How could attorney general support such a weak and dismal argument?
The following is an extract from Lawless World: America and the Making and Breaking of Global Rules, by Philippe Sands
Wednesday February 23, 2005
A key meeting took place in July 2002, at which various ministers, including the attorney general, were present. They were reminded that the prime minister had told President Bush that the UK would support military action to bring about regime change, so long as a coalition had been created and UN weapons inspectors had been given a further opportunity to eliminate Iraq's weapons of mass destruction. The foreign secretary, Jack Straw, complained that the case was thin, not least because Saddam Hussein was not threatening neighbours and had a lesser WMD capability than Libya, North Korea or Iran.
The meeting also considered the legal issues, including a March 2002 paper prepared by Foreign Office legal advisers. Even at this stage the British government was acutely aware of the legal difficulties. The attorney general confirmed that self-defence and humanitarian intervention were not justified, and that, as matters then stood, claiming the authorisation of the security council would be difficult.
At this stage, Lord Goldsmith's view seemed unambiguous. Michael Foster MP, an assistant to the attorney general, has confirmed that Lord Goldsmith was later "asked the question - would regime change be lawful per se, and he said no, it wouldn't".
From the July 2002 meeting, the attorney general was instructed to consider legal advice with the Foreign Office and Ministry of Defence. The chosen route was to build up the intelligence to support the claim that Saddam had weapons of mass destruction, which could provide a potential legal justification.
In November 2002, the security council unanimously adopted resolution 1441. The resolution warned that Iraq would face "serious consequences" for further violations of its obligations, but did not authorise states "to use all necessary means" (meaning military action).
Blair had therefore to push strongly for a second security council resolution which would give legal cover for the use of force. By the end of January, Blair had been informed that the start date for the military campaign was pencilled in for the middle of March.
The Foreign Office was the government department leading on these issues. The Foreign Office legal adviser and his colleagues were crystal clear in advising that resolution 1441 did not authorise the use of force, and that without a further resolution the UK could not lawfully use force against Iraq to ensure compliance with Iraq's WMD obligations. This conclusion was not shared by their minister, Mr Straw, who was willing to adopt a more flexible interpretation of the law.
In the circumstances, it was for the attorney general to set out a definitive view, which would be the government's formal legal advice. The ministerial code of conduct requires the attorney general to "be consulted in good time before the government is committed to critical decisions involving legal considerations". In January 2003, the Foreign Office legal advisers told the attorney general of their views and asked for his. There is nothing to indicate that he did not share the unequivocal views of the legal advisers at the Foreign Office in London.
However, it appears that he was not asked by the prime minister to provide formal advice until the last possible moment. It seems that 10 Downing Street did not want a formal legal opinion in January or February 2003. But the key point is that the attorney general did not then advise that no further resolution was needed.
If the British government had received clear advice that a further resolution was not needed it would not have been sensible to make the Herculean efforts it did during January and February 2003 to obtain such a resolution, until they finally collapsed in the first week of March. By then there had been a significant development.
On February 11 2003, Lord Goldsmith met with John Bellinger III, legal adviser to the White House's national security council. The meeting took place in the White House. An official told me later: "I met with Mr Bellinger and he said: 'We had trouble with your attorney; we got him there eventually.'"
I put this to Mr Bellinger; he reflected and then told me: "I do not recall making such a statement," adding diplomatically, "I doubt that an individual of Lord Goldsmith's eminence would adopt a legal argument based on pressure from the US government."
By the first week of March, it was becoming obvious that the prospects for the second security council resolution were grim. An alternative legal basis had to be found. By then the only argument left, the only plausible justification, would be to run the argument that the security council had somehow already authorised the use of force.
This was the context in which the attorney general finally gave his formal advice to the prime minister, set out in a minute dated March 7 2003. It was sent only to the prime minister, but was seen more widely, by the foreign secretary and defence secretary among others.
It is a 13-page document which states the various arguments on the need for a further resolution. It concludes that no further resolution is needed. It was sufficient for the prime minister - not the security council - to decide that Iraq had failed to comply with its disarmament obligations and that there was hard evidence of non-compliance and non-cooperation with resolution 1441.
But the advice was not clear-cut. It recognised that if the argument were to come before a court of law it might well be unsuccessful, so that the use of force against Iraq could be found to be illegal. It would be safer to have a second resolution. So concerned was the government about the possibility of such a case that it took steps to put together a legal team to prepare for possible international litigation.
Lord Goldsmith's advice was not sufficiently clear for Admiral Sir Michael Boyce, the chief of defence staff. On March 10, Sir Michael sought a clearer assurance of the war's legality - as he has subsequently said, a short and unambiguous note from the attorney general. He wanted to be sure that soldiers would not be "put through the mill" at the international criminal court. His concerns were "transmitted" to the attorney general through the prime minister. Sir Michael has said: "I was reassured I would get what I asked for."
On March 13, the attorney general communicated his "clearer" views - that the better interpretation of 1441 was that it was lawful to use force without another resolution - at a meeting with Baroness Morgan, director of political and government relations at 10 Downing Street, and Lord Falconer, at the time a Home Office minister. The attorney general also informed Lord Falconer and Baroness Morgan that the prime minister was entitled to certify the existence of a material breach by Iraq.
On March 14, Sir Michael was provided with the written reassurance he had sought. On March 15, the prime minister confirmed in writing "unequivocally [his] view that Iraq has committed further material breaches" of security council resolutions.
No 10 Downing Street then proceeded to set out the attorney general's opinion on the legal basis for the use of force by the UK against Iraq in the form of an answer to a parliamentary question. In little more than 300 words, this statement of March 17 published the view that such authority derived from the "combined effects" of UN security council resolutions 678, 687 and 1441. The crucial line in the attorney general's statement is paragraph 7: "It is plain that Iraq has failed so to comply ... " What may have been plain to the prime minister was not plain to the rest of the world.
The attorney general's March 17 statement was not a summary of the written advice of March 7, or of any other formal legal advice. Rather, it is a recasting of a plausible argument into the succinct and decisive opinion of law which Sir Michael had requested. When the issue was addressed in a cabinet meeting on the morning of March 17, ministers were provided with just two pieces of A4 paper, the same document that was delivered in the House of Lords later that day. The ministerial code of conduct requires the full text of any advice to be made available in papers to the cabinet. None was provided. There was no discussion, and no minister raised any question as to the basis upon which the prime minister had decided that Iraq was in material breach of resolution 1441.
On March 18, the Foreign Office's deputy legal adviser, Elizabeth Wilmshurst, ten dered her request for early retirement or resignation. "I regret that I cannot agree that it is lawful to use force without a second security council resolution," she wrote. After noting the evolution of the legal views, she added: "I cannot in conscience go along with advice within the office or to the public or parliament - which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law."
It is the very essence of the system of collective security in the UN charter that decision-making is collective. It is not individual, or prime ministerial. And this was the view put by the Foreign Office legal advisers in a note which was first circulated in March 2002. They concluded that since the ceasefire had been proclaimed by the security council in resolution 687, "it is for that body to assess whether any such breach of those obligations has occurred".
John Major was prime minister when resolutions 678 and 687 were adopted. In his view: "Our mandate from the United Nations was to expel the Iraqis from Kuwait, not bring down the Iraqi regime ... We had gone to war to uphold international law. To go further than our mandate would have been, arguably, to break international law." If these resolutions did not provide any basis for overthrowing Saddam Hussein in 1991, it is difficult to see that they could in 2003.
The attorney general's published opinion - that a non-existent authority to use force can "revive" at the behest of three of the 15 members of the security council -makes a mockery of the UN system. How could the attorney general have been prevailed upon to lend Britain's name to such a weak and dismal argument?