Tuesday 1 September 2015

Iraq Inquiry ~ a little more

I wrote recently about the Iraq Inquiry, the Maxwellisation process that is currently in train and the need for the inquiry to not only be independent and thorough but to be seen to be so - Post of 14th August.

The Inquiry Chairman - Sir John Chilcot - has issued a statement (26th August) indicating that the last responses to the Maxwellisation process are to be received "shortly".  This statement was brought about by a number of high profile individuals criticising the delay.  Critics have included Baroness Butler-Sloss, Lord Lester of Herne Hill QC, Lord Morris of Aberavon QC.  Carl Gardner on his Head of Legal Blog looks at some of these criticisms - Sir John! Sir John! Are we there yet?

As Gardner points out:

"The campaign of political and media chuntering against Sir John Chilcot is absurd; and it’s wrong for senior legal figures to have lent their voices to it. This is a vast inquiry, covering years of government policy, military operations and administration in occupied Iraq: a far bigger scope than that of the Bloody Sunday inquiry and bigger too than the Scott inquiry, which took three and a half years. A key figure in the inquiry, Sir Martin Gilbert, died this year after falling ill in 2012; and the panel apparently spent years in conflict with government, doing its job of uncovering documentary truth. Even what seems (in fact rather than imagination) to be a tightly controlled Maxwellisation process has apparently put Sir John on the trail of yet more undisclosed papers.

Sir John’s critics should shut up and behave on the back seat, so he can focus on the remainder of the journey."

Critics should remember that if the independence of the inquiry is seen to be jeopardised then there will be even less public respect for the final report.


Another matter is not entirely clear: at least not to me.  When the inquiry finally delivers its report, it is delivered to the Prime Minister.  What is the process to be after delivery to the PM?  Will the report then be published warts and all or will there be some form of scrutiny within government and a redacted or gisted version published?  I hope not.  Certainly, a debate in Parliament was promised at the time the inquiry was opened.

How valuable will the report actually be?  

In his opening remarks to the Inquiry, Sir John Chilcot outlined the terms of reference.

"It will consider the period from the summer of 2001 to the end of July 2009, embracing the run-up to the conflict in Iraq, the military action and its aftermath.  We will, therefore, be considering the United Kingdom’s involvement in Iraq, including the way decisions were made and actions taken, to establish as accurately and reliably as possible what happened, and to identify the lessons that can be learned.  Now, those lessons will help to ensure that if we face similar situations in future the Government of the day will be best equipped to respond to those situations in the most effective manner, in the interests of the country."

The decision-making relating to military involvement in Iraq was taken in the years 2001 to 2003. The organisation of government and the ways in which it operates will not have remained static in the years since then.  Any lessons offered by Chilcot will have to be applied to what might be a rather different system.  Response to "similar situations in the future" would have to be on the basis of a plan or procedure based on government as it is NOW and any contingency plan would need to have very clear lines of responsibility for decision-making.  One hopes that such a plan is already in place and that it would be reviewed in the light of the Chilcot report.

Also, there should perhaps be some form of Parliamentary scrutiny of implementation of the Chilcot report rather than it being left just to the executive to tell us that "lessons have been learned."  Expenditure well in excess of £10m demands nothing less.


Chilcot indicated that his inquiry would look at the legality of the war.  This remains a controversial and difficult question and the Iraq Inquiry will not be able to give a legally authoritative answer.  That is because the inquiry is not a court of law with appropriate jurisdiction to declare on such matters.  It may be that only the International Court of Justice has such authority.  Having said this, there is no reason that I can see why the inquiry should avoid matters such as the processes by which government obtains legal advice on such weighty matters.  If those processes can be improved then so much the better.

Malcolm N. Shaw (International Law 7th Edition 2014) wrote:

"The legal basis for action in Iraq was deemed to rest upon the 'combined effect of Resolutions 678, 687 and 1441.'  Resolution 1441 (2002) inter alia recognised that Iraq's non-compliance with Council resolutions and proliferation of weapons of mass destruction posed a threat to peace and international security and recalled that resolution 678 authorised member states to use all necessary means to restore international peace and security.  Citing Chapter VII, the resolution decided that Iraq was and remained in material breach of resolutions including 687 and Iraq was given a 'final opportunity to comply with its disarmament obligations under relevant resolutions of the Council' and established an enhanced inspection regime.

Subsequent events, however, revealed Iraqi deficiencies in complying with the resolution.  The Security Council was divided on the need for a follow-up resolution to 1441 in order for force to be used.  On 20th March 2003 military operations commenced.  Resolution 1441 was intended as a final opportunity and it was provided that serious consequences would ensue upon Iraq's failure to comply.  However, whether this amounts to a justification in international law for the US and UK to use force in the face of the opposition of other security council members remains controversial."

Further link:

Head of Legal Blog - 27th January 2010 - The legality of the Iraq War.

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