The Chilcot Report – an Illegal War?

7 July 2016 by Dominic Ruck Keene

More than 7 years after Gordon Brown first announced that a public Inquiry would be conducted to identify lessons that could be learned from the Iraq conflict, the Chilcot report was finally published on7 July 2016. However, it was worth the wait. This post does not seek to summarise the report: there are many other good overviews (such as the BBC’s ). The report’s executive summary, in particular the key findings section, is also well worth a read.  The intention is to cover in this and subsequent posts some of the key legal issues raised by the report.  This post considers the relevance of the Chilcot report’s findings to the broader issue of whether Britain’s intervention in Iraq was legal – an issue which was not itself within the remit of the inquiry.

The report sets out in 12 volumes of lavishly referenced and unemotional but highly readable prose the long tale of woe that was Britain’s intervention in Iraq. It was grounded on unparalleled access to the relevant documents and in the candid oral evidence of the key individuals, and if very little is positive in the report’s findings, the honesty and acuity of its conclusions is at least one good that has come out of Operation Telic.

I commissioned into my former regiment just too late to go to Iraq, and joined when they had just returned from their third tour in less than four years. Initial optimism and sense of purpose in 2003 had been replaced by a profound relief not to be returning to Iraq for a fourth time. Its fair to say that the Army’s unhappy experience in Iraq left a lasting mark on a generation of soldiers and their families, and in particular for those of the 179 UK fatalities over the six year campaign. The question that was asked at the time by those within and outside the Armed Forces, and will be asked with even greater vigour following the publication of the report, is whether the UK’s intervention was legal. While the Chilcot Inquiry did not and could not have answered that question per se, the report sets out in full detail for the first time in the public domain how the attorney general came to advise that the war could be legal.

The revival argument

The UK justification for the use of military force against Iraq in 1993 and in December 1998 (Operation Desert Fox) had relied on the concept that the use of force authorised in resolution 678 (1990) could be “revived” by a Security Council determination that Iraq was in “material breach” of the cease-fire provisions in resolution 687 (1991). Resolution 678, adopted on 29 November 1990, demanded: “… that Iraq comply fully with resolution 660 (1990) [which required its immediate withdrawal from Kuwait] and all subsequent resolutions”; and “unless Iraq on or before 15 January 1991 fully” implemented those resolutions, authorised: “… Member States co-operating with the Government of Kuwait … to use all necessary means to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area.” The resolution stated that the Security Council was “acting under Chapter VII of the Charter”. Chapter VII is the only part of the United Nations Charter governing the use of force, and it does so in the context of: “Action with respect to threats to the peace, breaches of the peace, and acts of aggression.”

Resolution 1441

Resolution 1441 stated that Security Council ‘Decides that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 … in particular through Iraq’s failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraph 8 to 13 of resolution 687’.  Paragraph 4, ‘Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and co-operate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations”

The Inquiry’s key findings:

• The Attorney General Lord Goldsmith told the Foreign Secretary Jack Straw in November 2002 that the key questions would be whether Iraq’s
  non-compliance with UN Resolution 1441 amounted to a material breach and who was to make that determination.
• Lord Goldsmith’s initial view was that, notwithstanding the deliberate
  ambiguity in the language of resolution 1441, the question of whether or not there
  was a serious breach was for the Security Council alone to answer.
• Lord Goldsmith’s draft advice of 14 January 2003 stated that a further decision by the Security Council would be required to revive the authorisation to use force contained in resolution 678 (the original 1990 UN resolution authorising the use of force following the invasion of Kuwait) although that decision did not need to be in the form of a further resolution. Lord Goldsmith saw no grounds for self-defence or humanitarian intervention providing the legal basis for military action in Iraq.
• The draft advice addressed both the precedent of Kosovo and the question of whether a veto exercised by a Permanent Member of the Security Council might be deemed to be unreasonable, stating that the Kosovo precedent did not apply in the prevailing circumstances of Iraq; and that there was no “room for arguing that a condition of reasonableness [could] be implied as a precondition for the exercise of a veto”.
• Lord Goldsmith’s draft advice stated that it was “clear that resolution 1441” contained “no express authorisation by the Security Council for the use of force”. The revival argument had been relied on by the UK in the past but it would: “… not be defensible if the Council has made it clear either that action short of the use of force should be taken to ensure compliance with the cease-fire or that it intends to decide subsequently what action is required.”
• On 27 February 2003, Lord Goldsmith  met No.10 officials and advised that the safest legal course would be to secure a further Security Council resolution. Lord Goldsmith told them, however, that he had reached the view that a “reasonable case” could be made that resolution 1441 was capable of reviving the authorisation to use force in resolution 678 (1990) without a further resolution, if there were strong factual grounds for concluding that Iraq had failed to take the final opportunity offered by resolution 1441.
• Lord Goldsmith told the inquiry that three main influences had contributed to the change in his position by the end of February that a reasonable case could be made that resolution 1441 authorised the use of force without the requirement for a further resolution: (1) the negotiating history behind Resolution 1441, (2) the unanimous US legal advisers’ view that a further resolution was not required, and (3) the views of the Foreign Secretary.
• Lord Goldsmith’s formal advice of 7 March concluded that the language of resolution 1441: “… leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the Council as to the legal effect of the resolution. Arguments can be made on both sides….A key question is whether there is … a need for an assessment of whether Iraq’s conduct constitutes a failure to take the final opportunity or has constituted a failure fully to co-operate … such that the basis of the cease-fire is destroyed. If an assessment is needed of that sort, it would be for the Council to make it…A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has pre-determined the issue. Public statements, on the other hand, say otherwise.” Lord Goldsmith wrote that he remained “of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force”, and that he had “already advised” that he did “not believe that such a resolution need be explicit in its terms” if it established that the Council had “concluded” that Iraq had “failed to take the final opportunity offered by resolution 1441”. Lord Goldsmith added: “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.” Lord Goldsmith added that that would: “… only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-co-operation…In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence … is sufficiently compelling to justify the conclusion that Iraq has failed to take the final opportunity.”
• Lord Goldsmith wrote: “In reaching my conclusions, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a reasonable case did not mean that if the matter ever came to court, I would be confident that the court would agree with this view.”
• Addressing the principle of proportionality, Lord Goldsmith stressed that the lawfulness of military action depended not only on the existence of a legal basis, but also on the exercise of force during the campaign being proportionate.  Lord Goldsmith wrote that any force used pursuant to the authorisation in resolution 678 must have as its objective the enforcement of the terms of the cease‑fire contained in resolution 687 and subsequent relevant resolutions; be limited to what is necessary to achieve that objective; and must be a proportionate response to that objective. That was “not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objective of military action.”
• At a meeting on 11 March, there was concern that the advice did not offer a clear indication that military action would be lawful. Lord Goldsmith was asked, after the meeting, by Admiral Boyce on behalf of the Armed Forces, and by the Treasury Solicitor, Ms Juliet Wheldon, in respect of the Civil Service, to give a clear-cut answer on whether military action would be lawful rather than unlawful.
• Lord Goldsmith concluded on 13 March that, on balance, the “better view” was that the conditions for the operation of the revival argument were met in this case, meaning that there was a lawful basis for the use of force without a further resolution beyond resolution 1441. This view was the basis on which military action was taken.
• On 14 March, Lord Goldsmith’s staff asked for confirmation of Mr Blair’s view that Iraq had “committed further material breaches as specified in [operative] paragraph 4 of resolution 1441” as “It is an essential part of the legal basis for military action without a further resolution of the Security Council that there is strong evidence that Iraq has failed to comply with and co-operate fully in the implementation of resolution 1441 and has thus failed to take the final opportunity offered by the Security Council in that resolution.”
• He was informed that: “This is to confirm that it is indeed the Prime Minister’s unequivocal view that Iraq is in further material breach of its obligations, as in OP4 [operative paragraph 4] of UNSCR 1441, because of ‘false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure to comply with, and co‑operate fully in the interpretation of, this resolution’.”
• The Cabinet was provided with the text of Lord Goldsmith’s Written Answer to Baroness Ramsey setting out the legal basis for military action. That document represented a statement of the Government’s legal position – it did not explain the legal basis of the conclusion that Iraq had failed to take “the final opportunity” to comply with its disarmament obligations offered by resolution 1441.
• The Cabinet was not provided with written advice which set out, as the advice of 7 March had done, the conflicting arguments regarding the legal effect of resolution 1441 and whether, in particular, it authorised military action without a further resolution of the Security Council.
• The advice should have been provided to Ministers and senior officials whose responsibilities were directly engaged and should have been made available to Cabinet

Comment

Notwithstanding that the inquiry could not have considered the legality of the intervention in Iraq by Britain in terms, its general view would appear to support the conclusion that it was unnecessary and unsuccessful, but not necessarily illegal. However, the insight shed into how Lord Goldsmith’s opinion shifted and morphed does lead to three questions:

(1) Whether Lord Goldsmith’s final advice was itself correct – was the use of force without a further UN resolution legal? The strong implication from the remainder of the Report regarding what was actually happening on the ground inside Iraq was that there was insufficient evidence for it reasonably to be thought that Iraq was in material breach. Further, the Report concludes that the military force was itself was not used as the last resort. It also seems clear (as Lord Goldsmith himself acknowledged), that there was no reasonable basis for arguing that a UN Chapter VII resolution was not required because of the potential application of either the Responsibility to Protect or humanitarian intervention routes to making the intervention at least legitimate if not strictly legal.

(2) If the use of force was illegal under international law, what in reality are or will be the consequences 13 years later. The inquiry deferred to a “properly constituted and internationally recognised court” in respect of any determination of illegality. Will that ever happen?

(3) Whether the (mis)use to which Lord Goldsmith’s opinions were put shows a fundamental problem with the position of the Attorney General and their ability to give genuinely informed, independent and competent legal advice.