The Attorney-General’s legal advice was sound
The comments below on the Attorney-General’s
advice on the legality of British military action against
Professor Sands is at a disadvantage in discussing this matter, because he appears to believe that since the 1940s there has been a system of law regulating the relations between states that all states are obliged to adhere to. He writes in the preface to Lawless World:
“One main purpose of this book, then, is to shed some light on international law, to explain in a little more detail what the rules are, how they are made, and how they are argued when contentious issues come up.” (page xviii)
However, the preface begins:
“In the 1940s the
There, Professor Sands omits to
mention that Roosevelt and Churchill built into the architecture of the United
Nations the principle that the US and
(Stalin agreed that the Soviet Union
would participate in the United Nations once Churchill explained to him that
In fact, there is a fundamental contradiction written into the UN Charter. On the one hand, Article 2(1) states:
“The Organization is based on the principle of the sovereign equality of all its Members.”
But, on the other hand, Article 23 of the Charter grants five of its Members permanent seats on the Security Council, and Article 27 gives each of them a veto over decisions of the Council. Clearly, all Members are equal, but some Members are more equal than others.
What is more, it is impossible to change this system, since the Charter cannot be amended without the consent of each of the five veto-wielding Members, none of whom is going to volunteer to give up this extraordinary privilege.
It’s like having a domestic legal system that sends shoplifters to jail, but allows bank robbers to go scot-free – and gives bank robbers a veto on changing the system.
You will search in vain in Professor
Sands’ book to find any discussion of this fundamental flaw in the “rules-based
system” established in the 1940s. Yet it
is the reason why the UN system was powerless in the face of the determination
of the US/UK to take military action against
The Attorney-General declared this
military action by the
Of course, wherever possible, the
As we will see, it has been very
imaginative in its argument that its military actions against
The Attorney-General’s legal advice
In early March 2003, before the US/UK finally abandoned their quest for a “second” Security Council resolution, the Prime Minister asked the Attorney-General, to supply him with “advice on the legality of military action” in the absence of such a resolution. This advice was contained in a 13-page document by the Attorney-General dated 7 March 2003  (which the Government was forced to publish in full on 28 April 2005, after the summary from it was broadcast the previous evening on Channel 4 News).
This advice was equivocal about whether military action was legal, merely saying that “a reasonable case can be made” for it, but the Attorney-General stated this position unequivocally 10 days later in a written answer  in the House of Lords on 17 March 2003.
There has been a lot of controversy about the content of the Attorney-General’s advice of 7 March 2003, and how the caveats in it were absent from his final view of 17 March 2003. But little attention has been paid to the most important part of the advice of 7 March 2003, which is contained in the section entitled Possible consequences of acting without a second resolution (paragraphs 32-35).
This section addressed the question
that every client needs to have his lawyer answer, namely, what are the chances
of me being done if I follow your advice?
In this instance, would the
Academic lawyers in their thousands
may protest that taking military action against
As a veto-wielding member of the
Security Council, the
International Court of Justice
First, he suggests (paragraph 32)
that the UN General Assembly might ask the International Court of Justice (ICJ)
for an Advisory Opinion on the legality of such military action, as it did in
respect of the Wall that
In certain circumstances, the ICJ
can entertain a complaint of aggression.
For example, if both parties to the complaint have accepted the
“compulsory jurisdiction” of the ICJ (see ). Thus, in 1984,
“to comply with the decision of the International Court of Justice in any case to which it is a party”,
To avoid future embarrassment about
being convicted by the ICJ, the
But, as the Attorney-General warned,
International Criminal Court
Paragraph 33 of the Attorney-General’s “advice” deals with the possibility of legal action by the International Criminal Court (ICC), which came into being on 1 July 2002. As the Attorney-General points out, the bottom line is that the ICC
“has no jurisdiction over the crime of aggression and could therefore not entertain a case concerning the lawfulness of any military action”.
So the Prime Minister has nothing to
worry about from the ICC, even though the
Article 5 of the Rome Statute  setting up the ICC specifies the crimes for which individuals, not states, can be prosecuted by the ICC. These are genocide, war crimes, and crimes against humanity, all of which are defined in the Statute. The theory is that the ICC will only initiate prosecutions when states fail to do so, although, under Article 13(b), the Security Council may refer “a situation in which one or more of such crimes appears to have been committed” to the ICC (as it has done in respect of Darfur).
It is true that the Article 5 also mentions “the crime of aggression” but the founding conference couldn’t agree on a definition. As a consequence, Article 5 says:
“The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.”
(Article 121 specifies the procedure for amending the Statute, and Article 123 says that there is to be a review conference 7 years after the Statute came into force, that is, in 2009).
It would be nice to see a
future Tony Blair prosecuted by the ICC for the crime of aggression, but it’s
not going to happen.
Theoretically, of course, whether or
not the invasion itself constituted aggression, the ICC could prosecute
individual British personnel for conduct in
“the ICC would only be
able to exercise jurisdiction over
Finally (paragraph 34), the Attorney-General has a few words to say about the remote possibility of legal action in domestic courts. In November 2002, CND had failed to get the domestic courts to intervene to stop military action, and he expresses confidence that, if another such case were brought, the courts would again “decline jurisdiction”.
He points to two other possibilities for action in the domestic courts: an attempted prosecution for murder on the grounds that military action in unlawful, and an attempted prosecution for the crime of aggression. However, he reckoned that the possibility of the domestic courts accepting jurisdiction in these instances was “remote”.
Proposed action legal
So, in his advice of 7 March 2003,
the Attorney-General assured the Prime Minister that it was very little chance
When the advice came into the public
domain in April 2005, criticism was heaped on the Attorney-General’s head for
this. But what was the Attorney-General
supposed to do? Say that the proposed
action might be legal and might not be?
He had to come down one way or another and, since there was little or no
likelihood that the
It is true that to back this up he presented a completely implausible argument that the military action was authorised by the Security Council in resolution 678, passed on 29 November 1990, for an entirely different purpose, but that’s a different issue (which I examine below). To secure support for the action, at home and abroad, it would have been better if the Security Council had explicitly authorised military action against Iraq for the purposes of disarming it, in which case the Attorney-General would have had a more plausible argument for declaring the action was authorised by the Security Council.
Although the controversy surrounding the Attorney-General’s advice added to the public feeling that Blair had been less than honest in the lead up to the invasion of Iraq, it didn’t matter much in the end – and, crucially, no judicial body has found the UK, or the Prime Minister, guilty of the crime of aggression.
Professor Sands is fooling himself when he writes in Lawless World:
“… questions surrounding the Attorney-General’s advice continued to fester right up until the general election of May 2005 when it became a defining issue and caused a significant drop in the Labour Party vote.” (p 200)
The 678 revival
The Attorney-General came in for dog’s abuse from international lawyers, including Professor Sands, for the argument that the proposed action was authorised by the Security Council. But, as we will see, it is a variant of the one used for years by the Foreign Office to justify taking military action against Iraq, for example, to argue that Operation Desert Fox – the bombing of Iraq in December 1998 – was authorised by the Security Council.
The basic argument, set out in the leaked Foreign Office document Iraq: Legal Background  from March 2002, is as follows:
“Following its invasion
and annexation of Kuwait, the Security Council authorised the use of force in
resolution 678 (1990); this resolution authorised coalition forces to use all
necessary means to force Iraq to withdraw, and to restore international peace
and security in the area. This
resolution gave a legal basis for Operation Desert Storm, which was brought to
an end by the cease-fire set out by the Council in resolution 687 (1991). The conditions for the cease-fire in that
resolution (and subsequent resolutions) imposed obligations on
“The authorisation of the
use of force contained in resolution 678 (1990) has been revived in this way on
certain occasions. For example, when
Is this meant to be taken
seriously? Of course, not. It’s legalistic hocus-pocus to justify
If you take this hocus-pocus
seriously, at any time since the first disarmament resolution was passed in
April 1991, every state in this
world (for example,
This nonsense led to the situation
in December 1998 and March 2003 when the US/UK took military action against
No military action for disarmament
The plain truth is that the Security
Council never authorised military
The first disarmament resolution,
687 , passed
on 3 April 1991 after
If, as the Foreign Office document above contends, 687 was a ceasefire resolution that suspended, but did not terminate, the authority to use force in 678 , there would have been no need to include a further authority to use force in 687. The inclusion of this new authority is a proof positive that the Security Council did not consider that the authority in 678 was merely suspended, and would revive if Iraq violated the cease-fire by, for example, re-entering Kuwait.
In fact, 687 brought about a
permanent ceasefire and terminated the authority to use force in 678. This is clear from examining 687 in conjunction
with resolution 686
, passed a month earlier on 2
March 1991. The latter established a
provisional ceasefire, but in paragraph 4 explicitly states that the
authorisation for the use of force in 678 remains in effect. No similar provision is present in 687. Obviously, therefore, whereas the Security
Council did intend the authorisation of force in 678 to remain in effect until
Iraq signed a permanent ceasefire, it did not
intend the authorisation of force in 678 to remain in effect until Iraq
fulfilled the disarmament provisions of 687.
A permanent ceasefire came into force with
Furthermore, in the final paragraph of 687, the Security Council explicitly reserved unto itself the responsibility for overseeing the implementation of 687:
“[The Security Council] Decides to remain seized of the matter and to take such further steps as may be required for the implementation of the present resolution and to secure peace and security in the area.”
In other words, it doesn’t give the
In March 2002, the Security Council
had not declared
However, the bombing campaign went ahead a month later (as Operation Desert Fox), after Richard Butler, the head of UNSCOM, produced an unjustifiably negative report on Iraq’s co-operation (see my pamphlet Iraq: Lies, Half-truths & Omissions , Annex D, which also presents cast iron proof that the US was determined that Iraq was never going to be declared disarmed and economic sanctions lifted, while Saddam Hussein was in power).
Under the stewardship of Robin Cook,
Before the bombing took place, UN
inspectors had to be withdrawn for their own safety, and understandably
But the Foreign Office document was very reluctant to conclude that Security Council authority existed for military action in March 2002, saying:
“A more difficult issue is whether we are still able to rely on the same legal base for the use of force more than three years after the adoption of resolution 1205 (1998). Military action in 1998 (and on previous occasions) followed from specific decisions of the Council; there has now not been any significant decision by the Council since 1999. Our interpretation of resolution 1205 was controversial anyway; many of our partners did not think the legal basis was sufficient as the authority to use force was no[t] explicit. Reliance on it now would be unlikely to receive any support.”
(In the minutes of the famous
This rather gives the game away,
revealing that the existence of authority for military action is not an
objective fact derived from Security Council resolutions, as claimed earlier,
and that “our partners” had other opinions.
Apparently, “our partners” didn’t believe the hocus-pocus we advanced
about having Security Council authority for bombing
The bombing then was solely a US/UK
affair, so the opinion of “our partners” didn’t matter. This time, however, the Foreign Office was
hoping to involve “our partners” in military action against
More explicit authority was also desirable for domestic purposes, in order “to manage a press, a Parliament and a public opinion that was very different than anything in the States” (to use David Manning words in his memo to the Prime Minister on 14 March 2002 ).
And so, in the spring of 2002, the
British Government decided that it would be best to take the matter back to the
Security Council and seek more explicit authority for military action. By September 2002, the
Back to revival argument
this point, it looks as if the
But, on the other hand, in paragraph 2 it gave
“a final opportunity to comply with its disarmament obligations under relevant resolutions of the Council”
So 1441 could hardly be taken as an immediate trigger for the supposed revival of 678 authority for military action. Furthermore, paragraph 4 stated 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 in accordance with paragraphs 11 and 12 below.”
This gave the definite impression
that it was up to the Security Council to decide what should be done after
“assessment” by it of any non-compliance by
This was not what the
Security Council] Decides that
But, only 4 out of the
15 members of the Security Council supported this, even though it didn’t
explicitly authorise military action. At
the time, of course, it was assumed that, if passed, it would have given a
Security Council green light to military action, and certainly the
However, despite President Bush
twisting arms and threatening (and bugging the UN offices of recalcitrant
members), the Security Council refused to endorse the “second” resolution. So, the standard version of the revival
hocus-pocus, set out in Foreign Office document in March 2002, had to be
modified to permit another authority to determine if
To be on the safe side, the
authority chosen was the
(Because of this, Elizabeth Wilmshurst resigned her post as deputy chief legal adviser at the Foreign Office on 18 March 2003, but the standard hocus-pocus as set out in the Foreign Office document above had obviously been acceptable to her.)
The Attorney-General’s answer
This brings us to the Attorney-General’s written answer of 17 March 2003 . The first three paragraphs are the standard hocus-pocus about the revival of 678 authority to take military action. The next three give an accurate summary of the effect of 1441:
“4. In resolution 1441 the
Security Council determined that
“5. The Security Council
in resolution 1441 gave
“6. The Security Council also decided in resolution 1441 that, if Iraq failed at any time to comply with and cooperate fully in the implementation of resolution 1441, that would constitute a further material breach.”
The seventh and eighth are the ones that matter:
“7. It is plain that
“8. Thus, the authority to use force under resolution 678 has revived and so continues today.”
Prime Minister certifies
The Butler Report  published in July 2004 revealed that paragraph 7 was the product of an exchange of letters between the Attorney-General and the Prime Minister. As explained in the Report (paragraphs 383-5), the Attorney-General wrote formally to the Prime Minister on 14 March 2003 seeking confirmation that
“. . . it is
unequivocally the Prime Minister’s view that
Happily, the Prime Minister knew something that the UN inspectors and the Security Council didn’t know and was able to reply the next day, saying:
“. . . it is indeed the Prime Minister’s unequivocal view that Iraq is in further material breach of its obligations, as in OP4 [Operative Paragraph 4] of UNSCR 1441,because of ‘false statements or omissions in the declarations submitted by Iraq pursuant to this resolution and failure by Iraq to comply with, and co-operate fully in the implementation of, this resolution’.”
With that, the 678 authority to take
military action against
Only, veto-wielding members of the Security Council (or very good friends of veto-wielding members) dare justify aggression with such ludicrous hocus-pocus and act upon it. They know that they are immune from even the mildest censure by the Security Council, let alone economic sanctions or military action, to make them desist from their aggression.
Military occupation authorised
In this instance, far from censuring
the US/UK for aggression, the Security Council rushed to endorse the product of
the US/UK aggression – the military occupation of
Security Council resolution 1483 , passed
on 22 May 2003, authorised the US/UK to govern
Six months later, the Council went further and authorised the US/UK occupying forces to use force to put down resistance to the occupation. This authority was given in resolution 1511 , passed on 16 October 2003, paragraph 13 of which says:
Security Council] … authorizes a multinational force under unified command [aka
the occupying forces under US command] to take all necessary measures [ie use
force] to contribute to the maintenance of security and stability in
This licence to kill was renewed in
resolution 1546  passed
in 8 June 2004, before the “handover” to the “interim” Iraqi government,
appointed by the
Fallujah was flattened, twice, with the blessing of the Security Council.
The mandate of 1546 was scheduled to expire on 31 December 2005, but was extended at the request of the Iraqi government to 31 December 2006 by the passage of Security Council resolution 1637  on 11 November 2005.
The Prime Minister and Foreign
Secretary are quite correct when they say that the presence of British troops
23 February 2006
Labour & Trade Union Review
 www.number-10.gov.uk/files/pdf/Iraq Resolution 1441.pdf