The Chilcot inquiry in London into the Iraq war is getting a fair bit of coverage in recent days. In particular many people are hoping that the enquiry will answer the question - was the war legal? This may be an unrealistic hope for many reasons. One is undoubtedly the sheer incompetence of the inquiry committee members. The other is that there is alas, no established body to adjudicate on questions of international law. Strange, but true. Thus many of the witnesses simply make assertions with little or no challenge from the enquiry.
It may therefore be helpful to go back to first principles. From a UK perspective it is important to note that the pressure for an authoritative legal statement came from the top brass in the military. Admiral Sir Michael Boyce, the former Chief of the Defence Staff, was worried about possible prosecution at the International Criminal Court (ICC). He therefore, on behalf of UK forces, demanded an unequivocal assurance from lawyers that the war was legal.
The ICC is a relatively new body based in The Hague. It is an independent, permanent court that tries persons accused of the most serious crimes of international concern, namely genocide, crimes against humanity and war crimes. The ICC is based on a treaty signed by 110 countries.
In general terms war crimes are divided into two broad categories. The first are called crimes against peace. Crimes against peace include the planning, preparation, or initiation of a war of aggression. This violates the principle of just cause (jus ad bellum). In other words one country cannot make aggressive war against another country. The second category are what are called crimes against humanity. These are violations of the rules as to the means and manner by which war is to be conducted once begun (jus in bellum).
As regards the Iraq war any charge brought against the UK military or government would primarily be on the basis that this was a war of aggression and therefore a war crime. Absent a just cause, no force can be used, period.
Was there a just cause?
Interestingly there is a pretty fair analysis of this question in the 13-page legal opinion sent to Tony Blair on 7th March 2003. This was from the UK Attorney General, Lord Goldsmith and in it he offers his advice on the legality of military action against Iraq without a further resolution of the Security Council. You can read the full document here. He starts by outlining the three possible bases for the use of force:
- self-defence (which may include collective self-defence);
- exceptionally, to avert overwhelming humanitarian catastrophe;
- authorisation by the Security Council.
Goldsmith then goes to exclude the first two as a just basis for the use of force. He states that force may be used in self-defence only if there is an actual or imminent threat of an armed attack. Goldsmith clearly did not believe that in 2003 the UK was under the threat of an actual or imminent threat from Iraq. He also dismisses the arguments of those, particularly in the USA, who claim a right to take preventative action to pre-empt an attack. As Goldsmith says: “this is not a doctrine which, in my opinion, exists or is recognised in international law.” He is equally dismissive of the notion that force is needed to avert an overwhelming humanitarian catastrophe. As the noble Lord puts it: “I know of no reason why it would be an appropriate basis for action in present circumstances.”
With the first two possibilities dismissed we are left with authorisation by the Security Council as the only legal basis for the use of force. Goldsmith himself puts it succinctly: “The key question is whether resolution 1441 has the effect of providing such authorisation.” Most of the rest of the memo is Goldsmith’s attempt to find such authorisation. Alas for Tony Blair and the UK government, he was unable to find any clear and unequivocal authorisation. The most he could muster up was the following: “Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.”
Despite his best attempts at seeking authorisation for the use of force, Goldsmith is forced to concede that: “In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force.”
Yet by 17th March Goldsmith had issued a second, single-page opinion authorising military intervention, based on the existing UN resolutions. Most strange that in such a short space of time all doubts had been removed. For there is little doubt that his opinion had changed.
Two clues can be found in the March 7th opinion. Note the very careful selection words - a “reasonable case can be made” .........”that in principle....” Not much of a ringing endorsement there. And hardly the basis for a considered legal opinion that the use of force was legal. Secondly, note the clear admission of the involvement of the US Administration. It seems inconceivable and a possible gross dereliction of duty that the Attorney General would only consult those already committed to war when seeking advice about the legality of the use of force. Why did he not consult the legal opinion of other countries? The only conclusion must be that he was not interested in giving impartial legal advise.
This view - that he was not interested in offering impartial advice is further borne out by the treatment of the UK’s own legal experts. Both Michael Wood, the then chief legal advisor to the Foreign Office, and his deputy, Elizabeth Wilmshurst, his deputy, made clear that their considered view was that the use of force against Iraq in March 2003 was contrary to international law and had not been authorised by the Security Council. This was also the view of the International Commission of Jurists. In 2003 they stated that: “Security Council Resolution 1441 does not authorise the use of force. Upon its adoption, France, Russia and China, three permanent members of the Security Council, issued a declaration indicating that the Resolution excludes such authority.”
So Lord Goldsmith disregarded the legal advice of the Foreign Office’s own legal team and failed to consult with any international jurists. In reaching his final opinion he admits that he was helped by the USA. And this is supposed to constitute sufficient advice that the use of force against Iraq was legal? No wonder that in his March 7th paper, Goldsmith makes it clear that going to war without further UN authorisation would not actually protect UK soldiers and members of the government from possible charges either in the UK or internationally.
Regarding the Chilcot inquiry, it is pretty clear that this is a typical UK government stitch-up. A genuine, independent enquiry would not simply consist of people nominated by the Prime Minister, as is the case with Chilcot. The members are all government insiders of one kind or another. The two historians both strongly supported the decision to go to war. No-one on the enquiry opposed the war and none have any legal training or experience. Most tellingly, none have any proven inquisitorial skills. Given their previous record of support for the war it is hard to see how they could possible come to a conclusion that the war was illegal. A perfect group of gents and one lady who know just when to probe and when to go easy. A disgrace. If the UK had a genuine functioning democracy with real accountability, it would Parliament that set up the inquiry and determined who its members should be. But here in the good old UK, Parliament is totally subservient to the government of the day.
They do things differently in other countries. For example In the Netherlands, where it was the Dutch Parliament which set up its own committee of inquiry on Iraq. In this case the seven commissioners included the former president of the Dutch supreme court, a former judge of the European court of justice, and two legal academics. Their conclusion, which was published in January: The war in Iraq had no basis in international law.
Two final points. The first concerns the actions or rather non actions of those in high governmental positions who knew the war was illegal and yet did or said nothing, at least in public. For example take the Foreign Office legal team then led by Michael Wood, the chief legal advisor to the Foreign Office. As mentioned above all of this team of experienced legal advisors held to the view that the use of force was illegal. Yet only one of them, Elizabeth Wilmshurst, his deputy, was honourable enough and brave enough to resign and go public with her views. The rest remained stumm and in place, content to further their careers in the service of a government which they knew was acting illegally. And these are the people who are supposed to represent the crème de la crème of Western civilization!
My final point returns to Lord Goldsmith’s legal opinion of 7th March. There he is quite adamant that: “regime change cannot be the objective of military action.” And of course, absent any weapons of mass destruction, regime change has become the post war justification for the war for the likes of Tony (I would have done it anyway) Blair. Saddam was such a bad man and look how terribly the Iraqis were suffering under his rule. Interesting to note that way back in 2003 even Lord Goldsmith confirmed that regime change was most definitely illegal.