This blog didn’t exist when US and British forces, with others, invaded Iraq in 2003. I’ve never written directly about the legality of the war. But with Sir Michael Wood and Elizabeth Wilmshurst having given evidence to the Iraq inquiry yesterday, and Lord Goldsmith due to appear today, I think it’s time for me to address the issue.
Let me begin with a declaration. I worked at the Attorney General’s Office under Lord Goldsmith from 2005-7, well after the invasion itself; I did not advise him on international law except to the extent that it arose as part of my EU law, human rights and domestic advice. Some might say I have a natural inclination to defend him and his views. Maybe. I also want to make clear that I was not involved in any respect in the government’s internal legal discussions about the Iraq war, and have no inside knowledge of it whatever. I share no responsibility for the advice that was given, and have no personal stake in it that I have to defend.
My final preliminary: far too often this issue is discussed by a pure appeal to authority. Philippe Sands QC says the war was unlawful, we’re told by some anti-war campaigners; therefore it must be. Most international lawyers agree, it’s often said. Sir Michael Wood and Elizabeth Wilmshurst advised that the war was unlawful. The Dutch inquiry has concluded so. All these are worthy of respect of course. But the fact they see the war as unlawful does not mean it was unlawful, any more than Lord Goldsmith’s view means it was lawful. An appeal to authority is quite inadequate. We must form our own view on the legal merits and must judge the views of others based purely on their content. That’s what I’m trying to do.
I accept that the invasion was not clearly and unambiguously lawful. Far from it: the UN Security Council had plainly not expressly said that members could use all necessary means to enforce Iraqi disarmament and compliance with UN inspection and verification, which was a condition of the ceasefire at the end of the 1991 war over Kuwait. But equally, the invasion was not clearly and unambiguously unlawful because of the absence of a resolution including those express authorising words. I disagree with that commonly held view.
I think it’s important to see the 2003 invasion in historical context. The UN had authorised force in UNSCR 678 in order to free Kuwait and restore peace and security in the region; UNSCR 687 recalled and affirmed that resolution and imposed disarmament obligations on Iraq as one of the conditions essential to the restoration of peace and security in the region. By August 1991, the UN had determined that Iraq was in material breach of those obligations. It reaffirmed them and demanded compliance again in 1994 and in 1996. There were three further UNSCRs about Iraqi non-compliance in 1997, and three more in 1998, culminating in November 1998 in UNSCR 1205, condemning an Iraqi decision to stop cooperating with UN inspectors.
At this point it’s important to note that in December 1998, the US and Britain bombed Iraq so as to “degrade” its WMD capability. That action was defended in Parliament by the Foreign Secretary Robin Cook, who said
The action has been taken with the full authority of repeated Security Council resolutions, supported by all members of the Security Council
although none of the 1998 UNSCRs spoke of taking all necessary means. The legality of that action was justified on the basis of the “revival theory”, that UNSCR 678 still governed and overshadowed the entire process. Ming Campbell said this at the time:
Some say that there is no proper legal basis because there is no single resolution of the United Nations Security Council that authorises the action taken during the past 24 hours. To them I say that, when considering the legal basis of the action, one must have regard to resolutions 687 and 688 with which the Gulf war was brought to an end, to the fact that they reflect voluntary undertakings freely entered into by the Iraqi Government to help bring the war to an end and that since then no resolution of the Security Council in respect of these matters has been anything other than entirely consistent with those obligations. When considering the legal basis of the action we must look at the body of resolutions as a whole and not seek to fasten on to one particular resolution or describe it or any other as deficient.
We know from Lord Goldsmith’s published advice on the Iraq war that the Attorney General in 1998, Lord Morris, must have advised that the bombing was lawful based on this theory. We also now know that Elizabeth Wilmshurst agreed with that advice at the time (see page 30, line 16) although she now thinks it was a “strained” view. I agree with it, too.
Tony Benn, to be fair, said it was unlawful because not expressly authorised. Fair enough. Perhaps in the interests of complete fairness, it’s worth remembering that Tony Benn also called the war in Kosovo a “war of aggression”. It was not authorised by the UN either, but is now widely considered lawful because of what international lawyers now recognise is an “emerging” international law doctrine that it’s lawful to intervene to avert an overwhelming humanitarian catastrophe.
That’s the background to the 2002-2003 crisis. UN inspectors were allowed back into Iraq following the now famous UNSCR 1441. In its preamble the UNSC recalled
that its resolution 678 (1990) authorized Member States to use all necessary means to uphold and implement its resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to resolution 660 (1990) and to restore international peace and security in the area;
The key operating provisions were OP4, in which the UNSC
Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate 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;
and OPs 12 and 13 in which it
12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, 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;
13. Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations;
This website allows you to consult the post-adoption statements by each of the permanent five UNSC members. The US took the view that the resolution did not preclude military action, though everyone agrees it provided for a “two-stage” process involving further consideration by the UNSC; no one says a further resolution is required. Jack Straw’s analysis of resolution 1441 is, to me, persuasive. The text represents a clear compromise between the three members who opposed action and wanted to tie the US into needing further express authorisation, and the US, who thought action necessary, and wanted immediate authorisation. It clearly rejects “automaticity”: no one could use it in itself as a legal basis for war in late 2002. But it also makes provision only for further consideration by the Security Council; not for any further decision or resolution. It was of course followed by the discovery of Iraqi missiles held in breach of the UN’s resolutions, and by, in the view of Dr. David Kelly, further non-cooperation from Iraq.
Bearing all that in mind, I agree with Lord Goldsmith’s advice of 7 March 2003, first that the safer course would be to seek a second resolution authorising force; the UK did that, of course, and failed; and second, that the “revival” argument, that further material breach by Iraq would revive the authorisation of force in UNSCR 678, is a reasonable one.
I’d go further, in fact: I agree with what Lord Goldsmith seems to have concluded a few days later – that the “revival” theory is the better view, to be preferred to the alternative put forward by Elizabeth Wilmshurst, that resolution 1441 clearly required a further decision by the Security Council. She told the Chilcot Inquiry that the wording of resolution 1441 had this effect (see page 30, line 7 of the transcript) – that was what made the position different from 1998, when as I’ve said she had agreed with the revival theory (though she now thinks it was “strained” even then). I find it difficult, looking at UNSCR 1441, to find the language that she says excludes the revival theory she supported in 1998, and reserves to the Security Council alone the sole competence to act subsequently, in the sense that its inaction should preclude action by others.
It follows that I agree with what Lord Goldsmith said was the legal justification for war. Member States were always authorised to use all necessary means to restore peace and security in Iraq. The authorisation was suspended; but on condition Iraq verifiably disarm. Its repeated material breach and failure to take its final opportunity meant it was lawful for Member States to use force on the basis of UNSCR 678. Any other approach seems to me to build far too much on words such as assessment in OP4 and consider in OP12; and to empty of all practical meaning the threat of serious consequences in OP13.
In any event, the fact that Elizabeth Wilmshurst’s change of approach since 1998 turns on a detailed construction of 1441 shows the question is not an easy or obviously one-sided one. The fact that two views are possible is enough, in my view, to reject wild, overblown and rhetorical claims that Tony Blair is a “war criminal”, for example.
I’ve already said I prefer the revival argument. But finally I must deal with Elizabeth Wilmshurst’s further point, that in circumstances like those of 2003, government should adopt the legally safest course and only use military action where it is legally uncontroversial. That’s a policy argument rather than a legal one, but it has some force. On the face of it, it seems to be the internationalist position, the one that favours multilateralism and the UN. But it isn’t, in truth.
After the Berlin wall fell, the UN was suddenly free of the shackles of the cold war: it found it could unite and act against Iraq in 1990 and 1991. The first president Bush could speak of a “new world order”. But through the 1990s, the UN’s authority was systematically undermined by Iraq – and it began to lose its unity and its will. By 2003, the question was whether its authority meant anything or whether its orders could be safely defied for ever. It was the determination of the US to confront Iraq and enforce UN resolutions, not the French and Russian reluctance to do so, that represented the old idealism of collective security against aggression.
Had the Security Council united to give Iraq a clear ultimatum in a “second” resolution (there were many resolutions about Iraq’s disarmament in truth), as Britain wanted it to, then the UN’s authority might have been upheld without political division – maybe even without war. Of course it didn’t unite, and didn’t agree to do anything, primarily because of the unwillingness of France, Russia and China. In judging the subsequent actions of countries like the US, Britain, Spain, Italy, Australia, Holland, Poland, Denmark, Japan and South Korea among others, I prefer to read the background UN resolutions in a way that favours the enforcement of international disarmament obligations – and permits their multilateral action; it is surely a mistake, and arguably even a betrayal of the UN ideal, to read them in a way that requires minimum respect from aggressors for the UN’s united will, and maximum respect from members for its culpable inaction.