Iraq Inquiry lets Blair off one hook, impales him on another

Barely a week into the Chilcot Inquiry on Iraq, two ex-mandarins’ evidence has pretty definitively acquitted Tony Blair of one of the gravest charges against him, and convicted him of another.

Sir David Manning testifiesIn the testimony by Sir David Manning, the prime minister’s foreign affairs adviser during the key period preceding the attack on Iraq in March 2003 and a major influence on policy at that time, Sir David repeatedly stressed that Blair’s promise to Bush that in the event of a US attack on Iraq Britain would join the Americans in the resort to armed force was always on the explicit condition that they would “go down the UN route” and assemble through the UN a coalition of allies acting with UN authority.  The implication of this, whether or not it was ever made explicit, was obviously that force would be used against Iraq only when all diplomatic possibilities (i.e. through the UN) had been tried and exhausted.  Force was to be the last resort.

Manning also made it clear that  while the Americans had openly regarded the objective as ‘régime change’ — getting rid of Saddam Hussein — the UK side had always made it clear that régime change could not be a legitimate objective justifying the use of force if and when diplomatic efforts had been exhausted.  The only objective in British eyes capable of winning UN approval was Iraqi compliance with numerous mandatory UN Security Council resolutions demanding that Iraq must rid itself of Weapons of Mass Destruction (nuclear, chemical and biological).  However, it is now clear that in both Blair’s and Bush’s eyes, it was almost inconceivable that Iraq would comply with the resolutions so long as Saddam was in power, and they thought it highly unlikely that Saddam could be overthrown without the use of force, sooner or later.  To that extent régime change and forcing Iraq to disarm in compliance with the resolutions came to virtually the same thing: you probably couldn’t have one without the other.

Sir D Manning’s assertion that Blair consistently laid down the condition of action through the UN for British participation in any future military action against Iraq is fully borne out by a re-reading of the so-called Downing Street Memos, the secret documents from March 2002 that have been leaked and are available in full on the Web (e.g. here).  These papers have been widely interpreted as evidence that Tony Blair had firmly committed himself to British participation in an American attack on Iraq at least a year before the attack took place, and that in giving several public assurances right up to the eve of the attack that no decision had been taken to go to war with Iraq Blair had been lying.  Manning’s evidence, and the Downing Street Memos re-read in the light of it, demonstrates that this is not so.  Blair had always insisted on “going down the UN route” and as a result of his insistence that unless Bush went to the UN first Britain would not participate in the attack Bush decided to go to the UN, however reluctantly and despite strong pressure from the neo-cons and others in his administration not to do so.

It’s certainly clear from the leaked documents, and will no doubt be confirmed in other witnesses’ evidence to Chilcot in the coming days and weeks, that contingency planning for an attack on Iraq began in both Washington and London many months before it took place.  But it was contingency planning only, not involving a firm decision to use force, anyway on the UK side. Since both leaders believed, reasonably enough, that Saddam would not even consider complying with the UN resolutions unless he could be convinced that non-compliance would lead to a military attack on Iraq, it was legitimate and logical to begin to deploy armed forces in Iraq’s neighbouring countries well before any decision had been taken to use them.

It’s also true that both Blair and Bush were clearly convinced that all attempts to secure Iraqi compliance with the resolutions without the use of force were highly likely to fail, so that in their eyes force was almost inevitable in the end.  Because of this mindset, much of the drafting of the relevant documents tended to assume that force would indeed eventually be used, that Britain would participate once its conditions had been satisfied, and that to ensure that the use of force would be legal under international law (both for its own sake and also to bring the maximum number of allies on board while obtaining wide support from UK and to a lesser extent US domestic public opinion), it would be essential to act at all times in a manner best calculated to persuade the Security Council first to authorise a concerted peaceful effort to oblige Saddam to comply with the resolutions by disarming, and when that effort failed, to authorise the use of force to compel compliance —  which in Bush’s and Blair’s minds also meant overthrowing him and his régime.  In the eyes of the American neo-cons and hawks, the proceedings in the UN were purely for form’s sake: going through the motions to get the UN’s blessing, if possible, for what they reckoned would have to be done anyway.  It’s fair, though, to believe that Blair genuinely wanted to exhaust all peaceful means of forcing Iraq to disarm (which would probably bring about régime change) before any resort to the use of force, partly to avoid the bloodshed and horror of war, but also because until peaceful means had been exhausted, the Security Council would not authorise the use of force.  Despite some waverings, Bush basically decided to go along with this.

For all these reasons, a huge US-UK (especially UK) effort was made to secure a Security Council resolution demanding Iraqi compliance with the earlier resolutions, including full cooperation with the UN weapons inspectors whom Saddam was compelled to re-admit to the country, and making it clear that if Iraq was again guilty of a material breach of its obligation to comply, military action against him would follow.  There was then a lengthy negotiation of the text of a draft resolution between the 15 members of the Council, involving at least one significant textual concession by those (mainly France, Russia and China) opposed to the use of force for the immediate future until the weapons inspectors had had much more time to complete their work, and a corresponding concession by the US and UK which wanted the resolution explicitly to authorise force as soon as Iraq committed a “material breach”.  The result was resolution 1441, adopted unanimously by all 15 members of the Council — a remarkable triumph of mainly British diplomacy and a bright feather in the cap of Sir Jeremy Greenstock, the UK’s Permanent Representative on the Council.

So on the charge of lying when he said that no firm decision to go to war against Iraq had been taken until the eve of the invasion, Tony Blair must be acquitted.  On the charge that he committed himself to British participation in US military action against Iraq without laying down firm conditions for that participation, he must also be acquitted.  Nothing in any of the leaked documents, nor in those made available by the Butler Inquiry into the use of intelligence in the run-up to the war, contradicts the Manning evidence to the Chilcot Inquiry on 30 November 2009 which supports those acquittals.

*   *   *   *   *

On the more serious charge, however — that Tony Blair took Britain to war before all possibilities of a peaceful solution had been exhausted and without the authority of the Security Council, Sir David Manning’s evidence is damning, especially when read alongside that of Sir Jeremy Greenstock on 27 November 2009.  Here the verdict hinges in part, but not exclusively, on the proper interpretation of Resolution 1441.  In his secret advice to the prime minister on 7 March 2003 the Attorney-General, Lord Goldsmith, the government’s principal legal adviser, warned that it was doubtful whether resolution 1441 could safely be relied on as authorising the use of force against Iraq by any UN member state without a further resolution explicitly conveying Security Council authority for force to be used.  Ten days later, on 17 March, Lord Goldsmith published in Hansard a different opinion, asserting that since Iraq had been found to have committed a ‘material breach’ of its UN obligations, the authority for the use of force in a much earlier Security Council resolution had been ‘revived’ by the terms of resolution 1441;  and that if the Council had meant to require a further resolution before force could be used following a ‘material breach’, resolution 1441 would have said so, whereas all the resolution had actually required was that in the event of a report of a material breach, the Council would meet to ‘consider’ it, not to take a ‘decision’ on it.  In his evidence to Chilcot, Sir Jeremy Greenstock amplified this argument in support of his own view that the war was ‘legal’ by referring to the ‘negotiating history’ of the text of 1441.  During these negotiations, France, Russia and others had pressed for the inclusion in the text of a specific reference to the need for the Council to take a further ‘decision’ — i.e. to pass another resolution — before force could be used if another material breach was reported.  The UK and US had resisted this, and the end result had been that 1441 had required the Council only to ‘consider’ the situation following a reported material breach, not necessarily to take a decision on it.

This argument for the interpretation of 1441 as authorising the use of force without the need for a further Council resolution has however failed to convince the great majority of authorities on international law.  The Attorney-General himself warned in his earlier, secret, opinion that if the matter came before a court, it was doubtful whether arguments based on the negotiating history would be admissible since there were no impartial records of those negotiations.  It is anyway contrary to common sense to assert that in promising to ‘consider’ the situation following a further material breach, the Council was denying itself the right to decide what to do about it.  Under the Charter it is for the Security Council, not any member state or states, to decide when the use of force should be authorised.  Above all, the UK had made the most strenuous efforts to get the Council to agree to a second resolution explicitly, or at least implicitly but unmistakably, authorising the use of force, but had completely failed to muster the necessary nine votes in favour of such a resolution, since a clear majority on the Council favoured giving the inspectors more time — perhaps six months — to complete their work before war could be justified.  It is obviously difficult to argue that the Council, in adopting resolution 1441, had intended the resolution to convey authority for any member state to go to war with Iraq without the need for another resolution conferring that authority when a clear majority of the Council had refused to agree to precisely any such resolution.  Not only the Attorney-General but also the FCO’s legal advisers, specialists in international law as Lord Goldsmith was not, had advised that going to war without a second resolution would be illegal — and therefore, as the deputy legal adviser said in her letter of resignation, would amount to the “crime of aggression”.  To make matters worse for the then foreign secretary, Jack Straw, and for Tony Blair in No. 10, Ms Wilmshurst made it clear that she was not just expressing her own view:

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.

And just to give the knife a final twist, both Sir Jeremy Greenstock and Sir David Manning, both of whom had been active at the very heart of these great events, told the Chilcot Inquiry that in their own personal view the inspectors should have been given more time to complete their work before any member state resorted to the use of force. When Manning was asked whether the UK had had any options when its efforts to get a second resolution collapsed and the US prepared to go to war forthwith, he replied that of course we had: we had had the option of refusing to take part in the US invasion.  It is rarely indeed that the former senior adviser to a prime minister publicly condemns his former master in such explicit terms.

On the balance of the evidence so far, therefore, Tony Blair stands condemned for having failed to stand by the condition he had laid down for joining the Americans in the attack on Iraq;  for joining in the use of force before all other options had been exhausted, since force was not a last resort, even if the then Attorney-General’s and Sir Jeremy Greenstock’s interpretation of 1441 is accepted;  and if it isn’t, for using force without the authority of the Security Council and thus in contraversion of the UN Charter and of international law — “the crime of aggression”.

The importance of this indictment is that it does not depend on any particular interpretation of resolution 1441.  There was no need to go to war when we did, whether or not we did so with legal authority.  The majority of Security Council members wanted the inspectors to be given more time before there needed to be a decision — by the Council, not by Washington or London — that the time had come to use force.  Even if you accept the Goldsmith-Greenstock argument that resolution 1441 gave authority for the use of force (which few legal experts do), it doesn’t mean that using force when we did was justified;  the case for regarding it as tragically premature is overwhelming. The Manning and Greenstock testimonies have surely put the matter beyond doubt.

Critics of the war in general and of Tony Blair and his Cabinet in particular need therefore to be careful about their targets.  Continuing to denounce Blair for having committed us unconditionally to war many months before the decision was first announced will only muddy the waters:  Blair has a strong defence against that charge.  It will be more effective to concentrate on the issues where, anyway at this stage of the Inquiry, he has little or no defence available.  He took us to war when it was unnecessary and inadvisable to do so, and probably in breach of international law into the bargain.  That’s quite enough to be going on with.

There are other matters on which Tony Blair is convincingly accused of having lied:  in misrepresenting the strength and volume of the intelligence indicating that Iraq had WMD;  in promising not to go to war without the Council’s authority unless a majority in the Council was in favour of giving that authority but was frustrated by “an unreasonable veto”;  in claiming that the French had said they would never in any circumstances at any time allow a Security Council resolution authorising the use of force to be adopted — and that this had prevented us from getting the second resolution we had sought, neither proposition being true.  But before pronouncing judgement on these charges, we must await the further evidence that will be given to the Chilcot Inquiry.  Meanwhile we can enjoy the luxury of watching the oral evidence live on streaming video, of watching past oral evidence and reading the transcripts of it, and of reading the written submissions, thanks to Sir John Chilcot’s insistence on maximum transparency in the face of Gordon Brown’s expressed preference for secrecy.  Bravo, Sir John!


14 Responses

  1. Ken Blyth says:

    One query on this.  You say that “when Manning was asked whether the UK had had any options when its efforts to get a second resolution collapsed and the US prepared to go to war forthwith, he replied of course we had: we had had the option of refusing to take part in the US invasion”.   Where does this appear in the transcript?   I don’t recall words quite to that effect, and I haven’t been able to find the relevant passage in the transcript.  (Selective memory, and selective searching, perhaps.)   What I remember, and have found on pages 39-40, is the comment that of course the US didn’t need us militarily.  But I guess you are referring to a different passage.  Would be v grateful for the page reference.

    Brian writes: Thank you for this extremely pertinent request for chapter and verse on an important point. I had in mind Sir Rodric Lyne’s question and Sir David Manning’s reply starting at line 18 on page 99 of the transcript and ending at line 13 on page 100:

    [SIR RODRIC LYNE] Now, when we were told by Washington that they were
    19 not willing to allow the process to run longer, did the
    20 British Government have any leverage at that point? Did
    21 we have any options and what were they?
    22 SIR DAVID MANNING: In my view, we certainly had the option
    23 of not taking part and we had always said that we wanted
    24 to go the UN route. We had made it clear that we needed
    25 a second resolution, so if you are saying
    1 hypothetically, “Did we have any options?”, yes, of
    2 course, we did, we had the option of not going, but as
    3 I think I have also said to you, the Prime Minister was,
    4 I think, clear in his own mind that if he felt the UN
    5 route had been completely exhausted, that he would stand
    6 by his commitment that he would take military action.

    I don’t think I have misinterpreted this. When Manning says that Tony Blair was, he (Manning) thought, “clear in his own mind that … he felt the UN route had been completely exhausted”, that needs to be read alongside Manning’s (and Greenstock’s) own view that the inspectors could and should have been allowed more time before any military action started — in other words, they both thought that the UN route had not been completely exhausted. And that was clearly also the view of a substantial majority of members of the Security Council at the time.

  2. robin says:

    What an appalling waste of time and money – especially for one whose interest would appear to be in current affairs rather than history.
    We have all known for some years now, both those of us that approved the invasion of Iraq and those of us that did not, that the manner of its implementation alone rendered it a catastrophic blunder; that the reasons given by the Blair government were based on inadequate and dishonestly exaggerated intelligence (Bush’s argument for régime change being more honest, although some of the reasons given for it – such as al Quaeda activity in Iraq – were not); that the advantages to be gained by this country (or its government) from participating were negligible, while the risks of handing control of our fate to a collection of hyped-up American cowboys were extreme. All this, some with hindsight, some that was, or should have been, evident at the time to Members of Patliament and members of the public. What more does anyone want?
    As for the endless Talmudic scrutiny of the texts of UN resolutions – themselves deliberately designed for ambiguity – surely the time for that, if it ever did exist, is long past.

    Brian writes: Thank you for this, Robin. In a way I envy you your relaxed attitude to what’s widely regarded as an act of aggression (which is a war crime) committed by our last prime minister and his government only six years ago, with consequences that are still with us — and the Iraqis — today. I don’t think it’s of purely academic interest, only to historians, to want to find out in some detail how this came about, how far the disaster was attributable to systemic failures that have still not been remedied, and who besides Tony Blair and his Cabinet was to blame. I’m not one of those who thinks Blair or anyone else should go on trial for such crimes as may turn out to have been committed, but I do think we need to have a reliable, impartial account of what actually happens, not just to minimise if possible the danger of it happening again somewhere else, but also to put an end to all the feverish accusations and suspicions that continue to swirl about. The (probably criminal) blunder cost hundreds of thousands of innocent and other lives and was the worst of its kind in the conduct of British foreign policy since Suez nearly half a century earlier. You ask what more we want than what we already know: part of the answer is that we want more of the kind of new information and new insights that the first half-dozen Chilcot hearings have already provided.

    As for “the endless Talmudic scrutiny of the texts of UN resolutions”, I and many others persist in believing that acting in accordance with international law, especially including the United Nations Charter, is one of the first obligations of government, and I’m afraid that it’s necessary to scrutinise the varying interpretations of the relevant UN resolutions in order to establish whether our own recently elected British government did so or not, as recently as 2003. In any case, apart from being important, it’s also (for some of us, anyway) fascinating. And those for whom it’s not don’t have to read it. (BTW, you run some risk referring to the Talmud like that: let’s hope for your sake that Melanie Phillips doesn’t read your comment!)

  3. Brian,
    What baffles me at the moment is  why Blair, after wanting to go down the UN route, seems to accept that the UN route  was stymied, even though UNMOVIC were becoming more and more successful in their inspection regime.   Their last report (pdf) made this clear.  Perhaps the real problem was, by then,  the military build-up and the diplomacy were wildly out of synch. Was it Sir  J Greenstock who, in evidence, indicated that there was a majority of the Council in favour of giving Blix more time?

    Brian writes: Thank you for this, Tony. I agree that on the face of it, it was strange for Blair to have gone along with the American view that there was no more life in the UN process. I’m sure you’re right (although I haven’t had time to check) that Jeremy Greenstock, when asked to do a ‘tour de table’ of the positions of the Security Council members, confirmed that (as we already knew) a clear majority wanted to give Blix and the UN inspectors more time, as indeed Blix had asked. The French, falsely accused by UK ministers of saying that they would veto any resolution authorising the use of force at any time in any circumstances, had actually suggested a specific additional period for the inspectors (four months? six?) and had mentioned that if the inspectors found WMD during that time, or if the Iraqis didn’t cooperate with the inspectors, they might participate in the military action that would then be inevitable.

    Another question prompted by the Greenstock and Manning evidence is whether either or both of them communicated to Blair their views, now revealed to Chilcot, that the inspectors should be given more time — IOW, that to launch the war at that time would be premature and that it wasn’t yet a last resort. It’s hard to believe that they didn’t put that view strongly to Blair: they were the two officials most closely involved in the whole issue and probably Blair’s most influential advisers. But if they did, on what grounds did Blair reject their advice? Let’s hope that question will be put to Blair when he gives evidence to Chilcot. I suppose that in reality the Americans had simply lost patience with the UN, and/or the pressures from the neocons (who had opposed going to the UN in the first place) had become too great for Bush to resist any more; and, as you say, the US (and UK?) generals were saying that the troops couldn’t be left sitting idle in the desert as the hot weather approached for any longer, the diplomatic and military timetables having got out of sync; and Blair’s strong feeling that it would be dangerous for the US to go it alone, without the supposedly restraining influence of western allies such as Britain, outweighed any sense of obligation he might have felt to insist on getting Security Council authority (which meant waiting) before committing British forces to take part in an American war. I hope there was no element of personal vanity: he was being adulated as a loyal friend and ally throughout the US, and he may have felt a deep reluctance to throw all that away by “letting the Americans down” at the crucial moment. Anyway, it’s impossible to resist the conclusion that his action was a betrayal of the UN, the whole international security system and the rule of law, a culpable failure to stick to the condition he had laid down for UK participation in the use of force, and the single betrayal of principle that will define his place in history.

  4. I’m not one of those who thinks Blair or anyone else should go on trial for such crimes as may turn out to have been committed,

    People who commit crimes should end up in the dock. Why should Blair be any different, especially when, as one might say:

    his action was a betrayal of the UN, the whole international security system and the rule of law?

    Brian writes: Thank you again, Peter. I’m not sure how to answer your question: it’s partly a matter of instinct and gut feeling, I suppose. If Blair had stolen someone’s money or injured someone in the course of drunk driving, obviously I would want him prosecuted. But I have deep reservations about prosecuting democratically elected political leaders for their acts of state. If this became standard practice, I would expect many good people not to be prepared to go into politics; those that did would be even more risk-averse than they are already, with adverse consequences for all of us, since leadership often demands boldness; those in society who had supported and encouraged the action for which the former leader had been condemned and (presumably) imprisoned would regard it as a gross injustice; and I see difficulties in prosecuting anyone for alleged offences against international as distinct from national law, either in the domestic or in some kind of international court: international law is generally far less clear-cut. In the case of what I and many others believe to have been the crime of aggression committed by the British and other governments in March 2003, it would be extremely difficult to get a definitive legal verdict on whether there had been Security Council resolutions that could reasonably be interpreted as giving authority for the use of force against Iraq at that time. It would strike many, perhaps most, fair-minded people as a major injustice if one head of government (Blair) were to be prosecuted and punished while others equally or more culpable were not — G W Bush, the Australian prime minister at the time (John Howard, Australia’s second-longest serving prime minister), and the many others who supported the war and in some cases participated in it. Moreover Blair shared responsibility with all the other members of the cabinet, with all MPs who voted for the war, and arguably with those officials and advisers who encouraged his decisions and provided legal justifications for them. They couldn’t all be prosecuted: and just to prosecute Blair, even though the prime responsibility was obviously his, would surely be an unsavoury example of scape-goating.

    I am also, but for slightly different reasons, opposed to the trial of former leaders such as Milosevic, Charles Taylor and even such monsters as Radovan Karadzic in international tribunals or courts specially set up for the purpose, mainly because the risk of being tried and punished deters existing and future dictators, tyrants and military mass murderers from ever stepping down, even as part of peace deals that offer them safe conduct into exile (a promise given to Taylor and dishonourably broken). But I understand and even sympathise with the contrary view.

  5. Fiat justitia ruat caelum

    Brian writes: Sed qualis justitia?

  6. In an open society justice means that those who have broken the laws must be held to account by those who defend the laws. What, I wonder, do you think of the International Criminal Court? Your argument would seem to suggest that it is useless.
    Politics is not the only field of human endeavour in which leadership demands boldness. There is no reason why its practitioners should enjoy special immunity.

    Brian writes: I don’t say that the International Criminal Court (and its ad hoc sister institutions) are useless, only that on balance they probably do more harm than good. I have explained in an earlier response why I don’t believe it feasible to prosecute all those responsible for the almost certainly illegal attack on Iraq; and why even if it were to be feasible, it probably wouldn’t be desirable. Of course there are other kinds of activity requiring boldness, but none that comes to mind where boldness could aggravate the risk of being sent to prison for contravening international law in the course of leading a country’s government and executing its foreign policy. I do however strongly support holding to account political leaders and others accused of acting illegally under either international or domestic law, the very different proposition in the first sentence of your comment.

  7. robin says:

    Brian, the evident discomfort of your response above to Peter (with which I agree) does indicate a weakness that I have tried to illustrate in your argument, and which you have not addressed. You rightly say that “it would be extremely difficult” (I would say impossible) “to get a definitive legal verdict” on the meanings of the Security Council resolutions. This is because, as I said earlier, these (and many other Security Council resolutions) are deliberately drafted for maximum ambiguity and to mean different things to different people. So, I ask again, what can be the value of applying methods of heavy textual analysis (Germanic or Talmudic or from any other tradition) in order to obtain this or that meaning from such texts ?

    You are entitled to your own view of the rightness or wrongness of Blair’s actions, based on any number of different criteria, but before you fling around such phrases as “acts of aggression” or “war crimes” or “criminal blunders”, you should have reference to a body of law under which such charges can be adjudged – and your own words suggest you accept that such a body of law is simply not available. Without law there can be acts of widely-varying wrongness or repulsiveness – but there can be no crime, since crime is itself an offence against the law.

    Brian writes: Robin, I’m afraid you have misread my response to Peter Harvey on just about every count. There was no “evident discomfort” in what I wrote about the almost universally acknowledged illegality of the US-UK attack on Iraq without the express authority of the Security Council as explicitly required by international law in the form of the United Nations Charter. I wrote that “I see difficulties in prosecuting anyone for alleged offences against international as distinct from national law, either in the domestic or in some kind of international court: international law is generally far less clear-cut. In the case of what I and many others believe to have been the crime of aggression committed by the British and other governments in March 2003, it would be extremely difficult to get a definitive legal verdict on whether there had been Security Council resolutions that could reasonably be interpreted as giving authority for the use of force against Iraq at that time” exclusively in the context of the arguments for and against prosecuting Blair, given that there is no court in which such a prosecution could take place but which also has the recognised authority to pronounce on the legality or otherwise of a particular act of state (an individual can’t be prosecuted for a war crime at the ICJ in the Hague).

    I strongly reject the accusation of “flinging around” accusations which you imply are loosely worded or otherwise reckless. On the contrary: I chose my words extremely carefully, basing them closely on the wording of the letter of resignation of the former deputy legal adviser at the FCO, Elizabeth Wilmshurst, to which I was careful to include a link in my post: see for the full text. Ms Wilmshurst wrote, to quote her yet again:

    I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678….
    I cannot in conscience go along with advice – within the Office or to the public or Parliament – which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law. [Emphasis added]

    Ms Wilmshurst moreover made it clear that her view was shared by the rest of the FCO legal advisers and even by the Attorney-General until he changed it shortly before her letter was written:

    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. [Quoted in my post]

    The FCO legal advisers are the government’s foremost experts on international law (the then Attorney-General is a commercial law specialist) and if even that is not enough, their view as summarised by Ms Wilmshurst has been confirmed subsequently by the vast majority of practising and academic international lawyers. It also accords with ordinary common sense. The government’s assertion that the attack on Iraq was authorised by earlier Security Council resolutions passed in a completely different context can’t be squared with the adamant refusal of a clear majority of the Council in February and March of 2003 to agree to a draft UK-US resolution implying Council assent to the use of force at that time. The UK and US sponsors of that draft resolution dared not allow their draft to come to a vote in the Council because they knew it would be heavily defeated (without the need for a veto) — which would have left their already implausible argument that they already had the Council’s authority for war in even greater tatters.

    As for the supposed ambiguity of SCR 1441, it’s ambiguous only to the limited extent that Britain (and, half-heartedly, the US) contrived to devise an interpretation of it which they still maintain endowed with an arguable legality their attack on Iraq which the majority in the Council regarded as premature, not a last resort and above all not authorised by the Council. At least one ‘explanation of vote’ (EOV) after the vote on 1441 said explicitly that the delegation concerned had voted Yes on the strict understanding that it didn’t authorise any member state to embark on military action without a further decision of the Council. The UK EOV came extremely close to confirming that this was also the UK’s understanding, although another ingenious interpretation of it had to be devised subsequently. The then UK Attorney-General himself warned on 7 March 2003 in his secret advice to Blair that if the question of the legality of armed action at that stage were ever to come before a court, it would be unsafe to rely on the ‘negotiating history’ of the text of 1441 in order to demonstrate the validity of the UK’s interpretation of it. The majority of the council manifestly held that under 1441 a “second resolution” of the Council would be needed before any member state could legally begin military action: they agreed not to spell that out in so many words in the resolution only because of the unanimous view in the Council that it was essential to pass a stern and unanimous resolution to warn Saddam to comply with his UN obligations, or else face serious consequences. To re-phrase that, as you do, as if it was the same thing as saying that 1441 “(and many other Security Council resolutions) are deliberately drafted for maximum ambiguity and to mean different things to different people” is frankly a travesty.

    Finally, you say that before I speak of a “crime” of aggression, I should “have [?make] reference to a body of law under which such charges can be adjudged – and your own words suggest you accept that such a body of law is simply not available. Without law there can be acts of widely-varying wrongness or repulsiveness – but there can be no crime, since crime is itself an offence against the law.” But I don’t at all accept that there is no body of law under which war crimes, including the crime of aggression, can be adjudged. There’s a perfectly clear body of law, made up in this case of the UN Charter (especially Chapter VII) and all relevant Security Council resolutions adopted in accordance with it, including especially all those adopted under the provisions of Chapter VII. To say that there can be no crime under international law because there is no such law is not just eccentric: it is simply and self-evidently (to be as polite as possible) wrong.

    I’m sorry that your comment has forced me once again to engage in what you call “heavy textual analysis (Germanic or Talmudic or from any other tradition)” of the resolutions, but I hope that in the light of this response and on further reflection you will acquit me of “flinging around” loose or unconsidered wording about the crime of aggression, etc.

  8. robin says:

    Brian, if we go on much longer we will bore the pants off any of your readers who have stuck with us this far. So this will be my last contribution on this subject. I wish to make one only point. You have said that (if Blair were to be prosecuted) “it would be extremely difficult to get a definitive legal verdict on whether there had been Security Council resolutions that could reasonably be interpreted as giving authority for the use of force against Iraq at that time.”  This does seem to constitute a clear admission that, despite your (and many others’) opinions, there is an element of uncertainty (which I continue to categorise as deliberate ambiguity) in the interpretation of the Security Council’s words; if there were no such uncertainty there could be no difficulty in obtaining a definitive verdict –  whether or not it could ever be used in a court.
    That the invasion of Iraq was a disaster; that it was undertaken by the US and the UK for different, but inadequate and mistaken, reasons – of this there is no doubt. But of all the questions that might reasonably be asked in the hope of learning something for all our futures, the question of what the Security Council – or this or that member of it – may possibly have meant, or thought they meant or wanted to imply, or not, still seems to me the least interesting, the least resolvable and the least important. If there had been a second Security Council resolution, or agreement that 1441 was adequate, would the outcome have been any different, or any better? (Don’t answer that: I’m finished!)

    Brian writes: Robin, I agree that this dialogue has just about exhausted itself. I’ll just content myself with answering the question in your penultimate sentence: Yes!

  9. anticant says:

    So you think it is wrong to prosecute politicians who instigate and engage in aggressive wars and genocide? Do you think the post-WW2 Nuremberg war crimes trials of Nazi leaders were unjustified? What would you have done with Goering, Hess, Himmler & Co? Shot them out of hand? Let them go scott free to write their memoirs?  IMHO those Western leaders responsible for the still unfolding successive disasters since  9/11 should face human retribution and not merely be left to face their personal version of God. At 80+, I am for the first time in my life thoroughly ashamed to be British because of the inane and immoral antics of Blair. If international law and national sovereignty mean anything, “liberal interventionism” is hogwash and Bush and Blair bear an uncanny resemblance to Hitler and Mussolini in effect if not in intention.

    Brian writes: Thank you for this. I think there are practical as well as theoretical difficulties about prosecuting Tony Blair in connection with the Iraq war (and incidentally no-one is talking about genocide in that context). There’s no obvious court in which such a prosecution could be brought, AFAIK. It would obviously be wrong to prosecute Blair alone for a war caused by numerous people besides Blair — notably George W Bush, Cheney, Rumsfeld, and many others, British, Australian, etc., as well as American. On what charge would they be prosecuted and by whom? What authority would round them up, and detain them until the charges were ready? I’m afraid it’s not realistic.

    I have discussed with Robin above the equally difficult problem that there seems to be no court which could both try individuals for their roles in starting a war, and possess the international authority to pronounce on the issue of the correct interpretation of UNSCR 1441 (which would presumably be the basis of the defence case).

    I would also be concerned about the effect on the willingness of political leaders in the democracies to take tough and controversial decisions in the national and international interest if they knew that they were liable to be arrested, tried and perhaps sent to prison if they made the wrong choice. Most are excessively risk-averse as it is.

    This may all become possible if and when we get a world government with the power to enforce its will on national leaders, but that time won’t be coming along soon.

    As for Nuremberg: yes, I am profoundly uneasy about that example of victors’ justice and especially about the practice of inventing new international laws and applying them retrospectively to individuals. At the same time I can’t imagine how else the victorious allies could have dealt with that gang of murderous crooks. In any case, I think it’s a huge exaggeration, which doesn’t help the case against Blair and co., to mention Blair and Bush in the same sentence as Hitler and Mussolini.

  10. anticant says:

    Well, if you believe in national; sovereignty – or do you? – as well as in international law, there doesn’t seem all that much difference to me between Hitler and Musso’s uninvited excursions into neighbouring countries and Bush and Blair’s gung-ho attitude to ‘regime change’ wherever they see fit  around the world (though not in Zimbabwe, unfortunately – no oil or prospective pipe lines there).
    How would you feel if some foreign country (Saudi Arabia?) decided on unilateral regime change for the United Kingdom without UN sanction? Pretty miffed, I should imagine.

    Brian writes: You seem to be suggesting now that I approved (and approve) of the attack on Iraq, which I certainly didn’t, as my published letters in the Times, Independent and Guardian both before and after the war clearly demonstrate — not to mention numerous blog posts here. I strongly disapprove of any breach of the UN Charter’s rules governing the use of force in international affairs. But that doesn’t mean I have to think it would be either feasible or sensible to prosecute either Blair or Bush or indeed the hundreds of others who had varying degrees of responsibility for the war. Nor do I see how impeachment would be possible (see comment below): even if that procedure were still to be available (which it probably isn’t), how could it be used against Blair now that he holds no public office? The idea has already been raised but only in effect as gesture politics:

    On 25 August 2004, Plaid Cymru MP Adam Price announced his intention to move for the impeachment of Tony Blair for his role in involving Britain in the 2003 invasion of Iraq. In response Peter Hain, the Commons Leader, insisted that impeachment was obsolete, given modern government’s responsibility to parliament. Ironically, Peter Hain had served as president of the Young Liberals when they called for the impeachment of Mr. Murray in 1977.
    In 2006, General Sir Michael Rose revived the call for the impeachment of Tony Blair, then Prime Minister of the United Kingdom, for leading the country into the invasion of Iraq in 2003 under allegedly false justification.

    Since the object of impeachment is removal from office, and Blair now holds no office from which to be removed, the whole idea seems nugatory (to put it as kindly as possible).

  11. anticant says:

    Also, as you yourself agree that Blair lied to parliament in several respects in order to secure a vote for war, there’s surely no need to agonise over what, if any, international tribunal is competent to try him:  impeachment is the obviously proper road to folllow.

    Brian writes: Please see my response to your comment at above.

  12. anticant says:

    I don’t think you are correct in saying that  “the object of impeachment is removal from office”. The 1998-9 report of the Joint Committee on Parliamentary Privilege states: “71 Under this ancient procedure, all persons, whether peers or commoners, may be prosecuted and tried by the two Houses for any crimes whatever”.  Warren Hastings resigned as Governor-General of India in 1784, but was not impeached until 1787.

    Brian writes:

    Impeachment is a formal process of unlawful activity, and which may or may not lead to the removal of that official from office. It is the first of two stages. Impeachment does not necessarily result in removal from office; it is only a legal statement of charges, parallel to an indictment in criminal law. An official who is impeached faces a second legislative vote (whether by the same body or another), which determines conviction, or failure to convict, on the charges embodied by the impeachment. Most constitutions require a supermajority to convict. Although the subject of the charge is criminal action, it does not constitute a criminal trial; the only question under consideration is the removal of the individual from office, and the possibility of a subsequent vote preventing the removed official from ever again holding political office in the jurisdiction where he was removed.


    The point of impeaching Warren Hastings would presumably have been to prevent him from ever holding public office again. It might be thought desirable to try for the same ruling in respect of Blair, but (as mentioned in my earlier response) the whole procedure, last used in 1806, is now defunct.

  13. anticant says:

    Later paragraphs in the article you cite make it clear that the obsolescence of impeachment is a moot point.  It may be irredeemably dormant, but it is not ‘defunct’ until abolished by statute.  As for reviving it, extraordinary times call for extraordinary measures. I concede, however, that this gutless parliament, and most probably its successors, are unlikely to invoke it. Impeachment was a powerful tool of 17th century parliaments against an overweening crown; what we need now are new methods to tame an overweening executive.

  14. Phil says:

    What’s your view on Blair’s revelations to Fern Britton (shades of Margaret Thatcher confiding in Jimmy Young)?
    “If you had known then that there were no WMDs, would you still have gone on?” Blair was asked.
    He replied: “I would still have thought it right to remove him [Saddam Hussein]”.
    Blair added: “I mean obviously you would have had to use and deploy different arguments about the nature of the threat.”
    I have to say, this struck me as really shocking – tantamount to admitting that he’d misled Parliament and the country, and that he saw the law as an obstacle to be worked round. Reaction around the blogs has been fairly sparse, though, and a lot of people seem to think Blair said what he did as a way of making himself look good(!). What do you make of it?

    Brian writes: Thank you for this, Phil. I hope to write some thoughts about this in a new post shortly, but it has been delayed by the time-consuming task of trying to resolve a host of problems caused by the impending BA strike. But I am equally shocked by this extraordinary disclosure and I can’t understand what prompted Blair to make it.

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