On 11 September 2001, 3000 people were killed in co-ordinated terrorist attacks in New York, Washington and Pennsylvania. On 12 September 2001, UK Prime Minister Tony Blair sent the following notes to United States President George Bush:

“We need to construct an agenda that puts on to a new footing action against this new evil. If this is a war – and in practical, if not legal terms, it is – we need war methodsThis has implications for international agreements and domestic laws. But for years, the West has pussyfooted around with these issues. These groups don’t play by liberal rules and we can’t either.”

“It is now that the world is in a state of shock; now that it feels maximum sympathy for the US; now that it can be co-opted most easily. Locking in the international community sooner rather than later is therefore critical.

In October 2001, joint US and UK military forces invaded Afghanistan. In the following months, Iraq was also deemed a threat to international peace and security. In March 2003, US, UK and Australian military forces invaded Iraq.

The threat from Iraq was said to lie in the presence of weapons of mass destruction and links to some terrorist groups, although there was no serious suggestion of a direct link to the September 11 attacks. Thirteen years later, after no weapons of mass destruction were found, and a war that continued years after victory was declared, the Chilcot Inquiry Report (“the Report”) was released in Britain, seeking to determine whether British involvement in the war was justified. In short, according to the Report, it was not.

While the moral justification of the war has been thrust into the spotlight in particular, extensive consideration was also given in the Report to the legal justification for the war. This consideration has clear implications for Australia in understanding its own involvement in the war. Australia exists within the same framework of international law as the United Kingdom, and calls have been made for Australia to conduct its own inquiry into its involvement in the Iraq War. Considering the legal background of the war, the United Kingdom’s legal justification of the war and Australia’s willingness to follow is an important exercise for the Australian international law community as it seeks to guide discussion on Australia’s approach to future potential conflicts. The following post will explore the international legal context of the Iraq War, the Chilcot Report’s findings on the legal justification of the war and potential implications for Australia’s involvement and the international legal community.

Overview of international law on the use of force and its application in Iraq

UN Charter

Chapter 7 of the Charter of the United Nations deals with threats to peace and security in the international context. The chapter provides for different and increasing levels of response by the international community to such threats, with the use of force considered in Article 42.

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

A number of resolutions stemming from this chapter, and passed in relation to the first war in Iraq, set the backdrop for the legal arguments put forward in 2002 when the US, UK and Australia again contemplated military action in Iraq.

The Context of Resolutions 660, 678 and 687 and the first war in Iraq

On 2 August 1990, the military forces of Iraq invaded Kuwait. On the same day, the United Nations Security Council passed Resolution 660, condemning the invasion and demanding the withdrawal of Iraqi military forces.

Resolution 678 was passed by the Security Council on 29 November 1990. It referred to numerous previous resolutions and was the final ultimatum to Iraq, authorising Member States to use “all necessary means” to uphold Resolution 660 if Iraq did not comply by 15 January 1991. It was the trigger for the first war in Iraq, authorised by the Security Council.

Resolution 687 was passed by the Security Council on 8 April 1991, upon the conclusion of the first war in Iraq, and set terms with which Iraq was to comply. Amongst others, these included the destruction, removal or rendering harmless of chemical and biological weapons, that Iraq would unconditionally affirm its obligations under the Treaty of the Non-Proliferation of Nuclear Weapons, that it would not acquire or develop nuclear weapons, and that it would comply with the terms and inspection requirements of the International Atomic Energy Agency (IAEA).

Resolution 1441

As the US and UK began to explore more seriously renewed military action in Iraq in 2002, both powers looked to unfulfilled Resolutions from the first instance of military action to support their case.

Resolution 1441 was passed by the Security Council on 8 November 2002 and is the resolution at the centre of the Chilcot Report. It considered Iraq to be in material breach of Resolution 687 and afforded “a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council”. The Resolution was centrally concerned with access for UNMOVIC (United Nations Monitoring, Verification and Inspection Commission) and the IAEA in Iraq. It required Iraq to provide a declaration to UNMOVIC and the IAEA within 30 days (para. 3) and required Iraq to give both bodies immediate and full access to any relevant facilities (para. 5).

Another important section of Resolution 1441 is at paragraph 4:

‘The Security Council… Decides that false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment…’

Paragraph 12 then decides that the Security Council would reconvene in the event of receiving a report in accordance with paragraph four or from UNMOVIC. The Resolution concludes by ‘recalling’ that “the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations”, though it does not use the language of “all necessary means”, as was used in Resolution 660 of 1990.

The Chilcot Report 

The chief legal question in late 2002 and early 2003 for the British government was whether a material breach of Resolution 1441 could ‘revive’, through paragraphs 2 and 4, the authorisation for the use of force given in Resolution 678 in 1990. The UK Attorney-General at the time, Lord Goldsmith, was tasked with advising Prime Minister Blair on the legality of military action against Iraq.

Lord Goldsmith was of the opinion that the words of paragraphs 4 and 12 of Resolution 1441 could have one of two meanings. The first was that there would simply have to be a discussion at the level of the Security Council in which a discussion itself fulfilled a procedural requirement. This argument was supposedly boosted by reports that the word “consider” in paragraph 12 had been chosen against the French and Russian suggestion of the word “decide”. However, Lord Goldsmith himself acknowledged that before a court, “it is very uncertain to what extent the court would accept evidence of the negotiating history to support a particular interpretation of the resolution”.

The second meaning would be that paragraphs 4 and 12 would require another Resolution of the Security Council to sanction military action in Iraq. Lord Goldsmith noted that the language of both paragraphs seemed to suggest that the seriousness of any breach would have to be assessed, and that under Chapter VII the Security Council was to exercise a determinative role in the assessment. In particular, he noted that any other construction would reduce the Security’s Council’s role to mere formality. He wrote of this outcome:

‘Others have jibbed at this categorisation, but I remain of the opinion that this would be the effect in legal terms of the view that no further resolution is required. The Council would be required to meet, and all members of the Council would be under an obligation to participate in the discussion in good faith, but even if an overwhelming majority of the Council were opposed to the use of force, military action could proceed regardless.’

Lord Goldsmith first advised that it was a safer course to secure a second resolution, and that there was “no more than a reasonable case” that Resolution 1441 could revive the authorisation of Resolution 678. He later advised, on 7 March 2003, that there was “a reasonable case”. In this letter, he said:

‘In reaching my conclusions, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable.

But a ‘reasonable case’ does not mean that if the matter ever came before a court I would be confident that the court would agree with this view. I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can reasonably be maintained.’

He also advised that a reading of Resolution 1441 in which Resolution 678 could be revived was only tenable where it could be shown with strong evidence that Iraq had failed to take the final opportunity to comply with the Resolution. In proving this, the evidence and cooperation of UNMOVIC and IAEA would be central.

Lord Goldsmith was informed that it was the unequivocal view of the Prime Minister that Iraq was, and continued to be, in material breach of its obligations under the relevant Resolutions. However, no mention of the opinion of UNMOVIC or IAEA was made during this time. Further, the Report notes that “It is unclear what specific grounds Mr Blair relied upon in reaching his view”.

On 11 March 2003, when pressed for a more definitive answer by the head of the Armed Forces, he came to the conclusion on 13 March that “the better view was that there was a lawful basis for the use of force without a further resolution.”

In his determinative advice on 17 March, Lord Goldsmith advised Cabinet that it was clear that Iraq was in material breach of relevant Security Council Resolutions, and therefore that the authority to use force under Resolution 678 was revived and there was no need for a second resolution.

However, the Cabinet was not informed of the conflicting arguments regarding whether Resolution 1441 authorised military action without another Resolution. Cabinet was not provided with evidence concerning the strength of the Prime Minister’s conclusion in the preceding days as to the extent of Iraq’s material breach.

The Report states:

‘Cabinet was, however, being asked to confirm the decision that the diplomatic process was at end and that the House of Commons should be asked to endorse the use of military action to enforce Iraq’s compliance. Given the gravity of this decision, Cabinet should have been made aware of the legal uncertainties.’

However, the Report also suggests that there was little appetite to question the advice given or explore it further. In the few days leading up to the Cabinet meeting of 17 March, the Prime Minister did not receive or request considered advice addressing any evidence that would clarify this issue. The Ministers, it seemed, were content with the position that it was the role of Lord Goldsmith to tell the Cabinet whether or not there was a legal basis for military action. None of the Ministers who had read the advice of 7 March asked for an explanation as to why Lord Goldsmith’s view on Resolution 1441 had changed and the Report notes that there was no substantive discussion recorded on the matter.

Finally, the Report suggests that the position of 17 March should have been fully set out in a written advice. It should have been provided to the Ministers and Senior Officials who were directly involved in the decision to go to war. It should have reflected the legal complexities of the situation and the reasons for which Iraq had been deemed not to have taken its ‘final opportunity to comply.’

Ultimately, Chilcot came to the conclusion that “the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory.”

International Rule of Law and its Relevance for Australia

Many of the failures identified by the Chilcot Report are as much failures of democratic process as they are of law. They are failures of the Rule of Law in the democratic process. However, to many international lawyers, Lord Goldsmith’s advice of 3 March might be the most troubling legal approach to be highlighted by the Chilcot Report.

This is the advice where Lord Goldsmith ‘took account’ of the fact that the United Kingdom had on a number of occasions taken part in military action in which “the legality of the action under international law was no more than reasonably arguable”. He added that this did not mean that he would be confident that, if heard before a court, the court would agree. The most troubling aspect of this is that it highlights not only the breach of international laws, but also a pattern of breaches.

Further, the actions of the decision-makers in this process suggest that they continue this pattern because they know that their justifications, whether they might be deemed reasonable or unreasonable if heard by a court, would not be brought before a court in the first instance.

For Tony Blair to suggest that it was necessary to abandon “liberal rules” in order to combat terrorism shows how vulnerable those rules can be. For him to say to George Bush, “I am with you, whatever”, displays disregard for the international laws that might have prevented a war. Having relied multiple times on legal interpretation considered clearly inadequate by the Report shows a pattern of disregard.

The war has had profound effect on the Iraqi people and on the wider Middle East. A 2013 study estimated that nearly half a million Iraqi lives were directly or indirectly claimed by the invasion and the following occupation from 2003 to 2011. It has had a profound effect on the soldiers that fought in it and on their families. Many argue that the flow-on effects of the war have increased the threat of terrorism worldwide.

As much as Australia was a relatively minor part in the war, Australia made the same decision based on the same information under the same international legal framework. It too shares responsibility for these effects.

Andrew Wilkie MP, among others, has called for Australia to have its own inquiry into the lead up and participation in the war. These calls have been rejected. Even if the decision to invade were correct, to suggest that there is no need for serious reflection is careless and hubristic.

The power of the Rule of Law is that there are no exceptions. The very essence of it is that the highest office is not beyond it, but remains under it. The higher the office, the more damage a breach of the Rule of Law will do, and breaches from within are the most corrupting. As Eisenhower said, when facing potential military escalation in the Cold War, “the problem in defense is how far you can go without destroying from within what you are trying to defend from without.” He believed the cost of military action could outweigh the potential cost of restraint.

Taking the time to reflect on Australia’s involvement is the least that should be done. When it comes to possible future military engagements, Australia should more thoughtfully consider its willingness to act with military force. Should Australia truly be happy to say it is with whoever, whenever and, most critically for this discussion, whatever? The answer will be indicative not only of the strength of the Rule of Law beyond Australia’s borders, but also within.

Luke Rowe is an Assistant Editor of the ILA Reporter.