Panel on the Responsibility of the International Lawyer for Legal Advice that Leads A Government to Violate International Law

From the Editor

In the build up to NATO’s military intervention in the Balkans, as NATO countries sought to justify their plans for a military intervention in the Former Yugoslavia without Security Council approval, Madeleine Albright (US Secretary of State under the Clinton Administration) is famously alleged  to have replied as follows, when her British counterpart complained of problems getting UK government lawyers to sign off on the intervention: “get new lawyers”.

Whether or not NATO’s bombing of the Former Yugoslavia was legal remains a subject of debate in academic and political circles. Regardless, the Albright anecdote aptly underscores the role of the government legal advisor in justifying governmental action which might constitute a breach of international law.

It is this role that formed the subject of the ILA 2010 panel on the responsibility of the international lawyer for advice that leads his/her government to violate international law. As the decision of a government to prosecute an illegal war, torture prisoners, violate an investment treaty or act in any other manner that is in breach of international law may be based on the advice of a legal advisor, the question arises as to what responsibility should be borne by the legal advisor for such advice.

As a preliminary point, it is worth noting that there are two senses in which the term “responsibility” may be understood here: first in terms of a duty of conduct that attaches to the role of legal advisor; and second, in the - more controversial - sense of (civil or criminal) accountability of the legal advisor for advice that contributes to a government’s violation of international law. Though there had been some discussion (and spirited exchanges) at the conference on responsibility, understood in the second sense (see below), the panel had focused mainly on responsibility in the first sense – in the sense of a duty of conduct (a duty of care) that attaches to the role of legal advisor.


Both Daniel Bethelehem (Legal Advisor, Foreign and Commonwealth Office of the UK) and Liesbeth Lijnzaad (Legal Advisor, Ministry of Foreign Affairs, The Netherlands) had referred to the responsibility of the government legal advisor to advice with candour, confidence and courage and to be prepared to tell government officials things they may not be willing to hear. They had also stressed the importance of “pre-emptive” advice: the need for the legal advisor to be involved in the shaping of policies from the onset. Such “pre-emptive” participation would enable a legal advisor to alert the relevant authorities on time as to the legal implications of their proposed policies. Both panelists also acknowledged that the extent to which a legal advisor is able to fulfil these roles is dependent on how much access (s)he has to the key decision makers and the process of decision making. As Lijnzaad pointed out, what happens in some cases is that the advisor is presented with the end product of policy deliberations. Bethlehem  had additionally noted that access also means the conditions must be such that the advisor is able to advice in an unrestricted and frank manner. Besides personal access, the advisor has to have the trust and confidence of her or his  principal.

There was some discussion on whether it was better for controversial legal advice to be contracted out to private lawyers, who because of their independence from the government may be better positioned to give honest and objective legal opinions. Howard Morrison (Chair of the panel and Judge of the International Criminal Tribunal for the Former Yugoslavia), however, pointed out that private lawyers are not necessarily free from the same constraints that may plague government lawyers. It was not unknown, he said, for a private lawyer to bend over to give a client advice (s)he believes the client would like. In other words, the "get a new lawyer” problem (the problem of a government retaining a legal advisor whose advice is tailored solely to what the government wants to hear)  may not be exclusive to government lawyers.


Both panelists had also pointed to a rather important distinction between legality and wisdom as it concerns legal advice. The fact that a given course of action is lawful does not necessarily mean that it is wise and vice versa. As Bethlehem noted, law and legal opinion has been known to be used to shut down discussion on issues meriting further consideration. The same point was emphasized and elaborated on by the Koji Tsuruoka (Director General, Legal Department Ministry of Foreign Affairs, Japan). In an incisive presentation in which he had fully addressed responsibility in the two senses of a duty of conduct and of legal accountability, Tsuruoka had identified two approaches that can be adopted by the legal advisor in carrying out his duties. There is, first, the conservative approach, in which what the advisor looks at is not the legal permissibility of a given course of action, but whether it is flawless or beyond questioning from the perspective of international law. Then, there is the creative approach, which looks at how law can be shaped to serve humanity. The creative approach was in his view an approach called for in the 21st century, a period in which international law and the structures of the international legal system are in a process of rapid change and evolution. Since law is by nature conservative, it can, he pointed out, constitute an obstacle to policies which while they may make the world a better place, may nonetheless be considered illegal. It is at such moments of fluidity that an international lawyer should be creative in his/her advice and find ways of legitimising actions which serve the ultimate goals of the international order.

As it concerns the issue of accountability of the legal advisor, Daniel Bethlehem had referred the audience to the extensive treatment of the question in the United States. (In the U.S, two government lawyers had been found guilty of professional misconduct for advice to the Bush administration which justified waterboarding and other treatment of Al Qaeda prisoners found to amount to torture. (See New York Times Report). Lijnzaard, on the other hand, emphasizing the need for a clear distinction between an advisor’s advice and how that advice is used, had concluded that a legal advisor could not be responsible for policies taken based on his advice. She had, in particular, noted that a declaration by a politician that his policies are supported by the law does not necessarily mean this is the conclusion to be drawn from the legal advice provided by the legal advisor.

It is worth bearing in mind that Lijnzaard’s views seemed focused on the responsibility of the legal advisor for policies developed relying on his advice. Assuming one agreed there should be no responsibility in that context (since as Bethlehem rightly pointed out, the sole role of the advisor is to advice, (s)he does not make policy) such agreement still leaves unanswered the question whether the legal advisor should be responsible for the advice itself, as opposed to policies based thereon.

It is this issue that was squarely addressed by Tsuruoka. He had addressed it mainly from the perspective of international legal responsibility (as opposed to political responsibility and responsibility for breach of professional codes of conduct which the other panelists had mainly focused on). Though he considered such responsibility to be theoretically possible before the International Criminal Court (ICC) and even human rights courts, he expressed doubts as to whether legal advisor responsibility was envisaged in international law, and in particular by the ICC Statute. This view, he noted, was without prejudice to the position that a legal advisor is, as a servant of the government, in any case accountable to his masters, and based on international law which is what he is called to serve.

Tsuruoka had also discussed the appropriateness or otherwise of holding a legal advisor responsible for his legal advice. He noted that such responsibility might be questioned on the basis that in rendering legal advice, a legal advisor is acting as an officer of the State, and is not - can be presumed not to be - giving his/her personal opinions. Several conference participants, however, disagreed with this idea of the legal advisor disappearing behind the impersonal inscrutable face of the State. They felt the buck of responsibility should not stop at the feet of the political leaders who rely on  legal advice to violate international law.

Whether or not the legal advisor should be responsible in international law is certainly an interesting question because though the general international law rules on responsibility could be said to provide for responsibility for conduct of government advisors (regardless of whether or not their actions are tainted by private motives), those general rules are concerned solely with the responsibility of the State itself. They were not intended to govern the separate question whether an advisor is personally responsible for his advice, alongside the State itself. This is a question to be determined by international criminal law (and any other specialised field that might evolve to provide for individual as opposed to State responsibility). With respect to international criminal law, one can speculate that the conduct of a legal advisor could well be covered by Art 25 of the ICC Statute. That provision provides for the responsibility of persons who induce, aid, abet or otherwise assist in the commission of a crime governed by the Statute.