My old friend Peter Harvey has posted the following thought-provoking comment on the two-part entry below about Iraq and the question of the legality of the war in the light of the Attorney-General’s advice. My own reply to Peter follows. (I haven’t been able to achieve consistency in font sizes: sorry!)
From Peter Harvey:
Your essay is an excellent description of the situation, and your point about the French ‘veto’ is well made. I well remember at the time how ironic it was that overwhelming Spanish public opinion should be represented so accurately by a French President of very dubious character and politics.
There is one point that I would like to develop. You say that ‘The extent of the flimsiness of the intelligence and the qualified nature of the legal justification were concealed from parliament and the country, and probably even from the rest of the Cabinet, in order to secure endorsement of a decision which Mr Blair had actually taken a year earlier at his fateful meeting with President George W Bush,’ and you speak of ‘the reality that it was Bush who took the decision to remove Saddam Hussein, and did so, with Britain acting in a purely subordinate role.’ Putting these two together we see that the situation is not one of a Prime Minister getting together with a few senior ministers to plot the invasion of a foreign country and bouncing the Cabinet and Parliament in the process, which would have been bad enough. What apparently happened is that a PM committed the armed might of the British State to serve the ends of a foreign power, thus subordinating the sovereignty of the UK to that power, when there was no threat to the security of the UK, and concealed the fact that he had done so from the Cabinet, let alone Parliament and the public. It is the concealment here that is the point at issue; a public treaty or other open military agreement is a different matter.
My question is: Does such an act not constitute treason?
From Brian Barder
Peter,
Thank you for your kind remark about my regrettably lengthy essay on the Attorney-General’s advice and opinion on Iraq. I thought the importance of the issues justified a thorough commentary, and I’ve never been any good at brevity.
I see your point about ‘treason’. But I suggest that there are several reservations which need to be made. Whatever one might think of Tony Blair (and I have a low opinion of him, to put it as mildly as I can), I would accept that he genuinely believed the preservation of Britain’s alliance with the US to be in Britain’s interests and that it should rank very high indeed in Britain’s foreign policy priorities. This has been, after all, a cardinal principle of the foreign policies of successive British governments ever since the Suez fiasco in 1956. He also genuinely believed, if and when he gave his virtually unqualified commitment to Bush in 2002 to support him in getting rid of Saddam, that Iraq possessed WMD (and he was in very good and extensive company in believing that then): that sooner or later Iraqi WMD would fall into the hands of international terrorists: that this would sooner or later present a real threat to western countries including Britain: and that the longer the west delayed action to pre-empt this threat materialising, the higher would be the human, diplomatic, military and financial costs of dealing with it. And he would also have believed that it would be impossible to remove the potential threat from Iraqi WMD and international terrorists as long as Saddam Hussein remained in power in Iraq, so that the WMD disarmament and régime change objectives will have seemed indissolubly linked. If you put all those (perfectly rational, defensible and honourable) beliefs together, you can see how Blair would have judged it to be in Britain’s interests to give that commitment.
With hindsight, of course, one can see the flaws in much of it. In particular, one can and does regret (as Blair probably now does) that he didn’t make his commitment strictly conditional on formal and explicit UN approval for any military action against Iraq. But it probably never occurred to him that it would turn out to be so difficult – indeed, impossible – to get UN approval for a course of action which must have seemed to him so obviously necessary. Once the commitment had been given, the cost of welshing on it in terms of UK-US relations and Blair’s own standing with the White House and the Congress, not to mention US public opinion, must have seemed unthinkable.
There remains the issue of concealment. Here Blair must have been worried by the likely difficulty of persuading UK public opinion, not least in his own party in parliament and the country, that military action involving deaths and destruction could be justified to deal with a potential future threat as distinct from a current and actual one. He might also have feared that if he went public about his commitment to Bush over Iraq, he would be represented as Bush’s poodle, acting “to serve the ends of a foreign power, thus subordinating the sovereignty of the UK to that power” (as you put it), whereas in his own perfectly defensible view he had acted throughout in what he believed to be the best interests of Britain. His solution to this problem was to [mis]represent the threat as being immediate rather than potential, a solution which looks deeply fraudulent now but which would have seemed much less so at a time when almost everyone was convinced that Iraq possessed WMD and was actively developing more, and more horrible, kinds of weaponry, including eventually nuclear weapons.
As to the illegality of going to war without a second resolution, (a) he had a thin cover of sorts from the Attorney-General’s eventual opinion of 17 March 03, and (b) he had got away with the same illegality over Kosovo, widely if erroneously regarded as a great moral and political success, and no doubt thought he could do so again.
And finally, I doubt if there is sufficiently hard evidence, of a kind that would stand up in a court of law or in impeachment proceedings, that Blair did in fact give that unqualified commitment to Bush in 2002, although a lot of circumstantial evidence does point in that direction, and many of us are convinced that he did. The truth about this will probably come out in the end, whenever the end might be. But it hasn’t done so yet.
Against this background I don’t think a charge of treason could be made to stick. Blair would be able to claim convincingly, and probably truthfully, that he had acted throughout in what he reasonably judged to be Britain’s best interests, and even if a court or impeachment tribunal disagreed with that judgement, such disagreement couldn’t constitute grounds for a conviction. Courts are notoriously (and usually rightly) reluctant to substitute their own judgement for those of the elected government on issues which are primarily or wholly political.
One last point: none of us should underestimate Blair’s capacity for self-delusion, seriously aggravated by his inability to make proper use of the resources of the public service or to practise proper procedures of consultation and collective decision-making – defects that I think are largely attributable to his inexperience in government when he became prime minister, without ever previously having managed a government department or having had to defend his department’s policies and actions in parliament or to the media as a junior or even senior departmental minister. The resulting lack of political and administrative discipline has in effect destroyed him. The tragedy is that it has destroyed so many others too, in very many cases literally.
Brian
http://www.barder.com/brian/
30 April 05
The main importance of the 13-page ‘advice’ of the Attorney-General on the legality (or lack of it) of going to war against Iraq without a second UN resolution authorising it, given to the prime minister on 7 March 2003, lies in the harsh and unforgiving light it sheds on the same Attorney-General’s ‘opinion’, published 10 days later on the 17th, in which he set out his apparently unreserved and categorical view that even without a second resolution, the war would be legal. It’s not that he ‘changed his mind’ in those intervening 10 days. On the 7th, he set out the arguments for and against legality, warning that the arguments against might well prevail if the issue came to a court, and laying down the conditions needing to be satisfied if there was no second resolution but the war took place and an argument had to be constructed for its lawfulness. Contrary to widespread speculation before the full text was at last released on 28 April 2005, the 7 March 2003 advice doesn’t come down on one side or the other as to legality: it sets out the arguments on both sides, and concedes that “I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution”, about as guarded a conclusion as can be imagined from even the most recklessly confident lawyer (which by all accounts Lord Goldsmith is not). By the 17th, the attempt to secure a second resolution has collapsed (not because of any French threat to veto it, but because a clear majority of the Security Council’s members disagreed with it): Lord Goldsmith has asked the prime minister whether his test for the legality of a war without that resolution is satisfied – i.e. that “there are strong factual grounds for concluding that Iraq has failed to take the final opportunity. … we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. … the views of UNMOVIC and the IAEA will be highly significant in this respect”: and Mr Blair has replied that that test is indeed satisfied, meaning that he has “strong factual grounds” and “hard evidence” that Iraq has failed to get rid of its WMD, despite a report by the chief UN weapons inspector on the 7th that Iraq has begun to cooperate, that a number of missiles have been destroyed, and that the inspectors still can’t find any WMD. We now know, of course, how much credence should have been attached to Mr Blair’s “hard evidence” that Iraq still had WMD and had failed to comply with UN resolutions requiring Saddam to get rid of them.
In the light of Mr Blair’s assurance, then, the Attorney-General at last comes off the fence and declares that in his independent, unpressurised opinion the war will be legal. Ignorant of the overwhelming doubts, qualifications and warnings in the advice of ten days earlier, the Cabinet, parliament and much of public opinion accepts this categorical declaration of legality, and Britain goes to war.
Ministers are thus correct in arguing that the Attorney-General did not “change his mind” between 7 and 17 March 03. What did happen was that he finally made up his mind. But there remains a fatal inconsistency between the 7 March advice and the 17 March opinion: in the first, Goldsmith acknowledges the highly arguable character of the case for legality, warning that the contrary case will be regarded by many as at least equally strong, and indeed quite likely to prevail in a court of law (and this is regardless of the strength or otherwise of the ‘evidence’ of Iraqi non-compliance). In the second, he sets out the argument for legality shorn of any warning that it is highly debatable and that it might well be rejected if the issue were to come to court. The point about inconsistency is lucidly and powerfully set out in an article in the Guardian of 29 April 2005 by Lord Goodhart, the LibDem spokesman for constitutional affairs. It’s obligatory reading for those who want to find a way through the fog of allegations and counter-allegations about the probity of the prime minister’s conduct in this affair.
There are perfectly sound reasons for insisting that in general the advice of the Law Officers to the government should not be published: the possibility of publication could well inhibit any Attorney-General from giving frank and politically inconvenient advice on intensely controversial issues, an essential part of his functions. But there can be no excuse for having withheld from the cabinet, parliament and the country the fact that Goldsmith had advised the prime minister in such clear language that the case for the legality of a war without a second resolution was so iffy that if it had to be argued in court, it might well fail. The Attorney-General’s ‘opinion’ of 17 March was stated as if the arguments for legality were firm and unambiguous, thus providing a reliable legal basis for going to war – and the cabinet and parliament accepted it as such. Yet the secret advice of the 7th shows that it was nothing of the sort. Lord Goldsmith had been unwilling to go further than saying that he accepted that “a reasonable case can be made that resolution 1441 is capable in principle” of being interpreted as reviving the authority for the use of force given by the Security Council ten years earlier in the completely different context of Iraq’s invasion of Kuwait.
Just as the secret intelligence evidence for Iraq’s WMD was deliberately misrepresented by the prime minister as being firm and conclusive when in fact he knew it to be patchy and sporadic, so the Attorney-General’s opinion that the war would be legal was deliberately misrepresented by the prime minister as firm and conclusive, by his suppression of the all-important caveats and warnings in the 7 March advice. Neither the flimsy intelligence nor the hesitant and qualified opinion on legality justified a decision to go to war. The extent of the flimsiness of the intelligence and the qualified nature of the legal justification were concealed from parliament and the country, and probably even from the rest of the Cabinet, in order to secure endorsement of a decision which Mr Blair had actually taken a year earlier at his fateful meeting with President George W Bush. Suppressio veri, the suppression of the truth, is morally indistinguishable from lying.
There are two other interesting and significant aspects of the 7 March advice that are worth airing. I discuss them in Part II below.
For the full text of the Attorney-General’s advice of 7 March 2003 on Iraq war legality, in readable form, not requiring you to download a PDF file, please see http://www.barder.com/politics/international/attorney/advice-7-march on my website. The original is available (in a poor photocopy of the typescript, in PDF format) on the No. 10 Downing Street website.
Brian Barder
http://www.barder.com/brian/
29 April 2005
In Part I of this piece, I have suggested that the suppression of the warnings and qualifications in the Attorney-General’s advice of 7 March ’03 in effect misrepresented his unqualified opinion published 10 days later as being a much firmer basis for going to war with Iraq than in fact it was: and that the omission of the qualifications and warnings from the published opinion constituted a significant inconsistency between the two documents. In this part I discuss two other significant features of the 7 March advice which are both new and important.
A surprisingly long and detailed section of the Attorney-General’s advice – paras 22 to 25 – is devoted to the significance of the wording of a single paragraph of Security Council resolution 1441:
“[The Council:] 12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above [i.e. a report to the Council of any ‘further material breach of Iraq’s obligations’ or report by the weapons inspectors of ‘any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations’], in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.”
The significance of this paragraph is that on a strict but strained reading of its wording, resolution 1441 requires the Council, on receipt of a report of further Iraqi non-compliance, to “consider the situation” but not necessarily to take a new decision on what to do about it. In Lord Goldsmith’s words, “The principal argument in favour of the view that no further decision is required to authorise force in these circumstances is that the language of [paragraph 12 of res. 1441] (ie "consider") was chosen deliberately to indicate the need for a further discussion, but not a decision.” Such an argument seems, on the face of it, far-fetched in the extreme: what on earth would be the point of having the Security Council meet to consider a report that Iraq had committed yet more material breaches of its obligations if it were not then to decide what to do about it – including taking the vital decision on whether the further breach warranted an immediate resort to the use of military force, or whether the inspectors should be given more time to complete their work before the last resort of war should be adopted? Goldsmith’s exhaustive linguistic analysis of the text of paragraph 12 includes a history of the negotiation of the text of what finally emerged as res. 1441 (the so-called ‘negotiating history’), and the various conflicting statements by Council members of how they interpreted it. The Americans said plainly that they did not regard the resolution as constraining them from using force if they thought it justified, without the need for a further decision of the Council. Several other Council members stated that they took a directly contrary view and that the resolution could not be interpreted as authorising the use of force without a further decision by the Council. The UK ‘explanation of vote’ expressly disavowed any ‘automaticity’ in the resolution, which most of us took to mean that Britain did not regard the resolution as implying UN authority to use force against Iraq without a further Security Council decision – but Goldsmith cites an ingenious alternative definition of ‘automaticity’ which leaves open the question of the need for a ‘second resolution’.
Here is what the UK Permanent Representative to the United Nations at the time, Sir Jeremy Greenstock, said in his carefully worded explanation of vote in the Security Council on 8 November, 2002:
“We heard loud and clear during the negotiations the concerns about “automaticity” and “hidden triggers” – the concern that on a decision so crucial we should not rush into military action; that on a decision so crucial any Iraqi violations should be discussed by the Council. Let me be equally clear in response, as a co-sponsor with the United States of the text we have adopted. There is no "automaticity" in this Resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required in Operational Paragraph 12. We would expect the Security Council then to meet its responsibilities.”
Despite the veiled threat arguably implied by the final sentence, that assurance seems to me (and I would have thought to any reasonable person) to indicate quite clearly that Britain would not resort to war against Iraq unless and until the Security Council had considered the situation and taken a decision to authorise the use of force forthwith. Yet the government’s case relies on denying that that is what was meant. The Attorney-General’s own analysis comes down surprisingly strongly on the side of the view that operative paragraph 12, read with the negotiating history and the explanations of vote, did require a further decision by the Council before force could be used:
“…any other construction reduces the role of the Council discussion under OP12 to a procedural formality. Others have jibbed at this categorisation, but I remain of the opinion that this would be the effect in legal terms of the view that no further resolution is required. The Council would be required to meet, and all members of the Council would be under an obligation to participate in the discussion in good faith, but even if an overwhelming majority of the Council were opposed to the use of force, military action could proceed regardless.”
Which, he surely implies, would be ridiculous. Yet, in the passage quoted above, he describes this patently strained interpretation as “the principal argument in favour of the view that no further decision [by the Security Council] is required to authorise force." His conclusion from his own lengthy analysis and discussion of the arguments and counter-arguments is that “in these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force.” Yet he prudently keeps his options open: “Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.” On any ordinary interpretation of these conclusions, it seems obvious that Lord Goldsmith is deeply sceptical about the argument that resolution 1441 authorised the use of force without the need for a further resolution. But that is what his formal opinion said only 10 days later.
In his advice of 7 March, the Attorney-General makes reasonably clear his judgement that neither the actual wording of resolution 1441, nor the British explanation of vote, can plausibly be stretched to mean that any UN member state was authorised by the resolution to assess for itself whether Iraq had committed a further material breach of its obligations so grave as to demand the immediate use of military force, without the need for the Council first to make that assessment and take any consequent decision for itself. That judgement was surely right. To argue the contrary requires such a Jesuitical and counter-intuitive reading of the relevant words as to make even a Pope blush.
* * * * *
The other new and remarkable feature of the Attorney-General’s advice of 7 March 03 is his warning to the prime minister not to rely on régime change as a legally defensible objective of invading and occupying Iraq:
“…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.”
Before the Iraq war, and before he received the Attorney-General’s advice of 7 March 2003, Mr Blair on more than one occasion accepted that régime change could not be a legitimate justification for attacking Iraq, even on at least two occasions stressing that if Saddam Hussein were to comply with the UN’s demand that he rid himself of his WMD, he would be able to remain as his country’s head of state:
"So far as our objective, it is disarmament, not regime change – that is our objective. Now I happen to believe the regime of Saddam is a very brutal and repressive regime, I think it does enormous damage to the Iraqi people… so I have got no doubt Saddam is very bad for Iraq, but on the other hand I have got no doubt either that the purpose of our challenge from the United Nations is disarmament of weapons of mass destruction, it is not regime change."
(Tony Blair, interview, November 14, 2002)
Yet:
"I had to decide whether we back away, leave Saddam immeasurably stronger, or remove him. I took the decision to remove him. These decisions are tough and that is what leadership is about".
(Tony Blair, press conference, 28 April 2005)
In recent days Mr Blair has used the same language repeatedly and publicly: I took the decision to remove him. This prompts four obvious objections. (1) It contradicts what he said on several occasions before the war. (2) It contravenes the Attorney-General’s warning that “régime change cannot be the objective of military action. This should be borne in mind … in making public statements.” (3) It suggests that it was Tony Blair’s personal responsibility to decide whether and when to go to war, not a collective responsibility of the Cabinet, still less of parliament or the nation as a whole. And, perhaps most strikingly, (4) it ignores the reality that it was Bush who took the decision to remove Saddam Hussein, and did so, with Britain acting in a purely subordinate role, so that (as a member of the audience had the temerity to point out during a recent television grilling of the prime minister) Saddam would almost certainly have been ‘removed’ regardless of the ‘tough’ decision that Mr Blair felt he had to make. Can it be that in speaking as he does, in language that verges on egomania, Tony Blair is unaware of these four major factors that should impel him to use different and more appropriate language? Does he really believe that it was he who took this momentous decision, and that the fate of Iraq and of Saddam Hussein was in his hands when he took it? Has he already forgotten that ‘removing’ Saddam could not be a legitimate objective of attacking Iraq and that he himself repeatedly assured us that it was not the war’s purpose? If the answer to all these questions is ‘yes’, there are unavoidably uncomfortable implications for our prime minister’s grasp of the reality of the situation he now finds himself in.
Iraq has destroyed Tony Blair, as surely as Suez destroyed Anthony Eden.
Brian Barder
http://www.barder.com/brian/
29 April 2005
Guardian Letters, 29 April 2005 (http://tinyurl.com/8a9ba) :
I’m surprised that you acquiesce in and recycle one of the misrepresentations still repeated by ministers, of what happened over UN security council resolution 1441; namely that the government’s failure to get security council authority for the attack on Iraq in a second resolution was the result of France’s announcement that it would veto any such resolution.
President Chirac did not threaten to veto a second resolution: in his much-misquoted television interview of March 10 2003 he pointed out, absolutely correctly, that the majority of council members were opposed to military action at a time when the UN weapons inspectors had not yet completed their work, so the question of a French veto would not arise (see http://tinyurl.com/cw2ek).
Ministers sometimes argue that it was France’s opposition to a second resolution that emboldened some non-permanent members of the council to withhold their support for it since they knew that even if there was a majority in favour, France would veto. But the opposite is the case – the prospect of a French veto would have allowed council members to curry favour with Washington and London by declaring their support, safe in the knowledge that there was no risk of the council authorising war at that time.
The second resolution failed because a clear majority in the council, including a majority of the permanent members, were opposed to military action before the inspectors had finished their work, so the US and UK did not dare to allow their resolution even to come to a vote.
Brian Barder
London
[Note, not in Guardian letter: For full text of the Attorney-General's advice of 7.iii.03 on Iraq war legality, in readable form not requiring you to download a PDF file, please see http://tinyurl.com/btryc on my website]
Brian
http://www.barder.com/brian/
Back in February I speculated, on the basis of the information then available, that in his advice on the legality or otherwise of going to war in Iraq without UN authority in a second resolution, delivered to Tony Blair in a 13-page written document on 7 March 2003, the Attorney-General had probably expressed his own view that going to war without another resolution could be defended as being legal, but at the same time warned that many legal authorities would not agree, and that if the matter were ever to be referred to an international court such as the International Court of Justice at the Hague, there could be no guarantee that Britain would win its case. The government has consistently refused to publish Lord Goldsmith’s written advice. If my guess about its contents was correct, this would be understandable, since the admission that there existed a tenable and probably widely-held view that a war would be illegal (even though the Attorney-General took the opposite view) would be damaging to the government, especially if the question did eventually come to be argued in an international judicial forum. I put a paper containing this analysis on my website last February, with a trailer for it on my blog.
Now at last the controversial document with the Attorney’s 13 pages of advice has leaked, and much (although not yet all) of it is in the public domain. An article in the Mail on Sunday on 24 April 2005 is clearly based either on the writer’s possession of the whole document, or parts of it, or else on a sight of it. It would be uncouth to boast that “I told you so,” but it’s unavoidably gratifying to find that – assuming the article to be accurate, as it appears to be – my speculation was extremely close to the mark. Lord Goldsmith is indeed quoted as saying, with a good deal of hesitation, that “Mr Blair could go to war without [a second UN resolution]”, but much of the document is taken up with spelling out six cogent reasons which others could and would put forward for taking the contrary view, i.e. that without a second resolution the war would be illegal. All six reasons are summarised in the Mail on Sunday’s story.
As I write, on the afternoon of the day of publication of the article, the media commentators don’t seem to have fully grasped the significance of this revelation, perhaps because of jealousy of the MoS’s undoubted scoop. Moreover, such comment as there has been, both within the article and in the electronic media, has been seriously inaccurate in at least two major respects (even the always judicious Sir Menzies Campbell has got it wrong).
First, the article does not confirm the widely-held belief that Lord Goldsmith “changed his mind” between delivering his written opinion on 7 March, and publishing a brief statement of his view on legality in reply to a written parliamentary question on 17 March, the first day of the House of Commons debate on Iraq which concluded with a vote in favour of the war. Both in the document of 7 March and the written parliamentary answer of the 17th, Lord Goldsmith apparently recorded his view that war without a second resolution would be legal. The difference was that on 7 March he wrote that there were many arguments pointing the other way, and that these might well be upheld if it came to the ICJ, whereas on the 17th he merely recorded his own view.
Secondly, the article itself and other commentators are mistaken in claiming that the written parliamentary answer of 17 March 2003 purported to be a ‘summary’ of the written opinion of the 7th. The statement by Lord Goldsmith’s spokesman quoted in the MoS article that “the Parliamentary statement of March 17, 2003 never purported to be a summary of the Attorney General’s advice" is perfectly true, and has been said more than once already in recent weeks. Any ‘summary’ of the advice would have had to include the reservations about the strong contrary arguments and the risk that Britain could well lose a case on the war’s legality if it ever came to an international judicial ruling. But Lord Goldsmith is entitled to argue that what he published in the Lords Hansard on 17 March summarised his own considered view on legality, not the opinion that he had given the prime minister ten days earlier. And there is still no evidence that his view had changed during those ten intervening days.
It’s important not to fall into the trap of accusing the Attorney-General of changing his mind about the legality of the war (and demanding to know why he did so, as Ming Campbell did today), or of making the equally inaccurate accusation that his published statement on 17 March was a culpably inaccurate summary of the opinion he had given the government on the 7th. He didn’t, on the evidence, change his mind; and his statement of the 17th never claimed to summarise his advice to the government. But this doesn’t mean that he, or the prime minister, is in the clear. Extremely important elements of the Attorney-General’s full advice to the government have been deliberately kept secret; and ministers have sought to give parliament and the public the wholly misleading impression that the Attorney had no reservations about his view that the war was legal, whereas he evidently had extremely serious reservations which he duly reported to Tony Blair several days before the decision to join the attack on Iraq was finally taken. We are entitled to question the prime minister’s judgement in committing his country to a war which the Crown’s senior Law Officer had warned would be widely and credibly held to be illegal under international law, and whose legality might well not be upheld if challenged in an international court. It puts a huge question mark over the assurance reportedly given by Mr Blair to the Chairman of the Joint Chiefs of Staff that there was no question of sending British servicemen to fight a possibly illegal war.
As a postscript, there is also a fascinating account in the MoS article of the way in which Jack Straw, as Foreign Secretary, dealt with the inconvenience of having not only his deputy Legal Adviser, Elizabeth Wilmshurst, but also, even more damaging, his own principal Legal Adviser, Michael Wood, formally declaring their expert and considered opinion that a war without explicit UN authority in a second resolution would be illegal, thus in Ms Wilmshurst’s view constituting an act of aggression, advice which Mr Blair in his interview with Jeremy Paxman recently thrice denied having seen (see my comments on this). The MoS relates that:
”The legal wrangle dates from 2002 when Foreign Office legal chief Michael Wood and his deputy Elizabeth Wilmshurst confronted Jack Straw over their belief the war was illegal without a second UN resolution. Mr Straw told them: "I am a lawyer, I have negotiated every dot and comma of this. Thank you for your advice but I am not going to take it." Ms Wilmshurst and Mr Wood appealed to Lord Goldsmith to overrule Straw. Goldsmith told them: "I am not permitted to give you any advice but you know what my view is." They knew he believed the war was illegal, but dare[d] not say so.”
And finally, the MoS article relates how it was the Americans who pressurised the Attorney-General, on his visit to Washington in February 2003, to discard his doubts and reservations about the legality of war without a second resolution:
“Goldsmith flew to the White House to meet US National Security Council legal chief, John Bellinger. … Mr Bellinger later boasted: "We had a problem with your Attorney General who was telling us it was legally doubtful under international law. We straightened him out."
The similarity to what happened in almost exactly the same circumstances over doubts about the legality of NATO’s attack on Yugoslavia in 1999 is really uncanny:
’’All our Nato allies were still reluctant. Initially, they insisted that the use of force only be considered if the UN security council would endorse it. … Even our staunchest ally, the British, became a big problem … What were they thinking? There was a series of strained telephone calls between [Madeleine] Albright [the US Secretary of State] and [Robin] Cook [British Foreign Secretary], in which he cited problems "with our lawyers" over using force in the absence of UN endorsement. "Get new lawyers," she suggested. But with a push from prime minister Tony Blair, the British finally agreed that UN security council approval was not legally required.’ — James Rubin, press spokesman for US Secretary of State Madeleine Albright at the time of the NATO attack, Financial Times, 29 Sep 2000 (quoted in http://www.barder.com/brian/Kosovo.htm).
So much for Mr Blair’s insistence that everything he has done has been in accordance with international law. His attitude to the law all too closely resembles that of Humpty Dumpty to the meaning of words:
‘ "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean––neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master, that’s all." ‘
— Lewis Carroll, Through the Looking-Glass (1872) ch. 6
Brian Barder
24 April 2005
http://www.barder.com/brian/
At the end of last month (March 2005) my wife and I returned once again to New York, where we lived for more than four years in the 1960s and to which we have returned many times, especially since our daughter and our two granddaughters have been living there. It was of course, as always, lovely to see them and to spend time with them again; and it’s always good to be back in that energetic, buzzing city. But in other respects it was not a wholly successful week, and not just because of the torrential rain. To read a (partially tongue-in-cheek) account of it, click here.
Miss Liberty, but not from the Ellis Island ferry 
We went on from New York to spend 12 days with our son and his partner in California and saw not a single drop of rain throughout our time there.
Brian
http://www.barder.com/brian/
In the fascinating and revealing interview with Tony Blair by Jeremy Paxman, broadcast by BBC1 television on 21 April 2005, the prime minister told Paxman that he had not seen the advice on the legality of the Iraq war submitted by the Foreign & Commonwealth Office legal advisers, who are (or should be) the government’s main source of specialised, expert advice on international law. It is widely believed that the FCO lawyers’ consensus was that to go to war without explicit Security Council authority in a second resolution would be illegal; that was certainly the view of a deputy FCO Legal Adviser, Elizabeth Wilmshurst, who courageously resigned over the issue, and whose resignation letter, recently released in bowdlerised form under the Freedom of Information Act, recorded her formal view that “I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution … an unlawful use of force on such a scale amounts to the crime of aggression”. The Attorney-General, almost alone among the legal authorities involved (his expert field is commercial, not international, law), thought otherwise, and advised the government accordingly. But we know that the matter was hotly debated in Whitehall, and in view of the crucial importance of the issue of legality, it seems astonishing that the prime minister himself should not have seen the FCO legal advisers’ view:
Paxman: Did you see the Foreign Office legal advice which said military action against Iraq would be ‘illegal without a further UN resolution’?
Blair: No, I had the attorney general’s advice to guide me. But again this thing has been built in to, you know, a –
Paxman: You didn’t see that Foreign Office advice saying that an invasion would be illegal without a second UN resolution?
Blair: No, because I had the attorney general’s advice.
Paxman: You didn’t see it?
Blair: Yes, I didn’t see it. But I had the attorney general’s advice, and the attorney general made it absolutely clear that provided we could show that there were breaches of the United Nations resolutions …
Paxman: The attorney general is a political appointment, Prime Minister. Shouldn’t you have seen the Foreign Office legal advice?
Blair: But the attorney general’s advice is the advice he gives us as the law officer. He acts in an independent way in doing that.
The FCO Legal Adviser would have submitted his and his colleagues’ advice on this hugely important matter to Jack Straw, the Foreign & Commonwealth Secretary (we may surely assume that he at least saw it); and it would undoubtedly have been copied automatically to many others, including the Cabinet Secretary and officials at No. 10 Downing Street. It’s hard to understand how none of these people apparently thought it necessary to show it to the prime minister. How could either Jack Straw or the Cabinet Secretary justify their decisions to withhold it from Mr Blair? This is truly baffling. Mr Blair’s own explanation – that he didn’t see the FCO legal advice because he had advice from the Attorney-General – only deepens the mystery: are we really to believe that the Attorney-General’s lengthy written advice, delivered to the prime minister on 7 March 2003, contained no account of the FCO Legal Advisers’ opinions – including Ms Wilmshurst’s – if only to explain why he disagreed with them? If it did incorporate that FCO advice, then it’s hard to understand how Mr Blair could have thrice denied having seen it. If it didn’t, why didn’t it? With puzzlement multiplying like this, the issue is certainly not going to go away.
But, as they say in the ranting TV commercials, that’s not all. Perhaps the most alarming revelation to come out of the Paxman interview was Tony Blair’s assertion that with the failure of his “desperate” efforts to get a second UN resolution authorising the use of force against Iraq, it had fallen to him personally to take the hard decision whether to “remove” Saddam Hussein or “whether to leave him there”:
Blair: Look, I want to make this point to you because you can go on, over and over and over, about these events that have happened. In the end, I had a decision to make back in March 2003. We had 250,000 UK and US troops there; we had Saddam not in compliance with UN resolutions. I tried desperately hard to get a second UN resolution. I couldn’t get one. Now I had a decision to make as to whether to leave Saddam there, in breach of UN resolutions, and end up in a situation with the international community humiliated and him emboldened, or to remove him. I decided to remove him. Now, you can go through these issues about my integrity, my character, the legal advice – because the legal advice, actually, the legal issue, was exactly the same as the political issue – or you can accept that in the end a decision had to be taken; there was no middle way, there was no fence to sit on. I took that decision. Now, I know people strongly disagreed with it. I’m sorry. In the end, I had to take the decision as prime minister that I thought was right for the country, and I did so. This was not an easy decision to take; it was a hard decision. … I took the decision I thought was right, and if I had not taken that decision, then what? You’d have Saddam Hussein and his sons still running Iraq; you wouldn’t have 8 million Iraqis going out voting at the polls; you wouldn’t have change spreading across the Middle East as it is.
This is worrying on several counts. The decision whether to wind up the UN inspections before they had been completed and begin an armed attack on Iraq forthwith was not one for the British prime minister to take: it was for the Security Council and for the Council alone, under international law as embodied in the UN Charter. The stated purpose and justification for the US-UK attack on Iraq was not to “remove Saddam” – indeed, Blair himself said repeatedly before the war that this could not be a justification for the use of force – but to enforce Security Council resolutions calling on Iraq to give up its WMD. Yet now he says publicly that he took the decision “to remove Saddam”. Even if the Security Council had left the decision to go to war to any individual member of the Council (which it most assuredly did not), it could not have been a personal decision for the British prime minister: at the very least it would have had to be a collective decision by the Cabinet after the fullest discussion and after the fullest information, including all the legal opinions available to the government, had been presented to the whole Cabinet. We know that didn’t happen. And, perhaps most bizarrely of all, the Blair account of ‘his’ decision completely ignores the Americans. What would Bush, Rumsfeld, Cheney, Rice and the rest of the hawks’ nest have done if Tony Blair had stood back after his failure to persuade the Security Council to authorise the use of force before the inspectors had had time to finish their work? What if Blair had accepted that binding majority view in the Council? The idea that at that historic moment it had been Tony Blair’s personal responsibility to take that ‘hard’ decision whether to remove Saddam or to “leave him there”, “still running Iraq”, is not only weird: it is also frankly frightening, because it suggests that our prime minister is unable to form a realistic view of his own responsibilities, of the limits on Britain’s power and responsibilities in the world, or of his place in it.
Full marks to Jeremy Paxman, at the height of his formidable powers, for prising out of a visibly rattled prime minister such stunning revelations. We may occasionally cringe at the Paxman style: sometimes arrogant, contemptuous, cynical, languid, overbearing, disrespectful of elected leaders; but last night he performed a real public service, and for that much else may be forgiven.
Brian Barder
http://www.barder.com/brian/
Returning to London on Sunday from three weeks in the US (New York and San Francisco) where the British General Election was a barely visible blip on the media radar screen, I felt like Rip van Winkle, having almost no idea what had been going on in the election campaign while I was away apart from what I’d gleaned from occasional glances at the Guardian and Times websites. Now, having seen a good deal of coverage in the print and electronic media since Sunday, I’m depressed. Everyone I know, and plenty of people who write letters to the newspapers or air their views on chat-shows, seem tormented by the problem of how to register a passionate protest against Blair’s chicanery over Iraq and his government’s vicious attack on our basic civil liberties, without running the risk of letting Michael Howard in to No. 10: yet neither the criminal blunders over Iraq nor the wholesale destruction of our rights under cover of the soi-disant ‘war on terror’ appear to be discussed by any of the major parties in their campaigns, as if to do so would be an error of taste akin to blowing one’s nose while being presented to the Queen. These two towering issues, dwarfing such banal matters as how to finance health care and pensions, are simply treated as if they weren’t there: the twin hippopotamuses in the drawing room.
But the campaigns are not only banal: they are also deeply corrupt in the acceptance by all three major parties of the poisonous new provision for postal voting by anyone who can be inveigled into applying for a postal vote, with no longer any requirement to demonstrate need: and the harvesting of completed (and uncompleted) postal ballot forms by all three party offices for submission in bulk to the electoral registration officers. It seems that the election officials were deeply unhappy with this procedure (as well they might be!), but their proposal to require all postal ballots to be sent directly to themselves, and not via a third person, least of all via a political party, proved ‘unacceptable’ to the political parties, so the requirement was spinelessly reduced to a recommendation. The fact that mass abuse of this system has already been revealed has apparently counted for nothing. The potential for corruption and manipulation of votes on a vast scale is obvious, yet none of our major political leaders has the guts or grace to denounce it or to call for its immediate reform. The principle of the secret ballot, fought for by the Chartists and every other reformist movement for centuries, has been casually and wilfully torn up. No longer can a vulnerable 19-year-old daughter in a patriarchal family keep her vote secret from her parents, nor the employee in a small family business from his or her employer, nor husband from overbearing wife (or vice versa): in every case, the powerful can force the weak to apply for a postal vote, or use one of the forms delivered uninvited by one or more of the political parties with their campaign literature, and stand over the victim while he or she fills it in, demanding even that the stronger in the relationship actually takes the form and sends it in. And all the party leaders and many candidates are actively encouraging postal voting in preference to the genuinely secret vote cast in the invulnerable secrecy of the voting booth at the polling station. How Dickens would have laughed, or cried! The Eatanswill election is back with a vengeance. When was there last such a shabby, shoddy election?
The Labour Party’s manifesto, which one might expect to find prominently linked to the party’s website on its home page, is in fact extremely difficult to track down there, and even when found, loads in such an obscure and microscopic format as to be totally unreadable (there is an unadvertised provision for enlarging the text with a right-click, but once so enlarged, the left-hand and right-hand edges of the text disappear from the monitor screen and can’t be adjusted back). In fact, if you hunt zealously enough for it, the manifesto is also available in PDF format, which does permit the text to be manipulated to a legible size. But the content is so drab, the style so jargon-ridden and pedestrian, and 90 per cent of the subject-matter so tedious, that the whole document is still in effect unreadable (perhaps just as well for the party). What’s worse is the absence from it of any whiff of radicalism. It could all easily have been the manifesto of the Tory Party in its more moderate and humane days. Nowhere does one see evidence that this emanates from a party of the left. Indeed, its obsession with the essentially Tory ideal of ‘equality of opportunity’ (with no concern at all for equality of outcomes) is the hallmark of a party of the right. Mr Blair and his senior colleagues seem to think that a meritocracy is actually a desirable basis for a just society, instead of a jungle in which the weak and vulnerable are devoured at leisure by sabre-toothed predators.
I’m a life-long Labour supporter, but if I was unlucky enough to live and vote in a constituency where the Labour candidate was a hard-line Blairite with no record of opposition to the war or to the Blair government’s wanton destruction of our liberties, I would not in conscience be able to vote for him or her, even if abstention (or a vote for the LibDem, Green or Respect candidate) were to contribute to the risk of a Howard government. Fortunately the Labour candidate in my constituency (a) has not hitherto been an MP, so has no voting record in the Commons to object to, (b) is anyway a human rights lawyer with an impeccable record on the war and civil rights issues, (c) has been a good and effective local Councillor, and (d) happens also to be a Muslim of Asian origin, thus unlikely to lose the support of the large local Muslim Asian community despite their hostility to the war and much of the Straw-Blunkett-Clarke anti-terrorist legislation foisted on us all in our sleep. So his predecessor’s majority of more than 10,000 should be safe in his hands, and I shall vote for him (in a polling station) with a clear conscience, knowing that my vote will have no effect whatever on the national result, although fearful that my own and millions of other similar votes will be misrepresented by Blair and his clique as an endorsement of the vile things they have done.
No wonder the Tories decided to drop their original idea of plastering the walls with posters warning “Vote Blair, Get Brown”. If only!
Brian
19 April 2005
http://www.barder.com/brian/
PS: Those reading this in an MS Internet Explorer browser (but not in Mozilla Firefox) may still find bits of HTML code towards the end of it, despite my efforts to expunge it. There are also some font peculiarities. Sorry about these. I hope they aren’t too distracting. BLB, 22 Apr 05
