The Iraq inquiry must focus on the legality of the war

The call by Sir John Chilcot, chairman of the Iraq War inquiry, for some of the evidence to be heard in public is welcome. But it sets the alarm bells ringing about the purpose of the inquiry.

Chilcot is under enormous pressure from the families of soldiers killed in Iraq to focus on the failures in planning and supply of equipment that led to the deaths of their sons and daughters. There is now a risk that the public parts of the inquiry will be used as a catharsis for the families of the dead soldiers.

It is understandable that the families want to seize the inquiry as an opportunity to assuage their pain. But it will be a total failure of the inquiry if it stops there. The key focus must be the legality of the decision to go to war.

Blair, a lawyer, knew that regime change alone was not a legal basis for war

I was at the press conference on April 6, 2002 given jointly by George Bush and Tony Blair in Crawford, Texas, Bush's home town. This was the ranch summit at which it is said they did the secret deal to go ahead with the invasion the following March.

I remember the sharp intake of breath among the British delegation when Bush told John Sergeant, then BBC political editor, that Blair's language might be more nuanced but he believed in "regime change".

Bush said: "He [Saddam] told the world that he would show us that he would not develop weapons of mass destruction and yet over the past decade he has refused to do so. And the Prime Minister and I both agree that he needs to prove that he isn't developing weapons of mass destruction. I explained to the Prime Minister that the policy of my government is the removal of Saddam and that all options are on the table."

Challenged by Sergeant about the legality of what he had just said, Bush responded: "Maybe I should be a little less direct and be a little more nuanced and say we support regime change."

Blair, a lawyer, knew that regime change by itself was not a legal basis for declaring war on another country, however despised that country's dictator might be. If it were legal, why hadn't we declared war on President Mugabe of Zimbabwe?

Blair insisted that Saddam had repeatedly broken UN resolutions, but neither was that reason enough to go to war. He and his entourage were alarmed at the President's frankness, or naivety, because for Britain to go to war, Blair knew the allies had a cast-iron case only if they could show it was in self-defence - even if it was a pre-emptive strike.

This is set out under the UN Charter Article 51 - "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security..."

In order to prove the war was legal, Blair knew Britain and the US needed to show that Saddam did indeed have WMD that could threaten Britain or its interests, and intended to use them.

The Attorney-General at the time, Lord Goldsmith, struggled to show that a war would be legal without a second resolution. At his second attempt, he managed to do so, but it led to a huge controversy over his advice to the Cabinet, and to the resignation in protest by Elizabeth Wilmhurst, the deputy legal adviser at the Foreign Office under Jack Straw, then Foreign Secretary.

The issue of legality is pressing because Blair is already busy re-writing history. He now defends the attack on Iraq, like Bush, on the grounds that it was good to remove Saddam and replace the dictator with democracy. Apart from the fact that this completely ignores the strategic disaster - knocking out Iraq has allowed Iran to dominate the region - it is also highly dangerous.

Blair had set out his doctrine of 'liberal interventionism' in a speech in Chicago in 1999. As I wrote in my recent book, Whitehall: the Street that Shaped a Nation, Blair was echoing the gunboat diplomacy of Lord Palmerston.

He dismissed the traditional principle of non-intervention in the internal affairs of sovereign states and said the global community had a moral duty to intervene against Slobodan Milosevic in Kosovo and Saddam in Iraq. "Now our actions are guided by a more subtle blend of mutual self-interest and moral purpose in defending the values we cherish. In the end, values and interests merge..." he said.

Blair has recently returned to the theme, reinforcing his belief that the nations who share his 'values' have a right to impose their will on those who don't. To eastern ears, this must sound dangerously like a crusade by the West.

As much as one sympathises with the forces families still grieving over loved ones, the failures of kit, or even the failures of intelligence that inevitably will be raked over again, should not be the focus of Chilcot's inquiry.

He needs to establish for future generations whether Blair's dangerous doctrine can have a place in modern diplomacy, or whether Iraq marked a line beyond which Britain and the US should not go in future. ·