An invasion of Iraq without the green light from the UN Security Council would be a crime of aggression.
That was the verdict of Sir Michael Wood, senior legal adviser at the Foreign Office in 2003. And that is what he wrote to then Foreign Secretary, Jack Straw. So how did he, and Tony Blair, come to believe that it would be not just not be a crime of aggression, but that it would be perfectly legal?
This week, the release of legal advice by then-UK Attorney General, Lord Goldsmith, shed some light onto this mysterious 180-degree shift in the government's opinion on the legality of the Iraq war.
What happened after Sir Michael offered that advice was this: Jack Straw noted the advice, but disagreed with it. Advice was then sought from the most senior legal adviser to the government, the Attorney General, Lord Goldsmith. The documents show that he was initially skeptical that an invasion of Iraq without a Security Council resolution authorizing it would be legal. But he, along with a slew of other figures at the top of government, eventually changed their mind. Goldsmith ruled it was lawful, and the rest is history.
I believe that there is an under-appreciated aspect as to why so many figures at the top of government changed their mind: they went to America. Goldsmith changed his mind about forty-eight hours after visiting Washington. Why did this make such a big difference?
I believe that there are three main reasons.
Firstly, because they were dazzled by the pomp and power of the government of the world's last remaining superpower. They would have seen the widescreen-style buildings and accouterments of US Power and felt the reverence with which a popular President is held, as head of State as well as head of government. I believe that this is also the reason -- a bad reason -- why Tony Blair did not cut a better deal with George Bush.
But they would have also sensed something else -- the sense of determination in the ruling circles in Washington that an invasion was a done deal. The question in the White House was not 'will it happen', but 'will we have to go it alone?'
But I think there was another factor which would have made the US trip change Blair and Co.'s minds. The culture amongst most of the ruling Republicans at the time (Cheney, Rumsfeld, Bolton), was particularly scornful of international law. They represented that significant constituency in the US which regards international law as a flimsy construct subject to the political manipulation of world leaders, the UN as an aid agency with ideas above its station, and the idea of the legality or illegality of a war as at best, a misguided nuisance, and at worst, a liberal conspiracy to check American power.
Goldsmith and Blair had grown up with the cozier, more mainstream, European view which imbued the idea of international law with the spirit of a Wilsonian aspiration towards a world governed by rules, not might. When Blair, Prescott, got off the plane and found themselves in the embrace of the hardliners of the Bush administration, they found themselves not just in a foreign land geographically, but also in a foreign land intellectually as well. It is very doubtful that any government lawyer would have ever advised Goldsmith, as attorney general, that the invasion of Iraq without a second UN resolution could have been anything other than an illegal war of aggression. But suddenly, his boss found himself in an environment which was not just emotionally openly scornful of international law, but which backed up their scorn with arguments too.
They are arguments which fail, of course. Just because a lawmaking procedure is imperfect, doesn't mean that countries are allowed to pretend it's not there. And especially when that system of international law is endorsed by most of the rest of the world, and the world's sole superpower only opts out when it is to its advantage.
But the wider point is that I believe that exposure to the debate in the US changed the question in Blair's mind from 'would it be illegal?' to 'does legality matter'? And exposure to the pomp of the superpower changed his answer from 'yes' to 'no.' Blair let himself be dazzled, and I believe that history will judge him more harshly for it.
Azeem Ibrahim is a Research Scholar at the Kennedy School of Government at Harvard University, Member of the Board of Directors at the Institute for Social Policy and Understanding and Chairman and CEO of Ibrahim Associates.