The Blair defence: never take a risk

Tony Blair’s six hours at the witness table of the Chilcot Iraq Inquiry yesterday gave us a bravura performance, allowing him to display all the old familiar dramatic and forensic skills that got him out of so many scrapes during his years at No. 10.  The media this morning all comment on how nervous he seemed initially (those in the room apparently saw his hand shaking when he poured himself a glass of water), although I would have said only that he was tense to start with — as who wouldn’t have been?  But it didn’t take him long to recover the old charm, fluency and unquestioning self-confidence.

The Rt Hon Mr Tony BlairThe performance, which is exactly what it was, revealed all the old familiar weaknesses, too:  the evasion of inconvenient detail by elevating the discussion to a grand, sweeping level of generality;  the reduction of all issues to a Wagnerian conflict between Good and Evil, with Blair (surprise, surprise) doughtily championing the former; above all, the constant justification by reference to his “passionate belief” in his own unvarying rightness of every decision, however badly flawed by inattention to the facts, or failure to heed contrary advice, or predictably disastrous consequences.  Self-belief is his trade-mark, and what makes him appear strong and decisive.  Contrary to the placards waved by the anti-Blair protestors outside the building, denouncing BLIAR!, he rarely lies, anyway in the strict definition of the word.  He says things that are not true or accurate, but he passionately believes them to be true when he says them:  there is rarely any obvious intent to deceive.  Challenged to defend his misrepresentation in the government dossier, and in the key house of commons debate on the eve of war, of the intelligence about Saddam’s WMD as definite and beyond doubt (when it was neither), he counters that it was definite and beyond doubt in his own mind, which was all that mattered — to him, anyway.  For Blair, as for Hamlet, “”There is nothing either good or bad, but thinking makes it so.”

There’s no need to repeat here the textual analysis of yesterday’s Blair gospel very adequately undertaken this morning by the massed regiments of the commentariat and the bloggers.  But one key attitude was skilfully revealed by some insistent questioning, an attitude that reveals a huge amount about Blair himself and indeed more generally about New Labour: his attitude to risk.  When Sir Roderic Lyne, most tenacious of the Inquiry’s members, pointed out that Blair’s perception of Saddam Hussein as posing a potential threat to the whole world, including Britain, had not been shared by many other governments and people to whom Iraq was much closer and in principle more potentially menacing, Blair replied that —

you are right in saying, “If this and if that”, but you see, for me, because of the change after September 11, I wasn’t prepared to run that risk.  I really wasn’t prepared to take the risk….  given Saddam’s history, given his use of chemical weapons, given the over 1 million people whose deaths he had caused, given ten years of breaking UN Resolutions, could we take the risk of this man reconstituting his weapons programmes, or is that a risk it would be irresponsible to take?  I formed the judgment, and it is a judgment in the end. It is a decision. I had to take the decision, and I believed, and in the end so did the Cabinet, so did Parliament incidentally, that we were right not to run that risk, but you are completely right, in the end, what this is all about are the risks.


RT HON TONY BLAIR: ….my judgment is you don’t take any risks with this issue.

[Chilcot Iraq Inquiry, 29 January 2010, testimony by Tony Blair,
, pp. 90-91]

There’s no serious attempt to weigh the extent of the risk — related to hypothetical future developments rather than to any actual risk to Britain posed by Iraq in 2003, even if you believed at the time that Iraq still possessed some WMD — in relation to the harm certain to be done by launching a full-scale war, with all its predictable and unpredictable consequences for thousands of innocent (and guilty) people.  “You don’t take any risks with this issue.

This disproportionate response to even remote and hypothetical risk is at the root of the most mysterious and unaccountable decision taken by Blair on Iraq — namely to abandon UN diplomacy and the weapons inspection process before they had had a chance to resolve the WMD problem peacefully, joining G W Bush in the attack on Iraq, even though not one of the conditions he had laid down (according to Blair’s own account and that of several other witnesses) for UK participation in American military action had been satisfied, namely that all peaceful means of resolving the problem must first have been exhausted, that war must be a last resort, and that the UN Security Council must have authorised the use of force:

[p. 127] [SIR RODERIC LYNE:]  At this really critical moment, and obviously a very
15 difficult moment in your life, you had reached the stage
16 where you weren’t going to get a second resolution,
17 military action was imminent. Now, you had been working
18 intensively for months, indeed for a year, to try to
19 create a supportive environment… but you hadn’t actually got
21 a clear and strong international consensus for this
22 action. Public opinion here in the UK was divided. No
23 really major progress had been made on the Middle East
24 peace plan…. We
25 hadn’t got the second resolution, and you were also…
starting to hear warnings from
2 people like Brigadier… Tim Cross,
3 who came to see you in Downing Street and saw
4 Alastair Campbell, I think, that the post-conflict
5 preparations being made by the Americans didn’t look at
6 all good.
7 At this point, you must, I suppose, have had some
8 pause for thought. Did President Bush at this point,
9 when you hadn’t really satisfied the preconditions you
10 wanted to achieve, offer to go it alone and offer you
11 a way out?
12 RT HON TONY BLAIR: I think the Americans would have done
13 that. I think President Bush actually at one point
14 shortly before the debate said, “Look, if it is too
15 difficult for Britain, we understand”. But I took the
16 view very strongly then, and do, that it was right for
17 us to be with America, since we believed in this too,
18 and it is true that it was very divisive, but it was
19 divisive in the sense that there were two groups. There
20 was also a very strong group in the international
21 community, in Parliament, I would say even in the
22 Cabinet, who also thought it was the right thing to do.
[p.130]  It was a really tough situation, yes,
15 and in the end, as I say, what influenced me was that my
16 judgment ultimately was that Saddam was going to remain
17 a threat and that in this change in the perception of
18 risk after September 11 it was important that we were
19 prepared to act, our alliance with America was
20 important, and, to put this very clearly, we had been
21 down a UN path that I genuinely hoped would work.
22 I hoped that 1441 would avoid conflict happening.

(Chilcot Iraq Inquiry, 29 January 2010, testimony by Tony Blair,

“Even” in the Cabinet there was a “very strong” group that supported the war!  Well, who would have guessed it?

This inability to balance the scale of a specific risk against the drawbacks and dangers of the action necessary to avoid it is further demonstrated by Blair’s definition of the evidence of Iraqi non-cooperation with the weapons inspectors, which he insists constituted a sufficient ‘material breach’ to justify the invasion and occupation of the country:  namely Saddam’s failure to allow the inspectors to take Iraqi scientists out of Iraq to interview them elsewhere without risk of intimidation.  When it was pointed out to him that the chief inspector, Blix, had been reluctant to act in this way for fear that any scientist whom he invited to accompany him for interview outside the country might be killed, Blair replied triumphantly that this just showed what a vile régime Saddam’s had been — true enough, but not an adequate answer to the proposition that Blix’s reluctance made Iraq’s failure to pass this test of cooperation a flimsy basis for a verdict of material breach of Iraq’s obligations under the UN resolutions, a breach so serious as to justify war:

[A]ctually, if you look, both at the Blix reports and we can come to the detail of that and the Iraq Survey Group, [Saddam] was deliberately concealing documentation, and what is more, he was deliberately not allowing people to be interviewed properly.
(Ibid, p. 105)

And for this material breach Iraq was subjected to the ‘shock and awe’ of bombardment, invasion and occupation, hundreds of thousands of Iraqis were to be killed, and 179 British and 4,374 American servicemen and women were to lose their lives.  Operative paragraph 4 of resolution 1441 had required the Security Council, not the UK or US governments, to “assess” the situation in the event of a report of a further material breach by Iraq:  what assessment could have concluded that the gravity of this breach was sufficient justification for the abandonment of the weapons inspection and the immediate resort to war?

There’s a more general lesson to be learned from this ingrained habit of over-reacting to risk.  It has been characteristic of New Labour under Blair and Brown to be pathologically risk-averse.  The reaction to even the most limited threats of terrorism has been to rush into legislation, much of it designed to permit the imprisonment or house arrest of people who have not committed any offence but who the security authorities think might commit some terrorism-connected offence in the future: hence the indefinite detention of terrorist suspects without charge, trial or conviction for any crime, under the vile régime of Control Orders:  and the attempted deportation of foreigners who have lived blameless lives in our country, sometimes for years, on mere unproven suspicion of some indirect involvement with terrorism or other terrorist suspects.  The government has tried to legislate to permit the sectioning and indefinite detention of people suffering from indefinable and untreatable forms of mental illness — not because they have done anything to harm others or themselves, but because some committee of men in suits thinks they might do so in future.  The same government has introduced the even more vicious system of Indeterminate Sentences for Public Protection (IPPs) under which those who have committed any of a huge number of offences, some inherently trivial, may be given a tariff or minimum sentence of imprisonment representing the punitive element in the sentence (for retribution, deterrence and rehabilitation) but who will not be released after serving the minimum sentence — sometimes just a few weeks — but will be kept indefinitely in prison until they can prove to another body of men (and women) in suits that they won’t re-offend if released.  Thousands of people are swelling our already grotesquely large prison population with little or no prospect of ever being released because they can’t satisfy naturally risk-averse parole boards with an unprovable forecast about their future hypothetical behaviour;  only around 3 per cent of those enduring this Kafkaesque, or Stalinist, form of preventive detention are being released each year, the rest being effectively punished indefinitely for offences they haven’t yet committed.  As a result, there are people still in prison years after completing brief minimum sentences for (e.g.) indecent exposure who have in effect been given life sentences. Iraq is attacked, its people slaughtered and its economy laid waste, not because it posed a threat to its attackers but in case it might do so at some unspecified time in the future.  “My judgment is you don’t take any risks with this issue.”

This congenital aversion to risk is not, I believe (passionately or otherwise), driven mainly by any rational fear of the implications of the risk materialising, still less by a rational cost-benefit analysis of trying to avert it.  Ministers, the heads of the security and police services, parole boards and sometimes even judges and magistrates are far too often frightened of being blamed for having done nothing to avert or pre-empt a risk which then materialises.  Faced with an offender who has completed his punishment and is applying for release with promises of good behaviour if his application is approved, the parole board will naturally act on the calculus that if they release the applicant and he promptly re-offends, they will be blamed for failing to foresee the new offence;  whereas if they reject the application and return the applicant to his cell for another few years until he can apply again, the risk to themselves is nil.  (Never mind that rejection runs the risk of a monstrous injustice to the applicant:  that’s unprovable, since no-one can ever know what would have happened if he had been released.)  Similarly, it’s far safer to invade Iraq and overthrow its government than to leave it in place with the risk that it might develop nuclear weapons at some future time and rent them out to some terrorist gang for use in Regent Street, W1;  we’ll never know if that would have happened or not.  The motto is: mind your back.  Never lay yourself open to the charge that you have done nothing in the face of an identified risk, however remote or trivial. Pass yet another law enabling you to lock up foreigners with bushy black beards and back-packs.  Apply your sledge-hammer to every nut.  Public acknowledgement that some risks simply have to be accepted, if the only action to avert them carries heavier penalties than accepting them, ensures that you will be crucified by the tabloids and that your candour will be exploited by an unscrupulous Opposition.  Play safe!

Such is the governing philosophy of cowards.


10 Responses

  1. Oliver Miles says:

    Just a couple of points, which I have not seen elsewhere, to add to the torrent of media comment.
    Carne Ross (the only official who resigned, other than Elizabeth Wilmshurst) has pointed out that the British delegation in New York made it quite clear as Security Council resolution 1441 went through that it was not a “trigger” for war; had they not done so, they would not have got the votes. But even he failed to mention that the US delegation was equally clear. The ambassador for the United States, John Negroponte said: “ [T]his 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.”
    Secondly, Blair’s answers were sometimes at least extraordinarily wordy. Quite late in the day Sir Roderick Lyne asked him whether, when Bremer promulgated the important edicts on deBa’athification and the disbandment of the Iraqi armed forces which proved to be so damaging, we had been consulted beforehand, and if not should we have been? I estimate it took about five minutes for Blair to say no and yes respectively. You or I would not have got away with such waffly answers, and Roderick tried to stem them. Was this because Blair was tired? Or too fond of his own voice? Or deliberately stalling in order to reduce the number of difficult questions?

    Brian writes: Thank you for this, Oliver. On the question of ‘automaticity’, the UK Explanation of Vote (EOV) used very similar language to the US EOV which you quote:

    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. []

    This was clearly meant to suggest that the UK and US sponsors of 1441 would not treat the resolution as authority for them to use military force without a further decision by the Security Council; when both governments did in fact launch their attack on Iraq without any further Council resolution authorising them to do so, the UK explanation was that in his EOV the British ambassador to the UN, Sir J Greenstock, was merely reflecting the language of 1441 which required the Council to meet and consider the situation if a new material breach were to be reported to the Council, but not necessarily to make a decision or pass a new resolution on what action was to be taken. As for there being no automaticity, this was supposed to be interpreted as meaning only that the UK and US would not “rush into military action” immediately after the adoption of 1441, not that they would refrain from military action indefinitely, or until given authority by the Council. It’s hard to avoid the impression that the UK EOV was thus deliberately misleading. The US EOV was much more honest:

    The Resolution makes clear that any Iraqi failure to comply is unacceptable and that Iraq must be disarmed. And one way or another, Mr. President, Iraq will be disarmed. If the Security Council fails to act decisively in the event of a further Iraqi violation, this resolution does not constrain any member state from acting to defend itself against the threat posed by Iraq, or to enforce relevant UN resolutions and protect world peace and security. []

    It’s of course true that France, Russia and most of the other Council members opposed to the use of force at that stage refrained from stating outright their interpretation of 1441 as requiring the Council to pass a new resolution explicitly authorising the use of force before any member state could lawfully resort to war, and Lord Goldsmith among others has made great play of the absence of any such clear interpretations. But the wording of 1441 represented an uneasy compromise and the anti-war group in the Council, keen to have a unanimous resolution warning Iraq that it had one last chance to comply, needed to refrain from wrecking the compromise by immediately insisting on their own interpretation of it, thereby forcing the UK and US to contradict them with their own opposite interpretation, which might even have been taken as a trigger for the immediate use of force.

    I agree that in his testimony to Chilcot Blair became increasingly long-winded in his replies. I would be inclined to put this down to tiredness after six hours of intense questioning by five interrogators, with no-one beside him to share the burden, to prompt him or even to find the relevant documents for him. But there may well have been an element of time-wasting to reduce the time available for yet more testing questions. As it was, it was surely an extraordinary achievement to keep going for such a long period of time with no other visible sign of exhaustion or flagging.

  2. John Miles says:

    One of the most entertaining moments  was Mr Blair’s reaction to Fern Britten’s “sucker punch from nowhere on the chin.”

    If I read his mind correctly his thoughts ran something like this:
    “How could I have been so stupid?
    “Seem to have dropped my guard and blurted out a bit of the truth.
    “Can’t afford to do that again!” 
    And I don’t think he did.

    My quote’s from Vernon Scannell’s tribute to Peerless Jim Driscoll, as the papers called him.

    Peerless Jim (b 1880, d 1925) was a Welsh featherweight of Irish extraction, one of the greatest and best loved sportsmen of all time.

    Perhaps irrelevantly, he may have had just something in common with Mr Blair.
    Jim learnt to box in fairground  booths.
    At age seventeen one of his tricks was to enter the ring with both hands tied behind his back.
    You could go after him for a minute for five bob and won a sovereign if you landed a punch on his nose.

    Like poor Mr Blair, Jim’s only defence was to dodge, to duck and to weave.

    Brian writes: Splendid! Many thanks. Ducking and weaving are indeed skills possessed by Mr Blair at Olympic standards. He made one of his rare admissions in answer to a question about his incredibly imprudent reply to Fern Britton, saying that despite all his long experience he evidently still had something to learn about handling interviews; but he didn’t attempt to defend or even explain what he had said to her. Peerless Tony Blair doesn’t always escape from his blunders without a mark on him. I suspect that the members of the Chilcot Inquiry have got his measure.

  3. ObiterJ says:

    The overall impression of Blair which came out of his day at Chilcot was of a man who would have let nothing get in the way of his determination to rid the world of Saddam.
    Goldsmith also showed a certain attitude when he said that a British Attorney-General could not have been seen to be talking to the French.  He claimed that it would have shown lack of resolve.  I would have thought that any such “talking” could actually have been done via diplomatic channels but just where is the weakness in one permanent security council member seeking the views (or clarification of the views) of another permanent member?
    I have argued elsewhere – – that I do not see the legal justification.  I also agree that it was clearly intended in 1441 that the UNSC would determine the next steps.  Precisely what those steps might have been we will now never know.  However, it seems likely that some form of military action might have been necessary eventually.  It always struck me that the US President and the UK Prime Minister had become impatient with the UNSC and its processes.  Those processes can seem interminable and decisions are often (always?) the result of political compromise but there is no excuse for running out of patience.
    I dislike the structure and style of UN Resolutions which have come to adopt lengthy introductions “recalling” this and that.  They often lack clarity and fail to spell out precisely what the SC requires as a next step.  Perhaps this suits the diplomatic processes but there has been a view that some politicians like resolutions to be somewhat ambiguous so as to allow them as much scope for action (or inaction) as possible.  However, I always thought that 1441 was clear enough that the matter would have to go back to the SC which “remained seized of the matter.”   Having considered the UNMOVIC reports then the SC would, I feel sure, have decided on next steps.
    I noted that General Sir Richard Dannatt wrote in The Times on 31st January about his view that all this had damaged the essential TRUST which has to exist between the soldier and the government.  I am sure that on this point the distinguished General is right.  He is not a lawyer but he was clearly impressed by Wilmshurst who he said – “personified integrity.”  I would second that!

    Brian writes: Thanks very much. I agree strongly with (almost) everything you say. I too have tried to spell out my reasons in a longish comment on the ‘headoflegal’ blog, where there is an excellent and well-argued debate on the question of the legality or otherwise of the attack on and occupation of Iraq. I don’t think resolution 1441 can be read as granting authority in advance for the use of force without the need for a further explicit decision of the Council authorising it, for the reasons I have given in my comment on Headoflegal. Moreover, it seems to me impossible to argue that the US and UK had UN Security Council authority to use force against Iraq under the Council’s resolutions passed years before to deal with a quite different situation, at a time when everyone knew beyond a shadow of a doubt that a substantial majority of the Council’s then members were adamantly opposed to the use of force in the situation then obtaining. You can’t logically claim to have the Council’s authority for something when the majority of the Council refuses to give it to you.

    My one reservation about your comment is your summary of Blair’s position as revealed in the Chilcot Inquiry as “a man who would have let nothing get in the way of his determination to rid the world of Saddam.” I think that needs some qualification. Blair, it seems to me, had a genuine fear (largely exaggerated or even irrational) that if Saddam was allowed to keep, or develop in the future, weapons of mass destruction, the nature of his régime was such that sooner or later a nuclear or chemical weapon would fall into the hands of terrorists who would then be able to launch an attack against Britain, the US or some other western country on a scale that would make 9/11 look like a minor burglary by comparison. He also thought that it would be impossible to rid Iraq of WMD, or prevent it from developing them, without also getting rid of Saddam — régime change; and that getting rid of Saddam would be an excellent thing in itself, although not an objective capable of being approved under the Charter as one justifying the use of force to achieve it. (So there was some validity in his argument to Chilcot that there was no sharp distinction in his mind between régime change and ridding Iraq of WMD.) He wanted desperately to get UN approval for action, if necessary by force, to rid Iraq of WMD and prevent it from developing them, and recognised that this meant trying first to achieve that objective by peaceful means — viz., the UN weapons inspectors. He believed (rightly) that this could only have a chance of success if backed up by the credible threat of the use of force if necessary to compel Iraq to comply. He claims, also credibly, that he hoped until almost the last minute that the inspection could succeed without the need to use force, although he may well also have thought privately that this was extremely unlikely. All this represented a reasonably defensible set of concerns and objectives, although the risk of Iraq developing WMD and passing them on to terrorists was much more remote than Blair seemed to believe.

    Where Blair crossed the line into illegality and deceit, however, was in opting to send British troops into action with the Americans on 19-20 March 2003 with no obvious or explicit authority from the Security Council for the use of force, much of the international community (including a majority of members of the Security Council) wanting to give the weapons inspectors more time before any resort to force, only very limited international support for the invasion, the knowledge that American planning for the post-invasion situation was woefully inadequate, strong and widespread protests against the war in Britain and much uneasiness or opposition in parliament and within the Labour Party, and the British forces deployed around Iraq’s southern border inadequately equipped and protected. Moreover by his own admission Bush had told him that he understood Blair’s difficulties and would be willing to embark on the invasion if necessary without UK participation. Thus Blair had numerous cogent reasons for stepping aside at the last moment. The reason he gave to Sir Roderic Lyne of the Chilcot Inquiry for not doing so was that he thought it was right to continue to stand shoulder to shoulder with Britain’s major ally, the US, and that the time had come for resolute action to disarm Iraq of its WMD, which could only be done by toppling Saddam.

  4. Matt says:

    It seems to me several important things have slipped out – almost unintentionally – from Chilcot.
    1) The then attorney general seemed to suggest that what changed his mind as to the legality of the war during meetings with US lawyers was the fact that a second UN resolution would have given the French a veto and that there was a desire to avoid this. This strikes me as a specifically political rather than a legal judgement. Did I understand this correctly and if so is this a reasonable basis for the AG to change a position?
    2) As pointed out in the times Mr Blair appears to have contradicted his statement to parliament. Leading to the view that he has either mislead parliament or Chilcot.
    It is to the credit of the British system of Government that we have these inquiries after the conclusion of wars. A calling for Persons and Papers and a thorough investigation  of the facts, and that we have done since at least Balaclava in 1854. However when the facts have been laid out I can’t believe that in this or in any other war, no matter what was discovered about the principal actors in the case, their motivations or behaviours, the British system would ever undertake any sanction, criminal or otherwise, against them. This may or may not be a good thing. A trial of a previous executive could entirely restrict a new executive from taking tricky or arguable decisions which may nevertheless be in the vital national interest. On the other hand such a trial, it could be argued, would keep a future executive branch of government on the straight and narrow.

    Brian writes: Thank you for this, Matt. I hate to say it, but I think your first point may be unfair to Lord Goldsmith. He found that the American position was that they were determined to avoid a situation in which a Security Council draft resolution authorising the use of force against Iraq could be defeated, either because it failed to attract the support of the required majority of nine votes or because it could be vetoed by any of the five permanent members of the Council (three of whom were of course opposed to the use of force at the time in question). If such a draft resolution had been defeated in either of these ways, it would have been impossible  for the Americans (or us) to argue that their use of force against Iraq without a new decision by the Council authorising it was nevertheless legal.

    But Lord Goldsmith never said that this was his own position too, nor that he had been persuaded to it during his visit to Washington, although from the Americans’ point of view, based on their determination to attack Iraq either with or without the approval of the UN, it was obviously a correct and sensible objective. Goldsmith said that he had come round to the view (in my view a mistaken one) that the use of force without a new Council resolution could be justified by the terms of resolution 1441 after listening to the arguments put to him by Sir Jeremy Greenstock and Jack Straw in London and then by the American lawyers in Washington, including what all of them had told him about the “negotiating history” of 1441. This is a legal judgement which is capable of being accepted and defended by honourable and intelligent lawyers (and others!) although the great majority of international legal opinion was and still is, I think, against it.

    I agree with your second point: I think it’s right to hold an impartial inquiry to try to establish what actually happened when we experience a great foreign policy disaster, and what lessons can be learned from it — which is what the Chilcot Inquiry is systematically and efficiently doing (despite ill-informed and populist sneers from some parts of the media). I don’t think that it would be either right or practicable to bring criminal proceedings against individuals found by the inquiry to have been personally responsible for errors that contributed to the disaster, unless of course they are found to have acted in breach of the domestic criminal law (which is extremely unlikely). There’s no international court currently able to try persons accused of “the crime of aggression” in the context of the Iraq war and there’s no such crime in our domestic law. As you rightly say, putting political leaders or their officials or generals in the criminal dock, and perhaps sending them to prison if convicted, would have a seriously negative effect on future politicians’ and officials’ willingness to take difficult and controversial decisions in the national interest. Our leaders are far too risk-averse as it is: let’s not do anything to make them even more so! The public exposure of misjudgement and error, or of having misled parliament or the public, is surely punishment enough, and the penalties, like the offences, are and should be electoral and political, not criminal.

  5. ObiterJ says:

    Matt – re point [1].  Yes, a desire to avoid a “veto” is a political and not legal consideration.  Security Council votes have to be 9 in favour “including the concurring votes of the permanent members” – UN Charter Art. 27.   Where a permanent member does not “concur” this is often (loosely) referred to as “veto.”
    It was widely thought at the time (2002/3) that the US and UK did not wish to run any risk at all of France (or any other permanent member) exercising this right.  Of course, it was by no means clear whether France would have actually exercised this right.  I am sure that you will recall that there was even talk of there being such a thing as an “unreasonable veto.”   Even a few moments study of the UN system would show that idea to be risible.

    Brian writes: Thank you for this. Please now see also my response appended to Matt’s comment above. I think in fact the American bottom line (or ‘red line’, as it now seems to be called) was not so much to avoid a veto of any draft resolution to authorise the use of force but rather to avoid the defeat of any such resolution — whether by failure to attract the required minimum of nine ‘yes’ votes, or by the veto of one or more of the permanent members. As President Chirac patiently explained in his much misrepresented TV interview before the Iraq war, if a draft resolution is defeated because a majority in the Council votes against it (or if it fails to win nine positive votes because of a combination of abstentions and ‘no’ votes), a ‘no’ vote by a permanent member does not constitute a veto. A veto is a negative vote by a permanent member against a draft resolution which would have been adopted but for that negative vote. As there was a clear majority of Security Council members opposed to any resolution authorising the use of force at the relevant time, a negative vote by France (or by Russia or China or all three) would not have been a veto. Knowing that their “second resolution” would have been defeated, without a veto, if it had been put to the vote, the US and UK were forced to withdraw it before it came to a vote: had it been voted on and defeated, the case for asserting that the attack on Iraq was legal under the UN Charter would have been in ruins. It was this that the Americans, bent on war whatever happened in the UN, were determined to avoid.

    The idea floated (more than once, I think) by Tony Blair that an attack on Iraq without UN authority would have been legal if a resolution to authorise it had been defeated only by “an unreasonable veto” — i.e. if there had been at least nine votes in favour of it but it had been defeated by a veto held by Mr Blair to be unreasonable — was indeed absurd, especially coming from a qualified lawyer. Lord Goldsmith has told the Chilcot Inquiry that he warned Blair that there was no such thing in international law as “an unreasonable veto”: a veto would be a veto, whatever one thought of it. But the other absurdity in this suggestion is that it obviously reflects Blair’s fantasy in which there would be a majority in the Security Council of at least nine members ready to vote to authorise the US and the UK to use force against Iraq, and that it would take a veto (presumably by France) to prevent that authority being granted. In fact there was never a ghost of a chance of getting anything like nine votes for the use of force, so the question of a veto (whether reasonable or otherwise) could never have arisen. It’s worrying to reflect on the dream world that Mr Blair must have been living in for him to have put forward such a deluded proposition, one so divorced from reality. Poor Sir Jeremy Greenstock, the then British ambassador to the UN, must have been mortified.

  6. ObiterJ says:

    Dear Brian, thank you for a very succinct explanation of the UNSC process.  I agree that Chirac tried to explain things but nobody was listening!

  7. I would be inclined to put this down to tiredness after six hours of intense questioning by five interrogators, with no-one beside him to share the burden, to prompt him or even to find the relevant documents for him.

    Tiredness be blowed.
    No one to share his burden or prompt him….diddums!
    No one to hold the poor dear’s hand?
    I can remember being cross- examined by an experienced barrister in the High Court for two hours with only the bundle of documents for support, and by the end, I was sweating spinal fluid.
    Watching Blair, I kept asking  myself….why didn’t the inquiry have the help of  counsel?

    Brian writes: Thanks, Tony. I wasn’t inviting pity or even sympathy for Blair in suggesting the reasons for his apparent tiredness: merely observing that he had been interrogated for six hours by the end and that throughout this time he had been without the kind of support to which he must have become accustomed during a decade as prime minister. His voice certainly became painfully hoarse towards the end. But intellectually and in physical energy he never flagged.

    Personally I’m glad that the Inquiry doesn’t use counsel to handle or augment its questioning. Presumably if the Inquiry had used counsel, witnesses would similarly have been entitled to be represented by counsel, and the process would inevitably have turned into a kind of trial — but one in which those facing what would have amounted to accusations would not have enjoyed any of the safeguards of a properly established court. This would have diverted the founding purpose of the Inquiry (to establish what happened and what lessons are to be learned from it) into a quite different process: identifying the guilty. The questioning would have assumed an adversarial character (which the members of the inquiry have been careful to avoid, very sensibly) and witnesses would have been on their guard all the time — and warned by their own lawyers — not to say anything that could possibly incriminate them. Of course that’s bound to be a factor in any inquiry of this kind, but the relaxed and almost encouraging style of the inquiry as currently constituted constantly lulls witnesses into letting slip revealing and sometimes important information, almost without realising what they are saying. This seems to me a far better approach, and one likelier to produce a reasonably informative account of what actually happened (and why), than the product of a lot of hostile cross-examinations, however penetrating.

    The media, robbed of the high drama of an auto da fé, are of course in a terrific paddy about it, insulting the blameless members of the Inquiry in acres of newsprint for not being amateur Torquemadas. Rawnsley’s fatuous column in Sunday’s Observer read like a parody of the genre. No doubt the Geoffrey Robertsons and Michael Mansfields and other lefty QCs of our world are also lamenting the missed opportunity of some profitable outings for their political outrage and courtroom histrionics. But the patient and unconfrontational assembly of all the different versions of events from so many different points of view, Rashomon style, is what’s required of the members of the inquiry, and that’s what they are doing. The fact that they are doing it effectively is confirmed by the significant volume of surprising and revealing information that they have already extracted from expertly lulled witnesses (as the huge press coverage each day testifies). That alone seems to me to justify the whole exercise already; what the Inquiry eventually says in the conclusions of their report will I think be much less important. Whatever they write, they’ll automatically be scorned by the gentlemen and ladies of the press as whitewashing pussy-cats and Establishment patsies. The addiction to sensationalism has gone far towards corrupting our national political conversation.

  8. There’s no international court currently able to try persons accused of “the crime of aggression” in the context of the Iraq war and there’s no such crime in our domestic law.
    That is why Blair should have been impeached.
    Brian writes: Thank you for this, Peter. On impeachment, please see the comment by ‘ObiterJ’ below. I think we established in comments on an earlier post that the impeachment procedure is by now obsolete and could not be revived. Its purpose is to remove the person impeached from his public office and/or to bar him from holding public office in the future. Tony Blair holds no public position in the UK any more and it’s surely inconceivable that he will, or would want to, again.

  9. ObiterJ says:

    Dear Brian,
    For precisely the reasons you have stated, I absolutely agree re the point that Chilcot did not need to have “counsel for the inquiry.”  Please see my bit about this on
    Formal inquiries with QCs (+ numerous “juniors”) everywhere are not guaranteed to do any better job at establishing the truth than will Chilcot and the lawyers cost far more.  The Saville Inquiry in Northern Ireland – (which has yet to report) – is a case in point with some £300 million costs.
    Aggression: The London Agreement of 8th August 1945 created the International Military Tribunal (IMT) which conducted the trials at Nuremberg.  Within the jurisdiction of the tribunal was “initiation or waging of a war of aggression.”   12 defendants were found guilty of this.   The IMT argued that “aggression” existed as a crime before 1945 and so the trials did not fall foul of the principle of law known as “nullum crimen sine lege” (no crime without law).   There have been no trials for aggression since 1947.
    The House of Lords recognised that the international crime of aggression existed in the case of R v Jones and others 2006.  However, their Lordships also stated that a crime of aggression did not exist in our domestic law.  It would require an Act of Parliament to make it a domestic crime as occurred with “torture” – Criminal Justice Act 1988.  Interestingly, some countries do provide for aggression in their national criminal law – (e.g. German Criminal Code).
    In 1974 the UN General Assembly adopted a resolution which contained a definition of aggression – (Resolution 3314 of 14/12/1974).  However, there was no follow up to this until the idea of the International Criminal Court re-emerged.   As things transpired, the ICC statute recognises a crime of aggression BUT does not permit a trial for it until such time as a detailed definition is agreed.  Work has been progressing on that and the matter is to be considered later in 2010.
    Against this background it must surely be the case that nobody could be lawfully “impeached” by Parliament for “aggression.”   The crime does not exist in English law: only in international law.
    “Impeachment” remains a theoretically possible form of trial for some matters but the whole process is antiquated and would fall foul in numerous ways of modern legal due process and human rights law.  At the most fundamental level, such a “trial” would not, in modern times, be independent of the executive.
    I have heard some say that Blair did marvellously well before Chilcot which was criticised for not “nailing ” him.  I am not so sure.  Just maybe he was actually given enough rope …. ?  He was allowed a forum to demonstrate his self-righteousness and the overall impression which came across was of a supremely confident man who would have stopped at nothing to get his way.   It seems likely that Clare Short’s testimony about the government style under Blair is believable.  Opposing or questioning views were swept aside.  Of course, one has to be careful since she clearly has her own agenda and the political bottom line with Short is that she remained in the Cabinet during the invasion.

    Brian writes: Thank you for this once again. I agree with you about impeachment (please also see my response to Peter Harvey’s comment above). Your suggestion that the Inquiry gave Blair “enough rope” sums the case up nicely. In a confrontational interrogation conducted through lawyers I suspect he would have given away very little. The Inquiry members’ questioning style seems very well designed to give witnesses enough rope and this technique has already succeeded spectacularly in building up a picture of what happened, who was responsible and why they acted as they did. You make a shrewd point about Clare Short, who was persuaded by Blair to defer her resignation by promises of a major role in reconstruction after the invasion and occupation. He was anxious not to have Robin Cook and Short resigning at the same time.

    What you say about the crime of aggression confirms what I wrote earlier, namely that it’s not a crime under domestic UK law and there’s no international court at present in a position to try anyone for it as an international crime, although it is one now. Nuremberg seems in retrospect, and from the perspective and values of the 21st century, to have been a seriously flawed procedure: “victors’ justice” with a distinct smell of retrospective law-making to enable the Nazis to be tried for aggression. But I don’t know what else could have been done with them. Shooting them out of hand at the moment of capture would have had a certain appeal (wasn’t it advocated at one point by Churchill?) but it’s not really defensible, especially as the degree of guilt varied so much from one to another.


  10. ObiterJ says:

    I think Churchill wished to use another ancient procedure – an Act of Attainder to convict the Axis Leadership.  However, he must have been dissuaded from that idea!!  Justice had to be meted out to some of those apologies for human beings and it had to be meted out by the victors.  I still cannot see films like Schindler’s List and The Boy in the Striped Pyjamas without my blood boiling at the atrocities committed and without lasting admiration for the stance taken by our country during that hideous period.  Truly – The Valiant Years.