In the Matter of the Legality of the Use
of Force Against Iraq and the Alleged Existence of Weapons of
Mass Destruction
OPINION
1. Further to our previous advice on whether
the United Kingdom (UK) could rely either on United Nations Security
Council Resolution 1441 (Resolution 1441) (OP 1441), or on Resolutions
678 and 687 (OP678) to use force against Iraq, we are asked to
advise the Campaign for Nuclear Disarmament and Peacerights on
the implications of the absence to date of discovery of weapons
of mass destruction in Iraq since its invasion on 20 March 2003.
SUMMARY OF
ADVICE
2. In summary our view is that the allegations
made by former members of the Cabinet in the recent past, that
the evidence of the existence of weapons of mass destruction was
exaggerated by the UK and the US prior to the invasion of Iraq
in March 2003, call into question the factual foundation for the
Attorney-General's view that the invasion was lawful in international
law. In our view there is therefore a strong case for establishing
a judicial inquiry to examine that legal question.
THE ATTORNEY-GENERAL'S
STATEMENT OF
17 MARCH 2003
3. In OP1441 and OP678 we concluded as follows:
(1) Security Council Resolution 1441 did
not authorise the use of force by member states of the UN.
(2) The UK would be in breach of international
law if it were to use force against Iraq in reliance on Resolution
1441 without a further Security Council Resolution.
(3) The UK could not rely on the authorisation
to use force in Resolution 678 to take military action against
Iraq.
4. However, the Attorney-General, the Rt
Hon Lord Goldsmith QC, set out a different view in his statement
of 17 March 2003. He stated that "authority to use force
exists from the combined effect of resolutions 678, 687 and 1441."
It is instructive that even he did not state that Resolution 1441
itself authorised the use of force. It is important to set out
the steps of his argument:
1. In resolution 678 the Security Council
authorised force against Iraq, to eject it from Kuwait and to
restore peace and security in the area.
2. In resolution 687, which set out the
ceasefire conditions after Operation Desert Storm, the Security
Council imposed continuing obligations on Iraq to eliminate its
weapons of mass destruction in order to restore international
peace and security in the area. Resolution 687 suspended but did
not terminate the authority to use force under resolution 678.
3. A material breach of resolution 687 revives
the authority to use force under resolution 678.
4. In resolution 1441 the Security Council
determined that Iraq has been and remains in material breach of
resolution 687, because it has not fully complied with its obligations
to disarm under that resolution.
5. The Security Council in resolution 1441
gave Iraq "a final opportunity to comply with its disarmament
obligations" and warned Iraq of the "serious consequences"
if it did not.
6. The Security Council also decided in
resolution 1441 that, if Iraq failed at any time to comply with
and cooperate fully in the implementation of resolution 1441,
that would constitute a further material breach.
7. 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.
8. Thus, the authority to use force under
resolution 678 has revived and so continues today. (emphasis added)
5. The Attorney-General's statement of 17
March 2003 ("the Statement") was not his detailed legal
opinion, but a short summary setting out a legal conclusion. The
statement does not set out the factual basis for his argument,
nor does it fully explain his legal reasoning or provide an assessment
of the strength of the argument he has put forward or of counter-arguments
(as was well-publicised at the time, many professors of international
law and others in this country took the view that the resolutions
relied on by him did not authorise the invasion of Iraq in March
2003). It is fair to assume therefore that his Statement was based
on a formal legal opinion which has not been published.
6. The Statement does, however, give a strong
indication of the factual evidence on which the Attorney-General
was relying. He states at paragraph 7: "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."
7. In his leaked Confidential Note to the
Prime Minister of 26 March 2003, there is a further hint of what
the Attorney-General had advised in his formal legal opinion on
the legality of an invasion of Iraq. He states at paragraph 6:
"Finally and in any event, it must be borne
in mind that the lawfulness of any occupation after the conflict
has ended is still governed by the legal basis for the use of
force. As you know, any military action pursuant to the authorisation
in resolution 678 (1990) must be limited to what is necessary
to achieve the objectives of that resolution, namely Iraqi disarmament,
and must be a proportionate response to that objective. The Government
has concluded that the removal of the current Iraqi regime from
power is necessary to secure disarmament, but the longer the occupation
of Iraq continues, and the more tasks undertaken by an interim
administration depart from the main objective, the more difficult
it will be to justify the lawfulness of the occupation. So in
the absence of a further Security Council resolution, in addition
to the issues raised in paragraph 2 above, it is likely to be
difficult to justify the legality of the continued occupation
of Iraq once the disarmament requirements of the relevant Security
Council resolutions have been completed." (emphasis added)
8. This paragraph makes two points very
clear:
(1) the Attorney-General had advised that
military action was only lawful to the extent that it was necessary
to achieve disarmament;
(2) the Attorney-General had been told that
the removal of the current Iraqi regime from power was necessary
to secure disarmament. In other words, it was the Attorney General's
view (and we think that view was correct) that "regime change"
could not be an end in itself; it could only be achieved by force
as a necessary means to achieve the end of disarmament.
ALLEGATIONS OF
MISUSE OF
INTELLIGENCE
9. In September 2002 the UK Government published
a dossier entitled: "Iraq's Weapons of Mass Destruction:
the Assessment of the British Government." ("The September
Dossier")
10. In his foreword to the September Dossier,
the Prime Minister, the Rt Hon Tony Blair MP, stated as follows:
The document published today is based, in large
part, on the work of the Joint Intelligence Committee (JIC). The
JIC is at the heart of the British intelligence machinery.
Its work, like the material it analyses, is
largely secret. It is unprecedented for the Government to publish
this kind of document. But in light of the debate about Iraq and
Weapons of Mass Destruction (WMD), I wanted to share with the
British public the reasons why I believe this issue to be a current
and serious threat to the UK national interest.
In recent months, I have been increasingly alarmed
by the evidence from inside Iraq that despite sanctions, despite
the damage done to his capability in the past, despite the UN
Security Council Resolutions expressly outlawing it, and despite
his denials, Saddam Hussein is continuing to develop WMD, and
with them the ability to inflict real damage upon the region,
and the stability of the world.
What I believe the assessed intelligence has
established beyond doubt is that Saddam has continued to produce
chemical and biological weapons, that he continues in his efforts
to develop nuclear weapons, and that he has been able to extend
the range of his ballistic missile programme.
The picture presented to me by the JIC in recent
months has become more not less worrying. It is clear that, despite
sanctions, the policy of containment has not worked sufficiently
well to prevent Saddam from developing these weapons.
I am in no doubt that the threat is serious
and current, that he has made progress on WMD, and that he has
to be stopped.
Saddam has used chemical weapons, not only against
an enemy state, but against his own people. Intelligence reports
make clear that he sees the building up of his WMD capability,
and the belief overseas that he would use these weapons, as vital
to his strategic interests, and in particular his goal of regional
domination. And the document discloses that his military planning
allows for some of the WMD to be ready within 45 minutes of an
order to use them."
11. In his introduction to the debate held
in the House of Commons on 18 March 2003, the Prime Minister Tony
Blair made the following statement:
". . . what is the claim of Saddam today?
Why, exactly the same as before: that he has no weapons of mass
destruction. Indeed, we are asked to believe that after seven
years of obstruction and non-compliance, finally resulting in
the inspectors' leaving in 1998—seven years in which he
hid his programme and built it up, even when the inspectors were
there in Iraq—when they had left, he voluntarily decided
to do what he had consistently refused to do under coercion.
When the inspectors left in 1998, they left unaccounted
for 10,000 litres of anthrax; a far-reaching VX nerve agent programme;
up to 6,500 chemical munitions; at least 80 tonnes of mustard
gas, and possibly more than 10 times that amount; unquantifiable
amounts of sarin, botulinum toxin and a host of other biological
poisons; and an entire Scud missile programme. We are asked now
seriously to accept that in the last few years—contrary
to all history, contrary to all intelligence—Saddam decided
unilaterally to destroy those weapons. I say that such a claim
is palpably absurd. . . . this much is accepted by all members
of the UN Security Council: the 8 December declaration is false
. . Iraq continues to deny that it has any weapons of mass destruction,
although no serious intelligence service anywhere in the world
believes it."
12. On 1 June 2003 the Rt Hon Clare Short
MP, the former Secretary of State for International Development
who resigned from the Cabinet on 12 May 2003 told the Sunday
Telegraph that the Prime Minister Tony Blair had "duped"
the public over the threat posed by Saddam Hussein in order to
ensure that Britain invaded Iraq.
13. Clare Short stated in her interview:
"I have concluded that the PM had decided
to go to war in August sometime and he duped us all along. He
had decided for reasons that he alone knows to go to war over
Iraq and to create this sense of urgency and drive it: the way
the intelligence was spun was part of that drive.
There was political spin put on the intelligence
information to create a sense of urgency. It was a political decision
that came from the Prime Minister. We were misled: I think we
were deceived in the way it was done . . .
The suggestion that there was a risk of chemical
and biological weapons being weaponised and threatening us in
a short time was spin . . . That didn't come from the security
services."
14. In an article published in the International
Herald Tribune on 4 June 2003, the Rt Hon Robin Cook MP, the
former Leader of the House of Commons who resigned from the Cabinet
on 17 March 2003, stated as follows:
"When the cabinet of Prime Minister Tony
Blair's government discussed the dossier on Saddam's weapons of
mass destruction, I argued that I found the document curiously
derivative. It set out what we knew about Saddam's chemical and
biological arsenal at the time of the Gulf War. It rehearsed our
inability to discover what had happened to those weapons. It then
leaped to the conclusion that Saddam must still possess all those
weapons. There was no hard intelligence of a current weapons program
that would represent a new and compelling threat to our interests.
Nor did the dossier at any stage admit the basic
scientific fact that biological and chemical agents have a finite
shelf life. Nerve agents of good quality have a shelf life of
about five years and anthrax in liquid solution of about three
years. Saddam's stocks were not of good quality. The Pentagon
itself concluded that Iraqi chemical munitions were of such poor
standard that they were produced on a "make-and-use"
regimen under which they were usable for only a few weeks. Even
if Saddam had destroyed none of his arsenal from 1991 it would
long ago have become useless.
It is inconceivable that no one in the Pentagon
told Rumsfeld these home truths, or at the very least tried to
tell him. So why did he build a case for war on a false claim
of Saddam's capability?
Enter stage right—far right—his deputy,
Paul Wolfowitz, a man of such ferociously reactionary opinion
that he has at least the advantage to his department of making
Rumsfeld appear reasonable. He has now disclosed: "For bureaucratic
reasons we settled on weapons of mass destruction because it was
the one issue everyone could agree on."
15. In an article dated 6 June 2003, the
Guardian newspaper carried the following report by Simon
Jeffery:
"The United Nations' chief weapons inspector,
Hans Blix, has hit out at the quality of intelligence given to
him by the United States and Britain on Iraq's alleged chemical
and biological weapons programmes."
As the prime minister, Tony Blair, continued
to be dogged by claims he had exaggerated the threat posed by
Saddam Hussein, Mr Blix said today he was disappointed with the
tip-offs provided for his inspection teams. "Only in three
of those cases did we find anything at all, and in none of these
cases was there any weapons of mass destruction, and that shook
me a bit, I must say," he told BBC News 24.
"I thought, my God, if this is the best
intelligence they have and we find nothing, what about the rest?"
The BBC also reported last night that British
intelligence services were asked at least six times to rewrite
the controversial dossier on Iraq's weapons of mass destruction.
A source, described as "close to British intelligence",
said Mr Blair was at one stage personally involved in the decision
to get the document redrafted. The new claim appears to back up
the allegation, originally made by the BBC's defence correspondent
Andrew Gilligan on Radio 4's Today programme, that intelligence
services were told by Downing Street to "sex up" the
dossier to boost support for the war.
The final version claimed Iraq could launch
chemical or biological weapons within 45 minutes of Saddam giving
the order.
In a valedictory appearance in front of the
UN security council yesterday, Mr Blix, who retires this month,
criticised Britain for "jumping to conclusions" that
Iraq posed a serious threat to world security.
He said Saddam's regime might have hidden weapons
of mass destruction in Iraq, or destroyed them ahead of the US-British
invasion, but stressed that neither evidence of the "continuation
or resumption of programmes of weapons of mass destruction or
significant quantities of proscribed items" had been unearthed
by his inspectors. "As I have noted before, this does not
necessarily mean that such items could not exist," he said.
"They might—there remain long lists of items unaccounted
for—but it is not justified to jump to the conclusion that
something exists just because it is unaccounted for."
16. In another article in the Guardian dated
6 June 2003, Nicholas Watt, John Hooper and Richard Norton-Taylor
also reported on Hans Blix's remarks made to the UN Security Council
on 5 June 2003:
"As a UN official, Mr Blix did not name
Britain and the US. But there was no doubt who he had in mind
when he said there was no evidence that Saddam had continued with
his banned weapons programme after the 1991 Gulf war. This contradicted
Mr Blair's warning last year that Iraq's banned weapons programme
was "active, detailed and growing".
A former UN inspector, Bernd Birkicht, 39, said
he believed the CIA had made up intelligence on weapons of mass
destruction to provide a legal basis for the war. He told the
Guardian how supposedly top-secret, high-quality intelligence
had led the inspectors on an absurd wild goose chase.
"We received information about a site, giving
the exact geographical co-ordinates, and when we got there we
found nothing. Nothing on the ground, "Nothing under the
ground. Just desert."
He said the so-called decontamination trucks
which figured in satellite photographs presented to the security
council were fire engines."
17. Richard Norton-Taylor in an article
published in the Guardian on 4 June 2003, made the following comments
on the September dossier.
"The dossier contains four references to
the claim that Iraq could deploy chemical and biological weapons
within 45 minutes of an order to do so. A senior British official
told the BBC this was one of several claims added against the
wishes of intelligence agencies. Adam Ingram, the armed forces
minister, admitted the claim was made by an uncorroborated, single,
source.
The dossier said Iraq was seeking uranium from
Africa—a reference to Niger. Colin Powell, US secretary
of State, omitted it from his speech to the UN security council
on 5 February. "It turned out to be untrue; that happens
a lot in the intelligence business," he said this week.
The dossier said aluminium tubes Iraq tried to
buy could be for nuclear weapons. The US energy and state departments
dismissed the claim. That very month, the US defence intelligence
agency concluded: "There is no reliable information on whether
Iraq is producing and stockpiling chemical weapons."
18. On 3 June 2003, the BBC reported that
a full-scale Congressional inquiry had been ordered in the United
States on the use and possible abuse of intelligence information
on weapons of mass destruction in Iraq. The inquiry—being
conducted by the Senate Armed Services and Intelligence Committees—is
expected to compare comments made by the US administration in
the run-up to war with what it was given in terms of intelligence
briefing and to decide whether or not there was a deliberate attempt
to exaggerate intelligence material. In the UK there are to be
inquiries by the Foreign Affairs Select Committee and the Parliamentary
Intelligence and Security Committee.
ISSUE
19. The issue which we will consider in
this advice is to what extent the allegations made by former Cabinet
ministers and intelligence officials that intelligence material
has been exaggerated and misused affect the argument set out in
the Attorney-General's Statement, on which the UK Government relied
to justify the legality of the invasion of Iraq.
ADVICE
20. As highlighted above the Attorney-General's
argument that the invasion of Iraq was lawful depended on the
assumption that this invasion was necessary to achieve the disarmament
of Iraq. It was only on the basis of this assumption that the
Attorney-General could argue that the authority to use force contained
in Resolution 678, which had been adopted by the UN Security Council
in 1990, and which authorised the use of force in order to ensure
the withdrawal of Iraq from Kuwait and to restore peace and security
to the area, had been revived. This was because the Attorney-General's
argument depended on the following premises:
(1) The cease-fire contained in Resolution
687 was only a suspension of the authorisation to use force contained
in Resolution 678.
(2) Resolution 687 had as its objective
the restoration of international peace and security in the area
in conformity with Resolution 678.
(3) In Resolution 1441 the Security Council
determined that Iraq was in breach of the provisions of Resolution
687 relating to disarmament of Iraq's nuclear, chemical and biological
weapon capability (paragraphs 8 to 13), which provisions were
designed to restore international peace and security in the area
in accordance with Resolution 678.
(4) Iraq failed to take to final opportunity
afforded to it by Resolution 1441 to comply with its disarmament
obligations under Resolution 687.
21. Any reliance on Resolution 678 to authorise
the use of force was therefore restricted to what was necessary
to enforce the disarmament provisions of Resolution 687 (and Resolution
1441) with the objective of restoring international peace and
security to the area. It follows that the quality, reliability
and strength of the evidence which was made available to the Government,
in particular to the Attorney-General, are essential for an assessment
of whether in fact there was any lawful basis for the invasion
of Iraq even on the Attorney-General's legal view.
22. Furthermore, the quality, reliability
and strength of that evidence are essential for an assessment
of whether the invasion had to take place when it did on 20 March
2003 because there was insufficient time to allow the UN inspectors,
including Dr Blix, any more time, as they had requested. If, as
the Government now suggest, it will take time before weapons of
mass destruction are discovered in Iraq, this raises the question
why it was not possible to allow Dr Blix more time and calls into
question the proportionality of the invasion and use of force
to effect regime change in March-April 2003. As we have noted
above, the Attorney-General himself was acutely aware of the need
for any use of force to comply with the legal principle of proportionality.
23. In our view the allegations made in
the media over the past week call into question the factual foundation
of the Attorney-General's legal advice to the Government. If those
allegations are well-founded they mean that it was far from plain
that Iraq had not complied with its disarmament obligations, and
far from certain that invasion and/or regime change was necessary
in order to secure disarmament.
CONCLUSION
24. Without any disrespect to the two Parliamentary
inquiries which are to take place, we consider that there is a
strong case for establishing a judicial inquiry to examine what
are essentially legal questions about:
(1) the basis in international law for the
Government's participation in the invasion of Iraq and the use
of force to effect regime change there; and
(2) the quality, reliability and strength
of the evidence which was relied on to lay the factual foundation
for any such basis in law.
25. It is quintessentially the task of independent
judges to decide questions of law and to assess evidence. We conclude
that there is a strong case for those two questions to be the
subject of a judicial inquiry.
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