/ 7 February 2011

Blair’s war to end law

Blair's War To End Law

Awaiting the fate of the report of the Commission into the Oil for Food Programme in Iraq, I empathise with Sir John Chilcot, the chair of the Inquiry into the War in Iraq (2003).He must feel that his appointment was a poisoned chalice. Former British prime minister Tony Blair was recalled for questioning last month after the inquiry had obtained records of his exchanges with former United States president George Bush prior to the invasion. These suggest that a “gung-ho” Blair may have promised to support Bush from about 2001 and before a case for war had been made.

Evidence recently made public has revealed that on March 7 2003, the attorney general, Lord Peter Goldsmith, advised Blair that a proper case for war could not be made out under the law of war (armed conflict) and that any invasion of Iraq would consequently be illegal. Blair ­disregarded this opinion before going to war.

All of this puts Chilcot in a very awkward position. In the event that the inquiry concludes that the war was unlawful, the United Kingdom will be severely embarrassed and Blair may be exposed to prosecution in his own state, or anywhere else he travels.

If the inquiry does not make adverse findings and the prime mover — Blair — does not suffer legal consequences, less powerful nations and peoples will have no reason to submit to these rules in the name of peace. There is no justification or reason for Iran to agree to abide by international law if Britain ­disgregards it.

Three questions have emerged that Chilcot needs to answer: first, whether the war was legal; second, whether Blair knew it was illegal when he addressed Parliament on the prospective war; and third, whether he misled the inquiry on the first occasion that he testified.

The power of the UK to stand against Saddam Hussein was founded on general recognition that the fight was for values that deserved protection, including the rule of law.

In his opinion, Goldsmith advised Blair that invasion could be justified only, “if there is an actual imminent threat of an armed attack; the use of force must be necessary, ie the only means of averting an attack; and the force must be a proportionate response”. This principle has formed the basis of international law relating to self-defence since 1842. As a commander of Britain’s armed forces, it was Blair’s duty to uphold it.

The benefit of hindsight
At this point in proceedings, what we know for certain is that:

  • When Iraq was invaded it did not possess weapons of mass destruction, and neither the UK nor its allies were in imminent danger of armed attack
  • Blair had minimal evidence, other than a report of the Joint Intelligence Committee, that Iraq was developing chemical capacity and that it was attempting to procure parts for nuclear weapons (and foreign secretary Jack Straw testified that this intelligence had been weak)
  • The International Atomic Energy Association’s report to the Security Council (January 27 2003) and the report of the CIA-led Iraq Survey Group (March 2005) showed that sanctions were directed at Saddam’s strategic intent and lack of cooperation rather than at his actual military capability
  • Sanctions caused a humanitarian tragedy in Iraq
  • The invasion that followed brought about hundreds of thousands of civilian casualties

One technique employed in law is to infer guilty knowledge and criminal intent from untruths told by an accused in relation to his alleged unlawful conduct (in this case the planning, preparation, initiation and waging a war of aggression).

Questions put to Blair suggest that he may not have kept the Cabinet fully informed of the facts. Goldsmith’s testimony suggests he felt that he was discouraged from giving advice. From this one might draw the conclusion that Blair wished to avoid receiving formal advice that invasion would be illegal.

With the benefit of hindsight, it is hard to conclude that the war was either necessary or a proportionate response to the threat; or that it was carried out as individual or collective self-defence against an armed attack (the test for the legality of the use of force against the territorial integrity or political independence of another state according to the United Nation’s Charter). The charter was created to save succeeding generations from the scourge of war and untold sorrow. For these reasons, no resolution of the Security Council could have validly been relied on to authorise the allied invasion.

Although Goldsmith advised Blair that the International Criminal Court had no jurisdiction to entertain a case regarding the lawfulness of the military invasion, he did warn Blair that he was exposing himself to prosecution for the crime of aggression, which existed under customary international law and formed part of UK domestic law.

When he first appeared before the inquiry about a year ago, Blair cockily stood by his decision to order Britain’s armed forces to invade Iraq to depose Saddam Hussein. His appearance last month was more subdued. Live television footage exposed a tremor in his hand as he answered questions relating to his discussions with Bush and regarding Goldsmith’s advice that a war directed at regime change would be illegal if it was not a necessary and proportionate ­measure to secure the disarmament of Iraq.

Much of the evidence before the Chilcot Inquiry has not been made public and it would be foolish to prejudge its conclusions. Nevertheless, it does appear that Chilcot is trapped between his moral and legal duty to apply international law and the awkwardness this will inflict on those who commissioned his inquiry.

Advocate Michael Donen headed the the Donen Commission of Inquiry into South Africa’s involvement in the Iraq Oil for Food Programme in 2006. Its report has yet to be released by the Presidency.