Lawyer and author Philippe Sands explains to Ian Rappel why the Iraq war was illegal and Blair should be held to account.
In your book Lawless World you have concentrated upon the approaches of the US, and to a lesser degree Britain, to international laws. What areas have these states actively supported, and what areas have they cast aside or ignored?
The central focus of the book is the US, which emerged after the Second World War as the strongest proponent of a rules-based system. It is hard in some respects - given recent developments - to remember that it was the US that promoted principles of self-determination in international law to allow countries like India to emerge into independence.
It's very regrettable that US support for international economic rules remains very strong, but US support for the two other 'pillars' (the rules prohibiting the use of force, and the rules promoting the dignity of the human individual) is weaker, and in some cases has disappeared.
For example, in relation to the conflict in Iraq, the question of legality appears to have been virtually a non-issue in US government, media and public perception. And in relation to the dignity of the human individual, it took the photographs at Abu Ghraib to concentrate minds in the media. Before that it was difficult in the US to talk about things like the legality of Guantanamo.
We're in a time where, focusing on the Bush administration rather than the US as a whole, the degree of support for two of the three 'pillars' has withered very dramatically.
Was the UN general secretary Kofi Annan correct when he described the Iraq war as illegal?
Yes, he was correct and brave to say that. As I describe at some length in Lawless World, the war was illegal because it was not authorised by the UN Security Council, and was not justified as self-defence in the sense envisaged by Articles 2:4 and 51 of the UN Charter.
There is a third emerging possible justification for the use of force, but it was not invoked by Britain or the US - the argument of humanitarian intervention, using force to protect fundamental human rights from an immediate and massive threat. Since that was not the situation in Iraq in March 2003, it could not be argued, and it wasn't argued.
So, what remains is the argument put forward by Britain, the US and Australia that the Security Council had authorised the use of force by a combination of Resolutions 678, 687, and 1441. The heart of the argument is that Iraq was subject to a ceasefire after the first Gulf War of February 1991, and that that ceasefire obligation was dependent on Iraq's compliance with an obligation to disarm and eliminate its weapons of mass destruction. The proponents of legality claim that Iraq did not disarm, and hence was in material breach of the earlier obligations. According to that claim, being in material breach, the ceasefire fell away, and the original right to use force was revived. That is therefore known as the 'revival argument'.
The problem with this argument is that it depends upon the determination by those countries that they can unilaterally decide that Iraq is in material breach - that view is not shared by the vast majority of international lawyers or states or the UN secretary general. The overwhelming majority consider that the critical determination of whether or not there was a material breach is for the Security Council to decide. That is the importance of a second Security Council resolution, which was sought by prime minister Blair in March 2003, but which was not achieved. In those circumstances, in my view, the war was patently illegal.
So how did the British government obtain legal advice to the contrary?
Ultimately, the legal adviser in chief to the British government is the Attorney General. It is now clear that Foreign Office legal advisers took the view that without a second Security Council resolution (after 1441), explicitly authorising the use of force, any use of force against Iraq would be contrary to international law.
As I understand it, foreign secretary Jack Straw took a different view. Therefore, the matter went out to the Attorney General for determination. As I described in my book, his views evolved over time. My understanding is that originally (after 1441) he was of the view that a further Security Council resolution explicitly authorising force was needed. Following a visit to the US in February 2003, he expressed the view (in a final written legal advice which he gave to the Prime Minister on 7 March 2003) that a second Security Council resolution would be preferable, but arguably not necessary. However, that written legal advice was very equivocal, indicating that if the matter were to come to an international court the argument claiming the right to use force without an explicit Security Council resolution may well not succeed.
The written legal advice of 7 March 2003 appears not to have been unequivocal enough for the British military, which sought a clear and unequivocal 'yes' or 'no'. That was finally forthcoming in an answer to parliamentary questions given by the Attorney General on 17 March 2003.
Against that background, it is understandable that many questions are being asked about the precise circumstances in which the Attorney General's change of mind can be explained.
If full details of the Attorney General's decision were released to the public, do you think that the reasons for his change of mind would present themselves?
It's a delicate question to answer. Perhaps the way to look at it is to examine the efforts that are being made by the Blair administration to ensure that the Attorney General's advice of the 7 March 2003 does not make it into the public domain. If it were to become public I think the prime minister might well find himself in a difficult position, particularly where trust in governance has emerged as a central aspect of the 2005 election.
Even under today's international rule-based system, the US and Britain have been able to launch an illegal war in Iraq. Why then are Bush and Blair pushing for an overhaul of an international legal system that has hardly constrained their actions to date?
I'm not sure that it's right to say that it hasn't constrained their actions. Certainly the use of force in Iraq went ahead, but it has not been cost-free. And in both countries, views have been polarised - particularly in Britain. The legality of the war continues, two years on, to be an issue of vibrant public interest and public concern - and is emerging as a significant election issue insofar as it relates to the trust and integrity of the prime minister.
The prime minister has made a number of speeches on international law - including one which he gave to his constituents in Sedgefield in March 2004. He said that the rules of international law need to be changed, but he betrayed a real lack of understanding of how international law works and what the rules would require. His speech was the reaction of a man who has been pretty badly wounded by the legal fallout from the conflict in Iraq.
The rules, it is right, did not constrain those actions, but that doesn't mean that the rules at the time did not have other consequences. The logical consequence of authorising (as prime minister) an illegal war is that you could, over time, find yourself to be accountable for a 'crime of aggression'. It is not to be excluded that at some point in the future, the British prime minister, and possibly also the US secretary of defence, or even the US president, could find themselves subject to Pinochet-style proceedings if they were to travel to the wrong country at the wrong time.
That fact will concentrate minds in terms of travel, and in terms of the need to change the rules to allow a greater right of pre-emptive or preventive use of force. But the pleas by the Bush and Blair administrations to liberalise the existing rules fall on deaf ears and they have virtually no support in the international community. These two men should feel hemmed in by the rules of international law. The experience with Iraq will make governments in the future think very much more carefully before unleashing a war of this kind, where self-defence cannot be claimed and the Security Council has not authorised force.
The US National Security Strategy of 2002 fails to even mention 'international law' or the UN Charter. Given that this document is likely to form the basis of future US foreign policy, and direct the ongoing 'war on terror', what do you think we as ordinary people can do, particularly as part of the global justice movement, to reinvigorate and promote international law in the face of this development?
The National Security Strategy promotes the doctrine of 'preventive war' which is plainly contrary to international law. The entire strategy is premised on an approach that is inconsistent with the same international rules that the US put in place many years earlier. I do not believe that there's been a paradigm shift, and I do not believe the threat posed by Al Qaida, or any other terrorist group, is such as to require us to throw out the entirety of international rules that have been put in place. That is not to say that it will not be worthwhile to look carefully at the adequacy of existing rules as WMDs proliferate.
In terms of what future strategies ought to be adopted, the legal and political strategies that have put Guantanamo under the microscope seem to have worked, over time. Guantanamo is a legal black hole, and even as cautious a body as the English Court of Appeal has said so. I think that the key is to keep battering away against those who have turned their face against established rules of international law - whether it relates to the use of force, or the dignity of the human individual and the protection of the fundamental rights of every human individual. I have to believe that, over time, the approach will pay dividends.
One of the most distressing aspects of British life over the past three years has been the extent to which the British government - and in particular the British prime minister personally - has been silent in the face of gross violations of international law at Guantanamo. I am yet to hear the prime minister condemn the treatment of detainees at Guantanamo in terms that resound with the views of the English Court of Appeal. That is deplorable.
What's your opinion of the attack on civil liberties that has occurred in Britain recently?
At times I have to pinch myself faced with the ghastly reality that an authoritarian and centralising Labour government has overseen the greatest attack on civil liberties that this country has known since the Second World War. When I hear that it is the Conservative Party that is putting forward an amendment to legislation to outlaw the use of evidence that may have been obtained from torture carried out abroad, I really do have to ask myself - what sort of country could this become? And how far has the Labour Party, or this particular Labour government, departed from values and principles that working people have fought for tooth and nail? So at a personal level I remain deeply concerned about what is happening and I hope that, in the coming election, people will make their views known.
Philippe Sands QC has been the professor of law at University College London since 2002. He is the author and editor of several books on international law. He is also a practising barrister at Matrix Chambers and has been involved in leading cases including those concerning Augusto Pinochet and the Guantanamo and Belmarsh detainees. His new book Lawless World has just been published by Allen Lane (London £12.99).