The Chilcot Report and the Doctrine of Humanitarian Intervention

[Dr. Frederick Cowell is a Lecturer in Law at Birkbeck College, University of London School of Law.]

On the 6^th of July the UK’s Iraq Enquiry report was finally published having taken almost seven years to complete. The process,  chaired by a leading former British civil servant, Sir John Chilcot, aimed to look at the causes and consequences of the 2003 Iraq War from the perspective of the British government. Since it was a public and not a judicial enquiry, it did not pronounce on the legality of the war but, as Sir John said in his press conference on the report, on “the circumstances under which the UK decided there was a legal basis for war were far from satisfactory.” The report raised a number of different legal issues but perhaps the most intriguing feature of the report is the implication for the doctrine of humanitarian intervention.

The 2003 Iraq war was not politically ‘sold’ on the basis of humanitarian intervention. UN Security Council Resolution 1441 (.pdf) spelt out the terms for further weapons inspections in Iraq following the weapons inspections that had been on and off since the 1991 Gulf War. The legal advice to invade Iraq that was presented to the British Cabinet on the 11^th of March 2003 was based on the argument that earlier legal authority had been ‘revived’ (Vol. 6 paragraph 690 onwards [.pdf]).  This argument was somewhat overstretched and was criticised in an earlier section of the report which doubted the idea that states had a “residual right” to unilaterally enforce UN Security Council resolutions. As Dinos Kritsiotis (.pdf) argued, applying Nicaragua v US (.pdf) to the case for operation Iraqi freedom, it is important to distinguish the legality of the overt political justification for war and the legal basis for the use of force. In the 2003 Iraq War the overt legal basis for use of force under the UN Charter was highly flimsy and dependent on a stretched reading of the right to use military force under Article 42 of the UN Charter.

Though the Chilcot report did not expressly rule on the legality of the use of force the legality of regime change is a somewhat different question. As Gerry Simpson noted the notion of regime change is difficult to justify under the principles of self-defence, not least because the UK and US opinions on the validity of this argument radically diverged. The question of regime change on ideological grounds is prohibited, as the ICJ made clear in the Nicaragua judgment, but humanitarian intervention to remedy human rights abuses had, prior to Iraq, received some degree of acceptance not least when the Kosovo Commission concluded NATO’s 1999 air war was “illegal but legitimate.”  The concept of a Responsibility to Protect (R2P) was still two years away in 2003 and even when the doctrine was developed in the late 2000s it was careful not give outright support for intervention absent Security Council authorisation. The 2010 Secretary General’s report on the Responsibility to Protect was critical of humanitarian intervention saying that it “posed a false choice between two extremes: either standing by in the face of mounting civilian deaths or deploying coercive military force to protect the vulnerable” (UN SG Report 2010 Para 7). Two principles from the R2P doctrine which have often guided arguments about humanitarian intervention – is there a human rights abuse and would the intervention remedy that abuse – provide a prism through which to view the report’s findings and their relation to the doctrine of humanitarian intervention.

The human rights abuses committed by Saddam Hussein’s regime were, as the report details, a central part of the case being made by the British Government during late 2002 (see Volume 2, Section 3.4 paragraph 331). Crucially, however, this was largely secondary to the overall aim of regime change. Where the British were concerned about Saddam Hussein’s human rights abuses it was in connection to gathering evidence to prove the instability of the regime more generally (see Volume 2, Section 3.2 Paragraph 575). Kenneth Roth was fairly clear in his assessment in 2006 that human rights abuses, such as the 1988 massacre of Kurds, would not add up to a sufficiently immediate threat to justify the invasion of Iraq in 2003 in order to prevent such abuses occurring.  Indeed whilst it was clear in pre-war Cabinet meetings that Saddam was, in words of the former UK Foreign Secretary Robin Cook, “a tyrant” and a “shit,” this was not the motivation for invasion, nowhere in the Chilcot report is there a mention of a specific human rights abuse that the invasion is designed to stop. Michael Walzer in 2012 drew a distinction between intervention for purposes of relief (to stop a genocide) and purposes of repair (to change a regime) indicating that the former may still be defensible post-Iraq.

With regard to the second principle the Chilcot report was highly critical of all levels of post invasion planning noting systemic failures in several areas including the preparation of basic resources to provide security post invasion and any real plan for civil contingency in the aftermath of the invasion.  This was causally linked to the violence that broke out after the invasion leading to many thousands of civilian deaths. Kier Starmer, a former public prosecutor and now Labour Party Member Parliament, in a thoughtful piece reflecting on the Chilcot report’s findings suggested that a post-conflict plan ought to be a legal requirement for any future intervention. This helps resolve one tension at the heart of humanitarian intervention what JL Holzgrefe  described as ‘act utilitarianism’; the otherwise illegal act can be justified for its maximisation of welfare. But there is a need to actually deliver on this promise of welfare, otherwise the argument fails. This clearly was not the case in the 2003 Iraq War, as the report outlined.

Whilst not expressly commenting on the concept of humanitarian intervention the Chilcot reports findings leave little doubt that the 2003 Iraq War cannot be justified under this doctrine. The attempts by supporters of the war to frame the conflict in retrospect as a form of quasi-humanitarian intervention, examining Saddam’s appalling human rights record or the prospect of further abuses, are missing the point; the type of war launched in 2003 could not be justified under any reasonable understanding of the doctrine of humanitarian intervention, and the findings of fact in the Chilcot report support this interpretation.  The report’s finding will shape the understanding of the most contested conflict of the last half-century and the one that colours all subsequent debates on the doctrine of humanitarian intervention.