Was the Iraq War Legal?
Reflections on the Attorney-General?s advice to the prime minister
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 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.
In Part I of this piece, I have suggested that the suppression of the warnings and qualifications in the Attorney-General’s advice of 7 March ?03 in effect misrepresented his unqualified opinion published 10 days later as being a much firmer basis for going to war with Iraq than in fact it was: and that the omission of the qualifications and warnings from the published opinion constituted a significant inconsistency between the two documents. In this part I discuss two other significant features of the 7 March advice which are both new and important.
A surprisingly long and detailed section of the Attorney-General?s advice ? paras 22 to 25 ? is devoted to the significance of the wording of a single paragraph of Security Council resolution 1441:
?[The Council:] 12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above [i.e. a report to the Council of any ?further material breach of Iraq?s obligations? or report by the weapons inspectors of ?any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations?], in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.?
The significance of this paragraph is that on a strict but strained reading of its wording, resolution 1441 requires the Council, on receipt of a report of further Iraqi non-compliance, to ?consider the situation? but not necessarily to take a new decision on what to do about it. In Lord Goldsmith?s words, ?The principal argument in favour of the view that no further decision is required to authorise force in these circumstances is that the language of [paragraph 12 of res. 1441] (ie “consider”) was chosen deliberately to indicate the need for a further discussion, but not a decision.? Such an argument seems, on the face of it, far-fetched in the extreme: what on earth would be the point of having the Security Council meet to consider a report that Iraq had committed yet more material breaches of its obligations if it were not then to decide what to do about it ? including taking the vital decision on whether the further breach warranted an immediate resort to the use of military force, or whether the inspectors should be given more time to complete their work before the last resort of war should be adopted? Goldsmith?s exhaustive linguistic analysis of the text of paragraph 12 includes a history of the negotiation of the text of what finally emerged as res. 1441 (the so-called ?negotiating history?), and the various conflicting statements by Council members of how they interpreted it. The Americans said plainly that they did not regard the resolution as constraining them from using force if they thought it justified, without the need for a further decision of the Council. Several other Council members stated that they took a directly contrary view and that the resolution could not be interpreted as authorising the use of force without a further decision by the Council. The UK ?explanation of vote? expressly disavowed any ?automaticity? in the resolution, which most of us took to mean that Britain did not regard the resolution as implying UN authority to use force against Iraq without a further Security Council decision ? but Goldsmith cites an ingenious alternative definition of ?automaticity? which leaves open the question of the need for a ?second resolution?.
Here is what the UK Permanent Representative to the United Nations at the time, Sir Jeremy Greenstock, said in his carefully worded explanation of vote in the Security Council on 8 November, 2002:
?We heard loud and clear during the negotiations the concerns about ?automaticity? and ?hidden triggers? ? the concern that on a decision so crucial we should not rush into military action; that on a decision so crucial any Iraqi violations should be discussed by the Council. Let me be equally clear in response, as a co-sponsor with the United States of the text we have adopted. There is no “automaticity” in this Resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in Operational Paragraph 12. We would expect the Security Council then to meet its responsibilities.?
Despite the veiled threat arguably implied by the final sentence, that assurance seems to me (and I would have thought to any reasonable person) to indicate quite clearly that Britain would not resort to war against Iraq unless and until the Security Council had considered the situation and taken a decision to authorise the use of force forthwith. Yet the government?s case relies on denying that that is what was meant. The Attorney-General?s own analysis comes down surprisingly strongly on the side of the view that operative paragraph 12, read with the negotiating history and the explanations of vote, did require a further decision by the Council before force could be used:
?…any other construction reduces the role of the Council discussion under OP12 to a procedural formality. Others have jibbed at this categorisation, but I remain of the opinion that this would be the effect in legal terms of the view that no further resolution is required. The Council would be required to meet, and all members of the Council would be under an obligation to participate in the discussion in good faith, but even if an overwhelming majority of the Council were opposed to the use of force, military action could proceed regardless.?
Which, he surely implies, would be ridiculous. Yet, in the passage quoted above, he describes this patently strained interpretation as ?the principal argument in favour of the view that no further decision [by the Security Council] is required to authorise force?. His conclusion from his own lengthy analysis and discussion of the arguments and counter-arguments is 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 he prudently keeps his options open: ?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.? On any ordinary interpretation of these conclusions, it seems obvious that Lord Goldsmith is deeply sceptical about the argument that resolution 1441 authorised the use of force without the need for a further resolution. But that is what his formal opinion said only 10 days later.
In his advice of 7 March, the Attorney-General makes reasonably clear his judgement that neither the actual wording of resolution 1441, nor the British explanation of vote, can plausibly be stretched to mean that any UN member state was authorised by the resolution to assess for itself whether Iraq had committed a further material breach of its obligations so grave as to demand the immediate use of military force, without the need for the Council first to make that assessment and take any consequent decision for itself. That judgement was surely right. To argue the contrary requires such a Jesuitical and counter-intuitive reading of the relevant words as to make even a Pope blush.
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The other new and remarkable feature of the Attorney-General?s advice of 7 March 03 is his warning to the prime minister not to rely on regime change as a legally defensible objective of invading and occupying Iraq:
?…regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign.?
Before the Iraq war, and before he received the Attorney-General?s advice of 7 March 2003, Mr Blair on more than one occasion accepted that r?ime change could not be a legitimate justification for attacking Iraq, even on at least two occasions stressing that if Saddam Hussein were to comply with the UN?s demand that he rid himself of his WMD, he would be able to remain as his country?s head of state:
“So far as our objective, it is disarmament, not r?ime change – that is our objective. Now I happen to believe the regime of Saddam is a very brutal and repressive regime, I think it does enormous damage to the Iraqi people… so I have got no doubt Saddam is very bad for Iraq, but on the other hand I have got no doubt either that the purpose of our challenge from the United Nations is disarmament of weapons of mass destruction, it is not regime change.”
(Tony Blair, interview, November 14, 2002)
“I had to decide whether we back away, leave Saddam immeasurably stronger, or remove him. I took the decision to remove him. These decisions are tough and that is what leadership is about”.
(Tony Blair, press conference, 28 April 2005)
In recent days Mr Blair has used the same language repeatedly and publicly: I took the decision to remove him. This prompts four obvious objections. (1) It contradicts what he said on several occasions before the war. (2) It contravenes the Attorney-General?s warning that ?r?ime change cannot be the objective of military action. This should be borne in mind … in making public statements.? (3) It suggests that it was Tony Blair?s personal responsibility to decide whether and when to go to war, not a collective responsibility of the Cabinet, still less of parliament or the nation as a whole. And, perhaps most strikingly, (4) it ignores the reality that it was Bush who took the decision to remove Saddam Hussein, and did so, with Britain acting in a purely subordinate role, so that (as a member of the audience had the temerity to point out during a recent television grilling of the prime minister) Saddam would almost certainly have been ?removed? regardless of the ?tough? decision that Mr Blair felt he had to make. Can it be that in speaking as he does, in language that verges on egomania, Tony Blair is unaware of these four major factors that should impel him to use different and more appropriate language? Does he really believe that it was he who took this momentous decision, and that the fate of Iraq and of Saddam Hussein was in his hands when he took it? Has he already forgotten that ?removing? Saddam could not be a legitimate objective of attacking Iraq and that he himself repeatedly assured us that it was not the war?s purpose? If the answer to all these questions is ?yes?, there are unavoidably uncomfortable implications for our prime minister?s grasp of the reality of the situation he now finds himself in.
Iraq has destroyed Tony Blair, as surely as Suez destroyed Anthony Eden.
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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://tinyurl.com/btryc on my website. The original is available (in a poor photocopy of the typescript, in PDF format) on the No. 10 Downing Street website.