Monday, 4 July 2016

Chilcot ~ legality of the war?

Addendum 5th July

The Iraq Inquiry report will be published on Wednesday 6th July.   The inquiry was instigated by Gordon Brown (Prime Minister 27th June 2007 to 11th May 2010) and was officially launched on 30th July 2009.  The Chairman, Sir John Chilcot, said:

"Our terms of reference are very broad, but the essential points, as set out by the Prime Minister and agreed by the House of Commons, are that this is an Inquiry by a committee of Privy Counsellors. 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 UK's involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned. Those lessons will help ensure that, if we face similar situations in future, the government of the day is best equipped to respond to those situations in the most effective manner in the best interests of the country."

Sir John Chilcot's opening remarks (30th July 2009) included this:

"In order to be fair to, and to get the most from, witnesses, we will adopt an inquisitorial approach to our task, taking evidence direct from witnesses rather than conducting our business through lawyers. The Inquiry is not a court of law and nobody is on trial.

But I want to make something absolutely clear. This Committee will not shy away from making criticism. If we find that mistakes were made, that there were issues which could have been dealt with better, we will say so frankly."

Although the inquiry was "not a court" it appointed Dame Rosalyn Higgins (former President of the International Court of Justice) as a legal adviser on international law matters.  The inquiry invited submissions from international lawyers (and extended the timescale to enable them to participate) and also took evidence from legal advisers to the Foreign and Commonwealth Office - Sir Daniel Bethlehem QC and Sir Michael Wood KCMG as well as Elizabeth Wilmshurst.  (See below for links to their statements and evidence).

The Attorney-General of the day (Lord Goldsmith QC) also made a statement to the inquiry and gave evidence on 27th January 2010 (see video)

All of this creates some expectation that Chilcot's report will include some comment about the legality of the UK's military involvement in Iraq though we cannot be certain that it will.  It is clear that the view of the Attorney General developed over time and concluded with the view that a reasonable case could be made that UN Security Council Resolution 1441 (2002) was capable of reviving the authorisation in Resolution 678 (1990) and that there was therefore no need for a further UN resolution to specifically authorise military action in the circumstances of 2003.

The Attorney General's final advice of 7th March 2003 is available via The Guardian 28th April 2005 and also here.  The Attorney General pointed out that a "reasonable case" did not mean that if the matter ever came before a court he would be confident that the court would agree with his view.

Chilcot may also throw more light on whether the Attorney's full advice was disclosed to the Cabinet at the time - The Independent 23rd June 2012.  This is an important question given that the Cabinet is, under our constitution, collectively responsible for decisions.

It will be interesting to see what Chilcot has to say on these matters but, in the final analysis, the inquiry was not a court of any description let alone a court empowered to pronounce on questions such as whether the use of force against Iraq was lawful.

The report will undoubtedly be scoured by political opponents of former Prime Minister Blair to see whether they can make a case to take some form of action against him such as having him indicted before the International Criminal Court (ICC).  Such a prosecution has always appeared an unlikely prospect and, according to this report may have already been ruled out.  We do know that the ICC prosecutor is examining allegations of war crimes levelled at British soldiers during the period 2003 to 2008.

In committing military forces to Iraq, the government operated under its considerable prerogative powers relating to both foreign affairs and the disposition of the Armed Forces of the Crown.  Oversight of the use of those powers rested with Parliament and, at the time, the Labour Party enjoyed a huge majority in the House of Commons.    The extent to which that rendered control over the executive ineffective would, in  itself, be a useful area for analysis.

Trail of UN resolutions:
Resolution 678 authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area.  Resolution 687 set out the ceasefire conditions at the end of the Gulf War, obliging Iraq to get rid of its chemical and biological weapons, adding that, if it did not do so, force could be used to make it do so under the authority of Resolution 678.  Resolution 1441, passed in November 2002, ruled that Iraq had not got rid of all of its chemical and biological weapons and was thus in material breach of Resolution 687.  Lord Goldsmith's advice was that this brought the authorisation to use force into play and effectively authorised war.

Statements and evidence of legal personnel:

Addendum 5th July:

Telegraph 2nd July - Prosecutors at ICC rule out prosecution of Tony Blair.

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