More from: Legality

Miliband: Let’s learn the lessons of Iraq

By Chris Ames

Twelve years to the day since Tony Blair (reluctantly) recalled Parliament to present the Iraq wmd dossier, it looks as if Parliament may again be recalled to discuss UK military action in Iraq.

We may have to wait for a decision from Ed Miliband though. Miliband told Sky News this morning:

Miliband said in a series of media interviews today that he’s “open” to British action in Iraq, though he wants a UN Security Council resolution before considering supporting U.K. bombing raids over Syria.

“We’ve got to do it in the right way, let’s learn the lessons of the Iraq war,” Miliband told Sky News television. “We’ve got a democratic state in Iraq that has asked for help, if that ask were to come to us I’d have to look very seriously at that possibility — the situation in Syria is more complex.”

As the Inquiry still hasn’t reported, we don’t know what the lessons of the Iraq war are. If doing it “in the right way” means getting a UN Security Council resolution, isn’t that what Blair claimed to have?


Ye ancient ghoste of impeachment

by Andrew Mason

Quite possibly, the Father of the House, Sir Peter Tapsell, read Simon Heffer’s Daily Mail piece published yesterday. Today, Sir Peter raised the same issue at Prime Minister’s questions in the House of Commons.

The process for impeachment of a high official (be they a peer or a commoner) has long been a statutory tool. First used in the Parliament of England in 1376 against William Latimer, 4th Baron Latimer, for the long string of crimes, this legal remedy fell out of use beyond the unsuccessful trial of Henry Dundas, 1st Viscount Melville, the first Secretary of State for War, in 1806. According to the book ‘Royal Dukes’ by Roger Fulford (1933), it was said that Dundas was “so profoundly ignorant of war that he was not even conscious of his own ignorance.” One further attempt at impeachment was made in 1848, when Lord Palmerston was accused of having signed a secret treaty with Imperial Russia and of receiving monies from the Tsar.

However, Palmerston survived a vote in the House of Commons and the Lords did not hear the case.

In recent times (1967 and 1999) the question of the obsolescence of the impeachment procedure has been discussed. Despite this, in 2004 Plaid Cymru MP Adam Price attempted to move for the impeachment of Tony Blair for his role in involving Britain in the 2003 invasion of Iraq.

At this time, Price consulted with the then Leader of the House of Commons, Peter Hain, as to whether the power to impeach was still available. Hain informed him that, based on the 1999 Joint Committee’s report, and with the advice of the Clerk of the House of Commons, that impeachment “effectively died with the advent of full responsible Parliamentary government.”

This situation arises because it is normally in the House of Lords that the case would be heard. The procedure used to be that the Lord Chancellor presided (or the Lord High Steward if the defendant was a peer) – but this was when the Lord Chancellor was both the Lords’ presiding officer and head of the judiciary of England and Wales.

Since both these roles were removed from that office by the Constitutional Reform Act 2005, which created the Lord Speaker to preside over the Lords and made the Lord Chief Justice head of the judiciary, it is not certain who would preside over an impeachment trial today.

If Parliament was not in session, then the trial could be conducted by a “Court of the Lord High Steward” instead of the House of Lords (even if the defendant was not a peer).

(The technical and legal differences between this court and the House of Lords are that in the House all of the peers are judges of both law and fact, whereas in the Court the Lord High Steward is the sole judge of law and the peers decide the facts only – this bearing in mind that the bishops are not entitled to sit and vote in the Court.)

Whilst no legislation has been produced to abolish the remedy of impeachment, and it is argued by some that it remains as part of British constitutional law, it would appear that other (quite likely considerably time-consuming) legislation would be required to bring this power into the modern age. In particular this could possibly require the re-establishment of a formal “Court of the Lord High Steward”; also the election of a suitable Lord High Steward in person. Alternately, a new mechanism in the House of Lords would have to be established whereby more than one judge could oversee the proceeding, namely the Lord Speaker and the Lord Chief Justice plus necessarily one other high-ranking Lord in order to form a decisive quorum.

Primary references:

http://en.wikipedia.org/wiki/Impeachment

http://en.wikipedia.org/wiki/William_Latimer,_4th_Baron_Latimer

http://en.wikipedia.org/wiki/Henry_Dundas,_1st_Viscount_Melville


Inquiry could lead to war crimes case

by Chris Lamb

With the recent submission of a substantial legal writ to the International Criminal Court (ICC) by Public Interest Lawyers and the European Centre for Constitutional and Human Rights concerning the alleged systematic abuse of civilian detainees during the invasion and occupation of Iraq between 2003-08, the question of whether Tony Blair (and potentially George W Bush) can be brought before the ICC for directing a “crime of aggression” in mounting the invasion of Iraq becomes more pressing.

Article 5 of the 1998 Statute of Rome identifies the “crime of aggression” as one of the core crimes under the ICC’s jurisdiction. However, the Court has been unable to exercise its jurisdiction because the Rome Statute did not define the substance of the crime or set out the conditions for prosecution.

This changed on 11 June 2010 when amendments were adopted to the Rome Statute arising from legal research into aggression in Kampala, Uganda.

The amendments provide the groundwork for a definition of the crime of aggression and a jurisdictional framework. The definition has two key component:

a) the planning, preparation, initiation or execution by a person in a position to effectively exercise control over, or to direct the political or military action of a State in an act of aggression which, by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations;

b)  the use of armed force by one State against another State without the justification of self defence or authorization by the UN Security Council.

A strong legal case can be built that the invasion of Iraq qualifies as “aggression” under both definitions. The Blair government followed the US “revival” legal argument that UN authorization was implicit in a 1991 UN Security council resolution (SCR678) following Iraq’s invasion of Kuwait. An explicit UN Security Council vote on the use of military force was, therefore, not required. This doctrine of “implicit authorization” has been subjected to withering criticism by international lawyers.

This is what Matthew Gillett, Legal Officer at the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia, The Hague, has to say about “implicit authorization” used by the US and UK on the UN Security Council  to initiate the 2003 invasion of Iraq;

The strenuous efforts made by the US and its allies in 2003 to obtain a new UNSC resolution authorizing the invasion of Iraq significantly weakened the argument that authorization was already implicit in pre-existing resolutions. Most commentators concluded that the argument was legally unsustainable in relation to the 2003 invasion of Iraq.  The “implicit authorization” argument in the context of the Iraq invasion should be seen for what it was – an attempt to justify the use of force on the basis of UNSC consent when there was no such consent.

The Kampala amendments come into force within the jurisdiction of the ICC in January 2017. By then, the Iraq Inquiry should have reported. The question must be seriously posed whether interested international lawyers will sift through the evidence and conclusions of the report to build a legal case for challenging the legality of the invasion as a “crime of aggression” and thus bring Tony Blair, Jack Straw and other leading figures of the invasion before the International Criminal Court.


Blair biographer says “Goldsmith was persuaded”, probably by Blair, to back the war

by Chris Ames

The question of how attorney general Lord Goldsmith came to change his mind on the legality of the invasion at the last minute and trim the extensive and equivocal legal opinion that he drafted on 7 March 2003 to a single page of unequivocal assertion on 17 March is one that many people, including the Inquiry, have sought to get to the bottom of.

It has been claimed that Number 10, in the person of Baroness Sally Morgan and Lord Charles Falconer, put pressure on Goldsmith to drop his equivocation. Now, John Rentoul, who has reissued a biography of Tony Blair and who has previously dismissed such claims, has added to the conspiracy theory. An extract from the book published by the Independent on Sunday last weekend focuses on the events of 11 March 2003, when Goldsmith attended one or more meetings at Downing Street and was still too equivocal for Blair’s liking.

On that day, 11 March, Goldsmith told Blair “that he wished he could be much clearer in his advice, but in reality it was nuanced”. Blair “knew”, as Alastair Campbell recorded, “that if there was any nuance at all”, Robin Cook and Clare Short “would be straight out saying the advice was that it was not legal, the Attorney General was casting doubt on the legal basis for war”.

Goldsmith was persuaded, and told Straw that, “having decided to come down on one side” – that resolution 1441 was sufficient – he had also decided that in public he needed to explain his case “as strongly and unambiguously as possible”.

I’m not sure something similar wasn’t in an earlier version but, according to Rentoul, who appears to have spoken to some of the people involved, “Goldsmith was persuaded”. I put a comment on a related blog post yesterday asking him who had persuaded Goldsmith. His reply

Tony Blair, primarily, I imagine.

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Blair – I would preferred to have gone…

by Andrew Mason

The BBC will be screening the first episode of their new documentary series ‘The Iraq War’ at 21:00BST tonight (Wednesday 29 May 2013).

From their preview page:

Former British prime minister Tony Blair has told a BBC programme about the Iraq war that he would rather have quit as prime minister than let down the Americans.

The documentary contains interviews with Mr Blair, former US Vice President Dick Cheney, senior CIA officers and former Iraqi generals and intelligence chiefs.


New submission on legality posted on the Digest

by Chris Ames

When putting together the previous post linking to a blog piece on the legality of the war from Nigel D. White, Professor of Public International Law at the University of Nottingham, I realised that Professor White had made a submission to the Inquiry in response to the Inquiry’s invitation in 2010.

Professor White has now kindly made his submission available for publication on the Digest. I have added it to the page that lists (I think) all the submissions that have so far been published. The Inquiry has not published these submissions itself.


Iraq, Libya and Syria and the responsibility to protect

by Chris Ames

On the Oxford University Press’s Law and Politics blog, Nigel D. White, Professor of Public International Law at the University of Nottingham, has a piece entitled “Lessons from Iraq 10 years on“, which looks at the implications for international law, diplomacy and intervention of both the Iraq was and the Western intervention in Syria.

Ten years after the capture of Baghdad on 5 April 2003 by US troops, following an invasion of Iraq by US and UK forces, we are still awaiting the outcome of the Chilcot Inquiry which was set up by the government of Gordon Brown in 2009. The report has been delayed at least until the end of 2013 due to the reluctance of the government to release key documents, but the outcome as regards the illegality of the invasion should not be in doubt.

White then discusses the 2011 Western intervention in Libya as a further case where a UN resolution that Security Council permanent members China and Russia had been persuaded to sign up to “was subject to greater and greater demands placed upon it, stretching the Resolution beyond its meaning and contrary to the collective understanding of that resolution.” His account of the result of all this is interesting, given Tony Blair’s recent comments about Syria:

What started out in appearance at least, as an application of the emerging R2P [responsibility to protect] doctrine to protect civilians in Libya based on a clear Security Council mandate, was within a few weeks heading towards another instance of illegal regime change as in Iraq in 2003, with all the problems that entailed. Unfortunately, the unwillingness of those permanent members using force in Libya (UK and France with the assistance of the US) to learn all the lessons of Iraq, by abusing the mandate given to them, has meant that those permanent members that normally advocate non-intervention (Russia and China) have a reason to block any move towards a resolution that authorises necessary measures, or indeed, remembering Iraq, any resolution that might be so construed. The temporary coming together of the permanent membership in March 2011 has proved to be the exception as the people of Syria know to their cost.

 


Campbell’s spin as transparent as ever

by Chris Ames

On my previous post on the issue of the Independent on Sunday article claiming that “Tony Blair blocked the Government’s most senior lawyer [the attorney general] from explaining to Cabinet the legality of the war in Iraq”, it was noted that Alastair Campbell had responded to the story on his blog. Campbell’s (attempted) rebuttal largely misses the point but does make a very good point about what the views of the attorney general (Lord Peter Goldsmith] were at the time.

Campbell is so hooked on his self justifying claim that “The Real Spin Doctors Are The Journalists” that he does exactly what he accuses one of the IoS story’s authors of doing.

I also drew attention to various passages of former Attorney General Peter Goldsmith’s evidence to Chilcot, and asked if the IoS had bothered to study it before rushing to print a story which conformed to their view of the Iraq war.

e.g. when Sir Roderic Lyne asks: ‘so no one at any stage asked you to restrict what you said to cabinet to the fairly limited terms in which you presented this to cabinet?’ And Goldsmith replies ‘No.’

If Campbell had bothered to read the IoS story properly, he would have seen – as I pointed out yesterday – that it did quote exactly that piece of evidence to the Inquiry. He later claims that what he recorded in his diary – that Blair “made it clear he did not particularly want Goldsmith to launch a detailed discussion at Cabinet” – is “consistent” with this.

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Calls for Inquiry recall over Campbell claim

by Chris Ames

The Independent on Sunday reports that:

MPs demanded an emergency recall of the Chilcot inquiry last night after new revelations that Tony Blair blocked the Government’s most senior lawyer from explaining to Cabinet the legality of the war in Iraq.

The story is based on the new version of Alastair Campbell’s diaries, which apparently record that in March 2003:

 

TB also made it clear he did not particularly want Goldsmith to launch a detailed discussion at Cabinet, though it would have to happen at some time, and ministers would want to cross-examine. With the mood as it was, and with Robin [Cook] and Clare [Short] operating as they were, he knew if there was any nuance at all, they would be straight out saying the advice was that it was not legal, the AG was casting doubt on the legal basis for war. Peter Goldsmith was clear that though a lot depended on what happened, he was casting doubt in some circumstances and if Cabinet had to approve the policy of going to war, he had to be able to put the reality to them.

I haven’t bought or otherwise looked at Campbell’s latest moneyspinner and it is difficult to work out the context. The point is of course that this sort of revelation/claim should not be coming out now, given that the Inquiry should have got to the bottom of it. The IoS points out that at the Inquiry Goldsmith expressly denied that anyone had put such pressure on him. Here is the relevant extract:

SIR RODERIC LYNE: Before you went to Cabinet — I know I’m  going ahead a bit here — how was it decided that you would present the advice to Cabinet in the way that you presented it to Cabinet? Was it solely by you or was it by you in discussion with the Prime Minister or the Foreign Secretary or others?
RT HON LORD GOLDSMITH QC: No, this was really my decision, and the point for me was to decide what the — determine how to express my view to Parliament, and the Parliamentary answer then seemed to be a convenient way, as a framework really, for what I would then say to Cabinet about my view on legality.
SIR RODERIC LYNE: So no one at any stage asked you to restrict what you said to Cabinet to the fairly limited terms in which you presented this to Cabinet?
RT HON LORD GOLDSMITH QC: No

Amazingly, Campbell told the IoS that the two accounts were “entirely consistent”.  We already know that Goldsmith’s  account is untrue, a note of a meeting between Goldsmith and Straw on 13 March 2003 records that Goldsmith told Straw:

that he thought he might need to tell the Cabinet when it met on 17 March that the legal issues were finely balanced. The Foreign Secretary said that he needed to be aware of the problem of leaks from that Cabinet .

If the Inquiry does not address this, it will have no credibility at all.

 

 


Countdown to Iraq

by Andrew Mason

Alastair Campbell is scheduled to release Volume Four of his diaries on 20 June. This further edition, entitled ‘The Burden of Power: Countdown to Iraq’, is the final planned part of his series, although this new volume apparently indicates that he continued to keep a diary beyond 2003, the entries from which may be published at some point in the future.

The earlier volumes were ‘Prelude to Power: 1994-1997′; ‘Power and the People: May 1997 to June 1999′; and ‘Power and Responsibility: 1999 to (September 11) 2001′.

The official launch will be hosting by the Mile End Group at the Queen Mary University of London.

The publication of this part of the diaries was originally expected to have taken place at the end of last year. Whether or not the delays currently being experienced by the Chilcot Iraq Inquiry have also affected the timing of the release of this volume remains to be seen.