1 Boring Old Man

Leading international lawyer Philippe Sands says inquiry has shown inability to tackle central question of illegality – or otherwise – of Iraq invasion
^{Philippe Sands says the credibility of the Chilcot inquiry into the invasiona of Iraq is ‘on the edge of an abyss’}
guardian.co.uk
by Richard Norton-Taylor
14 November 2010

The credibility of the Chilcot inquiry into the invasion of Iraq is "on the edge of an abyss" because of its lack of transparency, a leading international lawyer warned today. Philippe Sands QC, professor of international law at University College London, said the inquiry had been undermined by its inability to refer publicly to documents it had seen. He said it had shown an inability to tackle the central question of the illegality – or otherwise – of the US-led military action head on.

Sands said he had seen some unpublished documents which contradicted or undermined the testimony by witnesses to the inquiry. The inquiry had also had a series of "private chats" with a number of "notable individuals", he said. The lawyer referred to what he called a "curious advertisement" the inquiry had placed, asking international lawyers to submit their view of the invasion. More than 30 had done so more than two months ago, yet the submissions have not been posted on the inquiry’s website. "Why did the inquiry not issue personal invitations to key individuals to appear before it in a public session? Why has it not even convened a private seminar amongst invited international legal experts, as it has done on other matters?" Sands asked.

His comments came in the 2010 Remembrance Sunday lecture on war and law at the Imperial War Museum in London. The lecture was sponsored by the Movement for the Abolition of War. Sands noted that the Chilcot inquiry had appointed an "adviser on international law" – Dame Rosalyn Higgins, a former judge and president of the international court of justice – but said it was unclear what her role was.

He said he hoped the inquiry would insist that, in future, the attorney general must provide early and full advice on the legality of a future use of force, ensure the attorney provided advice to all of government, not just the prime minister, and give a parliamentary committee an oversight role on legal advice relating to war…

But I do have something to say about his subject matter. Was the Invasion of Iraq Legal? The answer is "No!" no matter how you parse the data. The question doesn’t hinge of some kind of careful reading of the deliberations of Lord Goldsmith who declared that a "I am prepared to accept that a reasonable case can be made that resolution 1441 revives the authorization to use force in 678" after months of holding that a second UN Resolution would be required for the Invasion to be legal. It certainly doesn’t rest on John Yoo’s interpretations. Even Congress insisted on working through the UN:

Both Lord Goldsmith and John Yoo are interpreting International law. Neither is in a position nor has the authority to do that. UN weapons Inspector Dr. Hans Blix said:

^{DR BLIX: I have never questioned the good faith of Mr Blair or Bush or anyone else. I think to question the good faith, it will — you need to have very substantial evidence and I do not have that. On some occasions when I talked to Blair on the telephone, 20 February, I certainly felt that he was absolutely sincere in his belief. What I questioned was the good judgment, particularly with Bush, but also in Blair’s judgment.}

^{DR BLIX: The first reflection that occurs to me is that if the British Prime Minister or Bush had come to their parliaments and said, "Well, we are not sure that there are weapons of mass destruction but we fear they could reconstitute", I can’t imagine they would have got an authorisation to go to war for that purpose.}

^{DR BLIX: Those who were 100 per cent convinced there were weapons of mass destruction, if they had less than zero per cent knowledge where they were, that would have been helpful.}

^{DR BLIX: We would have been able to clear up some things, but I think Mr Blair is entirely right. We have never got the whole truth, nor do I think it was 11 necessary to get the whole truth. The interesting thing: was Iraq a danger in 2003? They were not a danger. They were practically prostrate and could not — it would have taken a lot of time to reconstitute in selling oil.}

^{DR BLIX: So inspectors can give something that the intelligence cannot, and intelligence can also give to the inspector something. It is a quality control for those who have intelligence to say, "What do the inspectors say? Does this tally?" If it doesn’t tally, I think they should be alerted and they say, "Hey, there may be something wrong". There may vice versa also be quality control on the inspectors. "Have you missed this?" In a way that was the message of Colin Powell when he came before the Security Council and said — he was very courteous about us, but said, "Listen, this is what we have found now". Implicitly he said thereby, "These guys, the inspectors, they never found this". So their intelligence was superior. It was not. We were more critical. We also had the fortune of not being taken in by defectors and people who came with their stories. So that is the important — yes, there is important lessons in this.}

^{DR BLIX: The other reflection I have is a broader one about the going to war. I am delighted that I think your intention is to draw lessons from the Iraq war rather than anything else, and I think that when can states go to war still remains a vitally important issue, and the UN Charter in 1945 took a giant leap forward in this and said, "No, it is prohibited to do except in the case of self defence and armed attack or authorisation by the Security Council". Well, here in the case of Iraq you can see how the UK in the summer 2002 or the spring 2002 said, "Yes, we might, but it has to be through the UN power". Self-defence against an armed attack was out. Regime change was out. Straw was adamantly opposed to a regime change. Authorisation by the UN, yes, that’s the path. So they insist upon 1441 and they get it, but it is a gamble. 1441 is if they had shown or if the Iraqis had continued to obstruct, as it was expected, then they could have asked the Security Council for a second resolution and said, "Look, they are obstructing and we now ask for authorisation". They never knew whether they would get that. Eventually they had to come with I think very constrained legal explanations. We see how Mr Goldsmith, Lord Goldsmith now, wriggled about and how he himself very much doubted that it was adequate, but eventually said, "Well, if you accumulate all these things, then that gives a plausible …" — he was not quite sure that it would have stood up in an international tribunal. Most of your legal advisers ndo ot think so either. Nevertheless he gave the green light to it. I think it shows the UK was wedded to the UN rules and tried to go by them, eventually failed and was a prisoner on the American train, but it is true at the same time that this rule against going to war is under strain.}

^{DR BLIX: I am of the firm view that it was an illegal war. I think the vast majority of international lawyers feel that way. This can be discussed, but I don’t think — there can be cases where it is doubtful. Maybe it was permissible to go to war. Iraq in my view was not one of those.}

^{DR BLIX: I think that when Condoleezza Rice, for instance, said, and I quoted in my book, when she said that the military action taken was simply upholding the authority of the Security Council, it strikes me as something totally absurd. Here you are in March 2003 and they knew that three permanent members, the French and the Chinese and the Russians, were opposed to any armed action, and they were aware that they could not get a majority for a resolution that even implied the right to military action. To say then that yes, the action upheld the authority of a council that they knew was against it I think strikes me as going against common sense.}