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The UK and Iraq: Lord Goldsmith's Report
by Brian Risman, Publisher and Founder, The Law Journal UK and Consultant in International Law
What happened in the days immediately preceding the war in Iraq? The original memo by Lord Goldsmith, which raised doubts about the legality of the proposed war, was rejected by Mr. Blair. Lord Goldsmith was subsequently pressured to issue another, more positive report. This clear duplicity by the government has raised issues of public trust to the forefront of the body politic of this nation. How is this public trust to be restored?
In the final days of the 2005 UK Election, the revelation of Lord Goldsmith’s Report to the Prime Minister on the legality of the proposed war in Iraq dominated the political landscape.
The issue was not only the content of Lord Goldsmith’s Report. Much controversy centred around the fact there were two reports from Lord Goldsmith.
First, the original memo, which was not positive regarding the legality of the proposed war, was rejected by the Prime Minister, and sent back to Lord Goldsmith for reworking. Under considerable internal pressure, Lord Goldsmith released a second, final opinion that fit more with Tony Blair and George Bush’s plans. The plans of these two men have also been at issue. It is increasingly clear that war for the purpose of regime change was secretly agreed upon between Bush and Blair long before the beginning of the war. Yet Lord Goldsmith specifically noted in the original Report that war for the purposes of regime change is not legal on an international basis.
The issue of Lord Goldsmith’s Report to the Prime Minister had been a significant political issue in 2003 and 2004. The government has consistently refused, based on long tradition, to release the Report. Then, on March 10, 2005, Sir Andrew Turnbull, the Cabinet Secretary, revealed that Lord Goldsmith’s final Report – the one supporting Blair and Bush -- was only one page long. Then, Lord Goldsmith’s original report – the one critical of Blair and Bush – was leaked to the press, and subsequently officially published on April 28, 2005.
The original report was explosive. The memo warned that the proposed war was likely illegal under both British and International Law, and could face challenges in the International Courts.
Lord Goldsmith identified six major concerns about the war, which were:
· There was a strong legal argument that the United Nations, not Britain, had the authority to determine compliance with resolutions (or lack thereof);
· Britain may not be able to attack Iraq regardless of the authority of a UN resolution;
· Going to war without a second resolution may compound legitimacy problems;
· Relying on decade-old resolutions ejecting Saddam Hussein from Kuwait was improper;
· Inspector Hans Blix's work at disarming Iraq was proceeding apace and, having not discovered weapons of mass destruction, undermined authority for the war; and
· The position of the United States government on the legality of war did not take into account more pointed legal problems in the UK.
Lord Goldsmith stated that the language of resolution 1441, the resolution passed by the UN demanding Iraqi compliance, left the position on military action unclear. Further, statements made on adoption of the resolution suggest that there were differences of view within the UN Security Council as to the legal effect of the resolution.
A key question was whether there was a need for an assessment of whether Iraq's conduct constituted a failure to take the final opportunity – or did the failure to cooperate itself constitute the destruction of the cease-fire agreement? If an assessment was needed, then it would be for the UN Security Council to make it.
Lord Goldsmith interestingly noted that a narrow textual reading of Resolution 1441 suggested that sort of assessment was not needed, because the UN Security Council had pre-determined the issue. Public statements by UN Security Council members, on the other hand, said otherwise.
In these circumstances, then, Lord Goldsmith was of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force.
However, Lord Goldsmith also felt that resolution 1441 was capable in principle of reviving the authorisation in the 1990 ceasefire resolution without a further resolution. This stance was only sustainable if there were strong factual grounds for concluding that Iraq had failed to take the final opportunity for compliance and cooperation.
Lord Goldsmith also addressed the argument that some veto-possessing countries opposed to UN Resolutions advocating action could only use that veto if its use was ‘reasonable’.
Lord Goldsmith’s Original Report stated that there was no implied condition in law of reasonableness which can be read into the power of veto conferred on the permanent members of the Security Council by the UN Charter. Accordingly, there would be no grounds for arguing that an "unreasonable veto" would entitle the UK and the US to proceed on the basis of a presumed Security Council authorisation. In any event, if the majority of world opinion remained opposed to military action, it would be difficult to categorise a French veto as "unreasonable".
In the event military action occurred without a second resolution being passed at the UN, Lord Goldsmith also noted that there were 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.
First, the General Assembly could request an advisory opinion on the legality of the military action from the International Court of Justice (ICJ). A request for such an opinion could be made at the request of a simple majority of the States within the General Assembly, so the UK and US could not block such action.
Second, given that the United Kingdom has accepted the compulsory jurisdiction of the ICJ, it is possible that another State which has also accepted the Court's jurisdiction might seek to bring a case against the UK. This, however, seems a less likely option since Iraq itself could not bring a case and it is not easy to see on what basis any other State could establish that it had a dispute with the UK. However, the UK could not absolutely rule out that some State strongly opposed to military action might try to bring such a case. If it did, an application for interim measures to stop the campaign could be brought quite quickly (as it was in the case of Kosovo).
The International Criminal Court at present has no jurisdiction over the crime of aggression and could therefore not entertain a case concerning the lawfulness of any military action. The ICC does, however, have jurisdiction to examine whether any military campaign has been conducted in accordance with international humanitarian law. Given the controversy surrounding the legal basis for action, it is likely that the Court would scrutinise any allegations of war crimes by UK forces very closely. Organisations against the proposed war had put the Government on notice that they intended to report to the ICC Prosecutor any incidents which their lawyers assessed to have contravened the Geneva Conventions. The ICC would only be able to exercise jurisdiction over UK personnel if it considered that the UK prosecuting authorities were unable or unwilling to investigate and, if appropriate, prosecute the suspects themselves.
It was also possible that further action could be brought to stop military action in the domestic courts, but there has been a past history of declining jurisdiction in this type of case.
Two further, though remote possibilities, were an attempted prosecution for murder on the grounds that the military action is unlawful and an attempted prosecution for the crime of aggression. 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.
Lord Goldsmith also stressed that the lawfulness of military action depended not only on the existence of a legal basis, but also on the question of proportionality.
For proportionality of response to exist, any force used pursuant to the authorisation in the 1990 cease-fire resolution (whether or not there is a second resolution):
· must have as its objective the enforcement of the terms of the 1990 cease-fire and subsequent relevant resolutions;
· be limited to what is necessary to achieve that objective; and
· must be a proportionate response to that objective, that is, securing compliance with Iraq's disarmament obligations.
That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq.
But, and very importantly, Lord Goldsmith noted that regime change cannot be the objective of military action.
The fact that this original report was not only suppressed, but revised under pressure to fit the goals for war, raises at the very least the issue of trust in the government on such a critical matter.
The fact that Mr. Blair and his government not only ignored the original memo, but forced changes in the final version, raises questions as to why these actions were taken.
The real truth needs to come out. There was smoke when Dr. Kelly, the original scapegoat, committed suicide – see our frequently quoted article Mr. Blair, Morality, Suicide and Resignation. Now, the smoke is threatening to turn into a raging inferno.
In the recent election, Mr. Blair won a majority sharply reduced by concerns over Iraq. Clearly, there is an issue of trust in government and Mr. Blair that needs to be resolved. It is likely that Mr. Blair will be leaving office before the next election (he has said so himself). However, given the growing firestorm, it is likely that Mr. Blair will be leaving Downing Street sooner rather than later.
Unfortunately, the departure of Mr. Blair will not bring back trust in government. After all, it was not only Mr. Blair who participated in these critical decisions. His heir apparent, Mr. Gordon Brown, as a major government minister, is not immune from questions of trust in this area.
How do we as a nation regain trust in our government after the clear duplicity of action in the road leading up to war? Commissions will not succeed in this regard. More politicians have been cleared by commissions than have been found wanting.
Perhaps this government needs to, for the first time in a very long time, come clean on its failings and provide a plan of safeguards to ensure that the UK is never again thrust into a manufactured war.
Or is the problem that the Prime Minister and his government tend to operate in the manner of the US Presidency? This is not surprising given his best friend is President Bush. Extending this point, the corollary is that Parliament is too weak as an institution to control the actions of its Prime Minister.
Parliamentary reform, particularly in the area of the Royal Prerogative (for our many non-UK readers, the powers of the Crown exercised by the Executive, that is, the Prime Minister and Cabinet) may be in order. The Prime Minister and his government’s ability to invoke these historic Royal Prerogative powers, particularly in the areas of foreign affairs, should be reviewed by Parliament. These powers include:
· the power to make declarations of war and peace;
· the power to enter into treaties;
· the recognition of foreign States;
· diplomatic relations; and
· the disposition of armed forces overseas.
By controlling, or at least monitoring, the actions of the Prime Minister and his Cabinet in these areas – with the appropriate confidentiality – there is a possibility in rebuilding the trust of the public.
We have to acknowledge, though, that the issue of trust cannot be resolved simply by Parliamentary reform. The Prime Minister, the cabinet, and yes, even the Parliament themselves must change their approach to the people. If not, no amount of Parliamentary reform will change the current downtrend in public trust.
Brian Risman, Publisher and Founder, The Law Journal UK and Consultant in International Law
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