Back to warmwell.com website


http://www.guardian.co.uk/analysis/story/0,3604,1264034,00.html

A breach of the peace

Before Britain invaded Iraq proof was required of large-scale WMD activity, according to the government's early legal advice. So what changed?

Philippe Sands
Monday July 19, 2004

The Butler inquiry was mainly concerned with the use of intelligence before
the war in Iraq. It was not asked to address the merits of the government's
legal arguments for war. It did not do so, concluding that intelligence
played a limited part in the government's determination that the war was
lawful.

Nevertheless the report is hugely significant. It provides details on who
was involved in the legal decisions, where disagreements might have been,
and how the government finally decided that Iraq was in material breach of
security council resolutions. Specifically, it raises - but largely leaves
unanswered - 10 crucial questions.

1. How many times did the attorney general give written advice to Tony
Blair?

It is now clear legal advice was given as early as March 2002, and then on
at least three occasions up to March 17 2003. Butler provides important
information that was not previously known: as early as March 2002 British
officials advised that a material breach of Iraq's WMD obligations under
resolution 687 would exist only where there was "incontrovertible" proof of
"large scale activity". Further advice was given on March 7 2003, and
finally, on March 17 2003, the attorney general gave a summary of his final
view, which is the only advice made public. There is one notable gap. After
resolution 1441 was adopted, giving Iraq one final chance, Britain pushed
hard for a further resolution that would explicitly authorise the use of
force. Legal advice must have been given on whether a further resolution was
needed. But Butler makes no reference to a rumoured January 2003 advice by
the attorney general.

2. Were the attorney general's views consistent over time?

Butler says that the view published on March 17 was "clear and simple". This
indicates that the attorney general's earlier views were not clear and
simple. This could be consistent with a change of view or the possibility
that the earlier opinion had caveats that had to be dropped. Lawyers
frequently change their minds. But this remains a crucial point, since the
Blix reports (between January and March 2003) undermined the possibility of
claiming "large-scale" WMD activity in Iraq.

3. Was Butler given copies of all the attorney general's written advice and
views?

We don't know. For example, paragraph 379 of the report is ambiguous: "We
have received an account from the attorney general of [the March 7] advice,
and have read it." Did the members of the Butler committee read the advice
itself, or the attorney general's account?

4. Does the Butler report provide a complete account of the legal advice
that was given?

No. It describes only a part of the overall picture.

5. Did Jack Straw and the attorney general depart from the views of Foreign
Office legal advisers?

The report suggests that Straw and the attorney general did not follow the
views of the Foreign Office legal advisers, who are best placed to express
views on the international law issues.

6. Did the attorney general obtain written legal advice from external
counsel before he reached his final view?

It would be surprising if he had not obtained independent legal advice in
writing before his March 7 opinion, particularly if his view was not shared
by the Foreign Office legal advisers, but the report does not say that he
did so. He would have been hard-pressed to find barristers who would support
his view.

7. On what basis did Blair determine there had been a material breach of
resolution 1441?

The attorney general's final advice is based on the view that the UK could
use force after it had determined that Iraq was in further material breach
of its obligations. He saw no need for the security council to make such a
determination. The view is highly controversial and opens the door to
manifest abuse. We learn from Butler that Blair personally made that
determination and that he did so on March 14 2003 without the benefit of
additional input from the joint intelligence committee beyond its initial
assessment, nearly three months earlier. Butler is critical of this.

8. What standard did Blair apply in determining that there had been a
material breach of resolution 1441?

The report refers only to Blair's unequivocal view that Iraq was in material
breach of its WMD obligations. It does not say whether the attorney general
advised him on what standard the prime minister should apply, or the
standard which he did apply. This is a crucial issue. It is difficult to see
how Blair could, in March 2003, have based his decision on
"incontrovertible" proof of large-scale WMD activity. The Blix reports did
not find such proof, and there was no JIC assessment after December 18.

9. Were cabinet members given a copy of the attorney general's advice of
March 7 2003?

No, the cabinet was provided only with the March 17 summary. Butler refers
to paragraphs 22 and 24 of the ministerial code, but not paragraph 23, which
states: "When advice from the law officer is included in ... papers for the
cabinet ... the conclusions may if necessary be summarised but, if this is
done, the complete text of the advice should be attached." On this basis the
cabinet will not have been aware of any caveats in the attorney general's
final view, or his earlier views.

10. Why not publish the attorney general's substantive advice?

Butler supports the claim that publication "might inhibit the provision of
full and frank advice". It is difficult to see how that principle can now
apply. The fact that advice was given is known, and some of its content has
been made public. Failure to make everything available only fuels the
suspicion that something is being hidden.

The Butler report raises more questions than it answers. But we can now say
this: even on the widely discredited basis put forward for the lawfulness of
going to war - Iraq's material breach of its security council obligations -
the use of force could not be justified. In March 2002 the government
proceeded on the basis that a claim of material breach required
incontrovertible proof of large-scale WMD activity. A year later Blair
departed from that standard. The government should now publish all the
advice.

Philippe Sands QC is professor of law at University College London and a
barrister at Matrix Chambers