Iraq Inquiry Begins but Questions Remain
In the UK, the Iraq Inquiry (also referred to as the Chilcot Inquiry) into the 2003-present Iraq war began hearing evidence yesterday. On the first day of proceedings (24 November), Sir Peter Ricketts, chairman of the Joint Intelligence Committee in 2001 told the inquiry that containment policy in 2001, which included sanctions, was “failing”. He also said that they were aware in around February 2001 that White House officials were discussing “regime change” in Iraq, but that it was not UK policy until after September 11, 2001. Sir William Patey, the former head of the Foreign Office’s Middle East Department was asked if containment policy “could have continued like that until such time as [Hussein] departed?” to which Patey replied “Possibly”.
The Inquiry was announced on 15 June 2009 by the Prime Minister. It is an inquiry by a committee of Privy Counsellors with broad terms of reference to consider the UK’s involvement in Iraq from mid-2001 to July 2009. It will cover the run-up to the conflict, the subsequent military action and its aftermath with the purpose to establish the way decisions were made, to determine what happened and to identify lessons to ensure that in a similar situation in future, the UK government is equipped to respond in the most effective manner in the best interests of the country.
There has been widespread criticism in the media and those in the British legal establishment that there are no lawyers on the Committee given the fact that the Inquiry will be called upon to investigate whether the Iraq war was legal. As one un-named senior legal official quoted in yesterday’s Guardian puts it, “Some of the debates around the legality of the war are quite sophisticated – it is not all clear-cut,” the senior legal figure said. “It’s going to be very difficult to deal with someone like Blair without a panel experienced in cross-examination.” The Committee is made up of a career diplomat and senior civil servant, two historians, a former Ambassador to Russia and to the United Nations and the Chairwoman of the Judicial Appointments Commission.
“Lawyers are trained to weigh up evidence and will know and say when they see a decision-making process that appears to be out of the ordinary,” said the British international law expert Professor Philippe Sands QC. “The fact that the members of the inquiry do not include a lawyer is very, very telling”.
While the criticism is in one sense valid, the absence of lawyers should not damn the tribunal before it begins (To my mind, the presence in the chair of a member of the unduly exculpatory Butler Review is far more damning, as is the fact that the chairman merely has discretion to open hearings to the public). The Inquiry is far more a process of historical inquiry than a legal one, and as such its make up fits in with other types of inquiry in other states who have undergone periods of political violence, war or repression, though the absence of international members and victims makes it different to some similar Latin American projects. The key question for many will be how and why the former attorney general Lord Goldsmith changed his legal opinion on the illegality of an invasion between 7 March and 17 March 2003. While assessing the legality of war will be an important part of the Tribunal’s remit, it is but one part and cannot explain why the decisions taken were made. As episodes like the Kosovo or Bangladesh wars show, strict legality is but one of the factors to consider when deciding if a war was justified or not. Furthermore, there is nothing to prevent the Inquiry from calling on expert evidence from lawyers, experts and academics in the field of international law. It should be pointed out that Dame Rosalyn Higgins, former judge and president of the International Court of Justice was to be a legal adviser to the panel.
Undoubtedly, the Inquiry might benefit from the participation of a lawyer or two, but the Saville Inquiry (whose torpidity has been examined elsewhere on this blog ) points out the dangers of excessive legalization of something which needs to be completed in the life-time of the next parliament given that the war enjoyed wide support from both main parties in the House of Commons.
Initially the Prime Minister announced the Inquiry would be held in private until he capitulated to pressure for a public hearing. Nevertheless, there is ample scope under the 29 October 2009 Protocol on the treatment of sensitive written and electronic information.* Conveniently, the Inquiry is expected to report its findings after the next general election Conservative Party leader David Cameron dismissed the inquiry as “an establishment stitch-up.” There remains a great deal to be clarified about how and why Britain ended up at war in Iraq. It remains to be seen whether this Committee will fulfill this role, but its powers are wide enough to do so if the will exists. Absence of lawyers should not prove fatal.
* Information which will not be made available to the public includes anything likely to: a) cause harm or damage to the public interest, guided by the normal and established principles under which the balance of public interest is determined on grounds of Public Interest Immunity in proceedings in England and Wales, including, but not limited to, i national security, defence interests or international relations; ii the economic interests of the United Kingdom or of any part of the United Kingdom; b) endanger the life of an individual or otherwise risk serious harm to an individual; c) make public commercially sensitive information; d) breach the principle of legal professional privilege (LPP); e) prejudice, in the case of legal advice (following any voluntary waiver of LPP) rather than material facts, the position of HMG in relation to ongoing legal proceedings; f) breach the rules of law which would apply in proceedings in England and Wales under the provisions of Section 17 of the Regulation of Investigatory Powers Act 2000; g) breach the rules of law applicable to the disclosure of information by the Security Service, SIS or GCHQ, the third party rule governing non-disclosure of intelligence material or other commitments or understandings governing the release of sensitive information; h) breach the Data Protection Act 1998; or i) prejudice the course or outcome of any ongoing statutory or criminal inquiry into matters relating to the information proposed for release