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Iraq war: the question of legality

By Robin Cook

Iraq remains a source of constant controversy for Tony Blair who always assumed that the war would end in victory, and that military triumph would silence the critics.

IT IS difficult not to feel a sneaking sympathy for the United Kingdom Attorney General, Lord Goldsmith. On Iraq he was expected to find a basis in international law for Downing Street to perform as the loyal ally of a Bush administration that consistently rejected even the concept of international law. For the neo-conservatives around George W. Bush, it was a guiding principle that the U.S. should undertake no policy that conferred validity on the concept of international law. Is it any surprise that Lord Goldsmith should have been left struggling to find validity in international law for their policy on Iraq?

The degree of his problem is painfully revealed in the three distinct phases through which his legal opinion metamorphosed. Phase one lasted for six months up to the eve of war, when he agreed with the legal advisers to the U.K. Foreign Office that invasion would require a second Security Council resolution to be lawful. This view was dropped only when it became clear that there would be no second resolution.

Phase two culminated in a lengthy, balanced opinion which argued that invasion might be lawful on the basis of existing resolutions, but that the British Government could be vulnerable to being challenged in court. This phase lasted 10 days and was terminated by the refusal of Admiral Sir Michael Boyce, the chief of U.K. defence staff, to commit troops to action without an unequivocal guarantee that it would be lawful.

Three days before the invasion, the Attorney General provided what Sir Michael demanded in a written statement that authority to use force could be exhumed from the ceasefire resolution of the first Gulf War over a decade earlier. This public document omitted all his earlier anxieties about the threat of legal challenge. The official line is that this opinion was Lord Goldsmith's "genuinely held, independent view." What is missing is any explanation of why his genuine and independent opinions changed so often.

It is possible to regard the Attorney General more as victim than culprit. His final statement on the legal case for war rests on the assumption that Saddam Hussein was in breach of his obligations to disarm his imaginary weapons of mass destruction. Before offering that opinion, Lord Goldsmith obtained from the Prime Minister an unequivocal assurance that Iraq was in breach of its disarmament obligations.

Lord Goldsmith might not have committed himself to his final opinion if he had been told, as the U.K. committee of inquiry under Lord Butler discovered, that the intelligence was "thin," "inferential" and depended on only three sources, two of which have since been discredited. It may be that in the privacy of his office Lord Goldsmith feels as aggrieved as the rest of the nation that Downing Street did not tell him that Hans Blix had already inspected 30 sites suggested by British intelligence and found no evidence of WMD.

I suspect also that as Tony Blair turned out the bedroom light last night (March 24), he was mystified that the controversy over Iraq still haunts him. In the many conversations we had in the run-up to the war, he always assumed that the war would end in victory, and that military triumph would silence the critics. Part of the reason why Iraq has stubbornly stayed at the top of the agenda is the breathtaking naivety with which both the White House and the Downing Street believed the easy promises of Iraqi exiles that foreign occupation would meet with no resistance.

But the major reason why Iraq has remained such a source of constant controversy is the slow seepage of the information that was kept from us when we were being sold the case for war. We were told that the threat was current and serious, but we now know the intelligence was limited and the sources unproven. We were told that occupying Iraq would be a defeat for terrorism, but we now know the Joint Intelligence Committee warned, correctly, that it would give a boost to terrorism. And now we learn that the legal case for war was cobbled together at the eleventh hour after months of equivocation.

In her brave resignation letter, the former legal adviser to the U.K. Foreign Office, Elizabeth Wilmshurst, warned that without a second resolution "force on such a scale amounts to a crime of aggression." On the same day that she submitted it, the U.K. House of Commons voted on the war. Would Parliament have backed invasion of Iraq if it had known that the legal advisers at the Foreign Office believed they were committing Britain to aggression?

- Guardian Newspapers Limited 2004

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