Questions of legality from the Guardian. Wonder if the media over here will start to ask these questions some day.
[b]This week’s casualty: the legal case for war in Iraq
It can only be a matter of time before the invasion is challenged in court[/b]
Friday October 15, 2004
When I met Zaneb in Brighton during the Labour party conference she could only walk with the help of crutches. One of her legs had been amputated after she and the children with whom she was playing were caught in the bombing around Basra at the time of the invasion. Seventeen members of her extended family were killed that day, including her mother.
It is a characteristic of modern, aerial warfare that it leaves behind more casualties among civilians than among combatants; and in a developing country such as Iraq where half the population is under 14, many of them will be children. Any decision to go to war, in full knowledge of the casualties that will follow, therefore has to be born out of necessity and built on cast-iron certainty. The awful truth that is now clear is that the Iraq war was not necessary and was based, in the Joint Intelligence Committee’s own words, on “sporadic and patchy” intelligence which has turned out to be wholly false.
The formal admission this week that the 45-minute claim was bunkum comes 18 months too late to save Zaneb and her family, or to influence the vote on war in parliament. Whitehall knew long before that vote that much of the intelligence in the September dossier was unsound. They knew because Hans Blix and his inspectors had visited sites it identified and drawn a blank. They knew because SIS had already developed doubts about the credibility of the source of the 45-minute claim. Andrew Gilligan was only in error about timescale when he claimed Whitehall knew that intelligence in the September dossier was wrong. They did not know it at the time of its publication, but they did know when they asked parliament for authority for war.
The political dilemma for Downing Street is that it desperately wants the nation to move on from the controversy over the origins of the war, but is also determined to avoid anyone taking the rap. Yet it is impossible to see how the government can achieve closure on the biggest blunder since Suez without first achieving a catharsis which attributes responsibility and apportions blame.
At prime minister’s questions, Tony Blair again pleaded the defence of good intentions - he acted in good faith but was misled by wrong information. This leaves a conundrum: why is he not more angry with those who misled him? John Smith, for example, would have been incandescent with an intelligence agency that had so badly misinformed him, and with a private office in Downing Street that apparently did not ask elementary questions, such as whether they were talking about battlefield or strategic weapon systems. Tony Blair is curiously indulgent to all those who led him into the most damaging episode of his premiership. We even read that all the key players in preparing the false prospectus for war are to be rewarded in a special honours list. A parade of the relevant officials down Whitehall in sackcloth and ashes would provide a more convincing demonstration that Downing Street is really sorry.
There is another awkward question that has become more acute with each new revelation, and which will not go away until it is answered. What does the government now think was the legal basis for war?
The initial opinion of the attorney general, Lord Goldsmith, was that invasion would require a second UN resolution. This was an opinion that he only revisited when it became evident that there would be no second resolution. At this point Elizabeth Wilmshurst, the deputy legal adviser to the Foreign Office, resigned and subsequently protested that “the conflict in Iraq was contrary to international law”. This week we learned that two other colleagues resigned along with her, which must have left a lot of empty desks in the legal department.
The attorney general himself still appeared unsure of his ground, but his dilemma was eased by the suggestion from Downing Street that he outsourced the drafting of his opinion to a law professor with a record of support for war. As a result the nation went to war against the advice of Whitehall’s experts in international law and on the strength of an opinion from a professor at the LSE.
The government has resisted publishing the text that resulted, presumably because even it would reveal awkward reservations and legal quibbles, but a precis was produced as a parliamentary answer. What is striking is the centrality that disarmament plays in it as the justification for war. Thus Iraq is held to be in material breach of the ceasefire resolution because it had not fulfilled “its obligations to disarm”. There is a logical, inescapable conclusion from this chain of reasoning. If Iraq had in reality fulfilled its disarmament obligation there was no legal authority for the invasion.
Tony Blair appeared conscious of this problem when he answered questions this week. He does not now rely on the need to disarm Iraq, but on other breaches by Saddam of UN resolutions. But the only breach that could have justified a war would have been failure to disarm. To be sure, Saddam was in breach of his obligation to keep proper paperwork on the destruction of his chemical and biological weapons, but that hardly justifies an intensive bombing campaign and a ground invasion by a quarter of a million troops. Any international court would be certain to rule by its first coffee break that such a response was not legitimate when weighed against the twin tests of proportionality and necessity. We are left with the unsettling conclusion that the legal case for the war collapses among the rubble of false intelligence in the same way as the political justification.
Lord Goldsmith is a decent, able lawyer. It may be that he was just as duped as parliament by the assurances from Downing Street that the evidence of the intelligence was much firmer than it has turned out to be. Maybe they also withheld from him the growing evidence from the UN inspections that our intelligence was simply wrong. If so, the attorney general owes it to himself, never mind the rest of us, to state what would have been his opinion on the legality of the war if he had been given the true facts. It may be prudent on his part to prepare a revised opinion, as now it can only be a matter of time before the legality of the war is challenged in the British or international courts.
Does the legality of the war still matter over a year after the event? The only responsible answer must be yes.
In the first place we are still struggling with the legacy of our decision to conquer Iraq and the incompetence of an occupation that has compounded the original misjudgment. Iraq may have been no threat to us at the time of the war, but we have certainly turned it into one as a base for international terrorism. Instead of delivering a modern Iraq as a model for the region, we have made Iraq a source of instability in a Middle East that looks much more precarious than two years ago.
But it also matters because the fabric of orderly relations between nations, the strength of human rights law and cooperation against terrorism are built on respect for international law. We cannot demand that respect from other nations if we ourselves do not give it a higher priority than we appear to have done in reaching our decision to go to war in Iraq.