Was the legality of the invasion correctly addressed?

“an unlawful use of force on such a scale amounts to the crime of aggression”
Elizabeth Wilmshurst, deputy legal adviser to the Foreign Office, resigning on 18 March 2003

The question of whether the war was legal is one of the most controversial issues that the Inquiry is expected to address. In his press conference in July 2009, Sir John Chilcot said “We are determined to be thorough, rigorous, fair and frank, to enable us to form impartial and evidence-based judgements on all aspects of the issues, including the arguments about the legality of the conflict.” But as the Inquiry is not a judicial one and the committee are not legal experts it seems unlikely to come up with a definitive conclusion.

Questions have also been raised about the process by which the then attorney general, Lord Goldsmith came to advise that the war would be legal. In addition, the Inquiry has identified that at times the government’s actions ran contrary to the advice that Goldsmith was giving.

The advice and the process by which it was reached

On 17 March 2003, three days before the invasion, Goldsmith published a written parliamentary answer stating unequivocally that UK participation in would be legal, based on UN resolutions. The former government stated that this constituted legal advice given to the Cabinet from its top law officer but the status of this advice has been questioned by legal experts.

It emerged in 2005 that Goldsmith had given more equivocal advice just ten days earlier in a longer written opinion. During the Inquiry, evidence has been published to confirm claims that Goldsmith had previously advised that the war would be illegal without a further decision of the UN Security Council.

The Inquiry will need therefore to assess Goldsmith’s eventual agreement that British participation in the war would be legal, without which it could not have gone ahead, in the context of his earlier views and the process by which he came to change his mind. In addition, as it has indicated, the Inquiry will need to ask why Tony Blair pursued a policy that he was told would be illegal.

Was the war legal?

Goldsmiths eventual advice that the invasion would be legal has been criticised by a number of legal experts. The Digest has produced an analysis of the competing legal arguments. Read more

Was the process of assessing the legality of the war appropriate?

In assessing whether the government followed an appropriate process to assess the legality of the proposed invasion, the Inquiry will need to ask whether Goldsmith was in a position to reach an objective conclusion. This will necessarily address the allegation that he was pressured to change his mind but should also ask whether the traditional role of the attorney general is inherently subject to conflicts of interest, as some have argued. The evidence suggests that in determinedly pursuing a policy that ran contrary to Goldsmith’s advice, it put him in a position where he felt obliged to change his advice. Read more

The Inquiry will also need to ask to what extent the wider Cabinet was aware of Goldsmith’s changing views.

Key Evidence

Published contemporaneous written evidence

Hearing transcripts and witness statements

Submissions to the Inquiry

10 comments to this article

  1. michael shaw

    on October 16, 2009 at 9:04 pm -

    With regard to the question heading ‘Was the war legal?’ and comment ‘Goldsmith’s eventual advice that the invasion would be legal has been criticised by a number of legal experts’, would it be halpful to list these experts along with their academic and/or professional qualifications (especially specialists in international law) and a summary of their arguments?

    For the sake of balance, a similar list could be compiled of those legal experts (a tiny minority, as far as I am aware – correct me if I’m wrong) who take a contrary view.

  2. John

    on December 11, 2009 at 11:54 am -

    What I find difficult to swallow is the way that Dr Kelly was savaged by the Parliamentary Committee and the contrasting gentle questionning and interrogation of the witnesses in the Chilcot Inquiry.

  3. Margaret

    on December 13, 2009 at 12:30 pm -

    I too find that difficult to swallow. I for one will never forget or forgive what that government did to Dr Kelly.

  4. jeremy streeten

    on January 8, 2010 at 5:34 pm -

    Lord Goldsmith’s justification for war was based on UN resolution 687 made 12 years previously as part of the ceasefire conditions following the Gulf War. It required Iraq to dispose of all its WMD; if Iraq did not comply, it would be in breach of the ceasefire conditions, and the use of military force against Iraq could be continued under previous UN resolutions (660,661,678). However, we know from Scott Ritter that when the UN inspectors left in 1998 at least 95% of all WMD had been verified as having been destroyed, and we now know that all WMD had been destroyed. So Saddam had substantially complied with 687. Therefore the invasion was illegal. It is no defence to say “I thought he had WMD”. The fact is he did not.

  5. Harry Ferrari

    on January 22, 2010 at 8:19 pm -

    Determining whether the conflict was legal can only be achieved by people that operate within the judicial sphere. Failing to recognise this will eventually result in another attempt to whitewash the real culprits and prevent another occurrence.

    Even Chilcot in his opening address stated “including the arguments about the legality of the conflict”, yet he contradicted himself by saying “committee are not legal experts” then how on earth can you identify whether the legality of the conflict was just or unjust ? What will evidently transpire is that this inquiry will be injudicious, we need a judge not a government appointed claque.

  6. helen musk

    on January 29, 2010 at 4:13 pm -

    what happens if it is found that the war was unlawful – what happens next?

  7. Dwight

    on February 1, 2010 at 9:32 pm -

    Helen Musk,
    the war cannot be found unlawful as there isn’t any Court that could be the final arbiter.

    As Chris Ames has written:

    “In the absence of an international supreme court, the legality of the invasion will remain a matter of opinion, with no definitive conclusion possible.”

  8. Andrew Watt

    on March 5, 2010 at 10:38 am -

    Response to Helen Musk.

    Much of the discussion on the legality of the Iraq War has centered on whether or not the war was unlawful in terms of international law.

    Peter Goldsmith, according to documents made public partly via Chilcot, stated to the Ministry of Defence on 14th March 2003 that the war would be lawful under both international and national law.

    On the latter aspect, I believe that Peter Goldsmith was spectacularly wrong.

    There is strong evidence that the Iraq War was unlawful in UK Law.

    The Iraq War meets the relevant criteria for “terrorism” set out in Section 1 of the Terrorism Act 2000.

    That’s not really a surprise. Terrorism is violence for political ends. And military action is violence for political ends.

    Given that the Iraq War was “terrorism” in the meaning of Section 1 of the Terrorism Act 2000, then there are several conclusions which follow.

    In funding the Iraq War Gordon Brown has committed one or more offences in terms of Section 15 of the Terrorism Act 2000, in that he funded “terrorism”. The penalty for Brown, if convicted, is imprisonment for up to 14 years (see Section 22 of the Act).

    Similarly, Tony Blair has committed one or more offences in terms of Section 56 of the Terrorism Act 2000 in that he participated in directing an organisation which was conduding acts of terrorism in Iraq. The penalty for Blair, if convicted, is life imprisonment.

    Further, the generality of British military personnel who died in Iraq died as “terrorists” in the meaning of Section 40 of the Terrorism Act 2000. As individuals many will have committed offences in terms of Sections 56 and/or 57 of the Terrorism Act 2000.

    The Terrorism Act 2000 is UK Law. A UK court can try individuals such as Tony Blair and Gordon Brown.

    I deal with these and related issues in more depth on the Chilcot’s Cheating Us blog.