Did the Attorney General change his mind?
The thought of returning to the question of the legality or illegality of the Iraq war induces a vast weariness. But it is a matter of real importance and the controversy over it will continue until we are finally allowed to know much more about the legal advice received by the government, and the basis for it. The only information on this that is in the public domain is the formal advice given on the very eve of the war by the Attorney-General, a bare summary of which was published on 17 March 2003 in Hansard, given to the Cabinet on the same day but, on Clare Short’s testimony, with no opportunity for ministers to discuss it. We also know that a then Deputy Legal Adviser to the Foreign and Commonwealth Office, Elizabeth Wilmshurst, an international law expert with decades of experience, resigned because she did not agree with the Attorney-General’s opinion that the war was legal even without a further explicit resolution of the Security Council authorising it. There are reports, not so far denied, that until very shortly before the beginning of the war, the Chief of the Defence Staff and his colleagues were unhappy about the uncertainty over the legality of a war lacking new UN authority, and might even have refused to obey ministerial orders to begin hostilities for fear of exposing themselves and their servicemen and women to the charge of committing war crimes. This suggests that until the statement of 17 March, the Attorney-General’s advice might have tended to lean towards the Foreign Office lawyers’ view that a second resolution was essential for the war to be legal (assuming that Ms Wilmshurst’s opinion was shared by her FCO colleagues): or at least that the Attorney-General’s earlier view may have been more hedged about with reservations and caveats than the forthright verdict of 17 March.
Unlike Ms Wilmshurst and her FCO legal colleagues, the Attorney-General is not a specialist in international law (his background is as an expert in corporate financial law), so on the Iraq question he would have had to rely on specialist advice from other lawyers. His first port of call for this would automatically have been the FCO Legal Advisers, who themselves would have been consulting eminent authorities in the field from outside government. The Attorney-General would also himself no doubt have been seeking the views of other practising and academic specialists. There seems to be general agreement that the overwhelming consensus among the international law specialists in Britain, and perhaps in Europe too, was that a second resolution was needed for legality, which we know to have been Ms Wilmshurst’s view at the FCO. It would be strange if this had not been reflected at least in some degree by the preliminary views of the Attorney-General in his advice to the prime minister and to the other ministers and their departments principally involved. So what happened to make him change his mind and hand down the opinion of 17 March taking the opposite view? According to Baroness Kennedy QC and others, only two respected jurists were widely known to hold the minority view that existing Security Council resolutions were sufficient to provide legal authority for the use of force against Iraq without any need for a further decision by the Council. One of these two, Christopher Greenwood, a Professor at the LSE and a practising barrister who gives his "experience keywords" as "armed conflict; human rights; international law; United Nations; war", has confirmed that he gave advice on the Iraq war question to the Attorney-General, although he will not say when he did so.
The likeliest scenario, therefore, appears to be as follows. The Attorney-General, reflecting the views of the FCO legal experts and the great majority of other international law specialists, was initially doubtful whether it would be lawful to go to war in Iraq without a second resolution. But the prime minister had already committed himself firmly to President Bush as a reliable ally in any war that might prove necessary; our troops were in place; the Americans were determined to launch the attack regardless of the UN; the idea of Britain pulling out at this eleventh hour must have seemed politically, even morally, unthinkable. Yet it would have been impossible to go to war with the principal Law Officer of the Crown advising that it would probably be illegal to do so. The thought of a possible war crime charge and of British forces refusing to obey the government’s orders would have been appalling. Did the Americans, with almost as much at stake, express a view, as they had done in strikingly similar circumstances fourteen years earlier over Kosovo (see below)? The problem would have been put to the A-G, no doubt delicately, probably without explicit pressure, still less any suggestion of how it might be solved. Professor Greenwood’s views were widely known, if not widely accepted. We know that at some point, not revealed, he conveyed them in a formal opinion to the Attorney-General. They were duly embodied in the A-G’s advice of 17 March. Problem solved, or so it must have seemed at the time.
But decisions should not be made and commitments entered into before their legality has been firmly established. No doubt Mr Blair was convinced until a late stage that his famous powers of persuasion would eventually produce the second resolution that would remove all legal misgivings and warnings. Certainly that was the impression he gave in his television interviews in January and February when he said that he would take the country to war without a second resolution only if a majority in the Security Council favoured such a resolution but were frustrated by "an unreasonable veto" — neither of which conditions was satisfied: there was no majority for a second resolution and no veto, unreasonable or otherwise; but we went to war anyway. Should the legal basis for government action which is literally a matter of life and death be determined by reflecting the overwhelming consensus among the legal experts in the relevant field, or by asking one of the few experts to provide it who was known to be willing to give the most convenient advice? There seems little point in seeking a considered, properly researched opinion from the senior Law Officer if the nature of the advice is predetermined in this way, if indeed that is what happened. So far, Mr Blair has refused to make public the information on which an informed judgement of what happened could be made. Meanwhile, the Attorney-General’s advice has been widely scorned. Whatever its legal merits, it certainly seems to fly in the face of common-sense, as well as contradicting the formal explanation of vote by the UK ambassador to the UN as a co-sponsor of UNSCR 1441 immediately after the vote, a recognised element in the interpretation of resolutions.
Sadly, we have been here before, at the time of the NATO attack on Serbia over Kosovo, another case of an almost certainly illegal war lacking a UN mandate:
‘All our Nato allies were still reluctant. Initially, they insisted that the use of force only be considered if the UN security council would endorse it. That was a huge impediment, because the Russians, as permanent members, could veto any such decision. Even our staunchest ally, the British, became a big problem. In early June 1998, the administration was furious when the British, without consulting us, floated a plan to seek UN approval. Sergei Lavrov, Russia’s ambassador to the UN, had warned us that Moscow would veto any attempt to endorse the use of military force against Serbia. We had told the British this over and over. What were they thinking? There was a series of strained telephone calls between Albright and Cook, in which he cited problems "with our lawyers" over using force in the absence of UN endorsement. "Get new lawyers," she suggested. But with a push from prime minister Tony Blair, the British finally agreed that UN security council approval was not legally required. ‘ — James Rubin, US Secretary of State Madeleine Albright’s press spokesman at the time of Kosovo, Financial Times, 29 September 2000 (My emphasis.)
Publication of the full text of the Attorney-General’s eventual advice on Iraq can’t on its own dispel these worries, as Baroness Kennedy has pointed out. If the government is to be cleared of these serious suspicions, we need to know what advice the government and the Attorney-General were receiving and giving earlier from all sources, including the FCO Legal Advisers and the Attorney-General, and, if the latter’s advice changed, why it changed.
To paraphrase Oscar Wilde, to go to war illegally once may be regarded as a misfortune; to do it twice….