Was the Iraq war legal? No, but the attorney-general didn’t change his mind

This week the Chilcot Iraq Inquiry starts to hear evidence on, among other things, the legality or illegality of the Iraq war.  Among the key witnesses will be Sir Michael Wood, at the time the Foreign Secretary’s principal legal adviser:  Elizabeth Wilmshurst, then Wood’s deputy, who resigned because she could not accept the Attorney-General’s formal advice that the war would be legal, contrary to her own opinion that it would amount to “the crime of aggression”;  the then Attorney-General, Lord Goldsmith, who had expressed serious reservations about the legality of military action in his private advice to the prime minister on 7 March 2003 but then appeared to have dismissed those reservations when he declared that war would be legal in his published opinion of the 17th, just 10 days later;  Jack Straw, then Foreign Secretary (and so the main recipient of the advice of Michael Wood and Elizabeth Wilmshurst), who is to return to the Inquiry to discuss legality; and, of course, next Friday 29 January 2010, Tony Blair, in what may be the last of his starring roles.

The issues in this debate are complex, especially for non-lawyers and those unfamiliar with the arcane language and procedures of the UN, especially the Security Council.  It’s a sign of terminal egotism to quote one’s own earlier writings, but looking back at what I wrote on this blog back in April 2005, when the main relevant documents had either leaked or been released, I seem to recognise what might serve almost as a brief for the Chilcot Inquirers when they start to question this week’s key witnesses.  So with all due apologies, I am re-posting my article of 29 April 2005 immediately below.  Those equipped with exceptional stamina may also care to read the second part of the article, which deals with some other related issues.  That is at http://www.barder.com/194.    Here’s Part 1.  The passages now in bold type seem to me of special interest as Lord Goldsmith’s own explanation of the apparent change in his opinions between 7 and 17 March 2003, and one that has not been widely mentioned in recent commentaries.

Part I: Was the Iraq war legal? Reflections on the Attorney-General’s advice to the prime minister

April 29th, 2005

The main importance of the 13-page ‘advice’ of the Attorney-General on the legality (or lack of it) of going to war against Iraq without a second UN resolution authorising it, given to the prime minister on 7 March 2003, lies in the harsh and unforgiving light it sheds on the same Attorney-General’s ‘opinion’, published 10 days later on the 17th, in which he set out his apparently unreserved and categorical view that even without a second resolution, the war would be legal. It’s not that he ‘changed his mind’ in those intervening 10 days. On the 7th, he set out the arguments for and against legality, warning that the arguments against might well prevail if the issue came to a court, and laying down the conditions needing to be satisfied if there was no second resolution but the war took place and an argument had to be constructed for its lawfulness. Contrary to widespread speculation before the full text was at last released on 28 April 2005, the 7 March 2003 advice doesn’t come down on one side or the other as to legality: it sets out the arguments on both sides, and concedes that “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”, about as guarded a conclusion as can be imagined from even the most recklessly confident lawyer (which by all accounts Lord Goldsmith is not). By the 17th, the attempt to secure a second resolution has collapsed (not because of any French threat to veto it, but because a clear majority of the Security Council’s members disagreed with it): Lord Goldsmith has asked the prime minister whether his test for the legality of a war without that resolution is satisfied – i.e. that “there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. … we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. … the views of UNMOVIC and the IAEA will be highly significant in this respect”: and Mr Blair has replied[1] that that test is indeed satisfied, meaning that he has “strong factual grounds” and “hard evidence” that Iraq has failed to get rid of its WMD, despite a report by the chief UN weapons inspector on the 7th that Iraq has begun to cooperate, that a number of missiles have been destroyed, and that the inspectors still can’t find any WMD. We now know, of course, how much credence should have been attached to Mr Blair’s “hard evidence” that Iraq still had WMD and had failed to comply with UN resolutions requiring Saddam to get rid of them.

In the light of Mr Blair’s assurance, then, the Attorney-General at last comes off the fence and declares that in his independent, unpressurised opinion the war will be legal. Ignorant of the overwhelming doubts, qualifications and warnings in the advice of ten days earlier, the Cabinet, parliament and much of public opinion accepts this categorical declaration of legality, and Britain goes to war.

Ministers are thus correct in arguing that the Attorney-General did not “change his mind” between 7 and 17 March 03. What did happen was that he finally made up his mind. But there remains a fatal inconsistency between the 7 March advice and the 17 March opinion: in the first, Goldsmith acknowledges the highly arguable character of the case for legality, warning that the contrary case will be regarded by many as at least equally strong, and indeed quite likely to prevail in a court of law (and this is regardless of the strength or otherwise of the ‘evidence’ of Iraqi non-compliance). In the second, he sets out the argument for legality shorn of any warning that it is highly debatable and that it might well be rejected if the issue were to come to court. The point about inconsistency is lucidly and powerfully set out in an article in the Guardian of 29 April 2005 by Lord Goodhart, the LibDem spokesman for constitutional affairs. It’s obligatory reading for those who want to find a way through the fog of allegations and counter-allegations about the probity of the prime minister’s conduct in this affair.

There are perfectly sound reasons for insisting that in general the advice of the Law Officers to the government should not be published: the possibility of publication could well inhibit any Attorney-General from giving frank and politically inconvenient advice on intensely controversial issues, an essential part of his functions. But there can be no excuse for having withheld from the cabinet, parliament and the country the fact that Goldsmith had advised the prime minister in such clear language that the case for the legality of a war without a second resolution was so iffy that if it had to be argued in court, it might well fail. The Attorney-General’s ‘opinion’ of 17 March was stated as if the arguments for legality were firm and unambiguous, thus providing a reliable legal basis for going to war – and the cabinet and parliament accepted it as such. Yet the secret advice of the 7th shows that it was nothing of the sort. Lord Goldsmith had been unwilling to go further than saying that he accepted that “a reasonable case can be made that resolution 1441 is capable in principle” of being interpreted as reviving the authority for the use of force given by the Security Council ten years earlier in the completely different context of Iraq’s invasion of Kuwait.

Just as the secret intelligence evidence for Iraq’s WMD was deliberately misrepresented by the prime minister as being firm and conclusive when in fact he knew it to be patchy and sporadic, so the Attorney-General’s opinion that the war would be legal was deliberately misrepresented by the prime minister as firm and conclusive, by his suppression of the all-important caveats and warnings in the 7 March advice. Neither the flimsy intelligence nor the hesitant and qualified opinion on legality justified a decision to go to war. The extent of the flimsiness of the intelligence and the qualified nature of the legal justification were concealed from parliament and the country, and probably even from the rest of the Cabinet, in order to secure endorsement of a decision which Mr Blair had actually taken a year earlier at his fateful meeting with President George W Bush. Suppressio veri, the suppression of the truth, is morally indistinguishable from lying.

There are two other interesting and significant aspects of the 7 March advice that are worth airing. I discuss them in Part II [below].

For the full text of the Attorney-General’s advice of 7 March 2003 on Iraq war legality, in readable form, not requiring you to download a PDF file, please see http://www.barder.com/politics/international/attorney/advice-7-march on my website. The original is available (in a poor photocopy of the typescript, in PDF format) on the No. 10 Downing Street website[2].

Brian Barder
29 April 2005

Up-dates, 24 January 2010:

[1] Not only did Mr Blair reply giving Lord Goldsmith the assurance he had requested:  Lord Goldsmith also flew to Washington and received a similar assurance from the State Department.  It seems to have been these assurances that Lord Goldsmith relied on to justify omitting the doubts and reservations expressed in his 7 March opinion from the much shorter, published opinion of the 17th, 10 days later.  But this of course in turn depends on an interpretation of Security Council resolution 1441 as authorising any UN member state to make its own unilateral finding of fact about Iraqi behaviour as warranting resort to the use of force without any need for a second resolution of the Council endorsing and authorising it.  The pros and cons of that controversial interpretation, including what we now know to be the government’s arguments for it, are discussed in detail in the first part of my blog post at http://www.barder.com/194 (the second part of the post quoted above).

[2] The photocopy of the Attorney-General’s advice of 7 March seems no longer to be available on the No. 10 website.  But it’s there on the Guardian’s website, at http://image.guardian.co.uk/sys-files/Guardian/documents/2005/04/28/legal.pdf (PDF file).


2 Responses

  1. ObiterJ says:

    Dear Brian, you may be interested in the discussion on Head of Legal blog.  The blog’s author is far more expert than I but we had an interesting debate.

    Brian writes: Thank you for this. I haven’t yet had time to download and hear the podcast but I have read the Head of Legal blog post. I think there are good counter-arguments to the proposition that res. 1441 authorised the use of force without the need for a further ‘decision’ of the Security Council, but it would take far too long to spell them out here. In the end, though, the UK case for the legality of our and the Americans’ war seems to me to fall down on a simple common-sense proposition: we claimed that we were acting with the approval and authority of the Security Council as conveyed in old resolutions adopted to deal with entirely different circumstances, at a time when it was crystal clear that a substantial majority in the Council did not agree that force should be used, at least until the inspectors had had more time to complete their work and reach a conclusion about WMD. To claim that we were acting with the Council’s authority when there was patently no majority in the Council willing to grant it quite simply makes no sense. The ‘revival’ argument, in other words, seems to me legalistic nonsense. But then I’m not a lawyer!

  2. ObiterJ says:

    Dear Brian, yes I agree.  When I discussed this on Head of Legal blog, the gist of my counter argument was that SCR678 ought not to have been relied on almost 13 years later when very different circumstances applied.  678 was clearly aimed at authorising “all necessary means” to enforce SCR660 which simply demanded that Iraqi Forces get out of Kuwait.
    Unfortunately, there is a risk that at some future time similar reasoning might prevail with the Iraq situation being claimed as a precedent.  I have mentioned that worry here:
    Brian writes: Thank you. I’m sure you’re right. All the argument about the authority for the use of force from the first Gulf War not having been extinguished because there had only been a cease-fire, not a permanent end to the conflict, and the early resolutions’ demands still not having been fully complied with, seem to me far-fetched in the extreme. It had all been in the context of getting the Iraqis out of Kuwait, and anyway in the new situation of March 2003 the majority in the Security Council simply wasn’t willing to authorise force because peaceful means of getting Saddam to comply had not at that time been exhausted.

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