Slowly, the pressure is building on the government to publish the documents that form the legal basis for the Iraq war. Three weeks ago, Michael Heseltine called, in these pages, for the attorney-general to resign, given that his legal opinion relied on government misinformation — never subsequently corrected — about the existence of WMD in Iraq. Last week, Lord Alexander of Weedon QC argued in his Justice lecture that the war was not merely unjustified in law, but clearly so.
Few top-flight lawyers appear to think that the British invasion of Iraq was legal. Fewer still have been prepared to maintain its legality in print. Until last week, that is, when Professor Christopher Greenwood QC defended the attorney-general’s opinion in the Times.
He acknowledged, perhaps a little coyly, that he had ‘assisted the government on the Iraq conflict’. But whether or not this assistance extended to drafting the opinion itself — as some have thought — his article takes us a step closer towards the official justification.
However, the process by which the government was advised also needs examining. After all, the number two adviser at the Foreign Office, Elizabeth Wilmshurst, resigned just before the war after a 30-year career, apparently in protest. And there is this little-remarked note to the file by a BBC journalist submitted to the Hutton inquiry (item BBC 6-0136 on the inquiry’s website):
‘At 12.30 I received a call from a [text deleted] peer. The peer said that a close personal friend had recently reported in a private conversation that the attorney-general’s original opinion on the legality of the war was not sufficiently strong, and that he had come under strong pressure to make it more robust. “The attorney-general was told to strengthen his opinion.”’
If this is true, the real ‘sexing-up’ story — the ‘sexing-up’ that may actually have directly influenced the government’s actions in invading Iraq — is the legal one.
British lawyers are a magnificent breed. But legal opinions, like medical opinions, are not uniform. So if you know your lawyers well enough — and, if you’re the government, some of them will certainly want to know you — you can, to some extent, pick your legal opinion in advance. We know from the Hutton inquiry that the government was obsessed with ‘the need to make the case for dealing with Saddam’. So why not a little friendly lawyering on Iraq?
But hold on, I hear you say. A law exists or it does not. It is applicable or it is not. Governments do not choose the law they want, let alone choose it on the basis of convenience. They have procedures, committees, checks and balances. And the British government in particular does not go to war on the basis of partial legal advice which it has reason to doubt in advance, and which was deliberately chosen to suit its political purposes.
Would this were so. Take down, as I was recently encouraged to do, The International and Comparative Law Quarterly for October 1988. In it is a magisterial article on the Suez crisis — written from papers newly available under the 30-year rule — by Geoffrey Marston of Cambridge University.
Though complex, the story can be simply told. In July 1956 Colonel Nasser of Egypt nationalised the Suez Canal Company, the international company charged with operating the Suez Canal. The British government from Eden on down was outraged by this move. But the key legal officers — the legal adviser at the Foreign Office, Sir Gerald Fitzmaurice; the attorney-general, Sir Reginald Manningham-Buller; and the solicitor-general, Sir Harry Hylton-Foster — were of the clear opinion that an armed intervention by the UK to retake the canal would be illegal on any of the many grounds sought; and they were themselves unable to find a legal basis for such an intervention.
This advice was sent to the lord chancellor, Kilmuir, and summarised for the PM. Eden’s overall position was clear: ‘For God’s sake, keep the lawyers out of it.’
Unbeknown to the legal officers, however, in October 1956 the acting French foreign minister, Albert Gazier, visited Eden at Chequers with a plan, already discussed with Israel, to conduct a joint Anglo–French intervention in Egypt following an Israeli military offensive across Sinai. This was quickly documented and agreed between the three countries. The Israeli attack and the Anglo–French ‘response’ duly followed, with their well-known and inglorious result.
On what legal advice was the government acting when it committed the country to the invasion of Egypt? The answer is that of Kilmuir, who advised the Cabinet on the day of the Israeli attack that ‘the blocking of the canal for a considerable period would cause irreparable damage and suffering to a number of nations for which it would be difficult to see adequate compensation being afforded’. In fact, there was little reason to believe that the canal would be blocked. More to the point, however, the legal officers had unanimously argued that even irreparable damage to property did not justify armed intervention. Against this view, Kilmuir quoted the authority of Professor Waldock, holder of the Chichele Chair of International Law at Oxford University.
There was just one snag. Kilmuir’s ‘authority’ derived from a footnote — a footnote, mark you — to an article in the main text of which Waldock himself rejected the idea that irreparable damage to property could be used as a casus belli. This was recognised by the legal advisers, who quickly reiterated their view that a British armed ‘response’ would be illegal.
Waldock being resident at Oxford, a single telephone call would have been enough to clear up any debate on the matter. But it appears that no such call was made. In other words, the Prime Minister ignored the advice of the government’s own legal officers in favour of the opinion of the pro-war lord chancellor, which had been given in a personal capacity and was based on a clear misreading of just one relevant authority.
Obviously, nothing like this has occurred here. But the moral is clear. The government should publish in full both the instructions, formal and informal, given to the attorney-general and to Professor Greenwood QC, and the opinions given by these and other relevant legal advisers. What were the facts on which the attorney- general based his opinion? What contrary arguments were considered, and how were they answered? Was the attorney-general’s opinion ‘strengthened’, and if so how? Until these questions are answered, and this disreputable secrecy ended, the parallel with Suez will continue to beckon.
[This article originally appeared in The Spectator on 1 November 2003. It is republished here to mark the 10th anniversary of the Iraq War.]