Tony Blair, as Prime Minister, was primarily responsible for the United Kingdom observing the rule of international law, including that embodied in the United Nations. As with all Prime Ministers, he looked to the Attorney General for definitive advice on what was, or was not, legal. The rule of law justifies war and invasion only in acute circumstances and the United Nations is careful only to issue resolutions which validate military action in a clear and final resolution. Obviously, no ambiguity can be countenanced in such a situation. The United Nations since 1945 has prohibited the use of force — except in self-defence or, perhaps, to avert an impending humanitarian catastrophe — unless formally authorized by the UN Security Council. That is easy to understand.
Lord Goldsmith’s Understanding of the Illegalities of Attacking Iraq.
Lord Goldsmith did understand it and here we follow through his view of the UK’s legal position in relation to Iraq during the period between the summer of 2002 and the invasion of Iraq in March, 2003. He gave quite a clear judgment that to undertake a war against Iraq was illegal. He stated it in a letter to the Prime Minister on 30th July, 2002, copied to the Foreign and Defence Secretaries, “In the absence of a fresh resolution by the Security Council which would at least involve a new determination of a material and flagrant breach [by Iraq] military action would be unlawful. Even if there were such a resolution, but one which did not explicitly authorise the use of force, it would remain highly debatable whether it legitimised military action – but without it the position is, in my view, clear.” This statement is revealing. First, it says that evidence of a breach of the resolution requiring all WMD to be destroyed was necessary. That evidence needed to come from Hans Blix and the weapons inspectors. Second, that a resolution validating the use of force was required, and third, that the position was “clear”. Goldsmith added that this outlawed any military support of the United States. He had already written to Geoff Hoon, the Secretary of State for Defence, squashing the idea we could go to war against Iraq in “self-defence”, because he had examined the evidence and there was no imminent threat of attack to the UK. There was no reason why force could be used legally against Iraq.
The United Nations Secretary General aimed to stiffen this position in November, 2002. His report on the “Prevention of armed conflict” recommended as follows, “It is reassuring that a general consensus is gradually emerging among Member States that comprehensive and coherent conflict prevention strategies offer the greatest potential for promoting lasting peace and creating an enabling environment for sustainable development. The General Assembly is urged to adopt a strong and substantive resolution in support of conflict prevention, as the Security Council did on 30 August 2001.” Conflict prevention was to be the normal approach to difficult international situations, because the aftermath of conflict was chaos and destruction. So Goldsmith’s position as Attorney General, responsible for testing whether Government actions upheld the rule of law, including international law, was clearly in accord with everyone else’s in July, 2002. Without another resolution explicitly authorizing the use of force, the invasion of Iraq was illegal.
Lord Goldsmith held this view until well into 2003. He repeated it in a letter to the Prime Minister on the 30th January, 2003. On 12th February in his draft advice to the Prime Minister on the American perception of the issue which had now began to appear in UK diplomatic circles, Goldsmith is critical of the American view. He points out that the American position of needing only another Council discussion, but not a resolution, before going to war against Iraq reduces the role of Council discussion to a “procedural formality” so that “even if the overwhelming majority of the Council were opposed to the use of force, the US could go ahead regardless.” He further noted that “Many delegations welcomed the fact that there was no ‘automaticity’ in the Resolution with regard to the use of force.” This point we examine fully in the next paragraph. He added that if the UK had tried to obtain a definitive second resolution validating the use of force, but then say that a second resolution was not required, would generate the response that the government was acting unlawfully. He further stressed that military action should always be proportional, and aimed to correct the failure in Iraq’s response on disarmament. It “should be limited to what is necessary to achieve that objective”. About a week before on the 3rd February he had warned Jack Straw about pressure on legal advisors in the Foreign Office, meaning especially Michael Wood and Elizabeth Wilmshurst, who had also concluded that an invasion without a second resolution was illegal. So this was a settled and well developed view held during the year or so in the build-up to the War.
Lord Goldsmith changes his mind in early 2003.
But then Lord Goldsmith changed his mind. During this time the United States was planning War, seeing Britain as its main ally, and seeking to act unilaterally. It had been authorized by Congress on 11th October., 2002. Bush had paused for a while as Tony Blair sought a second resolution, but when it was clear that would not be forthcoming, he was anxious to attack. Six months of planning and moving of weapons, supplies and logistical support had already been completed and the troops were a few weeks away from being ready to attack. The American administration was putting pressure on Blair and Jack Straw, who in turn asked Goldsmith to go to the United States to meet a range of US legal and state department people. This he did and suddenly changed his position. We will call his position before he changed his mind Goldsmith Mark One and after he changed his mind Goldsmith Mark Two.
The reason, as it appears from his evidence at the Iraq Inquiry, for this change is a bit obscure, but we must pursue it. It centres on UN Resolution 1441 and Lord Goldsmith was to accept an argument from the United States. The argument was that Resolution 1441 allowed direct action if there was any material breach of its conditions without another United Nations resolution. It had been passed to put more pressure on Saddam Hussein to conform fully to the UN requirements on WMD disarmament, terrorism, human rights and documentation on 8th November, 2002 as part of a push by President Bush to put pressure on Saddam Hussein. It immediately led to Saddam offering to let the weapons’ inspectors back in and giving them co-operation and on 7 December 2002, Iraq filed a 12,000-page weapons declaration with the UN in order to meet requirements for this resolution. It seemed to be co-operating. Lord Goldsmith averred now that military means to bring Iraq to compliance could be used directly on the basis of Resolution 1441if Iraq was in breach of it. He claimed to have been convinced by the Americans that France in private discussions had said this was possible and it was therefore a valid conclusion to draw.
The possibility of automatic military action following from Resolution 1441 needs full clarification, for the issue was discussed when agreement to it was being sought. For example, the United States Ambassador to the United Nations, John Negroponte, said:
This resolution contains no “hidden triggers” and no “automaticity” with respect to the use of force. If there is a further Iraqi breach, reported to the Council by UNMOVIC, the IAEA or a Member State, the matter will return to the Council for discussions as required in paragraph 12. The resolution makes clear that any Iraqi failure to comply is unacceptable and that Iraq must be disarmed. And, one way or another, Iraq will be disarmed. If the Security Council fails to act decisively in the event of further Iraqi violations, this resolution does not constrain any Member State from acting to defend itself against the threat posed by Iraq or to enforce relevant United Nations resolutions and protect world peace and security.
The Ambassador for the United Kingdom, the co-sponsor of the resolution, said:
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… 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 paragraph 12. We would expect the Security Council then to meet its responsibilities. ”
The message was further confirmed by the ambassador for Syria. He and others understood it in the following terms:
Syria voted in favour of the resolution, having received reassurances from its sponsors, the United States of America and the United Kingdom, and from France and Russia through high-level contacts, that it would not be used as a pretext for striking against Iraq and does not constitute a basis for any automatic strikes against Iraq. The resolution should not be interpreted, through certain paragraphs, as authorizing any State to use force. It reaffirms the central role of the Security Council in addressing all phases of the Iraqi issue.
In other words, the headline understanding was clearly of no automaticity, and the position that the Americans and Lord Goldsmith were discussing was hidden in coded messages at the end of the US ambassadorial statement. Even then, it was the statement of one country in relation to a UN Resolution, and even then it was focussed on the disarmament of Iraq (which had already occurred). Resolution 1441 was unambiguously understood by most countries not to be the trigger for later United Nations action.
But now, a couple of months later Lord Goldsmith, after visiting the States moved to Goldsmith Mark Two, the view that no second resolution was needed. This position has been rather withering critiqued by a number of lawyers. Lord Bingham had been Chief Justice and was Senior Law Lord at the time, competent to judge the case. He later assessed Goldsmith’s statement. “This statement was, I think flawed in two fundamental respects,” he said. “First, it was not plain that Iraq had failed to comply in a manner justifying resort to force and there were no strong factual grounds or hard evidence to show that it had: Hans Blix and his team of weapons inspectors had found no weapons of mass destruction, were making progress and expected to complete their task in a matter of months. “Secondly, it passes belief that a determination whether Iraq had failed to avail itself of its final opportunity was intended to be taken otherwise than collectively by the Security Council.” Elizabeth Wilmshurst, legal advisor at the Foreign Office orally described her understanding of Goldsmith’s new position at the Iraq Inquiry like this:
“ the issue really is: how do you interpret a resolution or a treaty in international law and is it sufficient to go to individual negotiators [the US], but not all negotiators, and ask them for their perceptions of private conversations, or does an international resolution or treaty have to be accessible to everyone so that you can take an objective view from the wording itself and from published records of the preparatory work? I mean, it must be the second. The means of interpretation has to be accessible to all. But the Attorney had relied on private conversations of what the UK negotiators or the US had said that the French had said. Of course, he hadn’t asked the French of their perception of those conversations. That was one point that I thought actually was unfortunate in the way that he had reached his decision, and the other point that struck me was that he did say that the safest route was to ask for a second resolution. We were talking about the massive invasion of another country, changing the government and the occupation of that country, and, in those circumstances, it did seem to me that we ought to follow the safest route. But it was clear that the Attorney General was not going to stand in the way of the government going into conflict.
These and other weaknesses were perceived internationally in the position of the United States and now, through Goldsmith’s ruling. The change came shortly before the actual invasion which began on the 20th March.
It is easy for lawyers, especially ones changing their views under pressure from their paymasters, to make matters complex. So it is worth reminding ourselves of the issue for the United Nations, the UK Government and for us: What is a just treatment of Iraq in relation to the UN requirements to disarm? The following conclusions seem to follow.
1. It is always the job of the United Nations and not individual countries like the US and the UK to decide when UN resolutions have been materially breached.
2. The United Nations must always decide whether acts of aggression can occur against offending countries on the basis of a further clear resolution that addresses and authorizes the aggression.
3. Whether Iraq had committed an offence in relation to its disarmament from WMD was a matter for the UN weapons inspectors led by Hans Blix, not a matter of individual states to assert.
4. Whatever response was made to Iraq had to be proportionate to the offence deemed to have been committed.
5. The policy of regime change was not a valid policy for the United Nations or third party states.
6. Since UN Resolution 1441 the Iraqi regime has shown considerable evidence of compliance, and there was also considerable evidence that almost all the WMD weapons had been destroyed, and so it was difficult to find what Iraq’s offence might be, and military action therefore had no foundation.
The verdict seems to be that the United States and the United Kingdom had no legal right to invade Iraq, contrary to the changed advice of Lord Goldsmith, Goldsmith Mark Two. Rather Goldsmith Mark One was the correct ruling and should have been given to the full Cabinet, all MPs and the nation, if necessarily, with the resignation of the Attorney General. This conclusion is the same as was arrived at by the two chief legal advisors in the Foreign Office. The War was illegal. Sir Michael Wood, Chief Legal Adviser at the Foreign Office said that invading Iraq would “amount to the crime of aggression.” Elizabeth Wilmshurst resigned on the 18th March, 2003. One sentence from her Iraq Inquiry evidence says it all. “I regarded the invasion of Iraq as illegal, and I therefore did not feel able to continue in my post.” If Goldsmith had followed her example, it is possible that UK participation in the Iraq War, and even the War itself, could have been averted.
The conclusions which follow from these considerations and events reflect somberly on the law abiding calling of the UK Government.
1. The Attorney General failed to warn against participating in a War and Invasion which was illegal under international law and flouted the principles of the United Nations.
2. Both the United Kingdom and United States Governments were able to lean on the Attorney General to change his mind and declare an illegal war legal.
3. During this period the United Kingdom’s relationship with the United States in international affairs was servile and unprincipled.
4. A concern that United Kingdom international action should be law-abiding and law-upholding, and respect peace, seems to have been peripheral in Tony Blair’s Government in 2002-3.
5. The United Kingdom participation in the Iraq War was illegal and culpable. It requires an apology and reparations for some of the damage caused.