Was British Participation in the Iraq War Legal? (i): The Legal issues

Phillippe Sands (Queen's Counsel and Law Professor, London University) and J. Sean Curtin (Fellow, GLOCOM and Asia Times)

Background of the legal arguments
In his new book, Lawless World, Phillippe Sands, a distinguished international lawyer, Queen's Counsel and London University international law professor, claims that the British government's top legal advisor Lord Goldsmith, the Attorney General, warned Prime Minister Tony Blair on 7 March 2003 that the Iraq war could be illegal without a second UN resolution sanctioning military action. Despite this, two weeks later Britain went to war without the Prime Minister mentioning any legal reservation about the legality of the war.

The issue of legality is currently at the centre of the British political scene because of the release of a resignation letter by a top government legal advisor, who quit her post just before the war began because she believed it was illegal.

Main Points of current debate
Prior to 7 March 2003, it is claimed the Attorney General Lord Goldsmith did not think that military action against Iraq would be lawful. On 7 March 2003, he presented his 13-page confidential legal opinion to Prime Minister Blair.

On 17 March 2003, a short parliamentary statement about Lord Goldsmith's position was presented by Blair in a written parliamentary answer just before a crucial House of Commons vote on British military action. Blair did not suggest the war was in anyway illegal.

On 18 March 2003, Elizabeth Wilmshurst, Deputy Legal Adviser at the Foreign Office resigned her post because she believed the war was illegal and that Lord Goldsmith had abruptly changed his opinion on the conflict's legality. Two high profile Cabinet Ministers, the former Foreign Minister Robin Cook and Development Minister Clare Short, along with several junior ministers and government officials, also resigned because they felt the war was illegal.

The government has refused to release Lord Goldsmith's full legal advice on the Iraq war, but a summary of his verdict on the legality of the action was published.

On 1 March 2005, Lord Goldsmith told the House of Lords, "I set out in the answer [on 7 March 2003] my own genuinely held, independent view that military action was lawful under the existing [UN] Security Council resolutions."

Tony Blair has robustly dismissed questions concerning the release of the complete advice of the Attorney General, and said his parliamentary statement on 17 March 2003 was a "fair summary" of Lord Goldsmith's opinion.

However, while still supporting Blair, Lord Goldsmith reacted to his "fair summary" comment by saying, "The answer [on 17 March 2003] did not purport to be a summary of my confidential legal advice to government." This statement further fueled demands for the full advice to be published.

Former Foreign Minister Robin Cook was critical of Lord Goldsmith's admission that Blair's [17 March 2003] parliamentary answer was not a summary of his legal opinion. He said, "The attorney general may never have presented his answer as a summary, but others certainly did." Cook added, "What is clear from his statement...is that he does not believe that it was a full, accurate summary of his formal opinion." He suggested Parliament may have been misled.

Was the war Legal?
This legal debate has taken centre stage in British politics. Below, Phillippe Sands examines some of the main issues.

Phillippe Sands: I think that the truth will come out at some point, there is no doubt that it will emerge. Whether it is in the next two months, the next two years or the next twenty years is, of course, the big question.

It is readily apparent that the government is literally desperate to ensure that it doesn't get out and the reason it is desperate for it not to get out is that there is a world of difference in the rather balanced and perfectly sound formal legal advice given [to Tony Blair] on 7 March [2003 by Lord Goldsmith] and the sense that it was not backed by an equally balanced summarized advice.

If one speaks to MPs who voted on the 18 and 19 [March 2003] then they say they thought that [the summary] was the full legal advice of the attorney general.

Now, the circumstances in which it will emerge are, of course, a matter of speculation. There have been applications under the [new] Freedom of Information Act. One argument the government is relying on is that of legal professional privilege. Lawyers who know a lot about legal professional privilege say it probably doesn't cover the formal legal advice because elements of the advice have already been released into the public domain and once elements of the advice have been released into the public domain you can no longer claim legal professional privilege.

This is one of the reasons why there is a tussle about whether or not the answer to the parliamentary question on the 17 March [2003] is or is not a summary of the advice of the 7 March [2003]. To say it is a summary of the advice of 7 March [2003] they have to rely on their ability to fall back on the legal professional privilege article. That is why when at a recent press conference the Prime Minister replied to a question by Gary Gibbons of Channel 4 News that it was "a fair summary" within five hours the attorney general [Lord Goldsmith] had put out a statement saying that it was not a summary of his formal legal advice. ["The answer did not purport to be a summary of my confidential legal advice to government."]

It is really not a happy situation. You develop a situation in which quite frankly those who may or may not have had the advice at some point are fearful in a culture in which this government moves defensively against people who act in the public interest...

...It is plain from facts that I cannot reveal here that there is concern at the very highest level of government of what the consequences would be of the release into the public domain of the full written legal advice of the 7 March. This only underscores that there ought to be in the public interest an end to this entire discussion. Just release the advice and let the chips lie...It is basically about trust because we actually do face a very real threat from terrorist organizations in various parts of the world some of whose members are in this country. So long as we do not have a government we can really trust at a difficult time, we are in a far worse off state.

The accompanying part of this article can be found here.

The above comments were made at Chatham House (Royal Institute for International Affairs) in London on 9 March 2005.