30 June, 2010

Was the Iraq War Lawful? Chilcot Inquiry to consult international lawyers

The Iraq Inquiry has resumed its hearings in London.  Interestingly, Sir John Chilcot (the Inquiry Chairman) informed the inquiry that an open invitation had been issued to international lawyers to comment on the grounds relied on by the British government in undertaking military action in Iraq.  The Inquiry has also approached the British Institute for International and Comparative Law and the Oxford University Public International Law Discussion Group.

Those views, if eventually published, will be of considerable interest.  However, this Inquiry is not a court and will not be able to make an authoritative ruling on the still hotly disputed question of legality.

On 7th March 2003, the Attorney-General (Lord Goldsmith QC) offered the British government a carefully phrased opinion that the "safest legal course" would be to obtain a UNSCR authorising the use of force - read the opinion.  The Attorney went on to state that "a reasonable case" could be made that Resolution 1441 was capable of reviving the authorisation in Resolution 678 without a further resolution. {The Attorney's opinion did not deal with argument that UNSCR 678 was redundant after UNSCR 687 was passed in April 1991.  If 678 was redundant then there was nothing for 1441 to revive}.

See  UNSCR 1441 and  UNSCR 678 and UNSCR 687

It was plain that the British Chief of the Defence Staff wanted a stronger statement that military action would be lawful and this was requested on 10th March.  On 17th March, the Attorney spoke in the House of Lords and advised that there was a lawful basis without a further resolution - see National Archives A.G. Opinion 17th March , BBC and also see Hansard.

The Inquiry heard Lord Goldsmith's evidence on 27th January 2010 and, the previous day, heard from Sir Michael Wood (Legal Adviser, Foreign Office, 2001-6 and Elizabeth Wilmshurst (Deputy Legal Adviser, Foreign Office, 2001-3) - see here.  Wilmshurst resigned her post at the Foreign Office since it was her opinion that the war would be unlawful.

The BBC shows a short extract of Lord Goldsmith's evidence to the Iraq Inquiry.  In this extract he explains why his position altered from his "reasonable case" view of 7th March to his firmer view of 17th March 2003 that the war was lawful.  Essentially, the military (Chief of the Defence Staff) and the Civil Service had asked for a clear statement about the legality.  Goldsmith told the Iraq Inquiry that it was reasonable for them to ask for this.

A detailed study of this question is to be found in the book "The Iraq War and International Law" - (Eds. Phil Shiner and Andrew Williams - Hart Publishing, 2008.)  Having retired as senior "law lord", Lord Bingham of Cornhill gave the annual Grotius Lecture at the British Institute of International and Comparative Law.  That was on 17th November 2008 and he considered that the invasion of Iraq was a serious violation of international law - see here.

Whether the Attorney was right is one question but it is worth noting that the Attorney is the senior legal adviser to the British government.  Ultimately, it is his view that guides the government on questions of the law.

Regrettably, there seems to be no evidence of the British government consulting with eminent and independent international lawyers back in 2003.  It is somewhat ironic that the Chicot Inquiry is now doing precisely that as part of its ex post facto analysis of these immense events which resulted in the deaths of many thousands and which may have destabilised the structure set up by the United Nations Charter to regulate the use of force.  [30th June 2010].

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