Was the attack on Iraq a crime of aggression[1]?
Today’s (20 November 2008) Guardian publishes a letter from me about Lord Bingham’s recent declaration that the attack on Iraq was illegal, and the counter-arguments by Lord Goldsmith, Attorney-General at the time, that it was not. As the edited and published version (perhaps inevitably) omits some of its nuances, here is the original text of the letter as submitted to the Guardian:
Sir,
Lord Bingham‘s authoritative declaration that the UK and US attack on Iraq was illegal, and Lord Goldsmith‘s reasons for disagreeing, raise very important questions and you are right to call for a full public inquiry and contact your local criminal lawyer (Time for a full inquiry, Editorial, November 19). The government’s argument that the invasion, without a Security Council resolution explicitly authorising it, was nevertheless legal is set out in the Attorney-General’s advice to Mr Blair of 7 March 2003 and now repeated by Lord Goldsmith. It argues that during the secret negotiations of the text of resolution 1441, Russia and France and other Council members originally wanted the resolution to specify that the Council should take a further “decision” on what to do if Iraq continued to fail to comply with its obligations: and that by agreeing to abandon that language in favour of a requirement that the Council should merely “consider the situation” (as in the text eventually adopted), they accepted that force could be used by any state without the need for a further “decision” by the Council. There is no public record of the “negotiating history” of 1441: all we have is Lord Goldsmith’s account of it, based on his private discussions with the British and American participants. Any public inquiry should seek to establish whether the Russian, French, German and other governments agree with this interpretation, which seems at first sight far-fetched: as Lord Bingham said, it “passes belief”.
Any inquiry also needs to establish an authoritative interpretation of the UK’s formal “explanation of vote” on 1441, explicitly disavowing any “automacity” in the resolution (“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 widely assumed at the time to mean that 1441 did not imply authority for an attack on Iraq without a further Council resolution authorising it. If it didn’t mean that, what did it mean? Did other Council members agree to drop the explicit requirement for a further Council “decision” in exchange for an assurance by the sponsors of 1441 that it would not be taken as authority to use force without a further decision by the Council?
These may sound like unimportant technicalities, but we need definitive answers to them if we are to be able to judge whether our own elected government committed a war crime in March 2003.
Yours sincerely
Brian Barder (HM Diplomatic Service, 1965–94)
London SW18
https://barder.com/ephems/
19 November 2008
[Hyperlinks added — BLB]
There’s a fuller discussion of these and other related issues in my Ephems blog post of April 2005 at https://barder.com/ephems/194, which shows how long we have been waiting for answers to all these questions. Some of those answers might be provided in the book about the whole Iraq affair by Sir Jeremy Greenstock, the UK Permanent Representative to the UN at the relevant time, and subsequently the senior representative of the British Government in Baghdad soon after the invasion and occupation. Sir Jeremy, much to his credit, has not been unduly reticent in expressing strong views about the failings of the US and UK governments during his time as a senior public servant and major participant in these events. Unfortunately, however, ministers have so far blocked publication of his Iraq book: all the more reason for a full public inquiry, without further delay, into all the events leading up to and following the invasion and the occupation.
More than five years have passed since March 2003, and there can be no grounds for arguing that the findings of an inquiry, however damning, could somehow damage the status or morale of British or other coalition forces now on active service in Iraq. Whatever the outcome of a proper fact-based scrutiny of the legality, or lack of it, of the original attack on Iraq, no-one can doubt that there’s a sound legal basis, approved by the UN, for the presence of coalition forces now. We need an inquiry, not just to rake over the blunders and probably the crimes of the past, nor even mainly so that those who were responsible for them can be held to account, but more fundamentally so that the necessary lessons can be learned for the future conduct of governments and for the role of the United Nations.
Meanwhile, as we continue to wait, no-one should lightly dismiss the Guilty verdict now pronounced by Lord Bingham, very recently retired as the senior Law Lord and formerly both Master of the Rolls and Lord Chief Justice, generally acclaimed as probably the finest legal mind of his generation. He will have chosen his words with the utmost care and only after rigorous scrutiny of the issues. The suggestion (by a Labour MP) in another of today’s Guardian letters that he should “read UN resolution 1441” before expressing an opinion is simply sad.
[1] Up-date (21 November 2008): Comments below by Robin and Ed Davies show that I was technically and actually wrong to describe the illegal attack on Iraq as a “war crime” — the term used in the original title of this post and also in my letter to the Guardian. I should have said “crime of aggression“, which, as Ed shows, is no less serious:
To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole. [Robert H Jackson, chief American prosecutor at Nuremburg, quoted here]
(However, I take some comfort from Jackson’s use of the word ‘other’ in this quotation, suggesting that initiating a war of aggression is a member of the family of ‘war crimes’, distinguished from the others by being the ‘supreme international crime’.)
Brian
Wouldn’t it be more accurate to refer to the government’s action as a possible crime against peace rather than as a war crime?
Brian writes: I don’t think so. We should call a spade a bloody shovel when that’s what it is. An unprovoked attack on a member state of the United Nations, carried out without the Council’s authority, indeed in blatant defiance of the majority view in the Security Council, is in breach of the most fundamental provisions of the UN Charter which is legally binding on our government. It undermines the whole international compact arduously negotiated at the end of the second of two terrible world wars with the declared and noble objective of “saving succeeding generations from the scourge of war.” It contaminates Britain’s moral and political credentials as a permanent member of the Security Council which is appointed by the Charter as the ultimate authority in matters of war and peace, the sole authority tasked with the determination of when and how force may properly be used in international affairs. It’s hard to imagine a more heinous crime. It was an act of aggression, by any meaningful definition. If this wasn’t a “war crime”, what is?
Whatever else we may disagree about, let us at least agree on the careful use of words. Ed Davies has a point. The term “war crimes” – in my book at least – refers to criminal actions committed in a war: the infamous massacre at Oradour-sur-Glâne was a war crime; so was the butchery at Nanking by the Japanese. To use the same term for the wholly dissimilar invasion of Iraq is merely an attempt to tap into the universal detestation of such activities in order to boost one’s case.Let us agree (ignoring the weasel-mouthed evasions of Lord Goldsmith – surely sufficiently discredited by now not to be worth further humiliation) that the invasion of Iraq was illegal. So what? It is occasionally necessary for states, as for individuals, to act illegally: one cannot entrust one’s conscience to Parliament, less still to the UN. It would have better befitted the British government to have admitted this, and made its decision on merit, rather than the shabby pretence actually adopted.The last word on the Iraq affair, after dis[posing with these legalistic irrelevancies, seems to belong with Fouché: it was not merely a crime; it was a blunder. Learning a little real-politik from these events is surely a great deal more important than endlessly debating the minutiae of diplomatic texts.
Brian writes: Robin, thanks. I have accepted your and Ed’s point about “war crime” and substituted “crime of aggression” — see up-date and revised title of the post (above), although I reject your charge that I used the term to “boost my case”: “crime of aggression” is probably an even stronger term. But I can’t accept your suggestion that a major international treaty and legal obligation placed on our country and its government under the Charter, probably the most important of all our legally binding obligations, can be overridden by one man’s ‘conscience’, which is roughly what happened when we participated in an act of aggression against Iraq. The Iraqis weren’t the only victims of that crime (however you define the crime): others included the authority of the UN as the only and indispensable arbiter, in international law, of when force may properly be used in the conduct of international relations; the reputations of the UK and the US as permanent members of the Security Council with the special responsibilities for upholding the Charter that permanent membership entails; the reputations of the US and the UK as good international citizens in a naughty world, damage to which has done huge harm to our diplomatic and political clout in international affairs; and the British people’s unifying sense of pride in the decent behaviour of our governments of both, or all, parties. All these were sacrificed on the altar of Tony Blair’s “passionate belief” that he was doing the right, if illegal, thing. Heaven preserve us from conscience! If, as you recommend, we downgrade the rule of law, in international as in domestic affairs, we’re done for. Lord Bingham’s Grotius lecture spells it out with magisterial clarity, as you would expect (full text still not apparently available online, unfortunately).
At last: The opportunity to express opinion on this topic. Way to go Brian. Glad to see you’re talking yourself into writing that book. Limiting myself to the question posed. “Was the attack on Iraq a war crime?” Underscore attack. Continued occupation is a separate issue. Remember the justification for going to war? Hand in 9-11 attacks, possession of weapons of mass destruction, ally of bin Laden/al Qaeda. Deliberate lies and deception disseminated by Bush and Blair. Parliament and US Congress would never have voted to go to war had the real reasons (or lack thereof) been presented. Namely, protecting the petrodollar cycle and US over-consumptive life style. As George Galloway never tires of telling us: “Members of Parliament constantly say to me, ‘If we had known then what we know now, we would never have voted for war.’ To which I reply, ‘You’re either too stupid to be an MP, or you’re too wicked to be an MP'”. Except for the Liberal Democrats, en masse MPs voted for war. The attack on Iraq was a major war crime, and continued occupation is a crime against humanity. Pariah nation status beckons for the US and UK. It’s going to take a century to live this down. Don’t do the crime if you can’t wear the slime.
Sorry if I produce a slew of posts here: this is my third attempt to reply. Suggesting that the actions of the US and UK’s actions in Iraq were a crime against peace rather than a war crime is not in anyway to diminish the strength of the accusations but just an attempt to use the terms in their correct sense. Looking at the outcome of the Nuremberg Trials, for example, it seems to me that the best match is with Rudolph Hess who was not found guilty of war crimes but was found guilty of setting up a war of aggression. That crimes against peace are not lesser crimes than war crimes is supported by the quote from Robert H. Jackson in the middle of the Wikipedia crime against peace article: “To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
Received from ED DAVIES (who has experienced problems with the comments system — apologies, Ed).
Sorry if I produce a slew of posts here: this is my third attempt to reply. Suggesting that the actions of the US and UK’s actions in Iraq were a _crime against peace_[1] rather than a _war crime_[2] is not in any way to diminish the strength of the accusations but just an attempt to use the terms in their correct sense. Looking
at the outcome of the Nuremberg Trials[3], for example, it seems to me that the best match is with Rudolph Hess who was not found guilty of war crimes but was found guilty of setting up a war of aggression. That crimes against peace are not lesser crimes than war crimes is supported by the quote[3] from Robert H. Jackson in the middle of the Wikipedia crime against peace article: “To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”
[1] http://en.wikipedia.org/wiki/Crime_against_peace
[2] http://en.wikipedia.org/wiki/War_crime
[3] http://en.wikipedia.org/wiki/Nuremberg_trial#The_main_trial
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Brian writes: You (and Robin, whose comment makes essentially the same point) have, I think, made your point. I withdraw “war crime” and substitute “crime of aggression” — the term used in her resignation letter by the valiant Elizabeth Wilmshurst, the Foreign & Commonwealth Office legal adviser who resigned over this issue:
I’m adding an appropriate amendment to my post and I have amended its title. I’m grateful to you and Robin for putting me right, although I still don’t think I was entirely wrong: see the last sentence of the new Update at the end of my post, above!
Robin raises an interesting and important point, and I’m inclined to think he’s right; obviously it’s normally best if everybody acts reasonably legally, but maybe it’s conceivable that in very exceptional circumstances it may be better to break the law than observe it. Of course this would need very careful thought. If it’s admitted, if only for the sake of argument, that the coalition’s aggression was illegal, how does Robin think they could have tried to justify it? I’d be very interested to know.
Brian writes: It’s mainly for Robin to answer your question, John, if he wishes. I would just say that in my view a coherent and just society (national, international or any other kind) becomes impossible if it becomes generally accepted that obeying the law is purely optional and that the obligations of personal conscience can legitimately override it. If a person — or government or anyone else — conscientiously objects to complying with the law, the only defensible course is to work (within the law) to change it; but meanwhile to obey it. In particular, the provisions of the UN Charter governing the resort to force in international affairs, freely negotiated and freely accepted by all UN member states, constitute the supreme binding treaty obligation in international law: to claim the right to defy and undermine it, whether on grounds of ‘conscience’ or on any other grounds, is unforgivable.
The point of Lord Bingham’s criticisms was not the criminality of the UK participation in the invasion of Iraq but that the UK was guilty of “a serious violation of international law” and a failure to comply with “the over-arching duty to comply with the law, including international law”.
Robin does not, as I understand it, question this but regards it as a rather tiresome irrelevancy. The logic of his view is that the Charter could be jettisoned and thereafter each country could use force in international relations constrained only by some vague reference to its conscience. That to my mind is to trivialise humanity’s endeavour (even if hitherto unsuccessful) to subject the use of force in international relations to law.
At all events, accepting, as I do, Lord Bingham’s premises (as well as his conclusions), the issue of criminality in the violation of the Charter is not the point. The violation, especially when committed by two proponents of the Charter, the United Kingdom and the United States, is sufficient to justify the concern.
However, I add the following regarding criminality:
‘Aggression’ is a crime under international law. ‘Crimes against peace’ along with ‘crimes against humanity’ and ‘war crimes’ was specified in Article 6 of the Nuremberg Charter. As to this the Court in its final judgement said:
“to initiate a war of aggression, therefore, is … an international crime differing only from the other war crimes in that it contains within itself the accumulated evil of the whole” [Judgement of the Tribunal(1947) 41 American Journal of International Law p. 186]
Although aggression is a crime under customary international law there are uncertainties about its definition. This is reflected in Article 5 of the International Criminal Court Statute which confers jurisdiction on the Court for ‘the most serious crimes of concern to the international community’ as including: the crime of ‘genocide’; ‘crimes against humanity’; ‘war crimes’ and ‘aggression’. Enforcement of the crime of aggression awaits an agreed definition which is expected to be finalised at the Review Conference in 2009. At that point it will be determined whether a violation of the United Nations Charter will, as a matter of course, constitute the crime of aggression or whether some additional element of wilfulness will be necessary.
Brian writes: I am grateful for this instructive comment by John Greenwell, a distinguished Australian expert on international law, as his contribution shows. As a non-lawyer, I wouldn’t myself put as much emphasis as he does on the distinction he makes between “the criminality of the UK participation in the invasion of Iraq” on the one hand and the fact that the UK was guilty of “a serious violation of international law” and a failure to comply with “the over-arching duty to comply with the law, including international law” on the other. As I have mentioned elsewhere, the former deputy legal adviser to the Foreign & Commonwealth Office formally gave it as her view in her letter of resignation that an attack on Iraq would amount to “the crime of aggression“; and Lord Bingham has now described it as “a serious violation of international law”. These seem to supply adequate authority for regarding it as having been both, even if technically the one doesn’t automatically follow from the other. As to the supreme importance of compliance with international (and by inference domestic) law, I strongly endorse everything that John Greenwell says: I have made the same points in other words, in reply to Robin, here.
I’m also grateful to John Greenwell for his quotation from the judgment of the Nuremburg Tribunal, and not just from a statement at Nuremburg by Robert H Jackson, chief American prosecutor at Nuremburg, which shows that it is in fact correct to classify the initiation of a war of aggression as a “war crime”, as I did in the original title of my post and in my letter to the Guardian: “to initiate a war of aggression, therefore, is … an international crime differing only from the other war crimes…” (emphasis added). But I agree that in ordinary parlance it’s probably best to make a distinction between the two, as I have now done.
Have I really suggested that ” obeying the law is purely optional?” My question is this: is it always – always, always, always – every citizen’s duty to obey law of his particular land? Even if his doing so involves unjust treatment, or even death, for innocent people? Is it really always “unforgivable” to behave like some World War I pacifists, for example, some suffragettes, some South Africans under apartheid, some Germans under the Nazis or that double-barrelled doctor who refused to go back to Iraq? And what about the international scene? Is the UN any less fallible than our – or any other country’s -legal system? Can an individual – particularly in a small, third world country – really influence the UN by “working within the law to change it?” These are corny old questions which no one – so far as I know – has ever been able to answer satisfactorily. So there’s a real danger that people may turn to simplistic answers which just happen to support their own point of view.
Brian writes: John, almost any broad generalisation can be shown to be invalid, or questionable, by anyone ingenious enough to devise extreme scenarios to which it seems or plainly is inapplicable. It’s surely difficult to contest the general maxim that respect for the rule of law, for the rules, is essential to participation in a just and stable society (whether a national society of individuals, or an international society of nations, or a debating society of undergraduates). It’s obvious that the strength of this maxim varies somewhat according to circumstances: a law generally perceived as unjust, passed by authoritarian decree in an undemocratic and repressive society that is impervious to peaceful change, self-evidently has a lesser claim on its members’ obedience than a law approved by a majority in a democratically elected legislature in a society where it’s open to all to campaign for change, either individually or through political parties. But even in the most undemocratic societies the resort to illegality must always be the last resort when every other possibility of redress by lawful action has been exhausted. (The ANC was probably wrong, for example, to turn to violence when it did in apartheid South Africa, especially when the violence eventually proved almost wholly ineffectual, even counter-productive.) What seems to me unacceptable is the alternative maxim that the general obligation to respect and obey the law is subordinate to the dictates of the individual conscience, a proposition which comes close to denying the social or collective character of ethical behaviour in society. The law of a thousand individual consciences is the law of the jungle, which is no law at all, but the dominance of the strongest and most unscrupulous.
Your point about the United Nations perhaps overlooks the nature of that body, which is a society of states and their governments, not of individual citizens[1]. UN decisions and rules can be, and regularly are, challenged by any of its member states. What is virtually unchallengeable, though, is the core of the UN Charter, negotiated and agreed on 26 June 1945 at San Francisco and freely accepted by every UN member state, which lays down a code of conduct of international relations in regard to the use of force, and confers specific powers in that area on the Security Council. The obligation to comply with that code is legally binding on all member states and the five permanent members of the Council have a special duty to uphold it. The failure of two of those permanent members to do so when the US and the UK attacked Iraq in plain defiance of the majority of the members of the Council was indeed unforgivable. The fact that Tony Blair thought he was acting in accordance with his conscience can’t possibly excuse his action, nor that of other ministers and MPs of both main political parties who backed him and allowed him to get away with it.
[1] However, even the intergovernmental UN can sometimes be swayed by individual action:
Quite so.
“The fact that Tony Blair thought he was acting in accordance with his conscience can’t possibly excuse his action, nor that of other ministers and MPs of both main political parties who backed him and allowed him to get away with it.”
Amen to that. Actually I find it very difficult to believe that Mr Blair has really got what I would call a conscience. To me a conscience is that still, small voice that sometimes makes you wonder if you’ve done, or are doing the right thing, not the arrogant certainty that whatever you do is always right. As for Lord Bingham, I agree with just about his every word. But why didn’t he say it when it really mattered? I’ve not much time for Lord Goldsmith, but at least he could claim he was trying to give people when they actually needed it.
Brian writes: The reason for Lord Bingham not having expressed his view on the legality of the attack on Iraq until very recently is obviously that until now he has been a very senior serving judge, the issue might well have come before him at some point for a formal judgment, and for him to have expressed his personal opinion on the matter in advance, without having heard the legal arguments of both sides in a court case, would have been deeply prejudicial. He has been able to speak out now because he has just retired. He took the first opportunity available to him after his retirement to put his opinion on the public record. As for Lord Goldsmith, he was the government’s chief legal adviser at the time and it was his duty to give legal advice to the prime minister (not to the public). His long and nuanced advice on the subject (that of 7 March 2003) was not published at the time, indeed became public two years later only after parts of it were leaked, IIRC. There’s some uncertainty over how many, if any, Cabinet ministers apart from Tony Blair were allowed to see it, and if they saw it, whether they were allowed to discuss it.
My two cents on this is that it will illustrate to us if the judicial branch of the government ultimately – and in this most serious of cases – has authority over the executive branch (as is the case in the US). My feeling is that when push comes to shove it does not. Am I not correct in thinking that the Rt Hon Tony Blair and his ministers will be protected in any event by executive privilege so individual decision makers cannot be held to account? That the only way they could be held to account as individuals would via an impeachment process (last used against Warren Hastings if my memory of William Hague’s excellent Pitt the Younger biographyis correct). However it is my belief that this will never go ahead in the UK because the opposition party would not want to think that when next in power it had to worry about impeachment when out of power (much as the GOP was not prepared to force the issue on filibuster in the senate when it had the majority because it looked ahead and wanted to retain that power when in the minority – a situation that now arises!) On another topic – Sarah Palin; feminist icon or dangerous demagogue?
Brian writes: Matt, thanks: perhaps a lawyer will help us out on this. I’m no lawyer, but I wouldn’t have thought that Tony Blair (or anyone else now no longer in office) enjoyed any special protection from legal process for acts done in office; and IIRC the law was changed some years ago to permit private citizens to take the government itself, or members of it, to court — but that may have applied only to civil cases, not criminal ones. I imagine the greater problem may be that crimes in international law (such as starting an illegal and aggressive war) are mostly not incorporated in domestic law and therefore could only be tried by one of the international legal tribunals, and I think only governments or UN bodies can initiate prosecutions in such tribunals, not private citizens. All the same, I feel sure that Blair will have taken legal advice on whether he can safely travel to, e.g., Spain, where Judge Baltasar Garzon has an engaging habit of issuing extradition applications and indictments for war crimes, as in the Pinochet case.
As to Governor Palin, I regard her as neither feminist icon nor dangerous demagogue; but I’m afraid that’s so far from the subject of this particular blog post that further discussion of it here is out of order. A pity, but rules are rules!
How dreadful! Just what does “deeply prejudicial” mean in this context? It must be something pretty bad if it’s seriously worse than sitting on your hands while you watch Mr Blair and Co drag us into an illegal and brutal war.
Brian writes: It means that if Lord Bingham had expressed a personal opinion on the legality (or lack of it) of the attack on Iraq while he was Master of the Rolls, Lord Chief Justice or Senior Law Lord (he occupied all three of those top judicial positions in turn) and before the question came before the courts, he would have been disqualified from sitting on the case if and when it did come to court. It’s pretty obvious that judges would not be able to function if they made public their views about what should be the outcome of cases which they might then be required to hear. If you were charged with murder, how would you feel if the judge presiding over your trial had written a letter to the Times the previous week expressing the view that you were obviously guilty? So yes, it would have been “seriously worse than sitting on your hands while you watch Mr Blair and Co drag us into an illegal and brutal war”: it would have struck a blow at a fundamental principle of justice.
I’m afraid I don’t find your argument altogether compelling.At the time I was talking about – the run-up to the invasion of Iraq – there was no question of anybody being on trial for murder or anything else. Nothing was sub judice.People like me, and very likely you, were trying to tell anyone who would listen that the proposed invasion was illegal and wrong.Why didn’t Lord Bingham back us up?Had he done so the weight of his authority might even have caused our government to change its mind.Who knows? Not me.Maybe he wasn’t free to speak freely unless he resigned.If so, I wouldn’t blame him. Losing your job, as I know as well as anybody, is no joke. The great and the good seldom have private means these democratic days; so they’re as reluctant as anyone else resign on a questions of principle, in spite of all the honours and titles we lavish upon them. Understandably.Yet Robin Cook managed it, and so did a lady whose name I’m ashamed to say I’ve forgotten.Anyway, I’d have thought more highly of the noble lord if he’d given us all a lead at the time.
I am grateful to Brian for the good sense of amending his original text, but I can’t resist a last shot on the subject of “war crimes”. It is quite evident that the Nuremberg Tribunal was in contradiction with itself in appearing to identify the initiation of aggression (of which alone Hess was convicted) with the general category of war crimes and as containing “within itself the accumulated evil of the whole”. After all, Hess was sentenced to a term of imprisonment; other properly convicted war criminals in the generally accepted sense were hanged. Clearly the Tribunal did not believe, when sentencing Hess, that his acts contained within themselves the accumulated evil of the whole – otherwsie he too would have been hanged.