Whatever you say Gordon, the war was illegal

A leading lawyer sums it up, Britain's attack on Iraq was illegal
Geoffrey Bindman
4 March 2010

Gordon Brown is due to appear before the Chilcot Inquiry today. In case the point fails to be made, we cross-post from the Guardian's Comment is Free of last week, this cool, clear and authoritative summary of what is now an established fact: that Britain's participation in the invasion was illegal.

The Chilcot team has completed the first phase of its Iraq Inquiry. It has revealed few new facts, but has reminded us of those already known. They confirm what ought to be Chilcot's blunt conclusion: our leaders (supported by the opposition) took us into a war that was illegal, immoral, unnecessary, and hugely destructive. And they did so under no compulsion and against our national interest.

Chilcot was not set up to decide whether the Iraq war was lawful – if so one would have expected at least one lawyer among its members. Yet much of the evidence has been about the way in which the issue of legality was faced by Tony Blair and his colleagues. They saw it as an inconvenience – particularly because the US was untroubled by it – but it was cleverly used to divert attention from some very disreputable diplomacy in the run-up to the war. By creating a picture of legal uncertainty, the government disguised its defiance of majority international opinion.

In fact, international law is for once quite clear. The assault on Iraq could only be legal if authorised by a resolution of the UN security council. The United States seemed prepared to flout this legal requirement. At first Blair was reluctant to do this and he managed to persuade the US to support resolution 1441 giving Iraq an ultimatum which the security council passed unanimously on 8 November 2002.

The resolution recorded the failure of Iraq to comply with UN requirements to report on certain steps to eliminate weapons of mass destruction. It demanded that inspectors be admitted to Iraq to check on compliance and indicate dire though unspecified consequences should there be further non-cooperation. Iraq was willing to admit the inspectors and the obvious understanding was that if they reported compliance no further sanction (and certainly no invasion) would be needed. The relevant words in paragraph four of 1441 are: "…failure by Iraq at any time to comply with, and co-operate fully in the implementation of, this resolution shall constitute a further material breach of Iraq's obligations and will be reported to the council for assessment in accordance with paragraphs 11 and 12 below."

Paragraph 11 required the inspectors (UNMOVIC), led by Hans Blix, to report any breach. Paragraph 12 required the council "to convene immediately on receipt of a report … to consider the situation and the need for full compliance". Britain and the US wanted the freedom to attack following failure to co-operate by the Iraqis (which the US regarded as certain). Other countries wanted the security council to discuss the position after alleged failure to comply.

It is clear that the UK accepted that there had to be further consideration by the security council before an attack was authorised.

Sir Jeremy Greenstock, our representative in the security council, was very much aware that other countries, including France, Germany and Russia, were demanding a further security council discussion before any invasion, and that 1441 was not going to be passed without that commitment. He said in the debate on the resolution: "We heard loud and clear during the negotiations the concerns about 'automaticity' and 'hidden triggers'. Let me be equally clear in response. There is no 'automaticity' in the resolution. If there is a further Iraq breach of its disarmament obligations, the matter will return to the council."

By early March 2003, no WMDs had been found. The arms inspectors, Blix and El Baradei, had found no breach and were asking for more time. The efforts of the US and the UK to get the security council to pass a second resolution authorising force had failed. Yet plans to launch an attack were far advanced. The date was to be 20 March. Later the summer heat would be building up and the invasion would have to be delayed by several months.

The crucial area of legal controversy is whether after 1441 that second resolution of the security council to authorise the attack was legally necessary. If some members of the security council were satisfied that Iraq had violated 1441, could they lawfully enforce compliance without further authorisation by the council? The question had already been firmly answered in the negative by the Foreign Office lawyers.

The attorney-general, Lord Goldsmith, addressed the issue on 7 March 2003 in a 13-page document which he gave to Tony Blair. It was never seen by the cabinet. His conclusion was equivocal: "I remain of the opinion that the safest course would be to secure the adoption of a further resolution to authorise the use of force." Of course this was not possible because the majority of members of the security council were against it.

Understandably, Goldsmith's equivocation was not good enough for Admiral Boyce, chief of the defence staff, who wanted reassurance that he was not being asked to send his troops to commit war crimes. In this impasse, Goldsmith was apparently persuaded to change his mind and put his name to the categoric assertion that the attack which began three days later was lawful.

Professor Philippe Sands demonstrated in his book Lawless World that this opinion was wrong. The war was a violation of the UN charter.

But the problem with the law is that arguments can always be found by our ingenious colleagues to support either side of a case. The government was astute to focus on the final view of Goldsmith, even though virtually every international lawyer rejected it.

When he reports, Chilcot should not focus on legality. Honour and integrity are more important. Our government knew that a majority of the security council did not support an invasion at that time. To claim that by a convoluted route they had authorised invasion against their wishes and intentions and without realising it is to play a cheap trick for which any lawyer would be rightly disbarred. The invasion was illegal but to pretend otherwise after misleading the other members of the security council is a lasting stain on our national integrity. Chilcot could reach that conclusion right now. Yet we are told the inquiry will go on for the rest of the year. Nothing will be added. We already know all we need to know.

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