A Journey (73 page)

In the letter of 24 January to the president of the Council, Iraq’s Foreign Minister stated that ‘all imported quantities of growth media were declared’. This is not evidence. I note that the quantity of media involved would suffice to produce, for example, about 5,000 litres of concentrated anthrax.

Missiles

I turn now to the missile sector. There remain significant questions as to whether Iraq retained SCUD-type missiles after the Gulf War. Iraq declared the consumption of a number of SCUD missiles as targets in the development of an anti-ballistic missile defence system during the 1980s. Yet no technical information has been produced about that programme or data on the consumption of the missiles.

There has been a range of developments in the missile field during the past four years presented by Iraq as non-proscribed activities. We are trying to gather a clear understanding of them through inspections and on-site discussions.

Two projects in particular stand out. They are the development of a liquid-fuelled missile named the Al Samoud 2, and a solid propellant missile, called the Al Fatah. Both missiles have been tested to a range in excess of the permitted range of 150 km, with the Al Samoud 2 being tested to a maximum of 183 km and the Al Fatah to 161 km. Some of both types of missiles have already been provided to the Iraqi armed forces even though it is stated that they are still undergoing development.

The Al Samoud’s diameter was increased from an earlier version to the present 760 mm. This modification was made despite a 1994 letter from the executive chairman of UNSCOM directing Iraq to limit its missile diameters to less than 600 mm. Furthermore, a November 1997 letter from the executive chairman of UNSCOM to Iraq prohibited the use of engines from certain surface-to-air missiles for the use in ballistic missiles.

During my recent meeting in Baghdad, we were briefed on these two programmes. We were told that the final range for both systems would be less than the permitted maximum range of 150 km.

These missiles might well represent prima facie cases of proscribed systems. The test ranges in excess of 150 km are significant, but some further technical considerations need to be made, before we reach a conclusion on this issue. In the meantime, we have asked Iraq to cease flight tests of both missiles.

In addition, Iraq has refurbished its missile production infrastructure. In particular, Iraq reconstituted a number of casting chambers, which had previously been destroyed under UNSCOM supervision. They had been used in the production of solid-fuel missiles. Whatever missile system these chambers are intended for, they could produce motors for missiles capable of ranges significantly greater than 150 km.

Also associated with these missiles and related developments is the import, which has been taking place during the last few years, of a number of items despite the sanctions, including as late as December 2002. Foremost amongst these is the import of 380 rocket engines which may be used for the Al Samoud 2.

Iraq also declared the recent import of chemicals used in propellants, test instrumentation and guidance and control systems. These items may well be for proscribed purposes. That is yet to be determined. What is clear is that they were illegally brought into Iraq, that is, Iraq or some company in Iraq circumvented the restrictions imposed by various resolutions.

The recent inspection find in the private home of a scientist of a box of some 3,000 pages of documents, much of it relating to the laser enrichment of uranium, support a concern that has long existed that documents might be distributed to the homes of private individuals. This interpretation is refuted by the Iraqi side, which claims that research staff sometimes may bring home papers from their workplaces. On our side, we cannot help but think that the case might not be isolated and that such placement of documents is deliberate to make discovery difficult and to seek to shield documents by placing them in private homes.

Any further sign of the concealment of documents would be serious. The Iraqi side committed itself at our recent talks to encourage persons to accept access also to private sites. There can be no sanctuaries for proscribed items, activities or documents. A denial of prompt access to any site would be a very serious matter.

Find persons to give credible information: a list of personnel

When Iraq claims that tangible evidence in the form of documents is not available, it ought at least to find individuals, engineers, scientists and managers to testify about their experience. Large weapons programmes are moved and managed by people. Interviews with individuals who may have worked in programmes in the past may fill blank spots in our knowledge and understanding. It could also be useful to learn that they are now employed in peaceful sectors. These were the reasons why UNMOVIC asked for a list of such persons, in accordance with resolution 1441.

Some 400 names for all biological and chemical weapons programmes as well as their missile programmes were provided by the Iraqi side. This can be compared to over 3,500 names of people associated with those past weapons programmes that UNSCOM either interviewed in the 1990s or knew from documents and other sources. At my recent meeting in Baghdad, the Iraqi side committed itself to supplementing the list and some eighty additional names have been provided.

Allow information through credible interviews

In the past, much valuable information came from interviews. There were also cases in which the interviewee was clearly intimidated by the presence of and interruption by Iraqi officials. This was the background of Resolution 1441’s provision for a right for UNMOVIC and the IAEA to hold private interviews ‘in the mode or location’ of our choice, in Baghdad or even abroad.

To date, eleven individuals were asked for interviews in Baghdad by us. The replies have invariably been that the individual will only speak at Iraq’s monitoring directorate or, at any rate, in the presence of an Iraqi official. This could be due to a wish on the part of the invited to have evidence that they have not said anything that the authorities did not wish them to say. At our recent talks in Baghdad, the Iraqi side committed itself to encourage persons to accept interviews ‘in private’, that is to say alone with us. Despite this, the pattern has not changed. However, we hope that with further encouragement from the authorities, knowledgeable individuals will accept private interviews, in Baghdad or abroad.

I am sorry to quote at such length, but it is critical to understand the context in which WMD were being debated in the run-up to the outbreak of conflict. We the key allies had no doubt that Saddam had an active WMD programme. We had worked really hard to get Resolution 1441 through. There could be no doubt that the only reason for the inspectors being allowed back into Iraq was a threat of military action. The build-up of American forces was likewise the only conceivable reason for what cooperation there was. But that cooperation fell short of what Resolution 1441 demanded. And the history of dealing with Saddam did not exactly lead to belief in his fidelity to the UN.

By this time, UK troops were also being prepared for the possibility of war. Several statements were made to Parliament in January. I still pinned some considerable hope on getting a diplomatic breakthrough. For me too, the prospect of a second UN resolution was central. We had left unresolved the issue of whether a breach of Resolution 1441 was in and of itself a justification for action. There was a legal dispute about it; but it was swiftly apparent that the law and the politics were inextricably intertwined. If people disagreed with war, they tended to think a second UN resolution specifically and expressly authorising military action was legally necessary; if they agreed with removing Saddam, they didn’t. And whether there was such a resolution depended on President Chirac and President Putin agreeing, or at least not vetoing, the new resolution.

At this point, it is perhaps sensible to deal with the issue of the advice of the Attorney General, Peter Goldsmith. Again this has been extensively, indeed exhaustively, canvassed before the Chilcot Inquiry, but again it has become the object of ingrained myth designed to show that the war was plainly illegal, that Peter really thought so and that he was pressured into changing his mind, not for good legal cause but for base political reasons.

It is therefore worth just restating some of the legal ideas and concepts behind the judgement that Peter eventually came to. The previous UN resolution in the early 1990s specifically authorised the use of force to make Saddam comply with the UN inspection regime. In particular, Resolution 678 stated that it:

authorised Member States to use all necessary means to uphold and implement its Resolution 660 (1990) of 2 August 1990 and all relevant resolutions subsequent to Resolution 660 (1990) and to restore international peace and security in the area.

So the UNSCOM inspections mechanism was established at that time to disarm Saddam, backed by the explicit authorisation of force if he failed to comply. This resolution was still extant. Therefore there was an argument right from the outset that the authority to use force remained in being.

Its revival was the basis for the 1993 and 1998 military action against Saddam, when at that time he was in breach of the UN resolution and effectively threw inspectors out of Iraq. By 2002, Resolution 678 was still in place. But it was felt – and set out in a note to me in March 2002 – that because of the passage of time, we should have a fresh UN resolution specifying that Saddam was in breach of the UN resolutions in order for 678 to be the basis of further action. Hence we went down the UN route – i.e. a first UN resolution was a legal necessity.

Resolution 1441 in November 2002 was the fresh UN resolution. It specified Saddam was in breach; it gave him ‘a final opportunity’ to comply; it called for him to give ‘immediate, unconditional, and unrestricted access’ to the inspectors and, unusually, it said that failure to do so would in itself be a ‘further material breach’.

Now it is true that it didn’t explicitly state that military action was to follow. But it expressly reaffirmed Resolution 678, and a French/Russian attempt to insert language to the effect that any military action required yet another resolution was rejected. It did call, though, for an assessment to be made by the Council in the event of breach.

So of course a case could be made that a further resolution expressly authorising force was necessary. But it was equally valid to argue that it wasn’t; that 1441 was clear; and that if there was not in fact full compliance, Saddam was in material breach, 678 still applied and action was lawful.

Again, my purpose here is not to say it was beyond argument; simply to assert, rather, that there was at least as much, if not more, on the side of legality as not.

The truth is that the international community jointly agreed 1441 and then got buyer’s remorse once it became clear Saddam was still not really playing ball. As I say, had Saddam taken Gaddafi’s decision and really changed, 1441 would have meant no military action. This was accepted by George on several occasions. But Saddam didn’t; yet the consequence of that failure was not accepted in the spirit, at any rate, of 1441.

There was, naturally, a spirited debate inside the legal fraternity of the Foreign Office and the Attorney General’s department. At first, though Peter thought 1441 shifted the argument considerably, he was still of the view that, to be sure, we should have yet another resolution. It was all about what the UNSC had in mind when passing 1441.

Eventually, when he spoke to Sir Jeremy Greenstock, who had been the ambassador at the UN negotiating 1441, he moved closer; and then after a debate with the US lawyers he was finally persuaded. What persuaded him was the account of the negotiation, and in particular the fact that France and Russia had failed in their attempt to link any military action to a new resolution.

So, of course, there were pros and cons on the legal case, but in the end Peter came down in favour of military action being legal, provided it was clear that Saddam was still not giving full compliance. And Blix, for all his ambiguity, was clear on that point even up to the outbreak of hostilities.

However, politically, as well as to put the issue beyond any legal claim to the contrary, a second resolution was certainly desirable. Above all, it would reunite the international community.

Unfortunately, during the course of February, despite my best endeavours – and my God I tried – the division in the international community grew larger, not smaller. Europe was now split down the middle. As I say, thirteen out of the twenty-five members were in favour. The ten new accession countries came out strongly for the US position – and were roundly abused by Jacques Chirac for it! But the ‘old versus new’ Europe paradigm was misleading – Spain and Italy both supported action. Allies of the US outside Europe, such as Japan and South Korea, also rallied. So did many of the applicant countries for NATO. Australia gave unflinching and determined support under John Howard.