Iraq inquiry: Government knew invasion was 'crime of aggression'

Published on Tuesday 26 January 2010 20:19

TONY Blair was warned two months before the invasion of Iraq it would be illegal to go to war without the authority of the United Nations, the inquiry into the conflict has heard.

A slew of newly declassified government papers showed Lord Goldsmith, then attorney general, was initially "pessimistic" that there was sufficient legal basis for military action.

However, after being urged to change his view by then foreign secretary Jack Straw – who warned against overly "dogmatic" legal advice – he eventually ruled it was lawful.

The inquiry heard Mr Straw rejected the advice of his senior legal adviser at the Foreign Office, Sir Michael Wood, that an invasion without a United Nations Security Council resolution specifically authorising military action would be a "crime of aggression".

Sir Michael's deputy Elizabeth Wilmshurst, who resigned in protest on the eve of the invasion in March 2003, described the government's treatment of the legal advice as "lamentable".

The inquiry also heard No 10 had raised the prospect of going into Iraq without "international legal authority" for the use of force.

The extent of the concerns of government lawyers will intensify pressure on Lord Goldsmith, who is to give evidence today, and Mr Blair, who appears on Friday.

Even while negotiations were under way in October 2002 on Security Council resolution 1441 – which required Iraq to give up its supposed weapons of mass destruction – Sir Michael said he was being asked about the consequences of invading without legal authority.

"This was a rather curious request and I am still not entirely sure what the purpose was," he said.

"I think it was to send off to No 10, and it did go to No 10, who said, 'Why has this been put in writing?', is my recollection."

After the passing of resolution 1441 in November 2002, Lord Goldsmith expressed concern to Mr Straw that it was being seen in the government as the legal justification for military action.

In a note of a telephone conversation between the two men on 12 November, Lord Goldsmith added that Jonathan Powell, Mr Blair's chief of staff, had indicated that No 10 was "under no illusion" as to his views on the issue.

Initially, Sir Michael said, it was made clear he should not come down on one side or the other but, in January 2003, he took issue with Mr Straw over his assertion that it would still be possible to take action, even if the international community failed to get a second resolution authorising war.

"To use force without Security Council authority would amount to a crime of aggression," he wrote in a memorandum to Mr Straw.

Mr Straw replied: "I note your advice, but I do not accept it."

Sir Michael told the inquiry: "He took the view that I was being very dogmatic and that international law was pretty vague and that he wasn't used to people taking such a firm position.

"When he had been at the Home Office, he had often been advised things were unlawful but he had gone ahead anyway and won in the courts."

Mr Straw – who is now Justice Secretary – then took issue with a draft legal opinion Lord Goldsmith gave to Mr Blair on 14 January. Ms Wilmshurst – who saw a copy – said: "His provisional view was that a second resolution was necessary".

In a letter to Lord Goldsmith dated 6 February, Mr Straw argued for a legal interpretation "which coincides with our firm policy intention".

He added: "I have been very forcefully struck by a paradox in the culture of government lawyers, which is that the less certain the law is, the more certain in their views they become.

"In international law, my experience is of advice which is more dogmatic, even though the range of reasonable interpretations is almost always greater than in respect of domestic law."

On 7 March, Lord Goldsmith presented his opinion to Mr Blair in which he argued that a "reasonable case" could be made for legal action under 1441, although it would be safer to have a second resolution.

On 11 March, with diplomatic efforts to secure a new resolution on the brink of collapse, he was called to a meeting with Mr Blair, Mr Straw, defence secretary Geoff Hoon and chief of the defence staff Admiral Lord Boyce.

Two days later, his legal secretary, David Brummell, noted that he had come to a "better view" that a further resolution was not legally necessary.

What they've said, and questions raised for Blair

Witness

Sir Jeremy Greenstock, the former ambassador to the UN and special representative in Iraq. He claimed that a decision was made the year before the invasion to go to war, with an agreement between Tony Blair and George Bush.

Controversy

This gets to the heart of the issue over whether Mr Blair was set on the invasion long before a vote in parliament and final decisions at the UN or whether he was genuinely pursuing all options before going to war. Alistair Campbell suggested a promise was given to the Americans.

So then, Tony …

Did you commit Britain to war before getting agreement from your Cabinet and MPs?

Witness

Sir Ken Macdonald, former director of public prosecutions, claimed that Tony Blair's sycophantic attitude to the United States led Britain into war and accused Mr Blair of "misleading" the British public.

Controversy

This is the biggest accusation regularly levelled at Mr Blair, not least over the claim in the dodgy dossier that Britain may have been hit in 45 minutes by weapons of mass destruction from Iraq, and that he told lies to MPs and the British public to take Britain into war.

So then, Tony …

Did you manipulate the facts to take Britain to war?

Witness

Jack Straw, foreign secretary at the time of the invasion, told the inquiry that he regretted the war and loss of life and would not have supported it for regime change.

He said the 45-minute claim had "haunted" Labour ever since.

Controversy

The suspicion remains that Mr Blair was bent on regime change whatever the WMD threat and that the 45-minute claim was a premise to get what he wanted. He admitted in a TV interview that the lack of WMDs did not change his mind that the invasion was right.

So then, Tony …

Would you have taken Britain to war if Iraq did not have WMDs?

Witness

Geoff Hoon, defence secretary at the time of the invasion, said the Treasury pulled money for helicopters which were needed by the occupation forces in Iraq and now Afghanistan, and have left soldiers exposed to roadside bombs and attacks by insurgents.

Controversy

Another charge laid at Mr Blair's door is that there was not enough preparation to occupy Iraq. A senior civil servant giving evidence called the swiftness of the invasion a "catastrophic victory", as it left the forces completely unprepared for occupation.

So then, Tony …

Do you accept you should have prepared better, and this failure cost lives?

Witness

Sir Michael Wood and Elizabeth Wilmshurst, former senior legal advisers at the Foreign and Commonwealth Office, yesterday told the inquiry that they still believed the war was illegal and gave advice to the government at the time saying that.

Controversy

Their evidence covered another central issue – that many increasingly believe the war broke international law. The former attorney general Lord Goldsmith changed his mind on the legality of the war and it is suspected he did so under pressure from Mr Blair.

So then, Tony …

Why did you ignore advice that the invasion of Iraq was illegal?

Witness

Alistair Campbell, Mr Blair's chief spin doctor, said that Gordon Brown was part of the inner circle on the question of invading Iraq and was kept informed of every development.

Controversy

To a large extent, many have tried to paint Iraq as Mr Blair's war and the current government has distanced itself from it. It will be interesting to know just how much a part, in Mr Blair's view, others played in pushing Britain towards war.

So then, Tony …

How much did you consult Gordon Brown? What part did he play?

DOCTORS COULD SEE KELLY REPORT

DETAILS of former government weapons inspector David Kelly's post-mortem examination may be viewed by doctors seeking an inquest into his death.

Lord Hutton confirmed he had requested a 70-year gagging order on the material at the end of his inquiry into Dr Kelly's death. But yesterday he said its purpose was to avoid the publication of information that might cause distress to Dr Kelly's wife and daughters, and there was no reason why the material should not be shown to the doctors and their advisers.

Dr Kelly's body was found in woods close to his Oxfordshire home in 2003, shortly after it was revealed he was the source of a BBC report casting doubt on the government's claim that Iraq had weapons of mass destruction capable of being fired within 45 minutes.