The Iraq Inquiry Report (2009-2016) documents how Tony Blair committed Great Britain to war early in 2002, lying to the United Nations, to Parliament, and to the British people, in order to follow George Bush, who had planned an aggression on Iraq well before September 2001.

Australian Prime Minister John Howard conspired with both reckless adventurers, purported ‘to advise’ both buccaneers, sent troops to Iraq before the war started, then lied to Parliament and to the Australian people. He continues to do so.

Should he and his cabal be charged with war crimes? This, and more, is investigated by Dr George Venturini in this outstanding series.

Was the war legal? (continued)

Bush, Blair and Howard, and all the men – and some women, too – responsible for the biggest disaster of our time should be brought to account, and face trial before the International Criminal Court.

But how and on what grounds ?

In June 2010 the Inquiry issued an open invitation to experts in international law to submit their analysis of the arguments relied upon by the U.K. Government as the legal basis for the 2003 invasion of Iraq.

By then the legal basis for the military intervention in Iraq had been the subject of much comment. The Inquiry had heard evidence on this point from a number of witnesses, including Lord Goldsmith the former Attorney General and Sir Michael Wood the former Foreign Office Legal Adviser. Transcripts of such evidence can be found on the Inquiry website. In addition, a number of government documents relating to the formulation of the legal advice had been declassified and published on the Inquiry’s website.

The Inquiry was being advised on public international law by Dame Rosalyn C. Higgins, Baroness Higgins, DBE, QC, the former President of the International Court of Justice. In order further to inform the Committee’s considerations, the Inquiry indicated that it would have been pleased to receive from public international lawyers any legal analysis they may wish to offer of the legal arguments relied upon by the U.K. government as set out in: the Attorney General’s advice of 7 March 2003; his written answer to a question in the House of Lords on 17 March 2003; and the FCO Memorandum “Iraq: Legal Basis for the Use of Force” of the same date.

The Inquiry did not wish to focus on grounds relied on by other states. Respondents were, therefore, invited to comment on the issues of law arising from the grounds on which the government relied for the legal basis for military action, as set out in the substantive elements of the evidence given to the Inquiry and published documents. That might include:

• the legal effect of Operative Paragraphs 1, 4, 11 and 12 of UNSCR 1441;
• the significance of the phrase “consider” in Operative Paragraph 12 of SCR 1441;
• whether by virtue of UN Security Council Resolutions 678, 687 and 1441, the elements were in place for a properly authorised use of force;
• the interpretation and effect of the statements made by the Permanent Members of the Security Council following the unanimous vote on UNSCR 1441;
• the correct approach to the interpretation of Security Council Resolutions.

Lord Goldsmith’s evidence that the precedent was that a reasonable case was a sufficient lawful basis for taking military action.

Submissions were to be confined to issues as described in above and were to be submitted by 13 September 2010. The Iraq Inquiry reserved the right to publish submissions.

Thirty seven teachers of, and/or practitioners in, international law responded. And one has simply the embarrassment of the choice.

Two of such scholars were Lord Alexander of Weedon, QC and Professor Philippe Sands, QC.

Professor Sands replied on 10 September 2010 and advised that he would have dealt with two aspects of the issue: substance and process.

On the substance he indicated that his views had been originally set out in a letter to the Prime Minister dated 7 March 2003, which had been published by The Guardian on that date, and that Professor Sands attached to his submission.

In that letter fifteen academics attached to four English institutions: Cambridge, the London School of Economics, Oxford, the School of Oriental and African Studies and the University College London, and another from the University of Paris emphasised that “there is no justification under international law for the use of military force against Iraq. … The doctrine of pre-emptive self-defence against an attack that might arise at some hypothetical future time has no basis in international law. Neither security council resolution 1441 nor any prior resolution authorise the proposed use of force in the present circumstances. … A decision to undertake military action in Iraq without proper security council authorisation will seriously undermine the international rule of law. Of course, even with that authorisation, serious questions would remain. A lawful war is not necessarily a just, prudent or humanitarian war.” One of the signatories from Oxford was Dr. Ben Saul, who now holds the Challis Chair of International Law at the University of Sydney.

There having been no subsequent development, or any new information which had been made public, including in the course of the Inquiry, Professor Sands had not changed his mind: “there was no legal basis for military action.” He had dealt with the subject in chapters 8 an 12 of his work: Lawless world (Penguin 2006), which were also attached in copy.

Professor Sands went on:

“I have been unable to find support in any academic article in an established United Kingdom legal journal for the view on which the previous British government relied. Distinguished members of the legal community in the United Kingdom have also concluded without ambiguity that the war was unlawful. This view has been set out with clarity and force by Lord Alexander of Weedon (the former Chairman of the Bar Council), in the Justice/Tom Sargant Annual Memorial Lecture (2003), and Lord Bingham (the former Senior Law Lord) in his book The Rule of Law (Penguin, 2010, at pages 120-129).” Professor Sands attached [photo]copies of those pages.

Professor Sands proceeded to refer to the work of an independent Dutch Inquiry which had then recently concluded – unanimously and without ambiguity – that the war was not justified under international law. The Dutch Inquiry was presided by Willibrord J.M. Davids, a distinguished former President of the Dutch Supreme Court, and four of its seven members were lawyers. While the Dutch Committee was well-placed to address the substantive legal issues, Professor Sands could not help noting that the U.K. Inquiry included no members with any legal background.

The Davids Commission, an independent Dutch Commission, released its 551-page report on 12 January 2010 on the Dutch government’s decisions surrounding the invasion of Iraq. In February 2009 the fourth Balkenende government decided to establish an independent Iraq Commission with the task “to investigate preparations and decision-making in the period from Summer 2002 to Summer 2003 with regard to the Netherlands’ political support for the invasion of Iraq in general, and with regard to matters pertinent to international law, to intelligence and information provision and to alleged military involvement in particular.” The Davids Commission was the outcome of years of political accusations that the first Balkenende government had not acted in good faith in the run-up to the American-British invasion of Iraq in March 2003. (A. Pijpers, De waarachtigheid van de commissie- Davids, Internationale Spectator, Diplomatie en Buitenlandse Zaken, Mei 2010).

The report, months in the making, provided the results of an investigation into the political support given by the Netherlands to the Bush administration’s decision to invade Iraq.         In brief, the Davids Commission charged that ”the Dutch government let politics override law when it supported the 2003 U.S. invasion of Iraq, and ignored intelligence that downplayed the threat of Saddam Hussein’s weapons program.” While the report is in Dutch, a ‘Summary’ and its 49 conclusions are provided in English in the original report. (Rapport Commissie van Onderzoek Besluitvorming Irak (Commission Report on Investigation of Decision Making on Iraq) pp. 517-533)

As to the process, Professor Sands had this to say:

“The Inquiry has a significant role to play in restoring public trust in governmental decision making, including the circumstances in which legal advice was sought, relied upon and presented. … for the present I will limit this submission to two main areas.

…

The first concerns the issue of presentation. The Attorney General expressed his opinion or ‘views’ on numerous occasions, between July 2002 and March 2003. Until the end of that period his written opinions were consistent and clear: see Philippe Sands, ‘A Very British Deceit’, Volume LVII, Number 14, New York Review of Books, 30 September 2010, pages 55-56 (copy attached). A first change occurred with the advice 7 March 2003, apparently the final occasion on which the Attorney General recorded – in writing at least – a formal legal opinion. The thirteen pages 7 March 2003 document proceeded on the assumption of no further Security Council resolution, and did not conclude that the war would be lawful: it went no further than indicate that such a view could reasonably be argued. Ten days later, on 17 March 2003, the Attorney General provided a one page written answer to a Parliamentary question, in a document also placed before Cabinet. This document reflected a further change, a completing a 180 degree about turn in a short space of time and in the absence of any new factual or legal developments.”

On this Professor Sands observed:

“It is now clear that the document setting out the answer to a Parliamentary question was an advocacy piece written by committee, setting out the best possible argument for the legality of the war (and a weak one at that). It was not, and did not purport to be, an opinion or an advice (according to the Attorney General it set out his ”view”, which is not an established legal term of art). Nevertheless the Prime Minister treated the document as though it was an opinion: see the resolution moved before the House of Commons on 18 March 2003, referring to the “opinion of the Attorney General” (Hansard, 18 March 2003, Column 760).”

And the learned professor concluded: “In this way, Parliament, the Cabinet and the public were misled” with the result that “The approach taken has had the unhappy consequence of undermining public confidence in the independence and integrity of the office of the Attorney General.”

A second matter concerned the issue of timing. In matters as grave as the use of military force – Professor Sands noted – “it is particularly important that legal advice be provided as early as possible. Paragraph 21 of the Ministerial Code of Conduct (2001 version) requires that the Attorney General be consulted “in good time before the Government is committed to critical decisions involving legal considerations.”

…

“The issue of timing is also relevant in the relationship between legal advice, on the one hand, and policy and decision, on the other. It is self-evident that government policy and related actions should be fixed around the existing law and not the other way round.         Yet it seems that in this case the law (or legal advice) was fixed around the policy as determined by the Prime Minister without taking account of legal advice. This is illustrated, for example, by the events of 30/31 January 2003, which are of crucial significance. On 30 January 2003 the Attorney General advised the Prime Minister that resolution 1441 did not justify the use of force, and that a further determination by the Security Council was necessary. Sir David Manning described this as “Clear advice from [the] Attorney on the need for further Resolution”. The very next day, on 31 January 2003, the Prime Minister met with President Bush and was told by him that military action would begin in March with or without a further resolution. Sir David Manning, who was present, recorded the Prime Minister’s reaction (in a five page memorandum dated 31 January 2003, still classified). The memorandum records the Prime Minister as telling the President that he was ‘solidly’ with him, and makes clear that although the Prime Minister thought a further Security Council determination was desirable it was not necessary. The Prime Minister’s unequivocal support for the view taken by the President was not informed, it seems, by the clear legal advice he had been given.”

Most impressive was the contribution to the Inquiry by Lord Alexander of Weedon QC. It was an extended version of the JUSTICE Tom Sargant Annual Memorial Lecture given by Lord Alexander at the Law Society on 14 October 2003. JUSTICE is an independent law reform and human rights organisation, which was chaired by Lord Alexander until his death in 2015.

It was Lord Denning, once referred to as ‘the century’ greatest judge’, who said of Lord Alexander that he was ‘the best advocate of his generation’. He went on to become chairman of the Bar Council.

Lord Alexander titled his contribution: ‘Iraq: the pax Americana and the law’. In it, after an introduction, he passed to deal with the basis for the invasion of Iraq.

Tomorrow: Was the war legal? (continued)

Dr. Venturino Giorgio Venturini – ‘George’ devoted some sixty years to study, practice, teach, write and administer law at different places in four continents. In 1975, invited by Attorney-General Lionel Keith Murphy, Q.C., he left a law chair in Chicago to join the Trade Practices Commission in Canberra – to serve the Whitlam Government. In time he witnessed the administration of a law of prohibition as a law of abuse, and documented it in Malpractice, antitrust as an Australian poshlost (Sydney 1980). He may be reached at George.Venturini@bigpond.com.