Iraq and the mutiny of the generals
You may disagree with the former Attorney-General; but from whom do you expect the government to take legal advice if not from its principal legal adviser?

Iraq and the mutiny of the generals

by David Lewis, 29 May 2010

At some unremembered moment in my late twenties I became a contrarian. I adopted the assumption that a majority is invariably wrong where it holds strong and stridently expressed opinions.

My instincts and political views were reinforced when I watched Question Time on television some time in July 2007. The issue of Iraq was discussed and, as always on these programmes, I was struck by the unity of views among the (obviously hand-picked) audience, nearly all of whose questions were hostile to the war. They uttered all the usual clichés: Blair lied to us; Blair was Bush's poodle; the war was illegal; the war was wrong because no weapons of mass destruction had been found. (One audience member did mildly suggest that perhaps we should support our leaders and, amazingly, got a round of applause; which suddenly tailed off when the audience realised its mistake.)

As I listened, I asked myself why these people and their views so repelled me. Was it simply because I disagreed with them? Was it because they were so self-righteous? Was it even because they just might be right?

Maybe Blair lied to you, but for my part I wasn't aware of the 45-minute warning until it hit the news some months after the fall of Baghdad. I understood quite clearly at the time that we and our American allies were invading Iraq in order to give effect to UN mandatory resolutions binding upon the existing criminal régime, and that the only way to do this was to effect régime change by force of arms.

Although many people who know little or nothing about international law were claiming, before the invasion, that it would be illegal, we have long known that the government had the written advice of the Attorney-General, Sir Peter Goldsmith, to the effect that war would be legal, even without a final Security Council resolution.

Of course the Attorney-General might have been wrong in law, but he gave reasons for his decision. The anti-war people tried to undermine it by alleging that he changed his original advice under political duress.

The evidence, which I admit is purely circumstantial, is that he was under political pressure not to provide the advice that the government wanted but to give clear advice one way or the other.

The Attorney-General's original advice was given on 7 March 2003. This was three days before President Chirac said he would veto a second Security Council resolution authorising war. It is essential to remember that Sir Peter Goldsmith gave his initial advice at a time when it remained possible - and perhaps seemed probable - that the Security Council would expressly authorise military action.

It was a typical lawyer's opinion: "I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that [operative paragraphs] 4 and 12 do require a further [Security] Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained [my italics]."

This extract reminds me of the many mealy-mouthed counsel's opinions I used to read during my earlier career as a local government lawyer. Politicians, many of whom are inveterate risk-takers, would seize - and act - on the bit they agreed with and ignore the reservation. Soldiers, however, are not like that.

After the French virtual veto, ministers and generals no doubt re-read Sir Peter's opinion with keener interest than before. Its ambivalence must now have seemed less comforting than before. My belief is that senior military commanders were now horrified by the lack of certainty, and pointed out to ministers that they (the generals) might have no defence if indicted for war crimes at The Hague tribunal having prosecuted war in reliance on the advice.

I presume that ministers then told Goldsmith, in no uncertain terms, that he had to come down off the fence and rule either for or against the legality of the war. They would, in my view, have been entirely justified in doing so. Goldsmith, in response, could have refused to change his advice; but this would, in effect, have been the same as ruling against the war. At all events, on 17 March 2003 the Attorney-General advised the government that "the authority to use force under Resolution 678 has revived and so continues today."

You might be thinking: "The circumstantial evidence points just as clearly to the possibility that ministers pressured the Attorney-General to advise that the war was legal." I accept this; but I very much doubt whether senior counsel - who are generally fairly rich and fairly arrogant - would respond in a compliant way to crude, direct pressure. Lawyers do, however, like to please their clients, and I accept that the truth may lie somewhere in-between the twin poles of "pressure to advise clearly" and "pressure to advise favourably".

I have not seen it suggested that the military would have refused to wage a war not "certified" as legal by the Attorney-General, but in the international climate prevailing then and now they would have been fools not to have done so. What seems certain is that we were spared the extraordinary constitutional crisis that would have ensued if Her Majesty's armed forces had declined to accept the orders of Her Majesty's Government to prosecute a potentially illegal war. Sir Peter Goldsmith's decision to declare the war legal averted the risk of an act of military dissent that would no doubt have become known as the mutiny of the generals.

The Attorney-General's reasons for pronouncing the war legal included the fact that the Iraqi government had not fully complied with its obligations to disarm under UN Security Council resolution 687 (1991), which imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. "Thus, the authority to use force under Resolution 678 has revived and so continues today. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended."

Resolution 1441 (2002) recites Iraq's failure to provide accurate, full, final, and complete disclosure of its WMD programmes, its obstruction of access to sites designated by UNSCOM and the IAEA, its failure to co-operate fully and unconditionally with weapons inspectors, its cessation of such co-operation in 1998, the absence since December 1998 in Iraq of international monitoring, inspection, and verification of weapons of mass destruction and ballistic missiles; and Iraq's failure to comply with Security Council resolutions on terrorism, on ending the repression of its civilian population, requiring access by international humanitarian organizations, and requiring Iraq to return or account for Kuwaiti and third country nationals wrongfully detained by Iraq and to return Kuwaiti property wrongfully seized.

In other words we are talking about an international criminal state which had failed to comply with a succession of mandatory UN Security Council resolutions.

It follows from all this that it is entirely irrelevant that no weapons of mass destruction were actually found in Iraq, because one of the reasons why military action was started is that the Iraqi régime was not giving UN inspectors the access and information they needed in order to determine whether or not the régime was holding WMD.

Of course, it would have helped if both allied governments had made this clearer at the time. Presumably the politicians on both sides of the Atlantic had concluded that the public, and in our case Parliament, would not accept war unless they could be persuaded that WMD actually existed in Iraq. However, both governments made public what evidence they had, so that Parliament could decide for itself.

People forget - or deliberately ignore - three important things about Saddam and his régime. The first is how unbelievably cruel they were, both to their enemies and to their own people. The second is that even if they didn't have WMD in 2003, they certainly had them earlier because in the 1980s they used them against their own people and the Iranians in the form of poison gas.

The third forgotten fact about Saddam is that he had plenty of form. He had attacked four of his neighbours: Iran in 1980; Kuwait in 1990; and Israel and Saudi Arabia in 1991. It is true that between 1991 and 2003 he was being "contained", more or less successfully, but perhaps the Americans felt it would make better sense to have a government in place that would not need to be "contained" at great cost to their taxpayers.

The allied governments have been justly criticised for their conduct of the war, and for their administration of Iraq, following the fall of Baghdad. Their errors included the irrational decision to disband the Iraqi army and police force, and perhaps the time taken in handing over to an elected government. But so far as I am concerned, Britain's decision to participate in the invasion of Iraq was legal, because the government was clearly so advised by the then Attorney-General. You may disagree with Sir Peter Goldsmith if you wish; but from whom do you expect the government to take legal advice if not from its principal legal adviser?