SPENCER ZIFCAK. Chilcot: The War and the Law

Jul 12, 2016


As is now well known, the Chilcot Report on the British Government’s planning, execution and aftermath of the Iraq war provided a scathing critique of almost every aspect of the Prime Minister’s and government’s conduct. There is one facet of this deplorable episode that has not yet received any adequate consideration in the Australian media. This concerns the politicisation of the process that led to the UK Government’s conclusion that the war was lawful.

As to this, the Report concluded that:

The Inquiry has reviewed the debate that took place within the Government and how it reached its decision. The circumstances in which it was ultimately decided that there was a legal basis for UK participation were far from satisfactory.

The same can be said of the equivalent process in Australia. But more of that later. First, some background.

Iraq invaded Kuwait on 2 August 1990. The UN Security Council, in resolution 678, authorised member states to use ‘all necessary means’ to restore international peace and security in the area.

The war ended on 28 February 1991. The Security Council adopted a ceasefire resolution, Resolution 687, on 3 April 1991. This resolution imposed new obligations on Iraq to destroy all its biological and chemical weaponry and not to develop any nuclear weapons capability. It also established a comprehensive weapons inspection regime to ensure that Iraq would comply with the resolution’s terms.

The Security Council took no further meaningful action with respect to the situation in Iraq until November 2002. That was in the wake of the attacks on New York’s twin towers on September 11, 2001.

Then, the Security Council adopted Resolution 1441. This resolution declared that Iraq had been in material breach of its obligations under prior Resolution 687 and that it had failed to co-operate with UN weapons inspectors. It gave Iraq ‘a final opportunity to comply with its disarmament obligations’.

Significantly, Resolution 1441 further provided that should Iraq fail to comply with the terms of the resolution, that failure would constitute a material breach of its obligations. Should this breach occur, it would be reported to the Security Council for its assessment. Upon receipt of a report the Council would reconvene immediately to ‘consider the situation and the need for compliance with all relevant Security Council resolutions.

The argument in favour of the lawfulness of the 2003 Iraq war rested upon the view that Iraq’s failure to comply with the terms of Resolution 1441, revived the Security Council’s Resolution 678’s authorisation to use all necessary means, including the use of force, to maintain international peace and security. There were two fundamental problems with this opinion.

First it was apparent that Resolution 678 was directed at ending the 1990s conflict in Kuwait. Its reach did not extend beyond that objective. Former US Secretary of State, Colin Powell, affirmed that ‘the UN resolution made clear that the mission was only to free Kuwait’. This made it very difficult argue that the Kuwaiti Resolution suddenly revived to authorise the use of force against Iraq a decade later, and with respect to an entirely different conflict.

Secondly, the terms of Resolution 1441 itself provided that should Iraq be found to be in material breach of its obligations, the immediate next step was to return the matter to the Security Council for its ‘assessment’ and consideration. There was nothing in the 2002 Resolution that expressly or impliedly authorised automatic resort to the use of force whether by virtue of Resolution 678 or otherwise.

In recognition of these arguments, Tony Blair’s initial position was that a second resolution should be put before the Security Council. This second resolution would declare Iraq in breach of its obligations and authorise the use of force against the country to deprive it of its presumed possession of weapons of mass destruction. The problem, however, was that a majority in the Security Council opposed any such resolution.

So, to provide a legal cover for military intervention in Iraq, the Prime Minister was forced to search for a different legal rationale. He asked his Attorney-General, Lord Goldsmith to provide a detailed legal opinion as to the legality of the use of force – a course upon which, as we now know, he had already agreed with President Bush.

Blair ordered that the opinion, once written, was not to be shared with other ministers. Unsurprisingly, the Chilcot inquiry concluded that, at the very least, the Prime Minister should have shared the advice with the Foreign Secretary, the Defence Secretary and the Cabinet Secretary each of whose responsibilities were engaged.

On the 7th March 2003, Lord Goldsmith produced the opinion. It concluded that, to ensure the legality of military intervention, the safer course would be to seek a second resolution from the Security Council. If that was not possible, however, the Attorney advised that a ‘reasonable case’ could be made that a material breach by Iraq could revive the Kuwait resolution’s authorisation to use ‘all necessary means’ to secure compliance. By then British troops had already been deployed.

A prior draft of the opinion had been in existence for several weeks. But it had been provided only to the Prime Minister. He did not share it with his ministry. There appear to have been two reasons for this. First, the legal opinion was not strong. It simply canvassed competing legal alternatives. Secondly, Lord Goldsmith had advised that an opinion in favour of legality required hard evidence of non-compliance and, specifically, a clear determination that Iraq had failed to take a final opportunity to co-operate with UN weapons inspectors.

Pushed into this legal cul-de-sac, Blair declared his unequivocal view that Saddam Hussein had defied the UN’s resolution. The Chilcot inquiry found, however, that the Prime Minister’s view was deficient because he had made no assessment of the opinions of UN weapons inspectors or the degree to which Saddam had co-operated with resolution 1441 in drawing this conclusion.

‘Mr Blair neither requested nor received considered advice addressing the evidence on which he expressed his unequivocal view that Iraq was in further material breach of its obligations.’

The Cabinet had not yet seen Lord Goldsmith’s opinion, nor had the Prime Minister discussed in Cabinet the ‘hard evidence’ on the basis of which he had formed his conclusion that Iraq was in breach. So, Lord Goldsmith was asked to provide a firmer legal opinion. He complied.

In a three-paragraph reply to a parliamentary question, the Attorney concluded, on the basis of an assurance from the Prime Minister, that it was ‘plain’ that Iraq was in breach of its obligations and had failed to take its final opportunity to remedy the breach. The authority to use force set down in Resolution 687 revived. There was no need, therefore, for a second Security Council resolution. Lord Goldsmith had performed a 180 degree pirouette from his original legal view formulated just weeks earlier.

Armed with this altered and abbreviated opinion, Tony Blair went to Cabinet. The Cabinet was not shown the more detailed and considered legal opinion Lord Goldsmith had provided just six days earlier. It was not aware of the conflicting legal arguments regarding the effect of Resolution 1441. It was not told how the Prime Minister had formed his view that the Iraqi government was in clear breach of its internationally mandated responsibilities. It was wholly deprived of the information it required to make an informed legal and political decision on Britain’s involvement in the Iraq war.

The Chilcot inquiry concluded that:

“Cabinet was…being asked to confirm the decision that the diplomatic process was at an end and that the House of Commons should be asked to endorse the use of military action to enforce Iraq’s compliance. Given the gravity of this decision Cabinet should have been made aware of the legal uncertainties”.

In later evidence before the Chilcot inquiry, Lord Goldsmith agreed that the process by which his advice had been obtained should be improved. He recommended that there ought to be a Cabinet sub-committee to consider the legality of government policy and that legal advisers should be closely involved in the policymaking process.

Too late for that. Too many dead.

So, what steps did the Howard Government take to ensure that Australia’s involvement in the war in Iraq was on a sound legal footing?

In the early weeks of the conflict, the Australian Government, like that in the UK, was under some considerable pressure to clarify the legal position. The Government’s response was a personification of political expediency.

At least in the UK, the Prime Minister took the matter of the war’s legality seriously. He formed the view that a second Security Council resolution may be necessary. He commissioned the most senior lawyer in his administration to provide him with relevant legal advice. Lord Goldsmith held extensive and detailed discussions with his international counterparts. He acknowledged, at least in his penultimate advice, that the legal position was contestable and uncertain. He favoured approaching the Security Council for a second resolution authorising military intervention.

Nothing like that happened in Canberra. Neither John Howard nor the Attorney-General, Philip Ruddock, sought independent, high level legal advice as to the legality of the war. Instead, Howard determined that the advice should be provided by two middle ranking public service lawyers: the First Assistant Secretary, Office of International Law, in the Attorney-General’s Department, and the Senior Legal Adviser in DFAT.

Howard could be almost certain that, as public servants, in line management positions, these two lawyers would be highly unlikely to provide advice contradicting the Prime Minister’s pre-existing commitment to the deployment of Australian troops in Iraq.

And so it was. The two public servants wrote a memorandum that concluded, without qualification, that Australia’s military engagement in Iraq was consistent with international law. It supported the argument that the Kuwait resolution could be revived, twelve years later, so as authorise military action in Iraq without reference to the UN Security Council. Even the briefest acquaintance with the UN Charter would, without more, deny that assertion.

Lord Goldsmith had said that the revival argument may be tenable if hard evidence of Iraqi violations could be provided. The two officers’ legal memorandum sailed past any such recommendation or requirement. In response to the memorandum, forty-three Australian international lawyers wrote that Australia would be in plain breach of its international legal obligations under the UN Charter in the absence of a second Security Council resolution. The Government steamed heedlessly ahead with the military intervention.

When pressed further concerning the adequacy of the public servants’ legal advice, the Prime Minister simply referred to that provided by Lord Goldsmith in the UK as sufficient justification.

As to both legal opinions, the eminent, former Commonwealth Solicitor-General, Gavan Griffith QC, wrote that:

“The Australian and United Kingdom legal advices are entirely untenable. They are arrant nonsense. They furnish no threads for military clothes. It is difficult to comprehend that the fanciful assertions (they are not arguments) of the two advices have been invoked by Australia and the United Kingdom to support the invasion of another state…I am at a loss that this important matter of legal support has not been supported at the highest expert level available to the Government. Instead the Government has been content to table a mere ‘memorandum of assertion’, signed off at the departmental level of First Assistant Secretaries.”

That is right. The war and the law did not coincide. Australia should establish its own Chilcot inquiry.

Spencer Zifcak is Allan Myers Professor of Law at the Australian Catholic University and formerly a Vice President of the International Commission of Jurists (Australian Section)


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