UK Military Action in Iraq: Declassified Documents

Neale Hanvey Excerpts

Wednesday 13th December 2023 Westminster Hall

[Neale Hanvey (Kirkcaldy and Cowdenbeath) (Alba)]

I beg to move,

That this House has considered the matter of UK military action in Iraq and declassified documents from 1998.

By way of introduction, I pay tribute to Declassified UK, and in particular its co-founder and editor, the journalist and author Mark Curtis, who has provided an invaluable public service by shining a light on declassified British documents from 1998 at the National Archives. The documents, which run to over 900 pages, reveal what actually went on behind the scenes when the UK Government decided to take military action in December 1998 in what became known as Operation Desert Fox: the four-day bombing campaign in Iraq from 16 to 19 December 1998 by the United States and British militaries. This is important in and of itself, but also because it was the precursor to the invasion of Iraq in 2003.

Before I turn to the key findings from the declassified documents, let me recap the human cost of military action in Iraq. This House will forever remember the sacrifice of the 179 British servicemen and women, as well as the 23 British civilians, who lost their life during the conflict in Iraq. Yesterday, I joined the War Widows Association for its Christmas gathering; I pay tribute to its secretary, my Kirkcaldy and Cowdenbeath constituent Sue Raw, and to the amazing women and men who have lost a loved one during a conflict, or as a result of the lasting consequences of conflict.

In addition, there is also the horrific human cost of the war in Iraq. A research study published in The Lancet in 2006 estimated that more than 655,000 Iraqis had died as a consequence of recent wars. In November 2006, the United Nations High Commissioner for Refugees reported that 1.8 million Iraqis had been displaced to neighbouring countries, and 1.6 million were displaced internally. As recently as March 2023, the Watson Institute for International and Public Affairs at Brown University estimated that 1.1 million Iraqis are still displaced internally or live as refugees abroad. According to an April 2014 report in The Guardian, the war cost the British taxpayer £9.6 billion. Doubts over the legality of the invasion of Iraq have done irreparable reputational damage to the western world, including the United Kingdom, throughout the middle east and among Muslim populations both at home and abroad.

I turn to the key findings from the declassified documents in relation to discussions involving, and advice given by, the then Foreign Office legal adviser, the Solicitor General, the Chief of the Defence Staff, the Attorney General, the Deputy Secretary for Defence and Overseas Affairs.

On 12 February 1998, the Foreign Office’s legal adviser, Sir Franklin Berman, wrote to his Department’s senior civil servant. He said that

“the only valid claim to employ force (in this case) is under the authority of the Security Council…my view is that a new resolution in suitable terms is a sine qua non.”

He added:

“The Ministerial Code requires Ministers to comply with the law, including international law…I cannot believe that Ministers would wish to order British servicemen into action unless their legal advisers were able to assure them that it was legally justifiable.”

The then Prime Minister, Tony Blair, was again told of the Foreign Office view two days later, on 14 February, in a meeting with the then Solicitor General for England and Wales, now Lord Falconer. Referring to the UK’s invasion of Egypt over Suez, Lord Falconer told Tony Blair that in the Foreign Office

“some lawyers argued very strongly that it would be the first time since 1956 that the UK had used force without the backing of the Security Council resolution”.

Lord Falconer stated that some lawyers

“might feel strongly enough to resign”,

as they might be expected to implement decisions

“that they believed were incompatible with international law”.

Five days later, on 19 February, Prime Minister Tony Blair, Foreign Secretary Robin Cook and the then Defence Secretary, now Lord Robertson, attended a briefing by Chief of the Defence Staff Sir Charles Guthrie and Air Marshal John Day on

“targeting plans for operations against Iraq”.

The minutes note that the Chief of the Defence Staff

“mentioned that he was worried about the legal side; he hoped this could be sorted quickly”.

The minutes then state: “The prime minister”—Tony Blair—

“noted that the legal advice was that securing another”

Security Council resolution “was preferable.” They added:

“The prime minister concluded that…he did not want to have everything depending on securing a further Resolution”.

What on earth did he mean by “everything”? What exactly had he committed to? We know that Tony Blair had been told by then—in a communication entitled “The Legal Use of Force”, from Michael Pakenham, deputy secretary for defence and overseas affairs, to John Holmes, principal private secretary to the Prime Minister—that a further resolution was essential, not preferable. Tony Blair’s statement in the minutes of the meeting with the Chief of the Defence Staff implies that he would be prepared to use military force without such a resolution. That is unlawful, yet that is exactly what happened as events transpired.

One note in the bundle of papers, which is undated but likely to be from February 1998, appears to be from officials in advance of a meeting between Tony Blair and Attorney General John Morris. This note suggests that Tony Blair pressed Morris to legally justify the use of force. The “Speaking Notes for the Prime Minister: Iraq—The Legal Position” reference Morris’s memo of 14 November 1997 and say that it “helpfully indicated” there could be “exceptional circumstances” in which the use of force could be justified without a Security Council statement. The note then says:

“I trust that you can confirm now that my description of what would constitute ‘exceptional circumstances’ is correct”.

However, Morris’s memo clearly states the following:

“Such a situation has not yet arisen; and even in such extreme circumstances, the UK could expect to be questioned closely about the legal basis for its resort to military force. The Government would need to have the strongest factual grounds for such action.”

This advice from Attorney General John Morris makes it clear that a Security Council statement was “an essential precondition” to using force.

In July 1998, Michael Pakenham, deputy secretary for defence and overseas affairs, wrote a confidential note entitled “The Legal Use of Force”. That was sent to John Holmes, principal private secretary to the Prime Minister. In it, he said that the Foreign Office legal team were continuing to advise that

“the bottom line remains that in most foreseeable circumstances, a Resolution of the UN Security Council is required before the use of such force can be authorised”.

He added that

“acting against UN principles or without”

UN Security Council resolutions

“may in the short term meet…immediate need but is in the long term wholly contrary to our interests”.

The communication also states:

“the advice given by the FCO legal team, and closely followed by the Law Officers, is that there are certain fundamental rules which any Government must follow, and tests they must meet, before authorising the use of force by our Armed Services. Without such tests being met, there would be a very real risk of members of the Armed Services being subject to criminal prosecution.”

In summary, the then Foreign Office legal advisers stated that the

“only valid claim to employ force”

was under the authority of the United Nations Security Council. The Solicitor General warned Tony Blair that there were lawyers who might resign rather than have to implement decisions “incompatible with international law”. It is absolutely clear that neither the Foreign Office’s legal adviser nor the Solicitor General was willing to advise that military action was legally justifiable.

We have evidence of the then UK Prime Minister pressing the then Attorney General to provide a legal justification for military action. If that was not concerning enough, we also had the Chief of the Defence Staff stating that he was worried about the legal side. Crucially, the deputy director for defence and overseas affairs offered absolute clarity that

“the bottom line remains that”

a UN Security Council resolution is required before the use of force can be authorised. In fact, the communication sent to Downing Street makes it clear that the Prime Minister’s office was told that that was essential.

On 14 November 1998, Tony Blair authorised the strike on Iraq, but UK and US forces were stood down at the last minute, when Saddam Hussein agreed to permit weapons inspections. Just before Iraq’s climbdown, Tony Blair held a meeting with the Foreign Secretary, Robin Cook, the Defence Secretary, now Lord Robertson, and the Chief of the Defence Staff, Charles Guthrie, in which he affirmed:

“The time had now come for military action to be taken against Iraq.”

According to the minutes of that meeting, there was no consideration of legality, except that it was agreed to justify the use of force

“not because he [Saddam] was in technical breach of UN Resolutions but because he posed a real and imminent threat to peace and security in the region”.

As Declassified UK has stated:

“This was a de facto acknowledgement that the threshold demanded by Britain’s legal advisers—new Security Council authorisation—had not been met.”

On 16 December 1998, the US and UK struck Iraq in a wave of air attacks. Almost 100 sites were attacked by US and British aircraft and cruise missiles from US navy ships and B-52 bombers. General Peter de la Billière, a former head of the SAS who commanded British forces in the 1991 Gulf war, questioned the political impact of the bombing campaign.

It is clear from the declassified documents that Tony Blair misled Parliament. When he announced military action to Parliament on 17 December 1998, he said:

“I have no doubt that we have the proper legal authority, as it is contained in successive Security Council resolution documents.”—[Official Report, 17 December 1998; Vol. 322, c. 110.]

But that was clearly misleading, as he had been consistently advised—by the Solicitor General, the Attorney General, the Foreign Office legal adviser and the deputy secretary for defence and overseas affairs—that further UN authorisation was required for the use of force. Thus, British officials justified their action by claiming that other UN resolutions previously passed in 1998 revived the authorisation to use force provided in resolution 678, a remnant of the Gulf war, passed eight years earlier in 1990.

Since the other resolutions did not explicitly authorise the use of force, the UK argument was a spurious one. Of the 15-member Security Council in 1998, only three members supported the action: the US, Japan and Portugal. Five years later in 2003, the UK and US relied on the same resolution, 678, to justify their subsequent invasion when they again failed to secure a further Security Council resolution for the use of force.

These files from 1998 suggest that Tony Blair was motivated more by maintaining relations with the US than by upholding international law—something of which he was again culpable in 2003. On the same day, President Clinton told Tony Blair during a phone call that military action against Iraq might have to be used. Blair replied, saying that he agreed and that Mr Clinton

“could count on our support throughout”.

That commitment of support was not underpinned by international law.

On the point about Saddam Hussein being unwilling to co-operate, Tony Blair said:

“we would have to enforce our will”,

adding,

“even if there were some differences between us on the legal front”.

According to Declassified UK,

“Blair was intimating to the US president he was prepared to override British legal concerns”

and obligations.

On 14 February 1998, as Washington and London were close to striking Iraq, Blair told Solicitor General Lord Falconer:

“it was inconceivable that we would refuse the Americans the use of the base at Diego Garcia. At the very least this had to be legally possible.”

So far, the Government have not declassified all files relating to this period. They have kept secret several of the Iraq files from the Prime Minister’s office, which cover the end of 1998 and the beginning of 1999. Can the Minister explain why these documents have not been put in the public domain and when we can expect publication? The files do not appear to contain the minutes of the meeting between Prime Minister Tony Blair and Attorney General John Morris. Can the Solicitor General confirm whether that is the case and whether the minutes will be published in full, and if so, when?

These declassified documents show that Tony Blair was determined to take military action against Saddam Hussein in 1998, against explicit advice and in the absence of sound legal arguments or justification. They show that Tony Blair dismissed legal objections to his 1998 bombing campaign. That was the direct precursor to his stance on the invasion of Iraq five years later in 2003, which was also deemed illegal by UN Secretary-General Kofi Annan, when he said of the war in September 2004:

“From our point of view and from the charter point of view it was illegal.”

Indeed, it was the then Foreign Secretary Jack Straw who privately warned Tony Blair in 2002 that an invasion of Iraq was legally dubious, stating that

“regime change per se is no justification for military action”,

and that

“the weight of legal advice here is that a fresh…mandate may well be required”

from the UN. Those words chime with, and are foretold in, the declassified documents that I have highlighted.

I want to place on record my appreciation to parliamentarians who have raised similar concerns in the past, including former Labour MP Dennis Canavan, the right hon. Member for Islington North (Jeremy Corbyn), and the SNP’s Margaret Ewing and Jim Sillars. I recall that Margaret Ewing questioned the Prime Minister directly in the House at the time, and in 2016 Jim Sillars called for a retrospective Iraq war crimes Act to be passed by the Scottish Parliament. It was the right hon. Member for Haltemprice and Howden (Mr Davis) who stated:

“The second Iraq war was started to liberate the Iraqi people. Instead, it shattered their country. It was intended to stabilise the middle east. Instead, it destabilised the middle east.”—[Official Report, 14 April 2016; Vol. 608, c. 530.]

He deserves credit, as does my own party leader, the right hon. Alex Salmond. Mr Salmond was right when he said:

“Through the long debates on Iraq, many of us suspected that the Prime Minister had given commitments to the American President which were unrevealed to this House and to the public. The Chilcot report outlined these in spades. The famous phrase

‘I will be with you, whatever’

will go down in infamy in terms of giving a commitment.”—[Official Report, 30 November 2016; Vol. 617, c. 1531-1532.]

In both instances—in 1998 and in 2003—we know that Tony Blair received legal advice warning that military action was illegal; and, in both instances, he ignored that legal advice and went on to authorise the deployment of British service personnel. Blair pressed officials, in particular the Attorney General, to provide legal justification for the use of force. He received none, but he did it anyway.

Blair misled Parliament by claiming that a legal basis for military force without a UN Security Council resolution existed, when in fact it did not. The consequences have been devastating for Iraqis, for the region and for military personnel and their families. Lives lost in the theatre of war are well understood, but the lives wrecked by the trauma of conflict are less easily quantified, yet every bit as real. I heard such stories yesterday when speaking to the war widows. Such loss and devastation is met with great courage by those affected, but every person’s loss should surely be based on a lawful instruction.

How can it be that a Prime Minister who prosecuted two wars against lawful advice and instruction has been rewarded with a knighthood? It is an insult to every single life lost; it should be withdrawn forthwith and a path to full justice secured. Governments should not lie to go to war, and the truth must now be told.

[Peter Dowd (in the Chair)]

I intend to call the Opposition spokesperson no later than 5.40 pm. Hon. Members should bear that in mind when making interventions.

--- Later in debate ---

[Karl Turner (Kingston upon Hull East) (Lab)]

It is a pleasure, as always, to serve under you in the Chair, Mr Dowd. It is also a great pleasure to welcome to his place the new Solicitor General, the hon. Member for Witney (Robert Courts). We are both relatively new to our roles, although I have had the benefit of this being, I think, my second tour in this particular circuit. I am sure that the tone of our debate will remain as thoughtful and constructive as that which was maintained by the previous occupants of our roles—just as it has been today—and I look forward to those debates in the weeks and months ahead.

I commend the hon. Member for Kirkcaldy and Cowdenbeath (Neale Hanvey) on his determination in securing this debate. I know that he has previously made attempts at securing urgent questions on this important issue, and no one can doubt the sincerity of the concerns that have led the hon. Gentleman to pursuing this matter and securing this debate. Whether or not we reach the same conclusions, I applaud and commend him for his persistence in raising this issue.

The hon. Member for Kirkcaldy and Cowdenbeath argues, powerfully, that there is a through line from the discussions that took place within Tony Blair’s Government in 1998 over the decision to carry out airstrikes against military assets in Iraq, without authorisation from the United Nations, and the decision, five years later, to take military action against Saddam Hussein. The contention is that that decision in 1998 paved the way for the decision in 2003 and that, despite the 12 volumes and more than 2.5 million words of the Chilcot report, we cannot fully understand the process that led to the 2003 decision until the 1998 decision is subject to the same level of scrutiny, including the release of all outstanding papers on the issue.

Let me say that I understand the point that the hon. Member for Kirkcaldy and Cowdenbeath is making. As I have said already, I do not doubt the sincerity of the concerns that lie behind his campaign on this matter. It is worth saying, however, that there is another, more immediate throughline from the decision taken in respect of Iraq in 1998, which was the decision taken by Tony Blair and Bill Clinton just a year later in respect of the intervention in Kosovo.

There again, a UN resolution in favour of action could not be achieved because of the permanent Russian veto; there again, as we will surely discover when the relevant papers are released, there were debates both inside and outside Government about the legality of acting without the cover of a UN resolution; and there again, the judgment ultimately made by Tony Blair, Bill Clinton and other NATO allies was that the air strikes they authorised against military assets were justified because of the civilian lives at threat if those assets were left intact.

People may disagree with the air strikes in Iraq in 1998. They may even disagree with the air strikes in Kosovo in 1999. But it is important to recognise that what was going on in that era was not some specific obsession with the regime change of Saddam Hussein, which would lead to the tragedy of the Iraq war in 2003, but a constant debate about whether the world could afford to wait for action from the United Nations following the tragedies of Rwanda in 1994 and Srebrenica in Bosnia in 1995.

I hear what the hon. Member for Kirkcaldy and Cowdenbeath is saying, but while he may maintain that the willingness to set aside legal concerns over the 1998 action was the precursor to what happened in Iraq in 2003, we must also remember that if that same willingness to act had not been present in 1999, we would still be talking today about how the world stood by and allowed the genocidal destruction of the Kosovan people.

[Neale Hanvey]

Will the hon. Member give way?

[Karl Turner]

I will not, if the hon. Gentleman does not mind, because I want the Minister to have the full opportunity to respond to him.

The final point I want to make relates specifically to the issue of which documents have been published in relation to the 1998 action and which are still being withheld from publication. I have no knowledge of how those decisions were arrived at, but I would urge a bit of caution before we leap to any conclusions or encourage any theories that already exist out there about what the still-unpublished papers may or may not contain. In my experience, when officials—in whichever Department it is—sit down and sort through these documents, and decide what to publish and what to withhold, they are always rather more concerned with what precedents will be set for the future and whether there are any security implications for individuals still alive in the present, and rather less concerned with what revelations will emerge about the past.

Personally, I am in favour of maximum transparency wherever possible. I am also in favour of Government Departments being clear about the broad reasons for their decisions when they feel obliged to hold material back from publication. If there are any more concrete reasons that can be provided today as to why the particular papers at issue have not so far been published, then I would welcome that too. That is not because I think there is any great mystery being covered up, but precisely because I think the opposite is true and the Government could dispel a lot of unnecessary and ill-founded speculation if they were clearer about the broad reasons why some material is withheld. If that were to be one positive outcome from this debate, I would welcome it. Another would be to recognise that what motivated much of the action during that period in history was not the desire for regime change in Baghdad, but a compulsion that many leaders rightly felt not to repeat the grave mistakes of Bosnia and Rwanda.

Finally, I offer my sincere commiserations to the loved ones of those military personnel and civilians who lost their lives in these terrible and tragic conflicts.

--- Later in debate ---

[Neale Hanvey]

Thank you, Mr Dowd, for your assiduous chairmanship. I thank all Members for their contributions. They have been very reflective and quite helpful. I want to pick up on a few points that were made. First, I thank the hon. Member for Strangford (Jim Shannon) for his sincerity and passion, and his comments on the bravery of service personnel—

[Peter Dowd (in the Chair)]

Order.