I left the Foreign and Commonwealth Office as a legal adviser in 2003 because I had no doubt the war in Iraq was unlawful. The UN security council resolution the government relied on did not legitimise the use of force against another country. The rules of international law on the use of force are at the heart of the UN charter. Acting contrary to the charter – as I perceived the government to be doing – would damage the UK’s reputation as a state committed to the rule of international law. That was my belief; so it has proved.
At the time, the advice consistently given by the lawyers in the FCO was that a second resolution from the security council was needed, and Chilcot’s report illustrates the difficulties we were experiencing. The foreign secretary, Jack Straw, at one point put pen to paper to say that he noted the advice but did not accept it. Lord Goldsmith, who as attorney general constitutionally had the last word, had given a provisional view that a second resolution was needed, but ministers were refusing to allow us to ask for his definitive view.
Though not making an explicit finding on the law, Chilcot did examine the circumstances in which the attorney general’s legal advice was finally given. In words rather strong for the gently worded report but thoroughly justified, the inquiry concluded that the circumstances were “far from satisfactory”. The government delayed seeking formal advice from the attorney general until the last moment and it was not until 27 February 2003, about three weeks before the conflict began, that the PM could be sure legal advice would be given that fitted the policy. Lord Goldsmith had changed his earlier view that resolution 1441 gave authority to use military force, stating in his letter of 7 March that while the safest legal course would be to secure a further resolution, a ‘reasonable case’ could be made that legal authority existed already. A week later he had progressed to saying that it was the ‘preferred view’ that intervention was lawful without further UN action.
It was after he had visited Washington to talk to American lawyers that Goldsmith had his change of mind. But we had known all along what the US believed. The process of getting advice from Goldsmith, and the advice that eventually came, gave me the impression that international law was regarded simply as an impediment to be removed before military action was possible.
For those seeking views on the law from the inquiry some answers can be gleaned, for as well as taking oral evidence from witnesses Chilcot invited written submissions from outside lawyers. These have now been published on the inquiry’s website, and from all this material there emerges a very widely but not universally held view that the intervention was indeed contrary to international law.
And there is one significant conclusion in the inquiry report itself. As reiterated in Chilcot’s statement, the inquiry concludes that the UK undermined the authority of the UN security council by proceeding, in the absence of a majority in the council, in favour of military action. This is not a finding that the war was therefore unlawful, but it does hint at it because the whole question of legality depended on whether the final decision for military action was one for the security council.
The decision not to specifically pronounce on whether the military action in Iraq was legal will be disappointing to many, but it is unsurprising. The inquiry had no international lawyers among its members and was not qualified to pronounce. But that was not inevitable. The Dutch committee of inquiry on the war in Iraq reported in 2010, and found that “the only conclusion possible is that there was no adequate international law mandate for the unilateral military force used against Iraq by the US and UK”.
This country’s adherence to the rule of law is one of the cornerstones of our society. The rule of law requires that all are subject to it, including the prime minister. It requires legal advisers capable of giving assertive, consistent and confident legal advice – and ministers who follow that advice. It is in this country’s interests to keep within international law; that should have been a lesson drawn from Suez, and it should be a lesson drawn from Iraq. Chilcot concludes that “all aspects of any intervention need to be calculated, debated and challenged with the utmost rigour”. That applies as much to the law as to any other aspect of government.
