Show us the document
by Chris Ames
I wrote last week that the leaking to the Telegraph of documents on the war put the Inquiry, which has so far published no real written evidence, at risk of becoming a sideshow. Now the Mail on Sunday has identified a letter written by Lord Goldsmith, the attorney general, on 29 July 2002, warning that a war to achieve regime change would be illegal.
According to the MoS, Tony Blair was furious that Goldsmith’s views were put in writing, as they could not be unsaid. But the document does exist and is one of a huge number that the Inquiry has but has not published, perhaps because the government will not let it.
As leading international lawyer Philippe Sands said: “The Chilcot Inquiry must make Lord Goldsmith’s note of 29 July, 2002, publicly available to restore public confidence in the Government.”
It is worth noting that the Downing Street memo (a record of the meeting of 23 July) says that “We must not ignore the legal issues: the Attorney-General would consider legal advice with FCO/MOD legal advisers.” The Butler Review says that the meeting “commissioned work on legal issues”. As the Digest’s page on the process by which the legality of the war was considered points out: “The question of when the government first asked Goldsmith to give a formal legal opinion on the legality of the proposed invasion will be a key issue for the Inquiry.”
The other issue that the MoS story raises is the pressure on Goldsmith in the run-up to war, to give clear backing to the proposed invasion. It is claimed that at a meeting on 13 March 2003, Lord Falconer and Sally Morgan “more or less pinned him up against the wall and told him to do what Blair wanted.”
This has been denied and Falconer has said that Goldsmith requested the meeting and told them what his view was. However, as I reported in January, the government’s version of events – that Goldsmith recorded a change of heart before meeting Falconer and Morgan – is not backed up by actual documentary evidence.
8 Responses to “Show us the document”
Comment from chris lamb
Time November 29, 2009 at 12:52 pm
Goldsmith’s “bombshell” letter of 29 July 2002 contains a section which will seriously undermine the expected Blairite riposte; that the “legality” of the invasion was primarily based on an immanent WMD threat and “regime change” was a subsidiary concern necessary to end that.
According to the MoS, Goldsmith’s letter unequivocally removed “self-defence” for reasons of a threat to Britain from legal grounds to attack Iraq. This must have been done from an assessment of the “threat” posed by Iraqi weaponry and progress with disarmament.
Goldsmith’s insistence in March 2003 that Blair should personally provide (and sign) written assurances about Iraqi WMD to satisfy the Defence Chiefs’ enquiries about legality strongly suggests that Goldsmith did not personally believe the legal grounds existed at the time for invasion.
It is encouraging to read in the MoS that “sources close to” Goldsmith state that he is prepared to robustly defend his letter if called to give evidence on it by the Chilcot Inquiry.
If, when this witness evidence is given, the 2002 letter part is heard outwith the public domain, it would indicate a discretionary decision by the Inquiry- using the Cabinet Offce Protocols- to this effect.
Should this situation arise, the Inquiry would need to publicly explain the reasons underlying any such exercise of discretion in order to restore public confidence in its avowed principles-”frankness”, “fairness” “objectivity” etc.- and its proceedings.
The MoS also contains an interesting Analysis article by David Rose quoting from a hitherto unpublisged interview with former Foreign Secretary, Robin Cook, shortly before his death. Cook states here that by February 2003 not even Blair believed his own propaganda about Iraqi WMD.
Comment from Lee Roberts
Time November 29, 2009 at 8:10 pm
Chris: did Goldsmith at any time after the first letter justify self defence ? I recall the view that Blair did not have to seek Security Coiuncil approval, but that is quite s different and separate consideration. Even if no additional SC approval was needed, that does not validate the claim of Saddam’s imminent attack on the UK.
Comment from chris lamb
Time November 29, 2009 at 9:18 pm
Implicit in the September 2002 dossier’s “immanent threat” and 45 minute strategic (-not battlefield-) weaponry claims is an implied “self defence” argument.
Under Section 51 of the UN Charter, only if specific self defence conditions apply can international law be satisfied if an individual or group of countries wage war outside the ambit of the UN. Even then, the war needs to promptly come under the auspices of the UN Security Council.
That Goldsmith reportedly dismisses the conditions for “self defence” as being satisfied in July 2002 and had difficulty in amending his legal advice to conform with Blair’s interpretation of SCR1441 without the extra insurance of Blair’s written and signed assurances indicates serious weaknesses in the legal foundations upon which the invasion was launched.
In amending his legal advice on 17 March 2003, Goldsmith incporates the implied “self defence” argument contained in the WMD immanent threat assumption underpinning this interpretation of SCR1441.
A central theme for the Chilcot Inquiry deliberations will be an assessment of whether- given all the inconsistencies shown and the unrealiability of WMD intelligence throughout- the 17 March amended advice stacks up as a fair interpretation of international law.
That is my view, anyway.
Comment from chris lamb
Time November 29, 2009 at 11:36 pm
I should correct myself that Goldsmith did not invoke Article 51 (individual or collective self-defence) in his legal advice, but his interpretation of SCR1441 necessarily implied it because the construction of an imminent WMD threat to the specific nations concerned was a necessary corollary of his highly controversial judgement that decisions about breaches and consequent military force should be delegated to those nations- namely, the US and UK.
The necessity of a British defence against a claimed strategic and immanent Iraqi WMD threat to British interests was how it was sold to the British people. The concoction of the September 2002 “dodgy dossier” was intrinsic to this.
If the threat to British interests did not in fact exist, the controversial reading of SCR1441, to remove key decisions from the collective responsibility of the Security Council as a whole and delegate it to individual nations, such as the UK, must become not just “illegitimate”, as noted by Sir Jeremy Greenstock, but in potential breach of international law.
Comment from Lee Roberts
Time November 30, 2009 at 6:12 am
Chris:
There have been interminable debates on the Blair/Goldsmith interpretation of 1441…as far as I can judge, very few international legal experts agree with the Blair/Goldsmith interpretation. But nothwithstanding, it is left hanging. Do you know how a definitive judgment could be reached ? I vaguely recall that the UN Secretary General’s office, on UN legal advice, dismissed such an interpretation and declared the invasion illegal. I cant immediately lay my hands on the reference; but in any event it seems to have been inconsequential.
So how would this be done ? Obviously Chilcot and his witnesses do not have the standing to express anything more than opinions. And obviously, Goldsmith does not have the final word on this either.
Would this be within the mandate of the UK Supreme Court ? Are there mechanisms whereby the Security Council could make such a determination ? Or is it ultimately limited to the International Court to decide ? Do you know whether there are ways that court could be asked to decide it as a matter of law, or would it have to be part of an indictment brought against Blair ?
Comment from andrewsimon
Time November 30, 2009 at 10:57 am
Chris -
With regards to Article 51, this clause was invoked in R.661 with regards to Iraq’s invasion of Kuwait in 1990 (”Affirming the inherent right of individual or collective self-defence, in response to the armed attack by Iraq against Kuwait, in accordance with Article 51 of the Charter”). R.678 both recalled and more importantly reaffirmed this right, and incidentally was I think the first resolution which allowed Iraq one final opportunity to come into compliance with the demands of the UN.
R.687 only recalled the earlier resolutions, being as by this time Iraq had been ejected from Kuwait, and there was no further need to employ the self-defence authority. R.1441 also only recalled the 1990/91 resolutions, and did not itself invoke Article 51. I think that at the time R.1441 was drafted (or at least agreed upon) it was not considered that this resolution would give the final authority for armed action, and therefore no consideration was given/agreed upon for the necessity of its inclusion.
It may well be that this omission in law was part of the reason why Elizabeth Wilmshurst found herself in the position of being unable to support the otherwise suggested legality of the invasion, and thereafter resigned as a consequence. I think it likely that the Inquiry will call Ms Wilmhurst at some point in the proceedings to clarify her objections, although I think it equally likely that the Inquiry is just going to lay out both sides of this specific debate (i.e. for and against), and not draw any definitive conclusion of its own.
Comment from chris lamb
Time November 30, 2009 at 8:41 pm
My background is in political science and not international law so what I can comment on UNSCR1441- a monstrously unwieldy and opaquely drafted resolution- is limited.
I believe the crux lies in whether this Resolution- and, in particular, paragraph 12 of it- authorized for power to be delegated to individual or groups of nations to decide on breaches of the terms it laid down- through previous Resolutions- upon Iraq and consequent use of force or military action.
This issue generates disagreement among international lawyers but I believe that the majority view is that it does not authorize delegation (as Goldsmith’s amended advice attributes to it).
Delegation at this point- meaning that the UN Security Council relinquished its collective responsibility for international peace and security- is a blow aimed at not just the purpose of the UN but its very being. If individual countries are permitted to take powers in such ways over the initiation of war what is the use of having a United Nations Security Council at all?
Goldsith’s amended legal advice for UNSCR1441 sets a dreadful precedent for superpowers who may choose this route in the future.
Indeed, Sir Jeremy Greenstock in the United Kingdom Explanation of the Vote which passed UNSCR1441 stated:
“We hear loud and clear during the negotiations the concerns about ‘automaticity’ and ‘hidden triggers’….there is no ‘automaticity’ in this Resolution. If there is a further Iraqi breach of the disarmament obligations the matter will return to the (Security) Council for discussion as required in Operation Paragraph 12. We would expect the Security Council then to meet its responsibilities”.
This is why Greenstock stated to the Chilcot Inquiry that the course taken as a result of the amended advice lacked “legitimacy”. Let no-one mistake the gravity of this charge by Sir Jeremy- (certainly not the Blair supporters who seem to misattribute it as some kind of approval for this action).
I doubt whether Chilcot’s Inquiry has the juridical competence to decide on the fiendishly difficult points of law in UNSCR1441, but it should be referred to a legal tribunal or court.
The hypocritical stance of the Blair Government to the Iraqi WMD disarmament conditions contained in UNSCR687 should also not go without comment. Whilst tendentiously claiming a strong commitment to disarming Saddam- (cf. Manning’s testimony today) the Blair Government was a key player in changing the rules seriously reducing the time allowed UNMOVIC for verification of disarmament. This made an impossibility of the whole project- a pretext opening the window for regime change.
Comment from Lee Roberts
Time November 29, 2009 at 8:42 am
The Independent also carries this story. Goldsmith was gagged, banned from cabinet meetings, and bullied so badly, he lost three stone in weight. He threatened to resign but did not have the courage
http://www.independent.co.uk/news/uk/politics/iraq-the-war-was-illegal-1830508.html
Blair is reported “to be furious that his reputation could be ’shredded’ during the inquiry..Mr Blair’s friends claimed last night that he has found some of the evidence given so far “distasteful”. Does this make you want to pinch yourself ? I presume Mr Blair really does believe he is accountable to God only. After all, he converted to Catholicism before Pope Ratz ! And now this ?!! Poor darling !