The Attorney General's Legal Advice, Government Spin
The publication of UK Attorney General Lord Goldsmith’s legal advice, presented to Prime Minister Tony Blair on 7 March 2003, before the invasion of Iraq, but not published until today (28 April 2005), marks a significant defeat for the Government, and an important opportunity for the anti-war movement to educate the general public about some crucial realities -- particularly about the role and function of the UN weapons inspectors. Foreign Minister Jack Straw is piloting a new Big Lie for the Government to cover up its dishonesty.
What does the legal advice mean? As long rumored, Lord Goldsmith's advice is finely balanced and equivocal -- the very opposite of the black-and-white legal certainty that military chiefs wanted and Tony Blair announced to the world.
Does the advice change the world's view of the legality of the war on Iraq? Hardly. The Attorney General strained to find some way to stitch together a semblance of legality for the war on Iraq. The ragged garment he put together did not satisfy Mr. Blair, and the short 9-paragraph statement supposedly written by Lord Goldsmith and published on 17 March was the result.
The legal advice is significant not so much in itself, in terms of its determination of the legality of the war, but in terms of the integrity and honesty of British decision makers, and chief among them, the Attorney General himself. How did the nine pages of careful, qualified and balanced arguments of 7 March become the short, snappy declaration of war published on 17 March?
How important is this issue to the anti-war movement?
Here the Government has a point, this is an argument about “process” not about “substance”. The debate rages about honesty and integrity, rather than about legality and aggression.
If the war was illegal, then it was a war crime, and Tony Blair, Lord Goldsmith and other political and military leaders could be charged, prosecuted and found guilty of the crime of aggression.
In his advice, Lord Goldsmith refers to the Campaign for Nuclear Disarmament's (CND) legal challenge to the war on Iraq, and acknowledges that there might be other attempts of this nature. He wrote:
“Aggression is a crime under customary international law which automatically forms part of domestic law. It might therefore be argued that international aggression is a crime recognised by the common law which can be prosecuted in the UK courts... there are a number of ways in which the opponents of military action might seek to bring a legal case, internationally or domestically, against the UK, members of the Government or UK military personnel. Some of these seem fairly remote possibilities, but given the strength of opposition to military action against Iraq, it would not be surprising if some attempts were made to get a case of some sort off the ground.”
He added, “We cannot be certain that they would not succeed.”
These are the issues about legality which ought to be at the heart of the debate, and which are of primary importance to the anti-war movement.
Nevertheless, the publication of the legal advice is extremely useful in focusing public attention once more on the crucial fortnight immediately before the invasion began on 19 March 2003.
JACK STRAW'S BIG LIE
The Government is defending itself by arguing that circumstances changed between 7 March (when the Attorney General failed to find an overwhelming case for war) and 17 March (when he confidently declared its legality). Circumstances changed.
The line the Government is likely to take surfaced in an extended interview on the Today programme the morning after the full legal advice was published, when Jack Straw (after a drubbing on this issue only a few days earlier at the hands of John Humphries) came to bat for the Government once again (though this time at the kinder hands of Jim Naughtie).
Now the biggest problem for the Government in the Attorney General's legal advice lies in the following section:
“In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.”
The first key phrase is “hard evidence of non-compliance and non-cooperation.” Was there any “hard evidence”? The second key element is the “highly significant” role of the UN weapons inspection agencies UNMOVIC (chemical and biological weapons and long-range missiles) and the IAEA (nuclear weapons). Next, turn to the opinion that “In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.” Anthony Lester QC, a senior British lawyer, comments in the Guardian (pdf) that “lawyers don't normally give quite such strong and clear advice” as this.
The Foreign Secretary said that two key changes took place between 7 and 17 March. Firstly, it became clear that no second UN Security Council resolution could be obtained. (How this made war more legal he did not explain.)
“Secondly,” he said, “the evidence of Iraq's continuing further material breach, its failure to comply with its clear obligations mounted, not least in that 173-page document which was [presented] by Dr. Blix [the chief UN weapons inspector] to the Security Council in the very late evening UK time of the 7th of March.”
Jack Straw knows perfectly well that the 173-page document presented by the weapons inspectors to the Security Council on 7 March was not “evidence of Iraq's continuing further material breach, its failure to comply with its clear obligations.”
Jack Straw knows perfectly well that the 173-page document was actually a major obstacle to immediate war.
Jack Straw, Tony Blair and the Government are counting on the ignorance and timidity of the media to let them get away with another Big Lie about the war.
Jim Naughtie said to the Foreign Secretary, “You talk about what changed and you cite Dr. Blix in your support. Let me tell you what Dr. Blix said last night on the question of whether there was hard evidence of noncompliance of the sort that the Attorney General said would be necessary to make the case conclusive.” He quoted Hans Blix as saying “what we reported to the Council were minor breaches, and we also cast a lot of doubts about some of the evidence presented by the United States and the United Kingdom.”
Mr. Straw responded, “Dr. Blix is now saying this, but the whole burden of what Dr. Blix was saying before the Security Council in January-February and March the 7th of 2003 was frankly different. He didn't have to put that 173-page document before the Security Council, which did not say in 173 pages, ‘By the way, Saddam is in compliance.’ What he did say is, ‘Here are 29 separate chapters of unresolved disarmament questions dealing with the disarmament obligations in respect of the Iraqi government.’”
The “whole burden” of what Dr. Blix was saying between January and 17 March 2003 was mixed, to be sure, but Mr. Straw is trying to explain what changed between 7 and 17 March. The most pertinent piece of evidence regarding the 'burden' of what Dr. Blix was saying must then be the 7 March statement by Dr. Blix to the Security Council, delivered, probably, after the Attorney General finalized his legal advice. (Dr. Blix did not make another statement to the Security Council until 19 March, hours before the bombing began.)
In his 7 March statement, referring to the voluntary destruction of al Samoud missiles, Dr. Blix famously said: “The destruction undertaken constitutes a substantial measure of disarmament - indeed, the first since the middle of the 1990s. We are not watching the breaking of toothpicks. Lethal weapons are being destroyed.”
Referring to other forms of Iraqi cooperation, Dr. Blix said, “What are we to make of these activities? One can hardly avoid the impression that, after a period of somewhat reluctant cooperation, there has been an acceleration of initiatives from the Iraqi side since the end of January... It is obvious that, while the numerous initiatives, which are now taken by the Iraqi side with a view to resolving some long-standing open disarmament issues, can be seen as ‘active’, or even ‘proactive’, these initiatives 3-4 months into the new resolution cannot be said to constitute "immediate" cooperation. Nor do they necessarily cover all areas of relevance. They are nevertheless welcome and UNMOVIC is responding to them in the hope of solving presently unresolved disarmament issues.”
In other words, far from “evidence of Iraq's continuing further material breach, its failure to comply with its clear obligations” “mounting”, as Jack Straw claims, the reverse was the case. Iraq's compliance with its obligations was increasing, not decreasing. Iraq's cooperation was increasing not decreasing. This is a significant element in Jack Straw's Big Lie.
Furthermore, Dr. Blix said that, “The Iraqi side has tried on occasion to attach conditions [to inspections], as it did regarding helicopters and U-2 planes. It has not, however, so far persisted in these or other conditions for the exercise of any of our inspection rights. If it did, we would report it.” In other words, at the time, Dr. Blix reported what could be called “minor breaches” to the Security Council.
Dr. Blix also referred to allegations by “intelligence authorities” that “weapons of mass destruction are moved around Iraq by trucks and, in particular, that there are mobile production units for biological weapons”; suggestions that Iraq possessed “Remotely Piloted Vehicles”; and that Baghdad was using “underground structures” for the production or storage of weapons of mass destruction. He reported that after extensive investigation, “No evidence of proscribed activities has so far been found” in these areas. In other words, at the time, Dr Blix cast doubt on US and British intelligence when appearing before the Security Council.
So, even on these side issues, Jack Straw cannot help distorting the record to try to denigrate an impartial and unbiased investigator who has emerged from the Iraq tragedy without a stain on his character.
UNRESOLVED DISARMAMENT QUESTIONS
The Foreign Secretary lays emphasis on the documentation Dr. Blix and his team of inspectors had compiled regarding “unresolved disarmament questions” in Iraq. He claims that the 173-page document on these “unresolved disarmament questions” presented to the Security Council was yet more “evidence of Iraq's continuing further material breach, its failure to comply with its clear obligations.”
Nothing could be further from the truth.
The “cluster document” can be obtained from the weapons inspectors' site. UNMOVIC had carried out an exhaustive study of the available documents and past investigations into Iraq's suspected weapons, and drawn up a document which, for various categories of weapons and weapons systems, “identifies the questions that are deemed outstanding and unresolved.” The cluster document said that a question could be unresolved “because of the lack of convincing evidence [that a weapon or component had been destroyed] or, in a few cases, because of evidence that conflicts with Iraq’s account.”
On 27 January 2003, Dr. Blix had explained the issues clearly, saying of the documents used to compile the 173-page study: “These reports do not contend that weapons of mass destruction remain in Iraq, but nor do they exclude that possibility. They point to lack of evidence and inconsistencies, which raise question marks, which must be straightened out, if weapons dossiers are to be closed and confidence is to arise.”
Far from the 7 March cluster document being “mounting evidence” of Iraq's failure to comply with its clear obligations, it was a historical survey of areas where there was a “lack of evidence” about Iraq's compliance with its disarmament obligations, which had to be cleared up.
KEY REMAINING DISARMAMENT TASKS
The 173-page cluster document invoked by Mr. Straw was actually one stage in the drawing up of a programme of work for the Iraqi authorities and for the inspectors, a programme of work which could clarify for once and for all (a) whether Iraq possessed weapons of mass destruction and/or (b) whether Iraq was prepared to fully cooperate with the UN weapons inspectors.
The next stage in the process was the identification of “key remaining disarmament tasks” which Baghdad would have to complete, under the vigilant gaze of the inspectors. Finally, the inspectors were supposed to draw up a “draft work programme,” as required by UN Security Council Resolution 1284, which set up the UNMOVIC weapons inspectors' agency. This work programme, containing the “key remaining disarmament tasks” was submitted to the Security Council on 17 March 2003, the day that the inspectors were ordered out of Iraq by George W. Bush, as a prelude to war.
Recall that the Attorney General argued on 7 March that it was necessary “to be able to demonstrate hard evidence of [Iraqi] non-compliance and non-cooperation.” This could have been demonstrated through the implementation of the UNMOVIC/IAEA work programme, and the performance (or non-performance) of the “key remaining disarmament tasks.”
Recall also the Attorney General's warning that, “Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect.” UNMOVIC and the IAEA were clear that they could not come to a final view on Iraq's weapons programmes, or of Iraq's cooperation with them, until they had completed the “key remaining disarmament tasks” in the draft work programme. Therefore, “hard evidence” backed up by the inspectors would probably be obtainable only at the end of this programme.
In other words, the British Government's senior legal adviser, the Attorney General, put forward a formal legal opinion to Tony Blair which identified a central role for UN weapons inspectors and, by extension, the “key remaining disarmament tasks” programme of work, in determining the legality of military action against Iraq.
If there were no second UN resolution, Mr. Blair would need incontrovertible evidence that Iraq had weapons of mass destruction, evidence which could only be provided by the UN weapons inspectors, who were about to embark on a final, decisive round of inspection. This is how the Attorney General put it:
“[T]he argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will only be sustainable if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity.”
Anthony Lester QC describes the phrase “only be sustainable” as “very strong words” for a lawyer. (pdf)
The Government's argument that it was legal to go to war without a second UN resolution could only be sustained with “hard evidence” of Iraqi noncompliance (either weapons or non-cooperation with inspectors). It was clear that this “hard evidence” could only be obtained through the inspectors attempting to implement the “key remaining disarmament tasks.”
This effort was destroyed, not by Saddam Hussein, but by George W. Bush and Tony Blair, by their 17 March ultimatum to Saddam Hussein and his sons (which also ejected the inspectors from Iraq).
MONTHS NOT YEARS
On 7 March 2003, Hans Blix answered a crucial question before the Security Council:
“How much time would it take to resolve the key remaining disarmament tasks? While cooperation can and is to be immediate, disarmament and at any rate the verification of it cannot be instant. Even with a proactive Iraqi attitude, induced by continued outside pressure, it would still take some time to verify sites and items, analyze documents, interview relevant persons, and draw conclusions. It would not take years, nor weeks, but months.”
THE BIG LIE
Jack Straw's Big Lie involves saying that Iraqi cooperation with UN weapons inspectors was decreasing in the first half of March 2003, when it was actually increasing.
Jack Straw's Big Lie involves twisting the 173-page clusters document into “evidence” of Iraqi noncompliance with the inspectors, when it actually identified unresolved issues which could only be clarified by a few more months of Iraqi compliance with the inspectors
Jack Straw's Big Lie involves erasing the inspectors’ “key remaining disarmament tasks” and their “draft work programme” from history, despite their central importance in the legality of war, according to the Attorney General
Jack Straw's Big Lie involves denying that the inspectors’ work programme was the only way to determine if Iraq truly would cooperate with the outside world in clearing up unanswered questions about its weapons, covering up the fact that inspections were about to enter a new and decisive phase.
Tony Blair sent Jack Straw out to lie. He shouldn't be allowed to get away with it.
Milan Rai is author of Regime Unchanged: Why the War on Iraq Changed Nothing (Pluto Press, October 2003) and War Plan Iraq: Ten Reasons Against War with Iraq (Pluto Press, November 2002), both very highly recommended. He is a member of Active Resistance to the Roots of War (ARROW) and Justice Not Vengeance, a leading UK antiwar organization. This article first appeared as a media advisory on the JNV website. Assistance for this article was provided by Genny Bove, Ali Klevnas, Mike Lewis and Jonathan Stevenson.
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