The legal advice given to Tony Blair in the run-up to the Iraq war makes for interesting reading. In a 2007 piece I discussed the shifts between memos prepared by Lord Goldsmith, the Attorney General, on 7th and 17th March 2003. The first of these was a long 36 paragraph secret document; the second a nine point summary for cabinet, that was seen by parliament and the armed forces. Today his draft advice from 12th February 2003 has been published. It’s available here. There is also a letter from 30th January 2003 from Goldsmith to Blair.
Some points -
- on the 11th February Goldsmith met with several senior Bush administration lawyers: Alberto Gonzales, William Taft IV, Jim Haynes, John Bellinger and John Ashcroft. The memo a day later is more open to the possibility of a “reasonable case”; the 17th March is persuaded. How much did this meeting change Goldsmith?
- regime change is ruled unacceptable. Yet Blair had already given assurances to Bush in April 2002 he would support an invasion for precisely this reason (a July 2002 memo to this effect was leaked in 2005).
- Goldsmith recognises that resolution 1441 does not provide an automatic trigger. (He did the same on 7th March; but not on 17th March) . The French and Russians, at least, would never have passed it, if it had. So 1441 was intentionally ambigious – the US and the UK thought they could subsequently argue it was Saddam’s last chance; but held back from explicitly saying so at the time to get it passed. But he is pretty clear here that 1441 does not make the case in the way the US want to suggest that it is. Goldsmith makes quite a bit of having listened to the then UK ambassador to the UN Jeremy Greenstock on the context. I don’t think this makes a bit of difference: it’s what is said, not what might have been meant. (He did this again in the later memos). He suggests that “where the meaning of a resolution is unclear from the text”, statements made at the time can interpret it. But even these don’t make the case: “the language of resolution 1441 is not clear and the statements made on adoption of the resolution suggest that there were differences of view within the Council as to the effect of OP12 of the resolution”. This isn’t poor work by the drafters: it was a deliberate fudge to get it passed unanimously.
- the BBC website also quotes the 30th January note from Goldsmith to Blair: “I remain of the view that the correct legal interpretation of resolution of 1441 is that it does not authorise the use of military force without a further determination by the Security Council”.
- thus Goldsmith notes (12th Feb) that a new resolution is the safest course.
- so he toys with the revival argument. This was the claim that the 1990 ceasefire resolutions at the end of the Kuwait war could be breached by Saddam, which would resurrect the use of force authorised back then. But this is an extremely flimsy argument: in 2003 Saddam was not in Kuwait, and the context was entirely different. Goldsmith notes this was the basis for Desert Fox in 1998, and that now the case “is rather stronger”. But that doesn’t mean 1998 was justified – as Goldsmith notes, that both this and Kosovo were deemed to be legal was “no more than reasonably arguable”.
- Yet even if there was a revival, who should authorise it? The SC or individual states? And who ruled on material breach – that Saddam had failed to take his last chance? On 7th March Goldsmith said the US thought they could; the UK thought only the Security Council could. On the 17th he implied they both agreed they – as SC members – could rule on a material breach; indeed he stated that as fact in the memo. Blair said to the House of Commons that the SC should have endorsed this position – notably he did not say that they should have decided it was in breach.
- in this advice, he notes that if the UK tried to get a second resolution (subsequent to 1441) and failed, they would be accused of “acting unlawfully”. As, of course, they did try, and were so accused.
- finally, he notes that the case rest not just on the law to wage war, but conduct in it (the classic just war distinction). Proportionality is crucial; it must be to enforce 687 (rather spurious), limited to what is necessary, and proportionate to that aim.
Obviously all this is rendered irrelevant in some respects because the whole justification at the time – and the only one that could conceivably have given a reason for regime change – was WMDs. If – a big if – a case could be made that the only way to disarm Iraq was to get rid of Saddam, then there is a logic to the decisions made. But if WMDs did not exist, then the whole case falls apart. Other ‘justifications’ given before or after – humanitarian reasons, or links to al-Qaeda – just don’t figure.
“Regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign”.
He says much the same on the 7th March 2003. Much of this new memo is familiar to those who have been following the legal arguments, but it is no less damning for that.
Update 11pm – which makes today’s announcement of the 2010 Liberty prize to Tony Blair for his “relentless pursuit” of peace beyond satire.