Part II: Was the Iraq war legal? Reflections on the Attorney-General’s advice to the prime minister

In Part I of this piece, I have suggested that the suppression of the warnings and qualifications in the Attorney-General’s advice of 7 March ’03 in effect misrepresented his unqualified opinion published 10 days later as being a much firmer basis for going to war with Iraq than in fact it was: and that the omission of the qualifications and warnings from the published opinion constituted a significant inconsistency between the two documents. In this part I discuss two other significant features of the 7 March advice which are both new and important.

A surprisingly long and detailed section of the Attorney-General’s advice – paras 22 to 25 – is devoted to the significance of the wording of a single paragraph of Security Council resolution 1441:
“[The Council:] 12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above [i.e. a report to the Council of any ‘further material breach of Iraq’s obligations’ or report by the weapons inspectors of ‘any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations’], 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.”

The significance of this paragraph is that on a strict but strained reading of its wording, resolution 1441 requires the Council, on receipt of a report of further Iraqi non-compliance, to “consider the situation” but not necessarily to take a new decision on what to do about it. In Lord Goldsmith’s words, “The principal argument in favour of the view that no further decision is required to authorise force in these circumstances is that the language of [paragraph 12 of res. 1441] (ie "consider") was chosen deliberately to indicate the need for a further discussion, but not a decision.” Such an argument seems, on the face of it, far-fetched in the extreme: what on earth would be the point of having the Security Council meet to consider a report that Iraq had committed yet more material breaches of its obligations if it were not then to decide what to do about it – including taking the vital decision on whether the further breach warranted an immediate resort to the use of military force, or whether the inspectors should be given more time to complete their work before the last resort of war should be adopted? Goldsmith’s exhaustive linguistic analysis of the text of paragraph 12 includes a history of the negotiation of the text of what finally emerged as res. 1441 (the so-called ‘negotiating history’), and the various conflicting statements by Council members of how they interpreted it. The Americans said plainly that they did not regard the resolution as constraining them from using force if they thought it justified, without the need for a further decision of the Council. Several other Council members stated that they took a directly contrary view and that the resolution could not be interpreted as authorising the use of force without a further decision by the Council. The UK ‘explanation of vote’ expressly disavowed any ‘automaticity’ in the resolution, which most of us took to mean that Britain did not regard the resolution as implying UN authority to use force against Iraq without a further Security Council decision – but Goldsmith cites an ingenious alternative definition of ‘automaticity’ which leaves open the question of the need for a ‘second resolution’.

Here is what the UK Permanent Representative to the United Nations at the time, Sir Jeremy Greenstock, said in his carefully worded explanation of vote in the Security Council on 8 November, 2002:

“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, as a co-sponsor with the United States of the text we have adopted. 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 Operational Paragraph 12. We would expect the Security Council then to meet its responsibilities.”

Despite the veiled threat arguably implied by the final sentence, that assurance seems to me (and I would have thought to any reasonable person) to indicate quite clearly that Britain would not resort to war against Iraq unless and until the Security Council had considered the situation and taken a decision to authorise the use of force forthwith. Yet the government’s case relies on denying that that is what was meant. The Attorney-General’s own analysis comes down surprisingly strongly on the side of the view that operative paragraph 12, read with the negotiating history and the explanations of vote, did require a further decision by the Council before force could be used:

“…any other construction reduces the role of the Council discussion under OP12 to a procedural formality. Others have jibbed at this categorisation, but I remain of the opinion that this would be the effect in legal terms of the view that no further resolution is required. The Council would be required to meet, and all members of the Council would be under an obligation to participate in the discussion in good faith, but even if an overwhelming majority of the Council were opposed to the use of force, military action could proceed regardless.”

Which, he surely implies, would be ridiculous. Yet, in the passage quoted above, he describes this patently strained interpretation as “the principal argument in favour of the view that no further decision [by the Security Council] is required to authorise force." His conclusion from his own lengthy analysis and discussion of the arguments and counter-arguments is that “in these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force.” Yet he prudently keeps his options open: “Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.” On any ordinary interpretation of these conclusions, it seems obvious that Lord Goldsmith is deeply sceptical about the argument that resolution 1441 authorised the use of force without the need for a further resolution. But that is what his formal opinion said only 10 days later.

In his advice of 7 March, the Attorney-General makes reasonably clear his judgement that neither the actual wording of resolution 1441, nor the British explanation of vote, can plausibly be stretched to mean that any UN member state was authorised by the resolution to assess for itself whether Iraq had committed a further material breach of its obligations so grave as to demand the immediate use of military force, without the need for the Council first to make that assessment and take any consequent decision for itself. That judgement was surely right. To argue the contrary requires such a Jesuitical and counter-intuitive reading of the relevant words as to make even a Pope blush.

* * * * *

The other new and remarkable feature of the Attorney-General’s advice of 7 March 03 is his warning to the prime minister not to rely on régime change as a legally defensible objective of invading and occupying Iraq:
“…regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign.”

Before the Iraq war, and before he received the Attorney-General’s advice of 7 March 2003, Mr Blair on more than one occasion accepted that régime change could not be a legitimate justification for attacking Iraq, even on at least two occasions stressing that if Saddam Hussein were to comply with the UN’s demand that he rid himself of his WMD, he would be able to remain as his country’s head of state:

"So far as our objective, it is disarmament, not regime change – that is our objective. Now I happen to believe the regime of Saddam is a very brutal and repressive regime, I think it does enormous damage to the Iraqi people… so I have got no doubt Saddam is very bad for Iraq, but on the other hand I have got no doubt either that the purpose of our challenge from the United Nations is disarmament of weapons of mass destruction, it is not regime change."
(Tony Blair, interview, November 14, 2002)

Yet:
"I had to decide whether we back away, leave Saddam immeasurably stronger, or remove him. I took the decision to remove him. These decisions are tough and that is what leadership is about".
(Tony Blair, press conference, 28 April 2005)

In recent days Mr Blair has used the same language repeatedly and publicly: I took the decision to remove him. This prompts four obvious objections. (1) It contradicts what he said on several occasions before the war. (2) It contravenes the Attorney-General’s warning that “régime change cannot be the objective of military action. This should be borne in mind … in making public statements.” (3) It suggests that it was Tony Blair’s personal responsibility to decide whether and when to go to war, not a collective responsibility of the Cabinet, still less of parliament or the nation as a whole. And, perhaps most strikingly, (4) it ignores the reality that it was Bush who took the decision to remove Saddam Hussein, and did so, with Britain acting in a purely subordinate role, so that (as a member of the audience had the temerity to point out during a recent television grilling of the prime minister) Saddam would almost certainly have been ‘removed’ regardless of the ‘tough’ decision that Mr Blair felt he had to make. Can it be that in speaking as he does, in language that verges on egomania, Tony Blair is unaware of these four major factors that should impel him to use different and more appropriate language? Does he really believe that it was he who took this momentous decision, and that the fate of Iraq and of Saddam Hussein was in his hands when he took it? Has he already forgotten that ‘removing’ Saddam could not be a legitimate objective of attacking Iraq and that he himself repeatedly assured us that it was not the war’s purpose? If the answer to all these questions is ‘yes’, there are unavoidably uncomfortable implications for our prime minister’s grasp of the reality of the situation he now finds himself in.

Iraq has destroyed Tony Blair, as surely as Suez destroyed Anthony Eden.

Brian Barder
https://barder.com/brian/
29 April 2005