Was the attack on Iraq a crime of aggression?
Today’s (20 November 2008) Guardian publishes a letter from me about Lord Bingham’s recent declaration that the attack on Iraq was illegal, and the counter-arguments by Lord Goldsmith, Attorney-General at the time, that it was not. As the edited and published version (perhaps inevitably) omits some of its nuances, here is the original text of the letter as submitted to the Guardian:
Lord Bingham‘s authoritative declaration that the UK and US attack on Iraq was illegal, and Lord Goldsmith‘s reasons for disagreeing, raise very important questions and you are right to call for a full public inquiry and contact your local criminal lawyer (Time for a full inquiry, Editorial, November 19). The government’s argument that the invasion, without a Security Council resolution explicitly authorising it, was nevertheless legal is set out in the Attorney-General’s advice to Mr Blair of 7 March 2003 and now repeated by Lord Goldsmith. It argues that during the secret negotiations of the text of resolution 1441, Russia and France and other Council members originally wanted the resolution to specify that the Council should take a further “decision” on what to do if Iraq continued to fail to comply with its obligations: and that by agreeing to abandon that language in favour of a requirement that the Council should merely “consider the situation” (as in the text eventually adopted), they accepted that force could be used by any state without the need for a further “decision” by the Council. There is no public record of the “negotiating history” of 1441: all we have is Lord Goldsmith’s account of it, based on his private discussions with the British and American participants. Any public inquiry should seek to establish whether the Russian, French, German and other governments agree with this interpretation, which seems at first sight far-fetched: as Lord Bingham said, it “passes belief”.
Any inquiry also needs to establish an authoritative interpretation of the UK’s formal “explanation of vote” on 1441, explicitly disavowing any “automacity” in the resolution (“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”). This was widely assumed at the time to mean that 1441 did not imply authority for an attack on Iraq without a further Council resolution authorising it. If it didn’t mean that, what did it mean? Did other Council members agree to drop the explicit requirement for a further Council “decision” in exchange for an assurance by the sponsors of 1441 that it would not be taken as authority to use force without a further decision by the Council?
These may sound like unimportant technicalities, but we need definitive answers to them if we are to be able to judge whether our own elected government committed a war crime in March 2003.
Brian Barder (HM Diplomatic Service, 1965–94)
19 November 2008
[Hyperlinks added — BLB]
There’s a fuller discussion of these and other related issues in my Ephems blog post of April 2005 at http://www.barder.com/ephems/194, which shows how long we have been waiting for answers to all these questions. Some of those answers might be provided in the book about the whole Iraq affair by Sir Jeremy Greenstock, the UK Permanent Representative to the UN at the relevant time, and subsequently the senior representative of the British Government in Baghdad soon after the invasion and occupation. Sir Jeremy, much to his credit, has not been unduly reticent in expressing strong views about the failings of the US and UK governments during his time as a senior public servant and major participant in these events. Unfortunately, however, ministers have so far blocked publication of his Iraq book: all the more reason for a full public inquiry, without further delay, into all the events leading up to and following the invasion and the occupation.
More than five years have passed since March 2003, and there can be no grounds for arguing that the findings of an inquiry, however damning, could somehow damage the status or morale of British or other coalition forces now on active service in Iraq. Whatever the outcome of a proper fact-based scrutiny of the legality, or lack of it, of the original attack on Iraq, no-one can doubt that there’s a sound legal basis, approved by the UN, for the presence of coalition forces now. We need an inquiry, not just to rake over the blunders and probably the crimes of the past, nor even mainly so that those who were responsible for them can be held to account, but more fundamentally so that the necessary lessons can be learned for the future conduct of governments and for the role of the United Nations.
Meanwhile, as we continue to wait, no-one should lightly dismiss the Guilty verdict now pronounced by Lord Bingham, very recently retired as the senior Law Lord and formerly both Master of the Rolls and Lord Chief Justice, generally acclaimed as probably the finest legal mind of his generation. He will have chosen his words with the utmost care and only after rigorous scrutiny of the issues. The suggestion (by a Labour MP) in another of today’s Guardian letters that he should “read UN resolution 1441” before expressing an opinion is simply sad.
 Up-date (21 November 2008): Comments below by Robin and Ed Davies show that I was technically and actually wrong to describe the illegal attack on Iraq as a “war crime” — the term used in the original title of this post and also in my letter to the Guardian. I should have said “crime of aggression“, which, as Ed shows, is no less serious:
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. [Robert H Jackson, chief American prosecutor at Nuremburg, quoted here]
(However, I take some comfort from Jackson’s use of the word ‘other’ in this quotation, suggesting that initiating a war of aggression is a member of the family of ‘war crimes’, distinguished from the others by being the ‘supreme international crime’.)