Iraq: the Butler Inquiry and the Law

Mark Littman QC on Iraq at the UN

The Prime Minister assured the House of Commons on 12 March 2003 that without “a proper legal basis” we would not have gone to war.

The remit of the Butler Inquiry did not call specifically for an inquiry on the question whether such a “proper legal basis” existed. The remit was to conduct a review of intelligence on weapons of mass destruction.

However, in Section 5.7 the report does go into the legal aspects to a certain extent. In so doing, it confirms that the Attorney General advised the Cabinet that the effect of Resolution 1441was that it would be lawful for us to make war on Iraq without a further resolution of the Security Council.

This was surprising advice for the Attorney General to have given on the 17th March 2003 when only 10 days earlier 16 professors and senior lecturers in public international law had published their unanimous opinion to precisely the opposite effect.

What influenced the Attorney-General to come to such a contrasting opinion on such an important matter ?

The Butler Report identifies in paragraph 377 one matter that seems to have influenced him. The Report there says that:

” …the Attorney General has also told us that, in order to assist him in reaching a concluded view on the proper interpretation of the resolution (i.e. Resolution 1441), he also spoke to Sir Jeremy Greenstock, the U.K. Permanent Representative to the United Nations…” because of his detailed knowledge of the negotiation of the resolution.

This seems even more strange since what Sir Jeremy said to the Security Council the day Resolution 1441 was passed was:

“We heard loud and clear during the negotiations the concerns about “automaticity” and “hidden triggers” – the concerns 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 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 [emphasis added].”

This reference in the Butler Report to Sir Jeremy Greenstock suggests an additional reason why a further inquiry is necessary into the legal aspects.

Such an inquiry might also usefully pick up the report in the Sunday Express of 3 October 1999 at the time of the Kosovo war which stated that:

“Tony Blair dumped Atttorney General Sir John Morris because he challenged NATO`s bombing campaign in the Kosovo war, according to senior ministers… John Morris was present at all “War Cabinet” meetings in Downing Street to give advice on international law and is said to have frequently irritated Mr Blair. One Minister said: “He was awkward about the bombing. He kept coming up with excuses why we shouldn`t do it.”

See also

  • Mark Littman’s note on the legal and moral justification (or lack of it) for the NATO attack on Serbia over Kosovo in 1999.

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