The Chilcott inquiry has now heard its two star witnesses, the Prime Minister and his predecessor, though we have not been promised a report before the end of this year. Already at least two questions of particular interest to lawyers have been raised, one procedural and one substantive.
The procedural issue is whether or not there should have been appointed counsel to the inquiry. Obviously it is right that the panel should be primarily composed of military and political experts. But I do not think it is merely pushing the profession’s barrel to suggest that the addition of senior counsel would have aided robust questioning of witnesses. For the inquiry to retain—or, more accurately, obtain—public confidence, raising issues will not suffice; the most rigorous cross examination of contentious points must be pursued. And that is the stock-in-trade of barristers.
The substantive question is the rather more nebulous issue of international law, and the rights and wrongs of the Iraq war thereunder.
International law
The international law question has already been authoritatively discussed in this journal, most recently by Professor Greer and Dr Tsagourias (NLJ 2010 p475) I would respectfully suggest that the comparison in their last paragraph between Iraq and Kosovo is the key point, and in fact renders much of the public debate on Iraq (and indeed the Chilcott inquiry itself) misplaced. The reason that Iraq remains in the public eye is not that there were no weapons of mass destruction (WMD), nor because there is doubt over the Prime Minister’s intentions, nor that the war was of doubtful international legality. It is because—and almost only because—the aftermath of the invasion was a fiasco.It is worth remembering that the initial invasion in 2003 was an almost unprecedented military success. The coalition achieved its stated objective of deposing the Iraqi regime in a few short weeks, with minimal casualties. The problem is that that seems to have been about as far as the pre-invasion planning ever got. The infrastructure of the country was largely destroyed or disbanded and there was accordingly little to check—and everything to encourage—the insurgency that followed.
The occupying troops were too few in number, primarily trained to fight a conventional war rather than counter-insurgency, and constrained by rules of engagement that most certainly were not going to be observed in reciprocation by the insurgents. Readers will need no reminding of the blood that was shed thereafter, and even if some significant progress has been made since the US “surge”, the cost in money and lives has been severe and even the most optimistic commentators have ceased to speak in terms of ultimate victory. That is why the public continues to demand investigation and indeed recrimination, and every aspect of the political, military, constitutional and legal steps to war remain under scrutiny.
Suppose, however, that by whatever means Iraq had been transformed almost seamlessly after the invasion into a functioning democracy with a low crime rate, no insurgency to speak of and tangible respect for human rights. The politicians responsible would now be feted as great statesmen and women, and there is no chance whatsoever that seven years later there would be any inquiry pouring over the finer nuances of international law, the AG’s advice, and precisely who knew what and when regarding WMD.
The point can reiterated by returning to the Kosovo war of 1999. Public debate regarding that war ceased fairly shortly after the conclusion of combat operations. And yet, contrary to the statements by the executive at the time, there seems little doubt that the war was indeed illegal. The United Nations charter authorises military action with a Security Council resolution or in self-defence.
No prior Security Council resolution was ever obtained for the NATO intervention. NATO could not claim to be acting in self defence. Yugoslavia’s complaint at the International Court of Justice in April 1999, filed against 10 NATO members, foundered on the basis that Yugoslavia was not a member of the UN during the war. In 2000, however, the House of Commons Select Committee on Foreign Affairs found that the war was illegal, though it offered by way of mitigation the conclusion that: “NATO’s military action, if of dubious legality in the current state of international law, was justified on moral grounds.”
Morality
The morality of the Kosovo war probably remains a moot point, but it would certainly not be if the outcome of NATO’s actions had been bloodshed on the same scale as Iraq. The consensus in that case would be that the disaster was foreseeable all along and that the UK government had acted recklessly. Arguments about Serbian atrocities would have cut no ice: Milosovic’s crimes, though serious, were not in the same league as those of Saddam Hussein, and the removal of Saddam Hussein is no longer seen as a justification for Operation Telic.It follows that the Chilcott inquiry should be concentrating almost all of its energies on the precise steps that were taken to plan for the aftermath of the removal of the Iraqi regime. It is unlikely that those responsible for the post-invasion planning will be held to account, legally or otherwise. More is the pity, for it is they who have the most to answer for.
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