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)

The question then presented itself: “Does Resolution 678 Justify the Invasion of Iraq in 2003?”

Lord Alexander answered this way:

“There has been a long-standing tradition that our government rarely, if ever, discloses the advice of the Attorney-General or indeed, whether he has advised at all.” And Lord Alexander noted: “Whether or not to disclose the opinions of the Law Officers is a matter of discretion on the part of the Government. There is no obligation to divulge such advice as to do so might inhibit the frankness and candour with which the advice was given, or cause a Law of Officer to be criticised for a policy for which the Minister is rightly responsible (see John Ll. J. Edwards, The Law Officers of the Crown: a study of the offices of the Attorney General and the Solicitor General, with an account of the office of the Director of Public Prosecutions in England, London, Sweet & Maxwell, 1964).”

But on this occasion, in a Parliamentary Answer, Lord Goldsmith QC published his advice in summary form. Because of its importance and its brevity it is convenient to set it out in full:

“Authority to use force against Iraq exists from the combined effect of Resolutions 678, 687 and 1441. All of these resolutions were adopted under Chapter VII of the U.N. Charter which allows the use of force for the express purpose of restoring international peace and security:

1. In Resolution 678 the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area.
2. In Resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under Resolution 678.
3. A material breach of Resolution 687 revives the authority to use force under Resolution 678. [Emphasis added]
4. In Resolution 1441 the Security Council determined that Iraq has been and remains in material breach of Resolution 687, because it has not fully complied with its obligations to disarm under that resolution.
5. The Security Council in Resolution 1441 gave Iraq ‘a final opportunity to comply with its disarmament obligations’ and warned Iraq of the ‘serious consequences’ if it did not.
6. The Security Council also decided in Resolution 1441 that, if Iraq failed at any time to comply with and cooperate fully in the implementation of Resolution 1441, that would constitute a further material breach.
7. It is plain that Iraq has failed so to comply and therefore Iraq was at the time of Resolution 1441 and continues to be in material breach. [Emphasis added]
8. Thus, the authority to use force under Resolution 678 has revived and so continues today. [Emphasis added].
9. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that Resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.” [Footnote omitted].

In a sharp, plainly excoriating, examination of those “337 words of reasoning (an advocacy document for which Lord Goldsmith required the assistance of no fewer than nine lawyers and senior civil servants) [and] have the great merit of simplicity”, Professor Sands called the excruciating turn-around by Lord Goldsmith “A very British deceit”. Such words were used as the title of a piece written on 31 August 2010 and published on 30 September by The New York Review of Books. The article is particularly scathing because it documents how Lord Goldsmith had at length advised Prime Minister Blair in terms diametrically opposite to those 337 words. He had done so repeatedly: on July 2002 that self-defence and humanitarian intervention were not admissible, and military action without explicit Security Council authorisation. … highly debatable; on October 2002, telling also the Foreign Secretary, that the draft of the intended Security Council Resolution 1441 did not provide legal authorisation for the use of force; on 19 December 2002, at a Downing Street meeting, declining to tell those present that they would have a green light for war without a further resolution, on 14 January 2003 submitting a draft memo which concluded unambiguously that resolution 1441 did not revive the authorisation to use of force contained in resolution 678 in the absence of a further decision of the Security Council; and on 30 January 2003 that he remained of the view that the correct legal interpretation of resolution 1441 is that it does not authorize the use of military force without a further decision of the Security Council. [Emphasis added].

Lord Goldsmith’s words, which appear above in Italics, directly contradicted what he would later tell the Cabinet and Parliament. (P. Sands, ’A very British deceit’, The New Review of Books, 30 September 2010, pp.55-56).

The Foreign Secretary also provided to many parliamentarians a longer Foreign and Commonwealth Office advice which was to the same effect as the 337 words by Lord Goldsmith QC.

The following day, 31 January 2003, after meeting President Bush at the White House, Blair said that he was solidly with the President who had announced that “military action would follow anyway” with a “start date … now pencilled in for 10 March [2003].”

Lord Alexander commented in 2004:

“What is not known is whether the Attorney General had given any fuller advice. In response to my request that he should disclose his full advice he retreated behind the arras and claimed that his parliamentary answer was an exception to the usual convention and so we were not entitled even to know whether he had advised more fully or, if so, in what terms. (Letter to Lord Alexander from the Attorney General Lord Goldsmith QC, 21 May 2003).

This leaves us in doubt as to the extent to which he considered at all the cogent arguments which had been advanced against his view.”

And here came a broadside of questions:

“Did [the Attorney General] examine how, since there is no doctrine of implied authorisation, the quaint concept of the “revival” of Resolution 678 was possible? [Emphasis added].

Did he deal with the issues of necessity and proportionality, given that the inspectors had reported nothing concrete and were asking for more time?

Did he grapple with the persuasive arguments advanced against the war by the majority of distinguished international lawyers who expressed a view?

Did he explain how the U.S. and this country could act on their own because of Iraq’s breach of resolutions rather than, as is normal, the U.N. authorising the appropriate action?

Perhaps even more fundamentally, what were the facts he assumed for the purpose of his advice?

What does appear to be clear is that neither the Foreign Office opinion nor the Parliamentary answer set Resolution 678 in its context.” [Emphasis added].

Lord Alexander continued:

“This was the invasion in August 1990 of Kuwait by Iraq. The United Nations responded by passing Resolution 660 the very same day.” This determined “that there exists a breach of international peace and security as regards the Iraqi invasion of Kuwait” and demanded the immediate and unconditional withdrawal of Iraqi forces. The nature of the issue was defined at the outset and was to be the expulsion of the Iraqi invaders from Kuwait. Four days later on the 6th August Resolution 661 stressed the determination “to bring the invasion and occupation of Kuwait by Iraq to an end” and affirmed the inherent right of individual or collective self-defence under Article 51 of the Charter. Sanctions were imposed on Iraq to achieve this clear but limited objective. This was reinforced by a decision “to keep this item on its agenda and to continue its efforts to put an early end to the invasion by Iraq.”

And: “This was the background for Resolution 678 almost four months later on 29th November.[Emphasis added] This resolution authorised member states, unless Iraq withdrew by 15th January 1991, fully to implement those resolutions and “to use all necessary means to uphold and implement Resolution 660 and all subsequent relevant resolutions, and to restore international peace and security in the area”. So Resolution 678 was always firmly anchored to implementing Resolution 660 and so to driving Iraq from Kuwait. [Emphasis added].

By 2 March the military action to end the invasion had been successful. Resolution 686 then confirmed all the previous resolutions on the issue and demanded essentially that Iraq should implement its withdrawal, provide appropriate compensation and return Kuwaiti property. There are two other interesting points which arise from this resolution. The first is that it affirms the commitment “of all member states to the independence, sovereignty and territorial integrity of Iraq and Kuwait.” Resolution 686 also referred to the fact that allied forces were “present temporarily in some areas of Iraq”. The resolution also recognised that “during the period required for Iraq to comply… the provisions of paragraph 2 of Resolution 678 remain valid”. In other words it was a temporary provisional cease-fire. This resolution is a cogent further indication of the limited purpose of Resolution 678. I do not believe that any of the political leaders at that time contemplated that Resolution 678 would justify waging wholesale war on Iraq in order to secure a regime change. [Emphasis added].

Indeed, the leading actors in that drama said so clearly. George Bush senior has written that: “Going in and occupying Iraq, thus unilaterally exceeding the United Nations’ mandate, would have destroyed the precedent of international response to aggression that we hoped to establish.” (George Bush (Senior) and Lieutenant General Brent Snowcroft, A world transformed (New York, Knopf, 1998) General de la Billiere, Commander of the British Forces during the first Gulf War, wrote “We did not have a mandate to invade Iraq or take the country over…”(General Sir Peter La Billiere, Storm command, London, Harper Collins, 1995 p. 304), and [at the time Prime Minister] John Major has said: “Our mandate from the United Nations was to expel the Iraqis from Kuwait, not to bring down the Iraqi regime.” (“We had gone to war to uphold international law. To go further than our mandate would have been, arguably, to break international law.” John Major, speaking at Texas A&M University 10th Anniversary celebrations of the liberation of Kuwait, 23 February 2001)

Nothing could be plainer or more statesmanlike.”

* * * * *

So we come to Resolution 687 on 3rd April 1991. Again this resolution also affirms the “sovereignty, territorial integrity and political independence of… Iraq”. It also widens the obligations on Iraq because it requires Iraq in effect to accept the “destruction, removal or rendering harmless” of chemical and biological weapons and ballistic missiles with a range greater than 150 kilometres.

* * * * *

But … there was no provision at all in this resolution for the use of force to enforce the disarmament obligations. Nor has there been any subsequent resolution that provided for the use of force against Iraq. Hence the government desperately trawled way back to Resolution 678 to find a flag of convenience, a flag disowned by Kofi Annan.”

At this point Lord Alexander noted:

“It is hard to see how a resolution passed 12 years ago can validate military action that was actively opposed and would have been vetoed by at least one, probably three, members of the permanent five in the Security Council, and whose legitimacy has been questioned by the Secretary General.”

Lord Alexander quipped: “But the flag [disowned by Kofi Annan] simply cannot fly.”

* * * * *

In addition:

“The unreality of the reliance on Resolution 678 was summed up by Michael P. Scharf, the former Attorney Advisor for the United Nations Affairs at the U.S. Department of State: “It is … significant that the administration of Bush the elder did not view Resolution 678 as a broad enough grant of authority to invade Baghdad and topple Saddam Hussein. It is ironic… that the current Bush administration would now argue that this Resolution could be used ten years later to justify a forcible regime change.” (International Bar News, March 2003.)

In conclusion:

“ … I shall never forget being in the U.S. in March 2003 and watching with dismay as events unfolded. We learnt that the proposed further resolution was to be withdrawn because of lack of support. The inspectors had their work in Iraq summarily terminated. The leaders of the U.S. and the U.K. travelled to the bizarre location of the Azores and delivered their ultimatum for regime change, and three days later launched the invasion. All this change of approach in a single week. We can only speculate why they did so in so much haste. The most probable reason is that the troops were there and were to be deployed before the summer heat of the Middle East.”

If that was the case, the reason was a most squalid.

Professor Sands returned to the subject in a revised and expanded article in which he also commented on the Chilcot Report, in ‘A grand and disastrous deceit’. (London Review of Books, Vol. 38 No. 15, 28 July 2016, pp.9-11).

The article ends with the following words: “[Blair’s] unhappy intervention will not do him any favours. It makes it more likely he will be pursued, perhaps for contempt of Parliament, or by civil claims, or claims of misfeasance in public office. He might even face worse, a possibility raised in the resignation letter tendered in 2003 by the Foreign Office legal adviser Elizabeth Wilmshurst, whose position has been vindicated by the inquiry:

I regret that I cannot agree that it is lawful to use force without a second Security Council resolution … I cannot in conscience go along with advice within the Office or to the public or Parliament – which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law.”

Tomorrow: Deception on a grand scale

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).