1 March 2005
Peter Hennessy, professor of contemporary history at Queen Mary College, London, described the way ministers behaved in the days leading up to the war as “truly breathtaking”. It casts a shadow over “the entire system of government,” he said. – The Guardian, February 24, 2005
Many on the ‘left’ may dismiss the arguments surrounding the ‘legal’ basis that underpins the obviously (to me and most of the planet) illegal invasion and occupation of Iraq as no more than a lot of hot air and obfuscation, preferring to take the ‘political’ road to judgement. But it is the ability of the state to create the fiction of its legitimacy to rule that in the final resort, is all that it has. Take away that legitimacy and ‘all that’s solid melts into air’. So what, exactly, is the legitimacy based upon? Largely, it’s the rule of law, especially when it comes to invading a sovereign state. But just what is the ‘rule’ of law?
According to Blair, it’s pretty much whatever you want it to be as I hope to show. Playing ‘fast and lose’ with the ‘law’ is rather, as the former chief justice of the US Immigration and Naturalisation Service (INS) told me, “the most sophisticated use of language we have, so don’t put it down” or words to that effect. And he should know, as he had drafted a lot of the INS laws up until that time (1979).
But in Britain, the state has the power precisely because the line between the executive and the judiciary is deliberately blurred. The much-vaunted British ‘constitution’ is, in reality, a collection of laws, some going back centuries, that collectively make up the ‘constitution’. Make of it what you will. More often than not it’s make it up as you go along.
The run-up to the invasion
Prior to the invasion, the government, failing to get a UN resolution to justify the invasion, was forced to rely on previous UN resolutions, the most important of which was UN Resolution 1441, the fulcrum on which the government’s case for the invasion ultimately hinged, or so it hoped. The critical section 13 of Resolution 1441:
“Recalls, in that context, that the Council has repeatedly warned Iraq that it will face serious consequences as a result of its continued violations of its obligations;” [my emph. WB]
The problem for the UK government was, and remains so, that Resolution 648 concerned Iraq’s invasion of Kuwait and nothing more. Resolution 678’s key section is:
“2. Authorizes Member States co-operating with the Government of Kuwait, unless Iraq on or before 15 January 1991 fully implements, as set forth in paragraph 1 above, the above-mentioned resolutions, to
use all necessary means
to uphold and implement resolution 660 (1990) and all subsequent relevant resolutions and to restore international peace and security in the area;” [my emph. WB]
Resolution 660 is (mercifully) short:
2 August 1990
Adopted by the Security Council at its 2932nd meeting, on 2 August 1990
The Security Council, Alarmed by the invasion of Kuwait on 2 August 1990 by the military forces of Iraq,
Determining that there exists a breach of international peace and security as regards the Iraqi invasion of Kuwait, Acting under Articles 39 and 40 of the Charter of the United Nations,
1. Condemns the Iraqi invasion of Kuwait;
2. Demands that Iraq withdraw immediately and unconditionally all s its forces to the positions in which they were located on 1 August 1990;
3. Calls upon Iraq and Kuwait to begin immediately intensive negotiations for the resolution of their differences and supports all efforts in this regard, and especially those of the League of Arab States;
4. Decides to meet again as necessary to consider further steps with to ensure compliance with the present resolution.
6 August 1990″
In turn, Resolution 678 came to be. The problem for the Blair government was linking the three resolutions, 660 that led to 678 – that concerned the invasion of Kuwait and which was limited to removing Iraqi forces but did not have the force of the UN to occupy Iraq – to 1441 and the already planned invasion. And don’t take my word for it, listen to the words of John Major, then prime minister when resolutions 678 and 687 were passed:
“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.”
So the key phrase in 1441 is “serious consequences” whose exact meaning the resolution has nothing further to say anything on except its reference to earlier UN resolutions in a circular process that ultimately leads back to 1441. This after all, was the background to the desperate attempts by the UK as proxy for the US to get a new resolution passed that would sanction invasion. Meanwhile, the US bribed, cajoled and ultimately tried to blackmail recalcitrant members of the Security Council to ‘toe the line’ (including using the UK’s GCHQ to spy on the SC’s members on behalf of the US in a textbook case of ‘plausible deniability’).
But equally, one can argue that if, in the British government’s opinion, the original UN resolutions gave them the ‘right’ to invade, why the need for a new one? ‘Aye – there’s the rub’ as they say.
So ultimately, the exact meaning of “serious consequences” came down to an interpretation, one that had to be made by the attorney general, Lord Goldsmith, who in turn is empowered by law to advise the government on the legality of its planned actions. The problem of course, is that the attorney general is also part of the Blair executive, so he sits astride the two, the judiciary and the executive and as we shall see, this was critical to the invasion plan.
Obviously the current brouhaha (triggered by the publication of the book, Lawless World: America and the Making and Breaking of Global Rules, by Philippe Sands, of which more below) surrounds the misgivings the legal eagles in government had about the term “serious consequences” and its relationship to resolutions 660 and 678, feeling quite rightly, that the Blair government was equating apples with oranges and should anybody dare to take the government to court (why nobody did this is beyond me!), the government would lose, a feeling they expressed.
In March 2002 the Foreign Office’s legal advisors and the attorney general advised the government that an invasion could not be justified, a position that Michael Foster, MP confirmed when he asked Lord Goldsmith if ‘regime change’ would be legal, and was told “no, it wouldn’t”. Now you can’t get clearer than that can you.
The only way ‘regime change’ could be justified was if it could be shown that Iraq had WMD in contravention of the UN resolutions and even then, it would still need a UN resolution to invade. This is why the issue of WMD was made the central rationale of the government’s case as it had nothing else to use.
By November of 2002, the government knew that military action was scheduled for the following March but still no WMD and the legal eagles were adamant that 1441 did NOT authorise the use of force, a view understandably not shared by the government that was already committed to war (you don’t move hundreds of thousands of soldiers, tanks, guns and planes to the borders of Iraq just so you can move ‘em all back again). Hence the entire operation had to have at least the façade of a legal nicety and only Lord Goldsmith could supply one. Time for some arm twisting.
“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.’”
We can only surmise what it took to “[get] him there” but what we do know is that having “got him there”, it left Goldsmith with a big problem that could conceivably get him out of a job.
Word Play Before Gun Play
We need to look at this process closely in order to understand how the use of language facilitated the sleight of hand performed by Blair’s government, and how it meshed with the media’s role in selling the invasion to the public.
In July of 2002 it was decided that a case had to be made that proved conclusively that Saddam had WMD and by September 2002 the “dodgy dossier” was rolled out.
But in November of 2002 when UN Resolution 1441 was adopted it didn’t include the crucial words “use all necessary means”. What a bummer!
So a second resolution was needed as the Foreign Office were “crystal clear” that 1441 “did not sanction the use of force.”
“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.”
Even as late as February 2003, Downing Street had still not asked for a legal opinion. Blair was leaving it until the very last moment.
By March, without a second resolution Blair was in trouble. They had to prove that the combined use of the existing UN resolutions sanctioned the use of force and that Iraq had failed to comply with them.
On March 7, Blair in yet another rewrite of the past, in a 13-page minute concluded that no further UN resolution was needed but it also concluded that in a court of law the government might well be unsuccessful in showing that the existing UN resolutions did not sanction an invasion.
“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.”
On March 13 Goldsmith:
“”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.””
On “March 17 [the government] 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 … “
Sands makes the point that 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.”
Then on March 18 the Foreign Office’s deputy legal advisor Elizabeth Wilmshurst resigned, her reason:
“I regret that I cannot agree that it is lawful to use force without a second security council resolution,”
“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.”
This is exactly what the Foreign Office’s legal advisors had been saying back in March 2002!
So what happened to change the ‘rules of the game’ and how did the government justify its ‘new’ position?
Blair’s response on February 25 2005 when questioned about how Goldsmith’s ‘legal’ opinion was arrived at merely got pissed off at the questioner, retorting:
“He [Goldsmith] has been over these questions literally scores of times and the position has not changed.”
Neglecting to mention that the position had changed, at least six times since 2002. When pushed a little further, our glorious leader retorted:
“I’ve answered your question, that’s enough.”
Of course, Blair didn’t answer the question, he evaded answering by saying that Goldsmith had answered the question and Goldsmith did the same.
Rather than deal with the substance – whether it was legal to invade a sovereign country that posed no threat, the press have focused on whether or not the legal argument should be made public, and obviously given its tortuous past, the government would be stupid to make it public for all the reasons laid out above.
Using the keywords ‘Lord Goldsmith’ and ‘1441′ there are only 7 articles on the BBC’s Website between July 2002 and today (26/2/05), the earliest being 17 March 2003. Not an awful lot considering the momentous nature of going to war and only one on the latest turn of events and at the time, the BBC did not seriously challenge the government’s version of reality as the articles on the Website quite clearly reveal.
Your 7 search results for “lord goldsmith 1441″
Iraq advice claim sparks new row
The Tories say ministers must respond in Parliament to claims that legal advice on the Iraq war was drawn up at No 10.
Lord Goldsmith: Not pressured
Lord Butler decides the attorney general was not pressured by the government to declare the Iraq war legal.
Aide adds to war advice debate
An aide to the attorney general casts further light on his thinking during the months running up to the Iraq war.
Q&A: Legality of the war in Iraq
Questions and answers about the legality of the war in Iraq examined by News Online’s Paul Reynolds
Blair’s lawyer backs war legality
The failure to find weapons of mass destruction in Iraq does not mean the war was illegal, says Britain’s chief lawyer.
Attorney general’s tricky call
The attorney general’s opinion that action against Iraq is legal comes after a complicated debate among academics.
Attorney General’s Iraq response
Read the full text of the Attorney General’s response to the question of the legal basis for using force against Iraq
Note that only one article refers to the current debate, “Iraq advice claim sparks new row” (24/2/05) and it is pretty thin on the ground (658 words) and is a pathetic piece of ‘journalism’ as it skates over all the key issues, merely referring to the issues without actually delving into them and presenting them to the public as its ‘public service’ mandate obliges it (by law) to do. So much for ‘objective’ reporting and serving the public.
Ultimately, not one of the seven articles lays out all the issues, so for example, not a single UN resolution (or part thereof) is included so that the public could come to its own conclusions as to whether the government played ‘fast and lose’ with the law. Overall, the seven articles paint a picture sympathetic to the government’s position.
Compare the BBC’s to the coverage the Guardian gave the issue in just one article which contained the key contradictions of the government’s positions not only how Goldsmith arrived at ‘his’ conclusions but also on who actually drafted the ‘legal’ advice and whether the full text of the ‘advice’ should be made public. The issue surrounding the legality of withholding the information also illustrates the blurred line between politics and law with the government contending that it’s based on “precedent”, in other words, simply because it’s never been done before (an issue also questioned by the government’s critics).
Blair rejects calls to publish war advice
Matthew Tempest and agencies Friday February 25, 2005
Quality not Quantity
Gathering together the background documents on the ‘case for war’, is no mean feat. The Hutton Inquiry on the death of Dr. David Kelly for example, runs to 337 pages (2mb pdf). The summary document contains little of use. It is only by ploughing through the entire report that ‘nuggets’ of information turn up (no doubt because Hutton’s minions couldn’t keep track everything either). The Butler Report into ‘Weapons of Mass Destruction’ runs to 267 pages (1mb pdf) and it too has to be ploughed through in order to find anything of use, not something your ‘average’ citizen is going to do.
But how important is it to go through all the reports and statements with a fine toothcomb in order to ascertain the facts? I contend that these reports are in actuality designed precisely to do the opposite, they are the political equivalent of ‘chaff’. On the other hand, the public relies on the press to do this kind of work on their behalf, at least that’s the theory, so how well do they do at investigating the ‘reports’? And perhaps most important of all, what do they do with what they uncover?
The problem of course is the tortuous process of governance especially in the UK that has a civil service that has literally hundreds of years of experience in covering up the actions of government (for a more in-depth view of ‘modern’ government I recommend Machiavelli’s ‘The Prince’ published in 1515, Amazon. com, Amazon.co.uk), plus a legal system that is opaque in the extreme.
Plowing through the few documents that appear in the public domain is like trying to find the proverbial needle in a haystack. Add to this the all-encompassing secrecy laws the government has to cover up its actions and this is probably one of the most secretive ‘democracies’ in the world if by democracy one means that the actions and the decision-making process is open to scrutiny by an informed public.
So how is the public meant to be able to pass judgement on its government’s actions? The short answer is that without an alert and critical press, it can’t.
The government’s responses are either masterful statements of avoidance or just plain denials, denials that are rarely if ever challenged directly. What criticism there has been is almost always not directly to the government itself but exists as propositions made in analyses or news reports that are invariably merely rhetorical. When forced to answer questions directly, the government’s representatives are the masters (or occasionally mistresses) of circumlocation.
So for example the question of who actually wrote the ‘legal’ opinion on invading Iraq in spite of all the statements that make it clear that it originated with the Cabinet and that the full Cabinet never actually saw the full text of the legal argument, merely a two-page summary, has never been satisfactorily addressed by the government, merely denied, and who is to gainsay them, there is no mechanism due to the sweeping secrecy laws the government has. Even when a member the Cabinet says she never saw the full text (Claire Short), the press duly reported it but then its conveniently ‘forgotten’.
It seems then, that the act of ‘reporting’ is considered sufficient to justify the notion of a free press until one considers that there is a world of difference between merely reporting and repeating the question when a satisfactory answer is not forthcoming. Repeating the demand that there exists a vast gulf between what the government says and what it actually does. Such repetitions are reserved for use when there is congruence between the objectives of the state and that of the media that does its bidding cf. Sudan or Saddam or WMD or the ‘war on terror etc, etc.
Ultimately, what is at issue here is the stark fact that the Blair government has committed war crimes on a horrendous scale, involving the deaths of at the very least 100,000 people, billions of dollars worth of damage to the nation of Iraq, the wholesale destruction of its economic infrastructure, destruction of a priceless historical and cultural heritage that belongs not only to the people of Iraq but to the human race and it’s been able to get away with it by playing with words.
The state and corporate media too, have been willing partners in this deceit by not asking the right questions, by not questioning inadequate answers and accepting at face value the duplicitous meanderings of skilful wordsmiths. Were it not for the work of an unknown number of independent writers and investigators spread across the planet, it’s unlikely that any of the crimes of Blair and Bush would have come to light.