Iraq Inquiry

Lord Thomas of Gresford Excerpts

Tuesday 12th July 2016 Lords Chamber

[Lord Thomas of Gresford (LD)]

My Lords, the decision to go to war in Iraq is not history; it is the here and now. I have to reject the assertion made today by the noble Lord, Lord Blunkett, that the conflict between Sunni and Shia that is ravaging Iraq and Syria has nothing at all to do with the decision of the Blair Government to join with the USA in the invasion of Iraq. As the noble Lord, Lord Williams of Baglan, pointed out, since that invasion Iraq has never become a functioning state.

Chilcot throws light on matters of which we knew nothing in late 2002 and 2003. I will focus on legality. On 4 January 2003, Mr Blair had concluded that the “likelihood was war” and, if conflict could not be avoided, the right thing to do was fully to support the US. On 14 January, the Attorney-General, the noble and learned Lord, Lord Goldsmith, gave draft advice that Resolution 1441 would not by itself authorise the use of military force. Indeed, the purpose of that resolution was to set up an enhanced inspection regime under Dr Blix with the aim of bringing to full and verified completion the disarmament process established by Resolution 687. There was nothing in it to authorise war.

On 27 February the Attorney-General told No. 10 officials that the safest legal course for future military action would be to secure a further Security Council resolution. However, he had reached the view that a “reasonable case” could be made that Resolution 1441 was,

“capable of reviving the authorisation to use force in resolution 678 (1990) without a further resolution, if there were strong factual grounds for concluding that Iraq had failed to take the final opportunity offered by resolution 1441”.

He advised that to avoid undermining the case for reliance on Resolution 1441, it would be important to avoid giving any impression that the UK believed that a second resolution was legally required. That was the get-out clause.

Germany, Russia and France stated on 5 March that they would not let a resolution pass that authorised the use of force. It was Mr Straw who suggested on 11 March that the UK should adopt the strategy floated by the Attorney-General as a “reasonable case”, his alternative approach.

The critical letter from the Attorney-General to the Prime Minister on 14 March passed the parcel: it placed the issue of legality foursquare in the hands of the Prime Minister. Mr Blair was advised that an essential ingredient of the legal basis was that he himself should be satisfied of the fact that Iraq was in breach of Resolution 1441. To no surprise, Mr Blair simply announced that Iraq was, and remained, in breach, a point strongly made by the noble Lord, Lord Morgan. Was that honourable, as the noble and right reverend Lord, Lord Harries of Pentregarth, would suggest? I do not think so. No record was kept of that decision, and Chilcot says that,

“the precise grounds on which it was made remain unclear”.

They are unclear because there was no evidential basis for that assertion by Mr Blair, as any lawyer would know, and there lies the essence of Mr Blair’s culpability.

On 17 March, three days before the invasion of Iraq began, my noble friend Lord Goodhart initiated a debate on the legality of going to war—it was thought that we would make one last attempt. He said that the Attorney-General’s opinion reached,

“a highly questionable conclusion, which is based on a dubious interpretation of deliberately ambiguous wording … The idea that vague and ambiguous words in those resolutions can be read as implying a delegation”,

to take decisions on the use of military force from the United Nations,

“to the United States, with or without the United Kingdom”—

as the Attorney-General had argued—

“verges on the absurd … The Government should face up to the fact that what we are about to do is not lawful. They will have to bear the consequences of that, and so will we”.—[Official Report, 17/3/03; cols. 70-72.]

The noble Lord, Lord Touhig, said that opposition to the invasion was treated with respect. I remind him that a Member of this House described my noble friend’s argument as “bizarre”. Noble Lords from the Labour Benches—the noble Lords, Lord Archer of Sandwell and Lord Brennan, both of whom were distinguished lawyers—were in support. I said that it was for the Security Council to decide whether and to what extent Iraq was in breach of its obligations and to determine what the appropriate action was. I said:

“The United Kingdom may, by promoting a resolution in cahoots with the United States and Spain, act as prosecutor, but it has to persuade the jury of world opinion, represented by the Security Council, that there has been a material breach of Resolution 1441 which is punishable only by recourse to war. Neither the United Kingdom nor the United States is entitled to enforce the ‘will’ of the Security Council”—[Official Report, 17/3/03; col. 79]—

when it has not been expressed.

Three days later, the invasion began and the United Kingdom became embroiled in an illegal war of aggression. The International Criminal Court now has jurisdiction over the crime of aggression. It was defined in 2010 by the state parties as,

“the planning, preparation, initiation or execution by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.

I consider that the invasion of Iraq without the consent of the United Nations was a manifest violation of its charter. Mr Blair has a case to answer and, as the noble Lord, Lord Owen, pointed out, his reaction is simply defiance.

The International Criminal Court postponed the exercise of its jurisdiction over the crime of aggression until 2017 and it will not be retrospective—so what can one do about instituting a war of aggression? There are calls for Mr Blair to be brought before Parliament for contempt of Parliament on the grounds of his misleading the House of Commons. Such an offence has a long and ancient history in law, and it is not obsolete. It was used in Canada as recently as March 2011; as a result, the then Canadian Government fell and there was a general election. I support those who seek to move in that direction—as, judging by his speech, the noble Lord, Lord Owen, clearly does, supported, I believe, by the noble Lord, Lord Bew.

For the moment, Mr Blair faces the court of public opinion. Chilcot supplies the evidence which convicts both him and those who surrounded him in making that fatal decision.