“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.