has no mandate to act as a global policeman’. 17 Indeed, it is striking that in the debates there was significant focus on the Attorney-General’s legal advice being made available, in full, to Parliament. The Prime Minister repeatedly relied upon the legal advice, a summary of which was provided to the Library of the House of Commons, to emphasize the legality of action whether under the norm of collective security or, more centrally, on the basis of humanitarian intervention. See the following references made by the Prime Minister: 29 August 2013, HC Debs (2013–14) vol 566 no 40 col 1427 (in response to Caroline Lucas’s (Green Party) assertion that a number of legal experts had said that military action without UN Security Council approval and on the basis of humanitarian intervention would not be legal in international law; cols 1429–30 stating that Security Council authorization, as with Libya, was the ‘very best route’ but not the only route, as the Attorney-General’s legal advice on humanitarian intervention made clear; col 1435, cols 1439–40 again emphasizing that every avenue at the UN would be pursued but that humanitarian intervention was about saving lives, as recognized by the legal advice.

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Opposition Leader, for being ‘partisan’,18 a number of commentators interpreted his stance as a ‘victory for common sense’ and a major coup in preventing a bombing campaign.19 In addition to Parliamentary reluctance towards using force, public opinion appeared to be loathe to engage in military action, and the low figures of support were reported in the press and used in Parliamentary debate to emphasize the need for a more careful, less ‘forceful’ approach to the Syrian conflict.20 Finally, the media played a complex role in justificatory politics. Whilst many papers appeared to sit on the fence in terms of adjudging whether military action would be ‘right or wrong’, a number of newspapers made explicit reference to the legacy of Iraq and, in their Editorials, emphasized the need for UN approval, evidential proof, and action to be in accordance with international law.21 The question that arises from this most recent example of justificatory politics is whether this politics demonstrates the inherent constraining effects of international law, and does it support a progress narrative linked to compliance, embedding, and socialization that could reduce the incidence of military action? On a superficial reading, a thin description, perhaps so. Certainly, debating force in the shadow of Iraq appeared to demand transparency of legal advice and the centrality of international law to any military action taken, in a way that seemed groundbreaking during the Iraq War discourse, but has, perhaps, become an expectation in the subsequent ten years. Yet, it also seems that what matters is political contestation, whether it uses international law as a resource or not: what halted British government policy over Syria in August 2013 was a challenge from Parliament, itself able to flex its muscle not simply because of the ‘strength’ of legalized ‘blowback effects’, though this was certainly one factor. What was also significant was the power of numbers: the coalition government had nowhere near the majority which Blair’s government had held in 2003, and it faced rebellion from its members as well as sustained opposition rather than bipartisanship. See also the Deputy Prime Minister’s contextualization of why legal advice would be significant, namely the ‘lessons learned’ from the Iraq War debates: ‘What we have done is to publish the legal advice and the independent assessment from the Joint Intelligence Committee. Unlike 10 years ago, we have recalled Parliament at the earliest possible opportunity, provided a vote and been clear that we will listen to the will of Parliament.’ Deputy Prime Minister, 29 August 2013, HC Debs (2013–14) vol 566 no 40 col 1545. 18 The Guardian, 2 September 2013, ‘Clegg blames “cynical” Miliband for blocking British intervention in Syria’; and ‘Syria intervention: Downing Street rules out new vote’. 19 Daily Mirror, 2 September 2013, ‘David Cameron’s arrogance over Syria vote is an Achilles’ heel, not a strength’; The Guardian, 29 August 2013, Polly Toynbee: ‘No 10 curses, but Britain’s illusion of empire is over’. 20 See, for instance, YouGov polls conducted for the Sun and the Sunday Times in late August titled ‘Syria and the Shadow of Iraq’ . For commentary on public opinion, see The Guardian, 30 August 2013, ‘The Syria vote: Britain’s new mood’; Daily Express, 29 August 2013, Leader; BBC News Online, 28 August 2013, ‘Syria: Are UK anti-war protests gaining momentum?’ . 21 By way of example, see Daily Telegraph, 28 August 2013, Leader and Daily Telegraph, 29 August 2013, Peter Oborne: ‘The rush to judgment on Syria is a catastrophic and deadly error’; Daily Mail, 28 August 2013, Leader; The Observer, 31 August 2013, ‘From Suez to Iraq, the lessons of our past cast a long shadow over Syria’.

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What this study teaches us is that international law manifests in domestic politics through discourse and that this discourse cannot be artificially detached from other discursive structures, narratives, and frames. History, law, and politics all animate both the justification and contestation of government policy, generating complex interactions and ‘feedback’. What this snapshot of discourse over Syria reflects is just this complexity: international law can be used as a resource to hold government to account, and to raise the burden on justifying force; but equally, international law can be deployed to facilitate military action and authorize government exercises of sovereignty, both over their domestic constituencies but also over the outliers of the international community. As the contemporary example of Syria demonstrates, and as Suez and Iraq illustrate, it is the danger of retreating from politics and to an essentialized vision of international law—as inherently constraining or assumptively progressive—that this study has sought to address in its theoretical and empirical critiques of existing accounts of the politics of justification. Charlotte Peevers September 2013

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Index Amery, Julian 90–1 Annan, Kofi 147–8 appeasement and appeasers 174, 177, 213, 228 counter-narrative, deployed as 107, 109 cowardice, as 212 failure to act 237 and Hitler’s rise to power 17, 173–4 Iraq War and 17, 177, 187, 212 Nasser, linked to 86, 88, 99–100, 103 Suez Crisis and 17, 67, 86, 177, 211, 224, 231 audience see media authority and compliance 10, 27, 35, 55, 223 consent to 11–12 contesting 84, 146–7, 199, 202, 241, 245 de/centralized nature of 38, 42, 45, 64 form of 3, 9, 245 internationalized 220, 234, 250 juris-diction 11, 35 and jurisdiction 45, 52 and justification of force 11–12, 27, 32, 79, 145, 160, 196, 207, 231, 245 and legitimacy 11, 29, 31, 53, 103, 143, 207, 211, 220, 230–1, 235 personal nature of 204, 209 rational-legal 11, 168–9, 187, 211, 221 relation to power 31, 35, 191, 209 sovereign 211, 220, 245 technologies of 5, 12 United Nations 174, 184–5, 208, 217, 221 bipartisanship 39, 60, 154, 168, 231–3 Blair, Tony 137, 141, 143, 169, 201 concern with legitimacy 153–4, 157–8, 160, 164, 167–8, 185, 202, 210 Eden, compared to 19, 189, 202, 205, 215, 241 Blix, Hans 183, 184–7, 221 blowback effects 22, 37, 47–8, 50–3, 65, 175, 193, 198, 224, 230, 233, 236, 238, 241–2 Bush, George HW 37–9 Bush, George W 134–5, 174, 176, 183, 202 Butler Review 137–8, 139, 167, 189–91 Cheney, Dick 173 Chilcot Inquiry 18, 54–5, 136, 139, 141, 146, 150, 167, 189–90, 246 Churchill, Winston 202, 212, 223

compliance 6, 8–10, 23–4, 27–8, 32, 35–6, 43, 127, 215, 223, 239, 245, 246 and authority 55 constructing 137, 142, 145–6, 169, 184, 193, 218, 246 Conservative Party 91, 94, 99, 106, 170, 204, 232 Constantinople Convention 1888 71, 79 constraint 22, 37–40, 48, 140, 198, 205, 243, 245, 247–50 Constructivism arguing 28, 36–7, 45, 56 assumptions about international law 5, 23, 31, 61, 64–5, 207, 215 critical 32, 34–6 and the state 29–30 Cook, Robin 139, 143, 169, 171, 232 Corfu Channel case 81 cultural match 45, 237 discourse cf. language 12, 24, 34, 43, 52–3, 243 crisis 60, 123 and embedding norms 22, 28–9, 32, 43, 49, 51 internalization 50 legal 246–8 media, role of 62–3, 95–7, 157, 160–1, 223–6 national discourse 46 policy discourse, definition of 13, 53–4, 59, 77–8 public discourse, definition of 13–14, 19, 53–4, 56, 58, 94–5 distinction between ‘the domestic’ and ‘the international’ 23–4, 36–8, 41–6, 53, 95, 120, 210, 217, 221–3, 234, 244–8, 250 legal and illegal 4–5, 8, 57, 177, 207, 231, 245 past and present 16–17, 64, 197, 212, 213–14, 244, 245 war and peace 3, 166, 242, 244, 247, 250 Dixon, Sir Pearson 83, 115–18, 121–2, 203 drones, justification of 193–4, 239–40, 248 Eden, Anthony attitude towards Nasser 72, 74, 76, 84, 86, 99, 113, 217 collusion 94, 127 Fitzmaurice, Gerald and 85–7, 102, 201, 246 Eisenhower and 76, 112–15, 217 illness and resignation 88

272

Index

Eisenhower and (cont.) Orientalism of 72 televised address to the nation 111, 118 elites 13–14, 41, 53 see also media as elite epistemic communities 29, 52 expertise see experts experts 13–15, 29, 52, 62, 203 legacy of 225–6, 236–7, 243 legal scholars and 235 legalized discourse and 234–5 media and 157, 160–5, 230, 242 rule of experts 14, 234, 243 feedback 237–8, 240, 243, 248 Fitzmaurice, Gerald 78–84, 203 see also ‘Eden, Anthony and Fitzmaurice, Gerald’ framing and justification 135, 179, 187 by media 54, 58–9, 62, 102–3, 157, 162–3, 225–30 by norm entrepreneurs 29 and polling 56–8 wider framing 210–11 see also media framing Gaitskell, Hugh 78, 94 ‘Law not war’ campaign and 205 reaction to nationalization 92, 103 support for United Nations 93–4, 104–5, 107, 110 televised address to nation 111–12 grand narratives 60–1, 93, 110, 166, 200, 210–12, 214–5, 219, 221, 248 Francois Lyotard and 211 Iraq War and 63, 193–4, 212, 215, 219 politics of justification and 103, 181, 221 Suez Crisis and 211 Great Powers 5, 7, 70, 74, 217 authority and 208 as guardians 3, 31, 152, 237, 244, 245 hegemony and 206 legalized hegemony and 187, 206, 228 guardians 3–4, 31, 152, 237, 244–5; see also Great Powers Gulf War 37, 129, 238 Hammarskjold, Dag, 117, 121–3 hegemony 27, 166, 181, 218–19 history Walter Benjamin and philosophy of 16–17 and context 50, 66, 123–5 turn to 17 uses of 17–18, 212–14, 244, 245 human rights (and liberal dilemma) 130, 152, 159–60 humanitarian intervention as an exception to the prohibition 4, 34, 38, 51–2

Iraq and 206, 228 justification of 27, 37, 49, 51–2 Kosovo 152, 159–60 Legalizing ‘unauthorized’ 37, 47, 206 Libya 192–3 regime change and 55, 160, 172 Hungary 66, 115–16, 118 Hussein, Saddam 132–3, 142, 153, 159–60, 166, 168, 173, 174–5, 179 IAEA 133, 149, 183 information transmission see media intelligence 12, 136–8, 140, 144–5, 157, 161, 163, 166–8, 184, 186, 189–91, 208, 210, 225, 240, 242 international law disciplining and 20, 210–11, 234, 245, 250 and distinction 2–5, 8, 12, 24, 207, 231, 234, 243, 244 domestic face of 20, 21–6, 36, 43, 46, 210, 245–7 international plane and 8, 234, 244, 245 internationalized authority and 210, 222, 234, 250 invisible college and 13 power and 10, 34 as process 23–5, 30–4, 198 sovereign right and 152, 194, 207, 234, 242, 250 specialized discourse 12, 52–3 Iraq Dossier (September Dossier) 137, 154, 163, 166–7 Janus, Roman God 3, 244 Kilmuir, Lord 78–9, 86 knowledge discourse and 12–13, 20, 24, 50, 52 experts and 12, 53, 154, 157, 161, 168 intelligence and/as 43, 49, 170–1, 184, 208, 210, 242 media and production of 40, 44, 59–62, 112, 161, 227, 238 war planning and lack of 84, 99, 111, 141 Labour Party 90–3, 110, 125, 231–2 legalized discourse, see discourse legitimacy 10–12, 44–5, 161, 220–1 Liberal Democrats 166, 172, 232 liberal international relations theory 24–5 Libya 192–3 Lloyd, Selwyn 76, 106, 117 London Conference 67, 78, 80, 82, 90–1, 98, 100, 114–5 Manningham-Buller, Reginald 79, 84–5 mapping challenges of 34

Index as method 16, 22, 44, 52–3 McNair, Lord 80, 120, 235 media and accountability 60, 228–30, 233 audience 60, 220, 225 censorship/self-censorship 18, 59–60, 97, 99–100, 102, 210, 218, 223–4, 229 as elite 13–14, 58–9, 97, 199, 223, 225, 230 and experts 62, 160–5, 226 framing 54, 58–9, 62, 102–3, 157, 162–3, 225–30 information transmission 44, 59–62, 230, 242 as institution 14, 40, 54, 58–9, 157, 196 knowledge producer 40, 44, 59–62, 112, 161, 227, 238 mediated debate 36, 199, 223–4 narrating 59–61, 157–8, 181, 225–9 ownership 59, 95–6, 101, 155–7, 228–9 as process 63, 190, 225 and ‘the public’ 40, 54, 59–63, 94–7, 130, 160, 190, 226 representation of protest 96, 177, 162, 180–1, 225 and state relations 18, 156–7, 225 sources 49, 54, 156, 230 Nasser, Gamal Abdal 67, 72–7 Hitler, comparisons to 67, 86, 88, 93, 98–100, 103, 212 Nationalization 67, 72, 77, 103–4 non-compliance 46, 27, 35, 142, 149, 176, 183–4, 206–7, 217, 246 norm entrepreneurs 29–30 norms constructivists and 23, 28, 45, 215 inheritances 13, 23 mattering 13, 22, 36 see also discourse; norm entrepreneurs; salience North Korea 194 Operation Pile-Up 81 policy-oriented jurisprudence 32–4 polling France and Algeria 214 international law and 107, 164–5, 177, 186 Iraq War 166, 168, 174, 176 multilateralism 179, 229 Pierre Bourdieu and 56–7 Suez Crisis and 108, 109, 111 Powell, Colin 158, 184–6 pretext 37, 47–8, 65, 68, 80, 142, 175, 193, 215, 229 progress narrative 9, 17, 20, 21, 26–7, 31–2, 34, 37, 52, 231, 240, 245, 246–7, 250

273

prohibition on the use of force authority and 5, 210, 244 exceptions 4, 51 as facilitative of force 7, 22, 43, 53, 64, 233, 245 framework 2–5, 38 polar opposites and 4–5 regime change and 55, 206–7, 215 protest anti-war (Iraq) 162, 172, 180, 184, 232 global public opinion 107, 111, 180 ‘law not war’ campaign 67, 84, 96, 110–11, 119, 205, 216, 224–5, 231, 235 media representation of 96, 177, 162, 180–1, 225 transnational 177–8, 180–2, 222 public sphere 130, 204 public-private split 13, 53, 199, 241 regime change 4–5, 55, 84, 86, 89, 124, 132, 135, 138, 140–1, 143, 152, 157, 160, 171–2, 174, 178, 179, 193–4, 196, 201–2, 206–7, 213, 215, 241; see also prohibition on the use of force Rhetoric 35, 45, 134, 179, 200, 207–8, 246 Rice, Condeleezza 150, 192 Rumsfeld, Donald 173 salience discourse and 165, 223 issue 61–2 norm 22, 36, 44–6, 231, 237, 242 secrecy ad hocism and 88, 89, 191, 203–5 culture of 208–9 hidden motivations and 95, 115, 135, 143, 200, 204 intelligence and 49, 163, 186, 210 machinery of government and 208–9, 248 war-planning and 205 Security Council Anglo-French Resolution 121 Anglo-French veto 105, 106, 115, 116, 122 Colin Powell and 163, 184, 210, 220 Hans Blix reports and 157, 183–7 inspections regime 129, 142, 149, 175–6, 182–8, 207, 219, 220, 225 ‘Resolution 1441’ 145–6, 148–50, 182 ‘Resolution 1973’ 193 ‘Resolution 598’ 132 ‘Resolution 678’ 39, 138, 148–9 ‘Resolution 687’ 148 ‘Resolution 688’ 148 Short, Clare 136, 139, 146, 169–70 socialization 1, 21–2, 24–5, 26, 30–2, 36–7, 45–6, 48–50, 142, 182, 200, 202, 215, 221–3, 227, 233, 248 strategic communication 205, 227

274

Index

Straw, Jack 138, 141–2, 146–7, 150, 159, 167, 169–70, 191–2, 202, 241, 246 Suez Canal Company and construction of canal 70 nationalization 66, 77, 98 Suez Crisis and secrets meetings of 113, 121 Uniting for Peace Resolution 116 unreasonable veto and 218, 220 Suez Group 96 ‘the public’ 13–15, 40, 54, 173, 226 ‘thick’ description 1, 15–16, 22, 34, 65, 198 torture, justification of 249 transnational legal process 23, 30–2, 34, 37, 202, 215 UNEF 66, 122 United Nations as symbol 3, 120, 216, 242 and guardians 3–4, 244 UNMOVIC 129, 142, 149, 175–6, 182–8, 207, 219, 220, 225

Users’ Association (Suez Canal) 67, 90, 92, 113, 115, 121 ‘War on Terror’ 6, 60, 63, 134, 151, 157–8, 178–9, 194, 203, 218, 227, 240, 248 Wilmshurst, Elizabeth comparison with Fitzmaurice 150–1 evidence to Chilcot Inquiry 145–6, 150–1 letter 136, 149–50 WMD 135, 138, 159, 163, 169, 174, 177, 179, 185 Wood, Sir Michael and the Attorney-General 147, 151 comparison with Fitzmaurice 146, 202 correspondence with Jack Straw 144, 146–7 duty to international law 151 evidence to Chilcot Inquiry 136, 150–1 and interpretation of Security Council Resolutions 150 interpretation of Resolution 1441 150 legal advice 142, 145, 149, 202