New questions about the legality of the war


When the decision was made to enter the war in Iraq, the Commonwealth Parliament and the Australian people were assured by the Prime Minister that it was taken in accordance with international law. Last week’s furore in Britain over the content of the UK Attorney-General’s advice to the Blair Government, however, has cast a pall of doubt upon the accuracy of that legal opinion. This has important implications for Australia because the Howard Government placed considerable reliance upon the UK Attorney’s view in providing its justification for Australia’s commitment to the war in Iraq. That in turn raises a number of new questions which should now be addressed to our political leaders.

On 17 March 2003, days before the war, the UK Attorney-General, Lord Goldsmith, provided a written answer to a parliamentary question concerning its legality. In that parliamentary answer, Lord Goldsmith stated that it was ‘plain’ that Iraq was in breach of its obligations under the UN Security Council’s Resolution 1441. (Resolution 1441 was the resolution that warned Iraq that if it did not comply with certain conditions regarding inspection and disarmament, it would face serious consequences.) Accordingly, the Attorney concluded, it was unnecessary for Britain to return to the Security Council to obtain a further resolution authorising armed attack. The war would be legal because Iraq’s continuing breach, by implication, provided sufficient legal authority for the coalition to intervene.

Lord Goldsmith

Lord Goldsmith

Last week, however, the Guardian newspaper in Britain disclosed that Lord Goldsmith’s parliamentary answer differed significantly from a formal, detailed legal opinion he had provided to the Government just ten days earlier. In that opinion, the Guardian reported, the Attorney raised significant doubts about the legality of the invasion. The formal opinion expressed the view that, to avoid doubt, it would be far preferable if a second Security Council resolution could be obtained in order to provide explicit authority for the military action.

It appears that the Attorney had been so concerned about the issue of legality that he warned that Britain might face prosecution before an international court for engaging in a crime of aggression. In response, the Blair government convened a top-flight legal team to prepare an anticipatory legal defence.

It is no wonder the Government was worried. At about the same time the Deputy Legal Adviser in the Foreign Office, and the Office’s most expert adviser on involvement in military operations, Elizabeth Wilmshurst, had resigned. In her resignation letter she stated her belief that the planned invasion of Iraq constituted a crime of aggression. She could not, she said, agree to military action in circumstances ‘so detrimental to the international order and the rule of law’.

What happened in the ten days between the Attorney’s provision of his first, formal legal opinion and the tabling of his parliamentary answer, which was unaccompanied by any legal opinion, is not entirely clear. It seems, however, that the Attorney came under very considerable political pressure to alter his view.

This pressure was engendered in large part in response to a demand from the Chief of Defence Staff in the days immediately following the first opinion, for unequivocal advice that the invasion would be lawful. This is strongly suggestive of the fact that the original opinion had been, to put it at its best, finely balanced.

Earnest discussions followed between Lord Goldsmith and two senior governmental insiders close to the Prime Minister. It also appears that Lord Goldsmith had held discussions with US lawyers on the staff of President Bush.

On 14 March 2003, the UK Attorney’s office asked the Prime Minister’s office whether the PM could say unequivocally that Iraq was in material breach of the relevant UN resolutions. It was essential, the PM’s office was told, that there was very strong evidence that Iraq possessed or was producing weapons of mass destruction. Tony Blair responded the next day by saying that this was his unequivocal view. We know, in retrospect, that that view was entirely mistaken.

It seems that following these intense and intensive interchanges, the Attorney changed his mind. Two days later he tabled his altered view in parliament. What is interesting is that the existence of the earlier, formal, thirteen page opinion was not referred to at the time. The parliament relied, therefore, not on a formal legal opinion but on a one page parliamentary answer when it endorsed the invasion. Now, the Government has refused categorically to release the text of the original opinion.

In response to the outcry in parliament and the press, Lord Goldsmith finessed the issues skilfully by saying that he never intended his parliamentary answer to be a summary of his confidential legal advice to the government. This was not the impression left with MPs. Earlier he had said to the House of Lords that his parliamentary answer was ‘a summary of my view of the legal position, rather than a detailed consideration of the legal issues’. The Prime Minister, when asked whether the parliamentary answer was a fair summary of the Attorney’s initial legal advice, responded that "that’s what he said and that’s what I say". These twists and turns led the respected human rights lawyer and now peer, Lord Lester, to remark that the issue was ‘so hopelessly confused that only a Talmudic scholar or a Jesuit could understand the casuistry involved’.

Perhaps most disturbingly, however, it has become clear that neither the initial formal legal opinion, nor any other formal legal advice was provided to or requested by the Cabinet. It based its discussion of the war entirely upon the one page parliamentary answer and an oral presentation by the Attorney. This led Professor Peter Hennessy, Britain’s foremost expert on Cabinet Government, to conclude that:

For me, Goldsmith’s March 2003 opinion on the legality of the Iraq war remains the fault-line under the Blair Government. Like the permanent stain of Suez on (Sir Anthony) Eden’s reputation, it will not be eradicated from the memory of the Blair premiership for generations to come. The ultimate systems failure in both instances occurred at the proper, formal cabinet meetings. If the full cabinet will not take on a dominant prime minister in full cry, there is no other part of the system of government that can compensate for such supineness.

What, then, are the implications of this imbroglio for the Australian political landscape? First, the Howard Government justified its decision to enter the war partly with reference to Lord Goldsmith’s written parliamentary answer. That answer didn’t provide the whole of the Government’s legal justification but it wasn’t insignificant either. The Goldsmith answer was tabled in parliament by the Prime Minister when he announced the decision to enter the conflict. In his press conference on the same day Mr Howard made the case for the legality of the invasion by reference not only to his own departmental opinion but also by reference to Goldsmith’s view.

The question that arises immediately is whether the Government knew, at the time that it cited the parliamentary answer, that the UK Attorney had provided an earlier, detailed legal opinion that was different? If it did know, then its own legal justification for the war must be seen as partly misleading since no reference was made to the earlier, seemingly contradictory advice. That is a matter that would be of serious concern to the Commonwealth parliament. When tabling the Goldsmith opinion, the Prime Minister described it as ‘a summary’. This suggests that, at the very least, the Prime Minister was aware of the existence of the more detailed legal analysis.

Perhaps, however, Mr Howard, knowing that the detailed opinion existed, chose not to inquire as to its contents. This latter course is perfectly consistent with the tendency of the Government, and to a lesser extent of some of its predecessors, not to make inquiries about matters that might be politically damaging to it. This allows it to deny knowledge of them when they are unearthed. But now that the Government does know of the opinion’s existence, and its difference from the summary, will it ask for a copy? And will it make it available to the Commonwealth parliament, or at least provide a commentary upon it, in due course?

Secondly, Lord Goldsmith’s advice was significant both in Britain and Australia because it came from such an authoritative source. It was notable that Australia’s then Attorney-General, Daryl Williams QC, refrained entirely from providing a similar legal analysis of the case for war. Instead, it was left to two senior legal bureaucrats to furnish the legal opinion on which the Howard Government relied. Their advice, however well intentioned, could hardly be described as independent or authoritative. But with Lord Goldsmith in the picture, it could be made to seem a great deal better than it was. Did these legal officials know of the earlier opinion and, if so, why did they not consider or refer to it? Even if they didn’t, how was it that they failed entirely to address the doubts it now appears that Goldsmith had expressed?

UN Building

UN Building

Thirdly, it is significant that in Britain the legal crisis appears to have been precipitated by the Chief of the Defence Staff. He wanted unequivocal advice that the Iraq invasion was legally watertight. So did some of his colleagues. General Sir Mike Jackson, for example, was quoted by Professor Peter Hennessy as saying ‘I spent a good deal of time recently in the Balkans making sure that Milosevic was put behind bars. I have no intention of ending up in the cell next to him in The Hague’. But where were our defence Chiefs? Did General Peter Cosgrove ask for a similar legal reassurance? If not, why not? If so, how, in what form, and with what authority was that legal opinion communicated?

Fourthly, the same issue with respect to Cabinet government that arose in the UK must be considered here. From what we know, Cabinet relied only on the legal opinion provided by the two senior bureaucrats. If that is so, why did Cabinet consider advice at that level sufficient to provide it with the legal foundation for a decision as momentous as going to war? Did it test that advice with its authors? Why didn’t it ask for an independent opinion from, for example, the Solicitor-General? Why didn’t it at the very least ask Daryl Williams to provide an opinion comparable to Lord Goldsmith’s? Did it perhaps fall back on Lord Goldsmith’s parliamentary answer instead and, if so, what are we to make of that now? As in Britain, the Prime Minister’s dominance of Cabinet may provide the beginnings of an answer to all of these questions. If that is the case, Cabinet’s dereliction of its duty here would plainly be comparable to that of its British counterpart.

Finally, as Lord Goldsmith appears to have realised in his initial advice, a decision to go to war in the knowledge that it was illegal opens up the theoretical possibility that Australia’s leaders and its military forces could be prosecuted, some way down the track, for engaging in the international crime of aggression. Of course, having won the war, this will not happen. But I wonder whether the Australian Government took the same precaution as that in Britain by asking a team of lawyers to prepare a defence — just in case.

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.