A Grand and Disastrous Deceit

Philippe Sands

  • The Report of the Iraq Inquiry by John Chilcot
    HMSO, 12 vols, 6275 pp, £767.00, ISBN 1 4741 3331 2

The Iraq Inquiry, chaired by Sir John Chilcot and composed of five privy councillors, finally published its report on the morning of 6 July, seven years and 21 days after it was established by Gordon Brown with a remit to ‘look at the run-up to the conflict, the conflict itself and the reconstruction, so that we can learn lessons’.[*] It offers a long and painful account of an episode that may come to be seen as marking the moment when the UK fell off its global perch, trust in government collapsed and the country turned inward and began to disintegrate.

When the report was published I was outside the Queen Elizabeth II Centre in the shadow of Westminster Abbey, with family members of British soldiers killed or injured during the conflict. During the day the atmosphere swung between anxiety and expectation, celebration and anger. Chilcot’s statement given that morning at a press conference inside the centre was an elegant and effective distillation of the contents of the report’s 12 volumes: 2.6 million words reduced to three thousand, spoken with significant pauses and emphases and the occasional knowing look. By the time he had finished his 25-minute speech, the mood in and around the centre had changed: contrary to most expectations, the inquiry had delivered a report of devastating clarity. Chilcot’s answer to the first question the inquiry had been asked set the scene: ‘The UK chose to join the invasion of Iraq before the peaceful options for disarmament had been exhausted. Military action at that time was not a last resort.’ The emphasis he put on ‘before’ and ‘not’ were an indication of what was to come. He continued:

The judgments about the severity of the threat posed by Iraq’s weapons of mass destruction – WMD – were presented with a certainty that was not justified.

Despite explicit warnings, the consequences of the invasion were underestimated. The planning and preparations for Iraq after Saddam Hussein were wholly inadequate.

The government failed to achieve its stated objectives.

‘Not justified’, ‘inadequate’, ‘failure’. Chilcot then turned to the timeline, the attacks of 11 September 2001 and the move by the US and the UK to a policy of regime change. In April 2002, at a meeting at George W. Bush’s ranch in Texas, Tony Blair ‘sought a partnership’ with Bush and argued for ‘an ultimatum calling on Iraq to permit the return of weapon inspectors or face the consequences’. In July Blair told the president: ‘I will be with you, whatever.’ In September he and the foreign secretary, Jack Straw, persuaded Bush to ‘take the issue of Iraq back to the UN’, and in November the Security Council adopted Resolution 1441, which gave Iraq a final opportunity to disarm or face ‘serious consequences’: further breaches would be reported to the Security Council ‘for assessment’. In December Bush concluded that since UN weapons inspections ‘would not achieve the desired result’, the US would ‘take military action in early 2003’. In January 2003 Blair concluded that war was likely, and ‘accepted the US timetable for military action by mid-March’. Bush agreed to seek a further Security Council resolution that would explicitly authorise war. By 12 March it was clear that there would be no second resolution: most Security Council members were not convinced that all peaceful options had been exhausted. The bombing began a week later, on 20 March.

Blair’s government struggled to deliver on the prime minister’s promised support. The inquiry found a litany of failings. On Iraq’s WMD capabilities, judgments were made ‘with a certainty that was not justified’. The intelligence did not establish ‘beyond doubt’ that Iraq was producing chemical or biological weapons. Iraq did not have the capacity to develop a nuclear weapon, and had not deployed long-range missiles. UK policy was based on ‘flawed intelligence and assessments’ which ‘should have been’ challenged but weren’t. Military planning was settled too late and preparation was inadequate, with ‘equipment shortfalls’ and risks ‘neither properly identified nor fully exposed to ministers’. Remarkably, the cabinet never discussed the military options or their implications. Contrary to Blair’s claim, post-invasion difficulties could have been anticipated, and the risk of internal strife, Iranian involvement and al-Qaida activity ‘were each explicitly identified before the invasion’. Although aware of the inadequacy of US planning, ministers couldn’t influence it. There was no ‘clear ministerial oversight of UK planning and preparation’, and no proper plan for postwar administration, security and reconstruction. Whitehall departments failed, ministers failed; there was no ‘collective ministerial discussion’. Delays in equipment supplies by the Ministry of Defence were intolerable. The army, lacking sufficient resources, cut a deal with a militia group which had been actively targeting its forces: a ‘humiliating’ position. The war ended ‘a very long way from success’, Chilcot concludes. The intervention ‘went badly wrong’, with consequences that are continuing still. It was not ‘calculated, debated and challenged with the utmost rigour’, and decisions taken were not ‘implemented fully’.

Chilcot didn’t mention a single positive outcome. When he finished speaking at the Queen Elizabeth Centre, the audience was stunned. Judging by his appearance when he gave a press conference a few hours later, so too was Blair. Chilcot portrayed the Iraq War as a total failure of government. Two hundred British troops had been killed and many more were injured; 150,000 Iraqis had been killed ‘and probably many more – most of them civilians’; and more than a million people had been displaced. Lives were ruined; Islamic State has emerged in the aftermath, and Britain has been diminished.

The report spreads the responsibility far and wide, covering politicians, civil servants, the military and lawyers. Yet, devastating as it is, the report does pull some punches. There is no allegation, explicitly at least, of lying, deceit or manipulation, even if the facts as presented make possible the inference.

The report’s treatment of the legality of the war – though it’s worth remembering that a lawful war is not necessarily right – and the steps that were taken in an attempt to find a legal justification, offers an opportunity to explore the inquiry’s self-restraint.In his introductory words Chilcot explains that the inquiry ‘has not expressed a view on whether military action was legal’. With no lawyer among its members, and no legal counsel to assist it, the inquiry chose to sidestep this delicate matter, claiming it was best ‘resolved by a properly constituted and internationally recognised court’ (a parallel inquiry in the Netherlands, the Davids Commission, which reported in January 2010, concluded that the war had no basis in international law). Even so, Chilcot devotes much of his opening statement to matters of legality. Distinguishing between substance and process, the inquiry concludes that ‘the circumstances in which it was decided that there was a legal basis for UK military action were far from satisfactory.’ ‘Far from satisfactory’ is a career-ending phrase in mandarin-speak, a large boot put in with considerable force. As late as January 2003, Lord Goldsmith, the attorney general, told Blair that lawful war required a further Security Council resolution, before later changing his mind – his written advice of 7 March found a second resolution ‘preferable’ (rather than indispensable) – and then changing it again, offering a final view on 17 March: since Iraq was in ‘material breach’ of the existing Security Council resolutions, ‘the authority to use force under Resolution 678 was, “as a result”, revived.’ Taking the documents of 7 and 17 March together, Chilcot notes that, on the legal view finally adopted, war would be lawful only if there was evidence that Iraq had committed ‘further material breaches as specified in Resolution 1441’.

He homes in on a key question: on what basis did Blair take the decision that Iraq was in further material breach? ‘Not clear’, Chilcot answers, somewhat generously, since the evidence before the inquiry showed that Blair consulted no one but himself – not the UN weapons inspectors, not the Joint Intelligence Committee, not anyone. Playing God and weapons inspector, Blair simply made up his mind that Iraq was in material breach. ‘Given the gravity of the decision,’ Chilcot adds, ‘Lord Goldsmith should have been asked to provide written advice explaining how, in the absence of a majority in the Security Council, Mr Blair could take that decision.’ Actually, Goldsmith should have told Blair that this was not a decision he could take himself, not without expert advice. The question of material breach ‘should have been considered by a cabinet committee’, Chilcot says, ‘and then discussed by cabinet itself’. It was not.

The report goes further in its criticism of the processes followed in obtaining a legal sign-off. Senior ministers were not consulted. ‘Normal practice’ was cast aside: it was ‘unusual’ for the attorney general rather than a minister to offer an explanation in Parliament. Ministers, senior officials and the cabinet weren’t provided with the written advice of 7 March; the cabinet wasn’t told how Blair had reached his views on material breach. The cabinet ‘should have been made aware of the uncertainties’, but was not. Goldsmith should have provided full written advice explaining the legal basis for action and setting out all the risks of legal challenge.

These are forceful criticisms. They are given added heft by the inquiry’s failure to be persuaded by Blair and Straw’s claim that France was to blame ‘for the “impasse” in the UN’, and by its blunt rejection of the idea that the UK had upheld the authority of the Security Council. Rather, ‘in the absence of a majority in support of military action, we consider that the UK was, in fact, undermining the Security Council’s authority.’

*

In fact the inquiry had plenty of material available to it which would have allowed it to express a view on the war’s legality. In June 2010 it sought submissions on the merits of the UK argument. It received 37 responses (quite why it took six years for them to see the light of day is unclear), reflecting the views of 57 expert individuals and six organisations. Just one of them supported the claim that the war was lawful, on the ‘revival’ theory – the idea that Resolution 678 could be revived and used to justify military action.

These respondents weren’t the ‘usual suspects’, naysayers and whingers who like to put the UK down or have an animus towards the prime minister or the attorney general. They included Franklin Berman QC, a former FCO legal adviser (‘nothing less than an overwhelmingly clear legal case will do,’ he said, and this was not such a case); Ralph Zacklin, a former head of legal affairs at the UN (the Iraq war was ‘an illegal act’ which ‘damaged the UK’s standing’ and ‘undermined’ the UN Charter and the credibility of the Security Council); and Nigel Rodley, the UK member of the UN Human Rights Committee (‘the conclusion … is inescapable: an unlawful use of force on such a scale amounts to the crime of aggression’). The inquiry says it used these submissions ‘to inform its consideration of legal issues’.

In addition, the inquiry hearings produced new accounts and documents that shed light on the legal process, detailing Goldsmith’s various changes of direction. The story is now familiar: from 30 July 2002, two days after Blair told Bush that he was with him ‘whatever’, until the end of February 2003 he consistently advised that before embarking on military action there was a need for explicit Security Council authorisation. In October Goldsmith told Straw that a draft of what would become Security Council Resolution 1441 did not offer the necessary explicit authorisation. Immediately after its adoption Goldsmith told 10 Downing Street that ‘he was not at all optimistic’ that it provided ‘a sound legal basis’ for war. In mid-January 2003 he confirmed that Resolution 1441 did not authorise war. Two weeks later, on 30 January, when Blair was on his way to Washington to meet Bush, Goldsmith wrote to him that ‘the correct legal interpretation of Resolution 1441 is that it does not authorise the use of military force without a further determination by the Security Council.’ Blair simply ignored the unwanted advice.

‘We had trouble with your attorney,’ a senior Bush lawyer reportedly told a British official. ‘We got him there eventually.’ By 7 March Goldsmith had changed tack, but not far enough. The report details the efforts made to persuade him to harden his advice on 13 and 14 March. They were successful and Goldsmith changed his mind again: no new Security Council resolution was needed provided there was ‘strong evidence’ that Iraq had failed to comply with Resolution 1441, a matter on which the views of the UN weapons inspectors would be significant. Two days later, on 15 March, Blair confirmed it was his ‘unequivocal view’ that Iraq was in ‘material breach of its obligations’. On 17 March Goldsmith told Parliament that the use of military force was unambiguously lawful without a further Security Council resolution. Nine months after the ‘I’m with you, whatever’ moment, Blair had the legal chit he wanted, although it was never put in formal, written legal advice.

Section 5 of the report lays bare, in excruciating detail, how these changes occurred. There’s nothing really new, since the material emerged when the hearings took place, but these 169 pages of tightly woven narrative and assessment nonetheless offer a unique insight into the place of legal advice within government: how law is made to fit around policy, rather than the other way round. You can tot up the lies and deceits, the duplicities and the fudges, the techniques used to deliver the support that Blair offered, ‘whatever’.

In November 2002 Straw told the cabinet that no further resolution beyond 1441 was needed, suppressing the contrary opinion of Goldsmith and of the FCO legal adviser Michael Wood. A month later Straw stopped Goldsmith giving advice (Lord Turnbull, the cabinet secretary, told the inquiry that ‘it would have been better’ if Goldsmith’s advice had been obtained earlier). Further meetings took place, without records being kept. In January Blair told Parliament that the UK could override an ‘unreasonable’ Security Council veto, knowingly contradicting Goldsmith’s clear advice. Later that month Blair failed to tell cabinet about Goldsmith’s serious concerns about the legality of a war, and decided not to ask the attorney general to speak in cabinet. Two weeks later, on 31 January, Blair met Bush and offered a commitment that contradicted the legal advice given to him by Goldsmith the previous day. Straw told Michael Wood that he did not accept that a further Security Council resolution was required. On 5 March Blair again ignored Goldsmith’s advice and told Bush that a Security Council resolution vetoed by one of the permanent members would still be ‘legally … acceptable’ if it received the nine votes necessary for a resolution to be adopted. Ministers ‘whose responsibilities were directly engaged’ – including the chancellor, Gordon Brown, and Clare Short, the minister for international development – ‘did not see’ Goldsmith’s written advice of 7 March. They weren’t told that a legal team was put together on 13 March ‘to help Lord Goldsmith to explain in public the legal basis “as strongly and unambiguously as possible”,’ or that the attorney general had retained Christopher Greenwood, a professor of international law at the LSE, ‘for the purpose of assisting in the development of legal arguments in support of the view that there was a sound legal basis for the use of force without a second resolution’. Finally, when Goldsmith’s 337-word parliamentary answer was put before cabinet on 17 March, they were not aware that it set out ‘the legal basis for the use of force, not his advice’.

I try to imagine what it would have been like to attend cabinet on the afternoon of 17 March. The attendees have before them a sheet of paper giving the simple legal basis for war. They know nothing of what has come before, of Goldsmith’s numerous changes of direction, or that they are proceeding on the false basis that the document before them constitutes his legal advice (‘it seemed to me the attorney general’s advice was quite unequivocal,’ Gordon Brown told the inquiry, in error). They don’t know that the document before them omits all the uncertainties and Goldsmith’s belief that the proposed legal basis for war is unlikely to persuade a court. Of these matters they know nothing and, judging by the report, they do not wish to know. They prefer to avert their gaze, reminding the reader of the sketch in Spitting Image when Margaret Thatcher dines with members of her cabinet:

Waitress: ‘Would you like to order, Sir?’
Thatcher: ‘Yes, I will have a steak.’
Waitress: ‘How’d you like it?’
Thatcher: ‘Raw please.’
Waitress: ‘And what about the vegetables?’
Thatcher: ‘Oh, they’ll have the same as me.’

Despite the vast gap between the situation as it was and as it was perceived to be by the cabinet, the inquiry concludes that the ‘cabinet was not misled.’ This implausible finding suggests a deliberate restraint on the part of the inquiry, but on the facts of the disastrous decision to go to war its report will surely be the final word. Its authoritative and independent account makes it clear that the decision was not wise or correct or justifiable. This is not a matter of hindsight, since the inquiry finds that the necessary information was available to the decision-makers if they had wanted to see it: on Iraq’s WMD capability, on the consequences of the war, on the strife and mayhem that would follow.

*

Yet the inquiry has chosen to hold back on what caused the multitude of errors: was it negligence, or recklessness, or something else? In so doing it has created a space for Blair and the others who stood with him to protest that they acted in good faith, without deceit or lies. To get a sense of how this space was created requires a very thorough reading of the report. But two techniques can be identified immediately.

First, the inquiry has engaged in salami-slicing, assessing cause and motive in individual moments without stepping back and examining the whole. The whole makes clear that the decision to remove Saddam Hussein and wage war in Iraq was taken early, and that intelligence and law were then fixed to facilitate the desired outcome. On legal matters, Blair manipulated the process, forcing the attorney general to give legal advice at the last possible moment, with troops already massed and a coalition ready to roll. He would have known that Goldsmith was less likely at that stage to have said that war would be illegal. The pressure must have been intense. Since it would make it harder to obtain the support of cabinet and Parliament, and the public, his formal advice – the 7 March document permeated with an understanding of the uncertainty and risk involved in going to war – was deliberately withheld from cabinet. The redacted and recast document of 17 March, the written answer that went to Parliament, cabinet and the people, was an instrument of persuasion that aimed to create the impression that Goldsmith had advised that the war was unequivocally lawful. The document did mislead. It was the product of calculated manipulation enabled by silences and lies, a grand and disastrous deceit.

Second, on the basis of material I have seen but isn’t in the public domain, I believe the inquiry may have been excessively generous in its characterisation of evidence. I offer one example, in relation to the events of 31 January 2003, when Blair met Bush at the White House. According to the Chilcot Report, David Manning, the British ambassador in Washington, noted that the two men agreed that ‘the military campaign could begin “around 10 March”.’ As I wrote in my book Lawless World: Making and Breaking Global Rules (2006), the note actually states that 10 March has been pencilled in, and records Bush as stating that this ‘was when the bombing would begin’. The note also records that Blair ‘was solidly with the president and ready to do whatever it took to disarm Saddam’, and indicates that he thought a second resolution was desirable (but by implication not necessary). In other words, as early as January Blair had committed himself to supporting a March invasion whether or not there was a further resolution. Blair was indeed with Bush, ‘whatever’ Bush wanted. The Chilcot Report has the two men agreeing that the campaign ‘could’ begin in March, not that it ‘would’ begin then. This tiny change – one letter, quotation marks removed – causes me to wonder whether any other changes of emphasis may have been made in respect of documents we are not allowed to see.

All this may be seen as pedantic. Perhaps the inquiry could have reported more quickly, by publishing its conclusions in phases (first the run-up, then the conflict, then the reconstruction). Perhaps a differently constituted committee would have spoken explicitly of illegality. But such concerns fade when I recall the afternoon of 6 July. ‘We are vindicated,’ the grandfather of one of the British servicemen killed in Iraq told me, ‘and it was worth the wait.’

Later that afternoon a defiant Tony Blair took to the airwaves. Chilcot had spoken for 25 minutes; Blair spoke for nearly two hours. Not for him the apology of his deputy, John Prescott, who wrote in the Sunday Mirror that, in view of the report, he now believed the war was ‘catastrophic’ and ‘illegal’. Blair instead defended himself, saying he’d take ‘the same decision’ again. This unhappy intervention will not do him any favours. It makes it more likely he will be pursued, perhaps for contempt of Parliament, or by civil claims, or claims of misfeasance in public office. He might even face worse, a possibility raised in the resignation letter tendered in 2003 by the Foreign Office legal adviser Elizabeth Wilmshurst, whose position has been vindicated by the inquiry:

I regret that I cannot agree that it is lawful to use force without a second Security Council resolution … I cannot in conscience go along with advice within the Office or to the public or Parliament – which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law.

[*] The members of the inquiry were John Chilcot, Lawrence Freedman, Martin Gilbert, Roderic Lyne and Usha Prashar. The committee was assisted by Rosalyn Higgins (international law) and Roger Wheeler (military matters).