Select Committee on Defence Third Report


500. In our report, A New Chapter to the Strategic Defence Review,[739] we considered the legal aspects of military operations in the war against terrorism. We concluded:

    It is of fundamental importance that our Armed Forces can be confident, whenever we call upon them, that they are operating on the basis of, and within, applicable international law.

In their response the Government agreed:

    We will always act in accordance with legal obligations but also effectively to defend the UK's people and interests and secure international peace and stability.[740]

501. The legal basis for the military operation in Iraq was set out on 17 March 2003 in a written answer by the Attorney General in the House of Lords and the Solicitor General in the House of Commons. The core of the argument is as follows:

    In resolution 1441 the Security Council determined that Iraq has been and remains in material breach of Resolution 687 (which set the ceasefire conditions after Operation Desert Storm). A material breach of 687 revives the authority to use force under Resolution 678 (which authorises force against Iraq to eject it from Kuwait and to restore peace and security in the area).

    The Security Council decided in Resolution 1441 that if Iraq failed at any time to comply with and co-operate fully with the implementation of Resolution 1441 that would constitute a further material breach.

    It is plain that Iraq has failed so to comply and therefore Iraq was, at the time of Resolution 1441 and continues to be, in material breach.

    Thus the authority to use force under Resolution 678 was revived and so continues today.[741]

502. The Secretary of State assured us that he had received no representations at all from senior officers about the legitimacy of the operation.[742]

503. Before the commitment of British forces to combat operations, debates were held in both Houses of Parliament on motions endorsing that commitment. The motion which the House of Commons agreed to on 18 March set out the legal argument and went on to assert that the House:

    …believes that the United Kingdom must uphold the authority of the United Nations as set out in Resolution 1441 and many Resolutions preceding it, and therefore supports the decision of Her Majesty's Government that the United Kingdom should use all means necessary to ensure the disarmament of Iraq's weapons of mass destruction

504. The decision to commit British forces to war is perhaps the most serious decision a Prime Minister can take. It is a decision which almost inevitably foreshadows the deaths of British service personnel. 33 service personnel lost their lives during the combat phase of Operation Telic. On this occasion the decision to commit forces followed resolutions of both Houses of Parliament supporting that action. We welcome this development and believe that it should be seen as an explicit precedent for future combat operations.

505. Under the Resolution agreed to by Parliament, the need for military action in March 2003 and the need for British Armed Forces to be involved in that action was based on the requirement that the UK uphold the authority of the UN and ensure the removal of Iraq's weapons of mass destruction. In his speech the Prime Minister argued that the coming together of the potential capabilities of modern international terrorist movements and the determination of a number of countries to develop and abet the proliferation of weapons of mass destruction 'is now in my judgement, a real and present danger to Britain and its national security.' He accepted that the association between the two was currently loose, but he believed it to be hardening.

506. Dr Mohammed ElBaradei, the Director General of the International Atomic Energy Agency, has recently written 'Eventually, inevitably, terrorists will gain access to [nuclear] materials and technology, if not actual weapons. If the world does not change course we risk self-destruction'.[743]

507. By its very nature, evidence of the existence of a present threat of the type set out by the Prime Minister will probably derive in large part from clandestine sources. The measure of a threat is classically defined as a combination of capability and intent. In this case both are likely to be subject to every effort to keep them secret. States do not advertise their WMD programmes; terrorist organisations depend on secrecy to be effective. Consequently among the sources for that evidence, the output of intelligence agencies can be expected to be a significant, if not the chief, element.

508. The decision to commit forces to combat operations, particularly when those operations are not in self defence against an actual or imminent attack, is fundamentally a political decision. In the case of operations in Iraq, the decision to take military action came at the end of a process of diplomatic and political pressure including the use of military preparations and deployments for coercive effect. It is right that those who make such decisions are held politically accountable for them. It is essential that decisions which commit British service personnel to combat are taken only as a last resort and when that combat is both legal and justified. However, no decision can be taken other than on the information available at the time.

509. It is arguable that the justification for military action taken in the context of an effects-based operation depends upon an assessment of the effects achieved. Air Vice Marshal Mike Heath argued that the effects-based approach meant that the combat activity could be seen as part of the information campaign. As an example he set out how the approach to Basra changed:

    the whole of the conflict period was an information campaign…all of the kinetic activity, both on the ground and in the air, was in direct support of the information piece. We started off with the dissuasion…moved through the persuasion and ended up with the restitution and reconstruction…all military activity was crafted towards an information campaign. [744]

510. He suggested that when true effects-based planning was embraced, the need to treat information operations and kinetic operations as separate would disappear:

    The sooner we move away from information operations and kinetic operations, the better. What we are trying to deliver now is effects-based operations that embrace the whole gamut of military and cross government capability. I believe we have arrived and delivered a force multiplier—not MoD but Whitehall—and it is important we understand that…[745]

Judging the effectiveness of an effects-based approach, however, as one observer has put it, is more an art than a science.[746]

511. In the case of operations in Iraq, the strategic effects sought by the coalition included that Iraq become 'a stable, united and law abiding state, within its present borders, co-operating with the international community, no longer posing a threat to its neighbours or to international security, abiding by all its international obligations and providing effective representative government for its people.' It is clearly too early to assess the achievement of those objectives.

512. On the other hand, as we have described, the precision of much of the targeting during the campaign did ensure that the civilian infrastructure (although it was already decrepit beyond the coalition's expectations) was largely undamaged at the conclusion of operations. There is clear evidence that leaflet drops and radio broadcasts successfully persuaded many Iraqis in Basra to stay indoors. And the oil wells (bar a very few) were not set alight; the industry's infrastructure was not sabotaged. In the case of the last example, the whole shape of the campaign was constructed with the achievement of this effect as a priority.

513. In many ways these 'effects' are indistinguishable from more traditional military objectives. The manoeuvrist approach to operations, which has long been at the heart of British defence doctrine, 'is one in which shattering the enemy's overall cohesion and will to fight, rather than his materiel, is paramount.'[747] At one level the current focus on effects-based operations is not so much a fundamental change in doctrine as a reflection of the far greater discrimination and precision which modern weapons systems and sensors are capable of achieving. Furthermore those very technological advances place an increased responsibility, on the forces which have them, to avoid civilian casualties. The core obligations of international law (specifically of the Geneva Conventions) are that combatants should at all times be distinguished from the civilian population, that only legitimate military targets may be attacked, and that such attacks must be proportionate (ie that any civilian casualties and damage expected to be caused should not be excessive in relation to the concrete and direct military advantage expected as a result of an attack).[748]

514. Thus the crafting of the targeting set to minimise civilian casualties was not only a choice made by the coalition in order to achieve a particular effect, or deliver a particular message; it was also a requirement of international law.

515. The Defence White Paper, Delivering Security in a Changing World, states:

    Effects-Based Operations is a new phrase, but it describes an approach to the use of force that is well-established—that military force exists to serve political or strategic ends… Strategic effects are designed to deliver the military contribution to a wider cross-governmental strategy and are focussed on desired outcomes.

Judging how far the military operations have served political ends is not easy. Although the White Paper states that it is 'strategic effects' that deliver a contribution to the cross-governmental (ie political) strategy, in modern operations a strategic effect can be the product of actions taken at the lowest tactical level, indeed of the actions of a single service person.

516. Again this is not entirely a new development, but the huge increase in media coverage and the immediacy of reports from journalists embedded with front line units has unprecedented potential to give disproportionate importance to isolated incidents. We have seen this, for example, on the occasions where American heavy-handedness (or worse) in particular circumstances has been presented as defining the American, or even the coalition, approach to the Iraqi civilian population. The measurement of the effect is a measurement of perceptions. In this respect Air Vice Marshal Heath was right to characterise the military operation as part of the wider information campaign.

517. But the argument, that, because military operations can contribute effects to the overall political context, military planning should be aware of and indeed should explicitly seek to create effects that support the over-arching political objectives, can be taken too far. The need to find a solution to the problems of Israel and Palestine have been explicitly linked to the operations in Iraq, not least by the Prime Minister in his speech to the House of Commons on 18 March. Although measures were taken to protect Israel from possible missile attack, we have no reason to believe that the military plans were devised with the need to find that solution in mind. The priority for military planning must be the achievement of military objectives. We are concerned that too great a focus on effects-based planning and on the part military action can play as one component in a spectrum of political and diplomatic activity may further complicate the tasks of military planners and commanders who are already operating in an ever more complex battle space and under more intense and intrusive scrutiny than ever before.

518. On the other hand, as we discussed in considering the reconstruction of Iraq, the ultimate success of a military operation of this type can be determined only as part of an assessment of the success of the overall process of which it was part. The risk is that in making that assessment the military is judged against a range of outcomes which are beyond their control and which are likely to be too complex and abstruse to be capable of being sensibly made a part of military planning.

519. Debate over the 2003 invasion of Iraq will continue. We intend to pursue issues related to the continuing responsibilities of British Armed Forces in Iraq in the coming months. Any military operations on the scale of those in Iraq can be expected to reverberate through a wide range of political agendas for a long time. Those reverberations may in turn have a significant influence on how British forces are required to conduct military operations in the future. Thus, although we have called this report Lessons of Iraq, we recognise that, in the areas where political intentions and military capabilities meet, some of the most fundamental lessons may be yet to emerge.

739   Sixth Report of Session 2002-03, HC 93 Back

740   Third Special Report of Session 2002-03, HC 975, p 11 Back

741   HC Deb, 17 March 2003, c515w Back

742   Q 20 Back

743   New York Times, 12 February 2004. Back

744   Q 1621 Back

745   Q 1672 Back

746   Cordesman, The Iraq War, Strategy Tactics and Military Lessons, p 29. Back

747   Ministry of Defence, British Defence Doctrine, JWP 0-01, 2nd edition, (October 2001), p 3-5. Back

748   Ibid, p 5-4. Back

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