The Legality of the Iraq War
The following essay was written by Ben Ferencz a few days after the secret information contained therein became public. Since the American Society for International Law had published a comprehensive scholarly review of the legal issues as seen from various perspectives, Ferencz submitted his essay, on April 10, 2005, as an informational postscript to the ASIL study. Whether the Society will publish it in any form is still uncertain. Readers are cautioned not to draw any final conclusions until the facts have been verified from US official records.
Postscript to Agora: Future Implications of the Iraq Conflict
The London Times and other media recently disclosed secret documents that contain information that merit a postscript to the excellent 2003 Agora, edited by Lori Fisler Damrosch and Bernard H. Oxman, on "Future Implications of the Iraq Conflict."
It appears that when British Prime Minister Tony Blair met US President George W. Bush in Crawford, Texas, in April 2002, they agreed that Britain would join the US in bringing about a "regime change" by removing Iraq's President, Saddam Hussein, from office. On July 23, 2002, Blair held a top secret meeting at Downing Street to discuss the subject with his key advisers. The chairman of the joint intelligence committee, Sir John Scarlett, opened the meeting by getting right to the point. The only way to overthrow Saddam was likely to be "by massive military action."
Sir Richard Dearlove, Chief of MI-6, Britain's intelligence agency, then reported on his talks in Washington with his American counterpart, George Tenet, Director of the US Central Intelligence Agency. Dearlove, according to the secret minutes, was convinced that the US had no patience with the United Nations or the Security Council. "Bush wanted to remove Saddam through military action justified by the conjunction between terrorism and WMD." There had been little discussion of Iraq's possession of weapons of mass destruction. War was "seen as inevitable." Dearlove warned that the intelligence and the facts were being fixed around the policy.
The briefing papers prepared by the civil service staff for the July 23rd meeting noted that "US views of international law vary from that of the UK and the international community... Regime change per se is not a proper basis for military action under international law." Foreign Secretary Jack Straw said the case for war was "thin." Attorney General Lord Goldsmith also expressed doubts about its legality. He seemed to feel that Security Council backing was vital. Other options considered as possible justification for the use of force included self- defense against WMD, or humanitarian intervention against terrorism. None of them seemed persuasive. Admiral Sir Michael Boyce, head of the defense staff was given to the end of the week to present the Prime Minister with the proposed battle plans. The participants set about to devise the most acceptable justification for an invasion and to prepare for it militarily as well as politically by shaping public opinion to support the use of force.
On August 3, 2002, UK military spokesmen briefed the Pentagon and US Defense Secretary Donald Rumsfeld on the status of UK's preparation. The next day they briefed President Bush. Coordinated plans for the attack on Iraq continued, despite a reported private statement by Britain's Foreign Secretary Straw that "Saddam was not threatening his neighbors, and his WMD capability was less than that of Libya, North Korea or Iran." His legal advisers in the Foreign Office had submitted a Confidential 8-page memorandum casting doubt on whether Security Council (SC) resolutions 678 (1990) or 687 (1991), that had authorized members "to use all necessary means" to restore peace in the area" could justify the forceful invasion of Iraq.
Straw made the interesting point that if the SC would again demand that Saddam allow UN inspectors to confirm that he had complied with earlier resolutions to destroy his WMD and, if the inspectors discovered that he had failed to do so, that might justify a renewed use of force. A refusal to accept inspection would also be politically helpful to justify the invasion. The best that could be achieved, however, was SC Res. 1441 of November 8, 2002, again demanding that Iraq disarm and allow UN inspectors to report back within 30 days. The Resolution ''recalled" that Iraq had repeatedly been warned that it would "face serious consequences as a result of its violations". The "decision" taken by the Council was to "await further reports" and then "to consider the situation." Troops were being mobilized for a combined massive military assault but there was still no clear agreement on the legal justification for such action.
On February 11, 2003, Attorney General Lord Goldsmith went to Washington where he conferred with leading lawyers in the Bush administration - including White House lawyer Alberto Gonzales, State Department Legal Adviser William Taft IV, Jim Haynes, Adviser for the Defense Department and US Attorney General, John Ashcroft. A 13- page memo by Lord Goldsmith dated March 7, 2003, still expressed doubts about the legality of the contemplated assault on Iraq but seemed to be softer than the firm stand taken by him at the meeting of July 23, 2002.
Ten days later, on March 17, 2003, and just two days before the war was scheduled to begin, Goldsmith made a summary statement in Parliament in which he noted that a reasonable case could be made "for war without a Security Council resolution." William Taft IV is reported to have commented that the Goldsmith statement "sounded very familiar" - presumably because it echoed the US position.
In his report to his Prime Minister, Goldsmith wrote: " I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorize the use of force...nevertheless, having regard to the information on the negotiating history, which I have been given, and to the arguments which I heard in Washington, I accept that a reasonable case can be made that Resolution 1441 is capable in principle of reviving the authorization in 678 without a further resolution." He noted that such an argument could only be sustainable if there was clear evidence of non-compliance and non-cooperation by Iraq. These qualifying conditions were not mentioned in the 1-page summary given to the Cabinet on March 17.
UK military leaders had been calling for clear assurances that the war was legal under international law. They were very mindful that the treaty creating a new International Criminal Court in the Hague had entered into force on July 1, 2002, with full support of the British government. General Sir Mike Jackson, chief of the defense staff, was quoted as saying "I spent a good deal of time recently in the Balkans making sure Milosevic was put behind bars. I have no intention of ending up in the next cell to him in the Hague." On the eve of war, the British Attorney General's abbreviated statement of March 17 was accepted as legal approval of the official US/UK line. Not everyone in the British government could agree that the war that was about to begin was legal.
Prime Minister Blair chose to rely on the summary opinion of his Attorney General rather than the views of the Foreign Office which, ordinarily, would be responsible for opinions affecting foreign relations and international law. On March 18, 2003, the Deputy Legal Adviser to the Foreign Ministry, Elizabeth Wilmshurst, resigned. Her letter of resignation, after more than 30 years of service, stated: "I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution..." She had, for many years, represented the UK at meetings of the UN preparatory committees for an international criminal court and was recognized as one of the foremost experts on the subject of aggression. Her letter stated..."an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances that are so detrimental to the international order and the rule of law."
Elizabeth Wilmshurst remembered that the Nuremberg trials had condemned aggressive war as "the supreme international crime" That decision had been affirmed by the UN General Assembly and followed in many other cases. She demonstrated Professor Tom Franck's concluding appeal in the 2003 Agora that "lawyers should zealously guard their professional integrity for a time when it can again be used in the service of the common weal."
Benjamin B. Ferencz
A former Nuremberg Prosecutor
J.D. Harvard (1943)
97 AJIL 553-642 and Special Supplement, Sept, 2003.
The Sunday Times, May 1, 2005.
The Observer, May 1, 2005.
Sunday Times, July 23, 2002, with Secret memo of the July 22, 2002 meeting.
Channel 4 News extract from Minute of the Attorney General to the Prime Minister, March 7, 2003.
The Independent, London, March 25, 2005 with text of Wilmshurst's resignation letter.