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Wednesday 13 December 2017

Making a convenient case for war

The Chilcot Inquiry is deeply damaging UK government's credibility, writes Ivor Roberts

As I spent my last few days in Dublin as British ambassador nearly seven years ago, I had no idea of the drama being played out back in London over the legality of the war in Iraq. As we finally learnt in the last few days, the two most senior lawyers in the foreign office and experts in international law, Michael Wood and Elizabeth Wilmshurst (she is incidentally a co-author with me of a recent book on diplomatic practice and resigned on principle over the war), both concluded that the proposed invasion of Iraq was illegal and would constitute a "crime of aggression" without explicit UN approval.

Their view appeared to be shared by the attorney general, Lord Goldsmith, until the last minute when, after a visit to Washington in February 2003 a month before the war and a meeting with the Bush administration lawyers, he underwent a Damascene conversion. Lord Goldsmith returned enlightened. He had, he said, finally understood the "true meaning" of UN SCR 1441, which had now become clear. He was confident that Iraqi non-compliance with this agreement would "revive" the authority to use force inherent in existing UN agreements. In particular, he said it would reactivate UN resolution 678 agreed at the end of the Gulf War, which authorised the international community to use "all necessary means to restore international peace and security" in the region after Iraq's invasion of Kuwait.

Tony Blair in his own evidence to the inquiry last Friday maintained that on any sensible reading of the UN Resolution 1441 it was clear that it was a last chance for Saddam to comply and to do so immediately and completely, failing which there would be military action. He also claimed that this was the widely held view of the Security Council members in voting for such a resolution. Yet if you read what those members said at the time about their support for the resolution, the great majority made it clear that they did not believe that it constituted a trigger for war. But Lord Goldsmith did not visit the key Security Council capitals other than Washington, because he had already discovered its true meaning in the US.

This discovery must have come as a great relief to Jack Straw and Tony Blair. The prime minister, in particular according to the attorney general, did not appear to welcome advice that UN authority was the only way for war to be justified. In his own evidence, Blair put it differently. It wasn't that he didn't welcome it; it simply added a further [unwelcome] complication. Jack Straw meanwhile was arrogating to himself the legal experience in international law to overrule the two most senior lawyers in his department. Constitutionally, it is, of course, correct that civil servants advise while ministers decide. But here we are dealing, not with the niceties of a policy decision, but with the legality of an act of war where the only court which can rule on its interpretation is effectively the UN Security Council.

It seems, to use Elizabeth Wilmshurst's language, "lamentable" that the requirement for a specific SCR authorising the use of force was abandoned, the UK government's expert opinion set aside and the US administration's advice (who had as we know already decided that regime change was reason enough to go to war) accepted. Moreover in putting his advice to the cabinet on the eve of war, the attorney general failed to inform cabinet colleagues that the unanimous advice of the government's international law experts was that the proposed course of action was not only illegal but if pursued could leave ministers open to prosecutions for "misfeasance in public office".

Indeed when No 10 Downing Street had read this advice their reaction was: "Why has this been put in writing?" It does incidentally not reflect well on the cabinet as a whole that they showed no interest apparently in drilling down into the legal advice they had been offered. The lack of transparency which is regularly being revealed by the Chilcot Inquiry is deeply damaging to the British government's credibility. The dodgy dossier's creative fiction of WMD was bad enough. But we know now that the cabinet was being told that the war would be legally justifiable without the qualification that legal opinion on it was divided. In fact, even that would have been a gross distortion. Until the siren words of the Washington lawyers had brought some critical language in the UN SCR into the "correct" focus, the attorney general had himself taken the view that there were no grounds for an invasion. There was no question, he had said, of self-defence or humanitarian intervention and no authorising SCR. It would of course be wrong not to accept Lord Goldsmith's assertion that no pressure had been applied to him. But to require him to produce a legal opinion only days before the planned invasion placed him in a deeply unenviable position with thousands of British (and US) troops amassed on the border with Iraq.

For him to have produced advice confirming the requirement for a second UN resolution would have handed Saddam a huge propaganda victory and in practice, as the US was determined to go ahead anyway, made no concrete difference to whether a war was going to take place.

What would have changed would have been the US view of Tony Blair. Instead of being regarded as a rock solid supporter of Bush policy in the region, he would have been viewed as on a par with the cheese-eating surrender monkeys of Rumsfeld's "Old Europe", in thrall to spineless lawyers. We know their view of the UK government lawyers: if you're getting the wrong advice, change your lawyers.

Fortunately for Lord Goldsmith, it never came to that: an illuminating visit to Washington 'straightened him out'. What has not been straightened out is the Byzantine way the Blair administration had for dealing with unwelcome views. Reject or suppress those views and rebuke any recalcitrant for dogmatism and an unfashionable attachment to legality.

The picture painted is not a pretty one. And we presume to export our model of democracy to the world?

Sir Ivor Roberts, president of Trinity College Oxford and a former British ambassador to Ireland, Italy and Yugoslavia, is editor of and major contributor to the recently published 'Satow's Diplomatic Practice'

Sunday Independent

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