Ex-Navy chief 'took private legal advice on Iraq'

It's not something that I've ever heard of before, but it says a lot about the way the armed forces of the UK felt prior to the Iraq war that Admiral Sir Alan West, the First Sea Lord, approached lawyers privately before the war to seek reassurance that his men would not be tried for war crimes if they participated.

The legality of the Iraq war has always been hotly disputed and this shows that doubts concerning the wars legality went to the very top of the UK armed forces.

Indeed, the level of concern amongst all armed forces Generals was best illustrated by the statement of General Sir Michael Jackson, the head of the Army, at a meeting prior to the war starting at which he seemed to express the concern of all armed forces Generals, "I spent a good deal of time recently in the Balkans making sure Milosevic was put behind bars. I have no intention of ending up in the cell next to him in The Hague."

In the approach to the 2003 invasion, Lord Boyce, the Chief of Defence Staff, insisted that the Attorney General, Lord Goldsmith, provide an unequivocal written assurance that the invasion was lawful. He eventually received a two-line note from Lord Goldsmith on 14 March 2003 confirming the supposed legality of the war. It has since emerged that the Attorney General had twice changed his views on the matter prior to that note.

Lord Goldsmith also wrote to Tony Blair on 14 March, stressing it was "essential" that "strong evidence" existed that Iraq was still producing weapons of mass destruction. The Prime Minister replied the next day, saying: "This is to confirm, it is indeed the Prime Minister's unequivocal view that Iraq is in further material breach of the obligations". The information he relied on for this had formed the basis of the now discredited Iraq dossier.

On 17 March, Mr Blair presented what was described as Lord Goldsmith's opinion, presented on one side of an A4 page, to the Cabinet. The following day, Parliament voted for war.

The Admiral has refused to confirm or deny whether or not he went private for advice concerning the war, however, a senior military source has stated:

"The defence chiefs were aware of a rising degree of worry in all three services. Some of this has been passed to them through the padres. What was noticeable was the difference in attitude among the men and women compared to the Afghan war. There was genuine unease and it was the duty of the chiefs of staff, as the head of the services, to get clarification about whether they would be in breach of international law. There was also a degree of worry about the independence or otherwise of the government legal advice.

It says a great deal that these same armed forces Generals raised no questions at all concerning the legality of the war in Afghanistan and raised these concerns only over the legality of the Iraq war. A legality that many of us would argue that the war did not have.

"Admiral West approached lawyers ... on whether the impending action over Iraq was justified. It was a personal decision on his part and he felt this was necessary because of his duty of care towards people serving under him. He and the other service chiefs did not walk blindly into Iraq, they asked all the questions they could under the circumstances and with the ever-present caveat that they could not stray into the field of politics. At the end they were given Lord Goldsmith's assurance. The rest, as they say, is history."

As Goldsmith's reassurance was only based on Blair's statement that he had "strong evidence" that Saddam was still producing WMD, one has to wonder what advice Goldsmith would have been required to give had he been aware that the evidence that the Prime Minister was relying upon was not "strong" as he claimed, but actually "sporadic and patchy".

And they were right to worry about the impartiality of governmental legal advice. Lord Goldsmith is known to have sought clarity on the matter from Christopher Greenwood, one of the very few international lawyers who thought the conflict would be legal. Indeed, he approached Greenwood and avoided the others for that very reason. He went to Greenwood to get the answer that he wanted to hear and avoided the others because he knew that they would tell him the exact opposite of what he needed to hear.

Indeed, such was the outrage amongst his own staff at what he did that Elizabeth Wilmshurst, his Foreign Office deputy legal adviser, resigned immediately stating that the war against Iraq was a "crime of aggression".

And, as Philippe Sands QC, professor of law at University College London, has pointed out, Goldsmith's reassurances of the wars legality were false and offered the army an immunity from prosecution that was untrue:

"The logic of my belief that the war against Iraq was illegal leads inevitably to the conclusion that it was a crime of aggression.

"Under international law those individuals who prosecuted an illegal war are potentially individually responsible. That is clear from the Nuremberg principle.

"So the possibility cannot be excluded that a leader who prosecuted an illegal war could find himself the subject of a criminal investigation or an indictment at some future time.

"And the Pinochet principle suggests there can be no immunity from the jurisdiction of national courts for certain international crimes. Whether the crime of aggression is included in that list remains to be seen. Nuremberg also establishes a principle that legal advisers can be responsible."

So the armed forces generals can take some comfort from the fact that were they ever to find themselves in the dock there is a good chance that Goldsmith himself may very well be sitting next to them.

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Tags: Admiral Sir Alan West, legality of Iraq war, Tony Blair, Lord Goldsmith, UN, United Nations, Nuremberg war tribunals, Attorney General