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 will be expected to address. In his press conference in July 2009, 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.
Doubts have also been raised as to whether the UK government correctly addressed the issues and followed proper procedures and the Inquiry is more likely to consider these aspects of the decision.
The government’s position is that the then attorney general, Lord Goldsmith, gave the Cabinet written advice on 17 March 2003 stating unequivocally that UK participation in the invasion would be legal based on UN resolutions. This advice was published at the time. The government has admitted that Goldsmith had given a more detailed and equivocal analysis on 7 March and had to some extent changed his mind.
Why there is a case to answer
It is known that legal advice in early 2002 was that there was no legal basis for an invasion and that regime change was in itself illegal.
It has been alleged that Goldsmith was pressured to overcome the doubts set out in his advice of 7 March 2003. There is also evidence that he had previously stated that the war would be illegal.
Further Questions
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. Read more
The Inquiry will also need to ask to what extent the wider Cabinet was aware of Goldsmith’s changing views.
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
10 Responses to “Was the legality of the invasion correctly addressed?”
Comment from John
Time 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.
Comment from Margaret
Time 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.
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Time December 14, 2009 at 10:09 am
[...] legality of the war was dubious at best. The government relied upon the eventual opinion of Lord Goldsmith, who had expressed serious [...]
Comment from jeremy streeten
Time 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.
Comment from Harry Ferrari
Time 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.
Comment from David
Time January 29, 2010 at 9:02 am
It’s easy to lose sight of the fundamental facts whilst pursuing “fairness”, “balance” and “objectivity”, particularly if you consult “experts”.
You don’t need experts, legal or otherwise, to judge whether the war was legal, neither did you at the time it was being discussed.
You only need to be able to read:
Comment from helen musk
Time January 29, 2010 at 4:13 pm
what happens if it is found that the war was unlawful – what happens next?
Comment from Dwight
Time 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.”
Comment from Andrew Watt
Time 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.
Comment from michael shaw
Time 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.