March 7, 2004
By Antony Barnett and Martin Bright
Admiral Sir Michael Boyce, who led Britain's forces to war in Iraq last year, has dramatically broken his silence about the legal crisis which engulfed the Government on the eve of battle.
In an extraordinary interview which will reignite the controversy over the run-up to the conflict, the former Chief of Defence Staff has revealed how Britain went to the brink of a constitutional crisis after he demanded "unequivocal... legal top cover" before agreeing to allow British troops to fight.
His demand for a formal assurance that a war would be legal came on 10 March 2003, even as British forces massed on the Iraq border, and the advice finally giving the all-clear came on 15 March, only five days before fighting began.
Speaking to The Observer, Boyce, who was made a life peer after he retired last May, refused to rule out the possibility that he might have resigned over the issue, which he described as a "crunch point".
He said his concerns were "transmitted" to the Attorney-General Lord Goldsmith through the Prime Minister. This disclosure adds weight to a suggestion that Tony Blair pressed Goldsmith to change the legal advice at the last minute.
Boyce demanded an unambiguous, one-line note from the Attorney-General saying the war was legal to ensure military chiefs and their soldiers would not be "put through the mill" at the International Criminal Court.
His comments will fuel pressure on Blair to release full details of how Goldsmith came to his decision. The fact that it still took several days during this critical period to give Boyce his assurance provides further evidence of uncertainty in Government about the legality of the war.
It emerged last week that an earlier draft of the advice, produced around 7 March , prevaricated on whether an invasion of Iraq was legal without a second United Nations resolution. The Attorney-General was then "sitting on the fence", said a senior Government legal source. He was forced to redraft this advice as the countdown to war continued.
The Observer has discovered that Goldsmith flew to Washington in early February for a crisis meeting with his American counterpart, John Ashcroft, to discuss the war's legality. Their closed meeting on 10 February last year left the British Minister still undecided as he flew home.
In his first interview since he retired, Boyce said: "My views were clear and made very formally both in Cabinet and in the view I had transmitted to the Attorney-General through Number 10. I required a piece of paper saying it was lawful... Now if that caused them to go back saying we need our advice tightened up, then I don't know."
Boyce said he fully supported the ousting of Saddam Hussein and did not believe a second UN resolution was necessary. He still believed weapons of mass destruction in Iraq might have been "squirrelled away or destroyed at the last moment".
He said: "The justification in my own mind was that I was convinced that Saddam had chemical and biological weapons. I knew he used them in the past and I believed he was capable of using them in the future. Given what happened since 9/11 it was even more likely."
Yet he was concerned that, without the legal cover from Goldsmith, military personnel could be prosecuted for war crimes. Boyce hinted that if Goldsmith had not provided him with this, he might have resigned, which would have precipitated a major political and military crisis, with 60,000 British troops stationed in Kuwait prepared for war.
Boyce admitted the "personal" difficulty he would have faced if such "unequivocal" reassurance had not been forthcoming: "It would have to be for people around me, the Prime Minister, the Secretary of State [for Defence] to know what sort of person I was and draw their own conclusion about what I might have done if I didn't get what I wanted... I'm not prepared to say what that was because this is extremely personal."
Asked if this meant he might have resigned, he said: "I really am not prepared to say ... All I would say is that it was an important milestone."
He said: "I never said to anybody, not even to myself, 'if I don't get this, this is what I am going to do'... and I'll tell you why, because I was reassured I would get what I asked for and I was prepared to take that at face value."
Legal approval was needed to protect everyone involved: "It would have been difficult for our people in the field, for the families of the troops and our commanders if we had not had the reassurance that what they were about to do was legal. Their doubts - if they had doubts - would have been exacerbated by the fact that we were signatories to the ICC [International Criminal Court]."
Last night, a senior Whitehall insider told The Observer that Ministers were reluctant to disclose the Attorney-General's advice, fearing that this would lead to "a stream of lawsuits against the Government".
Lawyers acting for Greenpeace activists on trial this week for alleged criminal damage to tanks on their way to the Gulf are to call Boyce as a witness. They claim his evidence could help prove their actions over a potentially illegal war were justified.
Boyce told The Observer he did not want a lengthy legal paper from the Attorney-General, but a simple yes or no if the proposed actions in Iraq would be legal. He said: "If I had been presented with a 30-page document telling me the pros and cons and then a conclusion telling me it was lawful, certainly it would be of interest but it wasn't the crunch point.
"I asked for unequivocal advice that what we were proposing to do was lawful. Keeping it as simple as that did not allow equivocations, and what I eventually got was what I required... something in writing that was very short indeed. Two or three lines saying our proposed actions were lawful under national and international law."
Last night Downing Street denied Boyce had raised concerns about the timing of the legal opinion before the beginning of the war. A Number 10 official said Boyce had made a formal request for a legal opinion between 10 and 11 March and that he received the advice four days later, on 15 March. Operations began on 20 March.
"He felt he got the advice in a timely fashion and he was perfectly content with that," the official said.
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