Global Trends by Martin Khor

Monday 28 March 2005

New row on legality of Iraq war

A new war of words is raging in the United Kingdom whether the British parliament and military was misled into going to war in Iraq.  It appears the Attorney General himself had thought the war would be illegal but changed his mind just a few days before the war.  Was he pressured to do so?


Was the war on Iraq legal?  If not, what advice did the leaders who launched it get, and did they manipulate the public to get support?  And if the war was indeed illegal, are the political and military leaders guilty of crimes of aggression, and can they be prosecuted?

These questions emerged last week with whirlwind force in the United Kingdom, when it was revealed that the Attorney General Lord Goldsmith viewed that a war would be illegal unless the United Nations passed a second resolution against Saddam Hussein’s government.

However, Goldsmith seemed to have changed his mind just a few days before the war started in March 2003, when he gave an opinion to both Parliament and the UK military chiefs, who would not go to war unless they were assured it was legal to do so.

Questions are now being asked whether the Attorney General (AG) had been pressured by the Prime Minister Tony Blair to change his mind.  The government faces demands to make public the AG’s documents, which are still secret.

As the UK General Elections campaign gets under way, the row is a new headache for Blair.  Says Robin Cook, former Foreign Secretary who resigned from the Blair cabinet because of the war:  “In the many conversations we had in the run up to the war, he always assumed that the war would end in victory, and that military triumph would silence the critics.

“In his worst nightmares Tony Blair never dreamt that Iraq would dog him a whole two years later.”

The crisis exposed the contrasting behaviour of senior government officials when faced with making personal choices on important issues, and in the heat of intense pressures and fast changing events.

The AG is shown up to have changed his mind twice in two weeks. Why he did so and was he right to do so is now at the centre of the controversy.

The heroine of the affair is Elizabeth Wilmshurst, then a deputy legal adviser in the Foreign Office.  When she knew the war was inevitable, she resigned.  In her resignation letter she said the Foreign Office’s view was that the war would be illegal, and would constitute a crime of aggression.

She revealed that the AG had agreed that the war would be illegal, until he changed his view.  This part of her letter was censored by the government when it released her letter under a Freedom of Information Act request last week.  But the censored part was leaked to the media, adding fuel to the fire.

Wilmshurst’s resignation letter, issued on 18 March 2003, just one day before the war was launched, is worth quoting from.  “I regret I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution…

“My views accord with the advice that has been given consistently in this office…and with what the Attorney General gave us to understand was his view prior to his letter of 7 March.  The view expressed in that letter has of course changed again into what is now the official line.

“I cannot in conscience go along with advice which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law.

“I therefore need to leave the Office: my views on the legitimacy of the action in Iraq would not make it possible for me to continue my role as a Deputy Legal Adviser or my work more generally.”

Wilmshurst’s action and letter are destined to be one of the few bright and courageous sparks in the sordid history of the Iraq war.

Her firm and consistent stand, which cost her a senior job, stands in contrast to Lord Goldsmith’s.  We now know from her letter that the AG had originally agreed that a war would be illegal without a second UN resolution.

That resolution never came.  On 7 March, the AG wrote a 13-page letter, which the government still refuses to release, that was full of caveats about the war and made him insist on a government assurance that there was real proof that Saddam Hussein was in breach of the terms of the UN resolutions demanding that Iraq disarm.

On 17 March, the AG gave a written reply to Parliament that going to war was legal, and it did not contain any caveats or doubts.  Apparently the AG gave a similar assurance to the UK military chiefs who insisted on such advice before agreeing to go to war.

Now, two years later, the world knows there were no weapons of mass destruction and Iraq was not in violation of the UN demands on it to disarm. This strengthens the case that there is no legal basis for the war.

Several top legal experts last week declared that the war was indeed illegal, a crime of aggression has been committed and those responsible can be charged.

In an interview with the Guardian, Philippe Sands QC, law professor at University College London said:  “The logic of my belief that the war against Iraq was illegal leads inevitably to the conclusion that it was a crime of aggression. 

“Under international law, those individuals who prosecuted an illegal war are potentially individually responsible.  So the possibility cannot be excluded that a leader who prosecuted an illegal war could find himself the subject of a criminal investigation or an indictment at some future time.”

Colin Warbick, law professor at Durham University, an expert on use of force in international law, said he had no doubt the war was a crime of aggression, and that Lord Goldsmith should resign for not doing his constitutional duty to give his own legal opinion to the government.

“We went to war on a press release written on the back of an envelope,” he remarked.  “I think he hadn’t discharged his constitutional responsibilities.  I think the reason why they’re holding out is because there cannot possibly be anything in the change of circumstances between the first opinion and the second one that’s legally relevant, apart from the fact that they couldn’t get a second resolution.”

The then Chief of Defence Staff, Sir Michael Boyce is said to have expressed “disquiet” about what is now emerging and the possibility that what was said at the time did not reflect the AG’s true views, according to The Independent newspaper.

Boyce had told Blair that clarification was needed on whether the war was justified, and he got his assurance through a three-line note on 15 March.  A source close to Boyce said: “It gave what was needed, that the proposed action was legal under law…But obviously there will be concern if it emerges that it was not the genuine view of the Attorney General.”

The Independent comments that if the war had not then been declared legal (by the AG), Blair may have lost the Commons vote that authorized military action.

It adds that in theory Blair could be indicted to appear before the international courts if the war is declared illegal now.  Also, the allegation that Blair leant on the AG is very serious and the Prime Minister is left bruised again over the war on the eve of an election campaign.