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A cunning measure to gain a measure?

By Tom Shields

IT was the middle of March 2003 and the attorney general Peter Goldsmith was under severe pressure. A crucial mid-Atlantic summit to be held in a matter of days would almost certainly see the US and Britain formally declare war on Iraq … Goldsmith had to come up with a definitive view on whether the war would be legal.
When he delivered his initial 13-page report – on March 7 – it was far from the clear ruling his political masters needed: it was strewn with caveats, balanced by competing arguments, but devoid of an authoritative legal conclusion. Just 10 days later, all that had changed. It was drastically slimmed down to a one-page summary, which was delivered to Cabinet members on March 17 with Goldsmith sitting in Robin Cook’s vacated cabinet chair. Nobody was allowed to question the attorney general. His message now was crystal clear. He said with conviction that the war was legal. The crucial question now hanging over a general election in which Iraq has become the dominant issue is: what made him change his mind?

To get close to an answer it’s important to understand the mounting pressures on Tony Blair and his closest aides – among them Goldsmith himself, whose office is a political appointment first and foremost – in the first three months of 2003.

The critical point for Tony Blair was a summit scheduled to take place with George Bush at the Azores on March 15. At that point, there would be no going back. Blair knew there was no chance of steering Bush away from an accelerating road to war and it was politically inconceivable that he could pull away from supporting his ally.

According to Watergate journalist Bob Woodward’s account of the build-up to war in Iraq, gained from authorised interviews with key Washington personnel and interviews with the US President, Blair unequivocally told Bush “I’m with you” after the US President had convinced him at a Washington DC summit in September 2002 that Saddam Hussein was a threat, that the world would be better off without him and that a war was required to which Blair might have to send troops.

Bush’s administration were re-inventing international law to suit themselves, citing “pre-emptive strike” and a desire for “regime change” in Iraq as the only excuse they needed. The British government, beset by public protests and political opposition, had no such luxury. For Blair, the war had to have legal backing. It was his only hope of winning support from the House of Commons and from many in his own party and Cabinet.

At the heart of the legal question was United Nations resolution 1441, which had been agreed five months earlier in an attempt to force Iraq to comply with orders to give up its weapons. The problem for Blair was that the exact meaning of the resolution – and more particularly the consequences for Iraq if it failed to comply – was far from clear.

According to the UN’s own reading, a view shared by nearly all leading academic international lawyers in Britain, resolution 1441 makes it clear that Iraq will be given a second chance, that force is not explicitly authorised, and that it is down to the Security Council itself to make any subsequent judgement on the use of force.

Sir Jeremy Greenstock, then the UK’s permanent representative at the UN, agreed with this interpretation. “There is no ‘automaticity’ in this resolution,” he said. “If there is a further Iraqi breach of the disarmament obligations, the matter will return to the council for discussion as required.”

This was taken into account in Goldsmith’s initial advice to Blair, which the government was finally forced to publish last week. Although Goldsmith felt the resolution in itself could justify the war, he warned the wording could be interpreted as falling short of permitting military action, because it omitted the words “all necessary means”. He advised it would be much “safer” and more desirable to secure a second UN resolution specifically authorising military force.

For Blair, a second resolution would have provided the perfect solution to his problems, though he had known for some time that was becoming almost impossible. On January 20, 2002, the French foreign minister, Dominic de Villepin, told a press conference in the UN after a Security Council meeting had been addressed by the US secretary of state, Colin Powell, that “Nothing, nothing!” justified war.

De Villepin’s anger is said to have left legal advisers in the Foreign Office with no doubt that France would use its veto in the council to block a second resolution which specifically authorised force. Blair had consistently pushed Bush to work through the United Nations. Now it was clear the UN would not sanction the use of force.

Between November 2002 and early February 2003, Goldsmith is said to have began examining the possibility of not getting a second resolution. A lawyer who advises the government says: “Peter [Goldsmith] would have had a look at the legal alternatives. That is his job.”

The alternative was the “revival argument” which identified the resolutions passed against Iraq before and after the first Gulf war in 1990 – especially resolutions 687 and 678, which did include an explicit threat of military force – and argued that these would come into effect if Saddam failed to comply with the orders to disarm. Only two senior UK academic lawyers backed the merits of this argument – Christopher Greenwood, professor of international law at the London School of Economics (LSE), and Professor Malcolm Shaw of Leicester University.

Two days before Blair left for the Azores, the attorney general’s office contacted Greenwood. He told the Sunday Herald last week: ‘‘I was retained by the government as a barrister on March 13, 2003. But due to client confidentiality, I cannot obviously reveal what advice I offered.’’

According to other government lawyers in contact with Greenwood, his role would have been to establish how best to state the “superiority” of the “revival” argument to make the government’s case. Goldsmith published this summary legal advice to parliament on March 17, 2003, claiming “the authority to use force against Iraq exists from the combined effects of resolutions 678, 687 and 1441. All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security”. The language and the legal sentiment were identifiably the position long advocated by Greenwood.

In a written answer to parliament on February 28 this year, Lord Goldsmith threw some light on Greenwood’s job. Goldsmith said his advice of March 17, 2003 was drawn up in his office. He said: “Those involved were myself, the solicitor general [Harriet Harman], two officials in my office, three officials from the Foreign and Commonwealth Office and Christopher Greenwood QC.” Goldsmith says the draft was also discussed with the then lord chancellor, Lord Irvine.

Although Goldsmith said specifically that Greenwood was “involved” in the drafting process, just days later the government appeared to be trying to play down his input. Harman on March 8 described Greenwood as an expert in the field of international law who had advised the government on many occasions, but stated: “He did not contribute to the drafting of the attorney general’s advice on the legality of the use of force against Iraq.” On March 21, Goldsmith himself contradicted his earlier assertion. He changed his position to Greenwood being retained to assist “in relation to legal issues arising from the Iraq conflict, but was not instructed to advise on whether military action would be lawful”. The parliamentary denials of war advice from Greenwood were repeated on April 4 and April 6.

A written parliamentary answer on March 21 of this year states that as of March this year, Greenwood has been paid £46,000 (excluding VAT) for “professional services in relation to work connected with the conflict in Iraq”.

Greenwood has since explained in detail the position he advocated. He said Iraq was held to be in breach of its ceasefire obligations. “The legal basis for military action thus existed without the need for a further resolution. The [UN Security] Council nevertheless gave Iraq a ‘final opportunity’ to comply, saying that ‘serious consequences’ would follow if it failed to do so. That Iraq did not take that opportunity was demonstrated by the successive reports of the UN weapons inspectors.”

But who held Iraq to be in breach? Goldsmith himself in his detailed document of March 7 suggests only the Security Council can decide if a breach would be sufficient to justify the use of force. He was well aware of the determination of the US to deal with Saddam, and of Blair’s equal determination to assist. In February 2003, Goldsmith travelled to Washington and held talks with his US legal counterparts, including attorney general John Ashcroft, and Bush’s adviser on national security, intelligence and terrorism, John Bellinger. The following month, more formal meetings followed in Downing Street with Jonathan Powell, Blair’s chief of staff, and Sir David Manning, his former foreign policy advisor.

During this period, Blair is said to have been spending a minimum of 45 minutes a day on the telephone to Bush. On March 9, Bush called, saying he knew the legal difficulties Blair faced and didn’t want him to lose his government. He suggested Blair could drop out of the coalition . Blair refused, telling Bush: “I said I’m with you. I mean it.”

The problem was compounded on March 10 when the chief of the defence staff, Admiral Sir Michael Boyce, said that Goldsmith’s document of March 7 (which had been sent to him, but not to Cabinet members) raised serious concerns. Boyce said he needed a more exact assurance of Britain’s legal position if he was to commit troops.

On March 17, two days after the Azores trip, Goldsmith offered parliament the basic skeleton argument, which reached the stark conclusion that war was legal even if there was no resolution to add to 1441. Twenty-four hours later, the House of Commons backed war against Iraq by 396 vote to 217.

The following morning at 7.40am, Blair received a 20-minute phone call from Bush. “Congratulations on the vote. Not only did you win, but public opinion has shifted because you’re leading,” Bush said. The President added other nations would follow in their “slipstream”. On March 20, 2003, the war in Iraq began.

According to Dr Gerry Simpson, a colleague of Greenwood in international law at the LSE, Blair may have made a strategic mistake in opting for the “revival” argument. Simpson believes he could have made a stronger case by arguing there were legitimate moral imperatives for removing Saddam.

Simpson says: “Blair may have made a mistake here. He could have pushed urgency on humanitarian grounds and combined it with existing UN resolutions – ‘regime change plus’ as an emergency, if you like.”

Simpson claims there is a thread running through all the decisions taken by Blair. “Tony Blair undermines collective decision-making. He decided to act outside the authority of the Security Council. And he failed to put the arguments adequately and fully before his own Cabinet. That says something about the way he likes to makes decisions.”

It says he likes to win – at any cost.

01 May 2005