Iraq: a basis in law?

“We have concluded that the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory.” (Sir John Chilcot, 6 July 2016)

Following more than seven years of preparation, the much anticipated Iraq Inquiry report was published on 6 July 2016. Former civil servant Sir John Chilcot chaired the inquiry. At more than 2.6 million words, the report is four times the size of Tolstoy’s War and Peace. It was delayed by the death of Inquiry member Sir Martin Gilbert, and the “Maxwellisation” (after media tycoon Robert Maxwell) of the proceedings whereby those involved were given draft sections for comment, and, no doubt, to consult lawyers.

The Inquiry’s stated purpose was to “examine the United Kingdom’s involvement in Iraq, including the way decisions were made and actions taken, to establish as accurately and reliably as possible what happened and to identify lessons that can be learned”. It considered the period from 2001 to the end of July 2009. However, it was not established in order to investigate criminal offences, or to make conclusions on the legality of the war.

Background: the Iraq war

Saddam Hussein was undoubtedly one of the world’s worst dictators. His crimes against his own people are well documented, and initially the Iraqi people appeared to welcome coalition forces following the invasion and his defeat. However, as is meticulously described in the Iraq Inquiry, the situation was entirely different.

Operations in Iraq cost the lives of 179 British servicemen and women, 19 of them Scottish. Thousands more were wounded, often severely, and many others suffer to this day from the mental costs of service. The Ministry of Defence reported the total cost of UK operations in Iraq as £8.4 billion. It is estimated that the total cost to US taxpayers will grow to more than $6 trillion. The most aggrieved, however, have undoubtedly been the people of Iraq. Civilian deaths, particularly in light of the resultant instability, are difficult to calculate; but conservative estimates stand at just over 100,000, while the Lancet medical journal estimated more than 600,000 deaths between 2003 and 2006.

Key findings

The report has already been dissected, and like the reasons given for the invasion and subsequent management of Iraq, has been subject to differing interpretations. To some the report has “delivered a devastating critique of Tony Blair’s decision to go to war”; others have described it as a “whitewash”.

Tony Blair and Alastair Campbell have interpreted it as acquitting them of lying to Parliament or falsifying evidence. All that is clear is that publication will not draw a line under the Iraq war, and debate will continue for generations.

The key findings of the report can be broken down to:

• Iraq did not pose an “imminent threat” to British security.
• The use of force was not “the last resort”.
• The certainty with which evidence of weapons of mass destruction (WMD) was presented “was not justified”.
• There was not sufficient evidence to state conclusively that Iraq was in breach of UN Security Council Resolution 1441.
• British intelligence agencies produced “flawed information”.
• The planning for post-war Iraq and reconstruction was “wholly inadequate”.
• The Ministry of Defence was “slow” to react to changes, resulting in the UK military being poorly equipped for the task.
• The British Government “overestimated” its ability to influence US policy.
• The British Government “failed to achieve its stated objectives”.

Intelligence shortcomings

The main arguments given for the invasion were based on combined intelligence that Iraq had WMD. The primary evidence cited was a controversial dossier published in September 2002. On its publication, Blair asserted: “The assessed intelligence has established beyond doubt that Saddam has continued to produce chemical and biological weapons [and] that he continues in his efforts to develop nuclear weapons.” Chilcot concluded: “The judgments about Iraq’s capabilities in that statement, and in the dossier published the same day, were presented with a certainty that was not justified.”

The Inquiry cites a report submitted to President Bush in March 2005 which states that “the Intelligence Community was dead wrong in almost all of its pre-war judgments about Iraq’s weapons of mass destruction. This was a major intelligence failure”. Chilcot states: “The Joint Intelligence Committee [JIC] should have made clear to Mr Blair that the assessed intelligence had not established ‘beyond doubt’ either that Iraq had continued to produce chemical and biological weapons or that efforts to develop nuclear weapons continued.” He concludes: “It is now clear that policy on Iraq was made on the basis of flawed intelligence and assessments. They were not challenged, and they should have been.”

Blair has read this as a conclusion that “there was no falsification or improper use of intelligence” in the run-up to the Iraq war. It is difficult to share this conclusion.

Regime change, international law and use of force

The report notes: “After the attacks on the US on 11 September 2001 and the fall of the Taliban regime in Afghanistan in November, the US Administration turned its attention to regime change in Iraq as part of the second phase of what it called the Global War on Terror.” On 4 December 2001 Blair wrote to Bush: “At present international opinion would be reluctant, outside the US/UK, to support immediate military action, though for sure people want to be rid of Saddam. So we need a strategy for regime change that builds over time.”

The problem with this objective is that regime change has no place in international law. The report cites Attorney General Lord Goldsmith, who wrote in response: “Regime change cannot be the objective of military action.” It suggests that accepting this, the UK sought to focus on finding alternative legal justification.

The 1948 Charter of the United Nations, article 2(4) provides in clear terms that: “All members shall refrain in their relations from the threat or use of force against the territorial integrity or political independence of any state.” International law allows for three possible exceptions. First, force may be used if authorised under the Chapter VII powers of the United Nations Security Council. Secondly, a state may act in self-defence under article 51. Thirdly, a state may consent to the use of force by invitation.

The UN Security Council has the primary responsibility for the maintenance of international peace and security. It is made up of 15 member states of which the UK, USA, France, China, and Russia are permanent members exercising the veto power. The Security Council has the power under Chapter VII to determine the existence of a threat to peace or acts of aggression, and the power to call on parties to settle disputes by peaceful means. Where these fail, it has the power to impose sanctions or even to authorise the use of force to maintain or restore international peace and security.

The revival argument

The primary legal justification for the invasion was predicated on what has become known as the “revival argument”. The US and UK argued that the Security Council resolutions 660, 678 and 687 in relation to the first Gulf War were revived by Iraq’s alleged failure to comply with resolution 687. Resolution 687, passed in 1991, declared an end to hostilities, imposing a number of conditions on Iraq in relation to its possession of WMD.

In 2002, during the run-up to the invasion, the Security Council passed resolution 1441. This stated that Iraq was in material breach of its relevant obligations, including those under 687, although the possibility of the use of force was not explicitly mentioned. The US argued that material breach arose from Iraq’s alleged WMD programme, and therefore the US had authority to use force. The British position was more nuanced, claiming that due to the possibility of “an unreasonable veto” by France, the Security Council was unable and unwilling to uphold its obligation to maintain international peace and security. In light of the apparently overwhelming evidence of Iraqi WMD and the threat posed by Saddam Hussein, the UK argued that it quite simply had to act under the previous resolutions, as inaction would abrogate the Security Council’s responsibility.

This variation of the revival argument is an impressive, concise and cleverly argued case, even if it ultimately failed to convince the vast majority of other states. This is supported by the fact that China and Russia declared that their support of Resolution 1441 was premised on the absence of any “hidden trigger”. Sir John even highlights in the report that “the UK’s stated objective for the negotiation of resolution 1441 was to give Saddam Hussein ‘one final chance to comply’ with his obligations to disarm”.

The Inquiry concluded that the decision to act without explicit Security Council authorisation “undermined the Security Council”. The “circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory”.

It also considered the legal advice given to Blair and his cabinet, in particular the process by which Attorney General Goldsmith came to change his legal advice in the build-up to the war.

The Attorney General’s role

The report cites a number of declassified documents from the lead-up to the invasion that show Goldsmith changing his mind. In a note from 22 October 2002 he stated that the draft resolution “does not amount to an authorisation to use force”. In January 2003, he stated: “It is clear that resolution 1441 contains no express authorisation… for the use of force.” Further: “The revival argument will not be defensible if the Council has made it clear that actions short of the use of force should be taken to ensure compliance”.

The Inquiry considered a meeting between Goldsmith and Blair’s legal advisers on 27 February 2003, of which, oddly, there was no record. After similar meetings with various US and other British officials including Foreign Secretary Jack Straw, Goldsmith changed his mind. The only evidence remaining is a very short summary from 27 February 2003 where Goldsmith apparently stated: “By far the safest way forward is to obtain a second Resolution, but, if we are unable to obtain one, it might be arguable that we do not need one, although we could not be confident that a court would agree with this.”

Goldsmith went on to conclude on 13 March that, on balance, the “better view” was that the conditions for the operation of the revival argument were met in this case, meaning that there was a lawful basis for the use of force without a further resolution beyond resolution 1441. The report notes in detail that in the days that followed, this advice was redrafted; as a result the conflicting arguments were not set out to cabinet. Chilcot suggests that Goldsmith should have been asked to provide written advice to cabinet explaining how in the absence of a majority in the Security Council, Britain and the US could act unilaterally.

Goldsmith told the Inquiry he did not know why he changed his mind, but it was this change that provided the legal “green light” for Blair to get the backing of his cabinet for war. Some have concluded from this that Goldsmith was pressured into changing his advice, but the report makes no direct pronouncements.

Other grounds for intervention

A number of other grounds have been forwarded for the legality of the invasion. Arguments of humanitarian or democratic intervention were voiced by a number in the US and UK administrations. Whether such rights exist is unlikely, and even if they do it is impossible reasonably to conclude that the invasion was centred on humanitarian or democratic principles.

Article 51 of the UN Charter states that “nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations”. The US, in particular, argued it was acting in pre-emptive self-defence due to Iraq’s threat to international peace and security.

It is important to note that article 51 states, “occurs”; it does not add, “threatens”. The International Court of Justice (ICJ) in Nicaragua v United States (1986) ICJ 1 ruled that the existence of an armed attack is a condition “sine qua non” for the exercise of the right to individual and collective self-defence. However, the international community has come to accept a standard of preventative self-defence.

This is derived from the 1837 “Caroline incident”, where British forces destroyed an American ship in response to incursions into Canada. The resulting correspondence between the UK and the US has become known in international law as the “Caroline test”. The three-pronged test requires:

(i) necessity;
(ii) proportionality; and
(iii) imminence.

Chilcot casts serious doubt on whether the invasion could satisfy the Caroline test. Necessity means that the threat posed is “instant, overwhelming, and leaving no choice of means and no moment for deliberation”. However, the report concluded: “The UK chose to join the invasion of Iraq before the peaceful options for disarmament had been exhausted. Military action at that time was not a last resort.”

Proportionality is generally accepted to be the destruction and elimination of the imminent threat: therefore, probably not a full-scale invasion and occupation of a sovereign nation. The threat must also be “imminent”. However, the Inquiry notes, in March 2003 there was no imminent threat from Saddam Hussein.

Before the publication of the report, Professor Daniel Joyner asserted: “Even if one accepts the existence of the right to anticipatory self-defence and its legal validity as part of the contours of the article 51, it clearly does not provide a sufficient legal basis for the 2003 Iraq intervention. The imminence of the threat posed by Iraq’s suspected WMD stockpiles, and its alleged connections to international terrorist networks, even if either had in fact existed, does not present a threat to either the USA or UK that could be characterised as presenting ‘a necessity of self-defence, instant, overwhelming, leaving no choice of mean, and no moment of deliberation’” (The Iraq War and International Law (Bloomsbury Publishing, 2008), 82). The evidence outlined in the Iraq Inquiry appears to support this argument.

Tony Blair on trial?

Since publication, some have called for the prosecution of Tony Blair for the crime of aggression. However, as Geoffrey Robertson QC has concluded, his prosecution as a war criminal is a “legal impossibility”.

The International Criminal Court (ICC) was formed under the Rome Statute of 1998. Article 5 of the statute stated that until member states could agree on a definition of aggression, the ICC shall “not exercise jurisdiction over the crime of aggression”. Agreement was eventually reached in 2010, but it was decided that prosecution for the crime of aggression would not be possible until further deliberation in 2017. As it remains a universally accepted principle that international law is not retroactive, the ICC does not and will never have jurisdiction to try Tony Blair. Put succinctly, Blair did not break the law, as there was no law to break. The ICC has already ruled out a prosecution. It has, however, stated that it will consider the Iraq Inquiry when undertaking preliminary investigations on allegations of war crimes by individual British soldiers.

Despite this, Blair does face the very real possibility of a civil suit in British courts. Relatives of British soldiers killed in Iraq have launched a funding appeal to take action against those complicit in the invasion. The group states on its website www.crowdjustice.co.uk/case/chilcot/: “We knew the risks all British military personnel assume when serving Queen and country. However, the long-awaited Iraq Inquiry Report has confirmed that there were serious failings in the lead-up to, planning and conduct of the war, which led to so many unnecessary deaths.”

The families have hired the London based firm McCue & Partners, which rose to prominence for its groundbreaking victory in Breslin v McKenna, a civil case against the Provisional IRA on behalf of the families of those killed in the 1998 Omagh bombing.

It would appear likely that any potential action will centre on the charge of “misfeasance in public office”. The crime of “misfeasance” or misconduct in public office was outlined in Attorney General’s Reference [2005] QB 73: “There must be a serious departure from proper standards… a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder. A mistake, even a serious one, will not suffice. The motive with which a public officer acts may be relevant to the decision whether the public’s trust is abused by the conduct...

“The element of culpability ‘must be of such a degree that the misconduct impugned is calculated to injure the public interest so as to call for condemnation and punishment’...

“The conduct cannot be considered in a vacuum: the consequences likely to flow from it, viewed subjectively… often influence the decision as to whether the conduct amounted to an abuse of the public’s trust in the officer… There will be some conduct which possesses the criminal quality even if serious consequences are unlikely but it is always necessary to assess the conduct in the circumstances in which it occurs.”

James Findlay QC notes that misfeasance in public office “requires effectively some form of targeted malice”. This may explain Blair’s continuing assertions that he made the right decision, acting in good faith, based on intelligence at the time.

A lesson for legal advisers

The full consequences of the Inquiry findings remain unknown at this early stage. It is unlikely that the report will significantly alter public perceptions, as selection bias has already shown people using the report to support their agenda. For international lawyers it says very little that was not already known, and for the people of Iraq, where a car bomb killed 250 the same week the report was published, it will do little to solve the immense problems the nation currently faces.

Perhaps the most important lesson can be found in a letter written by Lord Goldsmith to Jack Straw on 3 February 2003 (prior to his reassessment of the legality of the case for war), in which he outlined his belief that: “It is important for the Government that its lawyers give advice, which they honestly consider to be correct: that is what they are there for… To do otherwise would undermine their function as a legal adviser in giving independent, objective and impartial advice… if a Government legal adviser genuinely believes that a course of action would be unlawful, then it is his or her right and duty to say so.”