By now you will be very well aware that the “Top Secret – UK Eyes Only” minutes of a meeting in mid 2002 which record that the British believed Bush had already decided to go to war with Iraq come what may. That was leaked to a couple of newspapers over the first weekend in May, just before the election. It has not been released by the government officially nor has it been challenged as a forgery.
Another document was published officially the previous Thurday after having been leaked and quoted extensively the weekend before. It had far more inpact as it went to the legality of the war and the influence the US administration had on the final advice. It had a far more damaging effect on Blair than the minutes of the meeting. That was the original draft advice given to Blair on 7 March 2003 about the legality of the war but which had remained secret, even from the full Cabinet, until April 2005.
To understand the background to this you have to know the sequence of events. We go back to 17 March 2003 when the UK Parliament was discussing a resolution agreeing the war. Lord Goldsmith, the Attorney General, read to the Lords the following advice he had given to the Cabinet. It was also read by his junior in the Commons. This is the full text of this public document which was shown to the Cabinet. The emphases are mine.
Authority to use force against Iraq exists from the combined effect of Resolutions 678, 687 and 1441.
All of these resolutions were adopted under Chapter VII of the UN Charter which allows the use of force for the express purpose of restoring international peace and security:
# In Resolutions 678, the Security Council authorised force against Iraq, to eject it from Kuwait and to restore peace and security in the area.
# In Resolution 687, which set out the ceasefire conditions after Operation Desert Storm, the Security Council imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. Resolution 687 suspended but did not terminate the authority to use force under Resolution 678.
# A material breach of Resolution 687 revives the authority to use force under Resolution 678.
# In Resolution 1441, the Security Council determined that Iraq has been and remains in material breach of Resolution 687, because it has not fully complied with its obligations to disarm under that resolution.
# The Security Council in Resolution 1441 gave Iraq “a final opportunity to comply with its disarmament obligations” and warned Iraq of the “serious consequences” if it did not.
# The Security Council also decided in Resolution 1441 that, if Iraq failed at any time to comply with and co-operate fully in the implementation of Resolution 1441, that would constitute a further material breach.
# It is plain that Iraq has failed so to comply and therefore Iraq was at the time of Resolution 1441 and continues to be in material breach.
# Thus, the authority to use force under Resolution 678 has revived and so continues today.
# Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that Resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force
The British thus relied on the assertion that Saddam was in “material breach” and therefore the re-activation of the orgininal UN authority to use force to remove Saddam from Kuwait. The famous “second resolution” following 1441 was not needed after all. This legal advice was also the basis on which the British Chiefs of the Defence Staff were statisfied that the war was legal and therefore they and the troops were immune from war crimes prosecutions.
The controversy is over the fact that there are material changes between this 19 paragraph statement and the 13 page draft advice (.pdf format) given to Blair only 10 days beforehand.
This set out the three possible legal bases for the invasion (Para 2).
* (a) self-defence (which may include collective self-defence);
* (b) exceptionally, to avert overwhelming humanitarian catastrophe; and
* (c) authorisation by the Security Council acting under Chapter VII of the UN Charter.
Goldsmith then goes on to explain why the first two could not be used to justify war. The first (para 3) is interesting in that it points out a difference between US and UK interpretation of self-defence. Goldsmith’s view is that there has to be an imminent attack:
However, in my opinion there must be some degree of immanence. 1 am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and 1 understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognised in international law.
While that undermines the US position, the next paragraph undermines the later justification given by both Blair and Bush, that the war was justified to stop Saddam’s brutality.
The use of force to avert overwhelming humanitarian catastrophe has been emerging as a further, and exceptional, basis for the use of force. It was relied on by the UK in the Kosovo crisis and is the underlying justification for the No-Fly Zones. The doctrine remains controversial, however. I know of no reason why it would be an appropriate basis for action in present circumstances.
Which only leaves authorisation by the Security Council for the use of force. Whereas 10 days later Goldsmith relies on Resolution 678, this is what he said then (para 9)
the UK has consistently taken the view (as did the Fleischauer opinion) that, as the cease-fire conditions were set by the Security Council in resolution 687, it is for the Council to assess whether any such breach of those obligations has occurred. The US have a rather different view: they maintain that the fact of whether Iraq is in breach is a matter of objective fact which may therefore be assessed by individual Member States. I am not’ aware of any other state which supports this view.
There then follows a long discussion of the precise meaning of the wording of Resolution 1441 which includes some interesting information I shall return to later. The concludion of the deliberation is in Para 29:
However, the 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. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation.
Without that evidence it would, he concludes, be necessary to get that “second” resolution. What happens next we do not know precisely as those documents have yet to surface. Effectively what Blair as a client tells Goldsmith as his lawyer “we have intelligence information that Saddam is in material breach” and Goldsmith tells him “that’s alright then, you’re in the clear” and makes his statement in the Lords.
Two points come out of the detailed reading of the 7 March document. The first is that Goldsmith had extensive discussion with US government lawyers over these points, the paper is littered with references to them. The second sheds light on the abuse heaped on the Russians and in particular the French in the lead up to war and the UN deliberations.
Para 15 d
The Council knew full well, it is argued, the difference between “consider” and “decide” and so the omission is highly significant. Indeed, the omission is especially important as the French and Russians made proposals to include an express requirement for a further decision, but these were rejected precisely to avoid being tied to the need to obtain a second resolution.
So the indications are that the diplomats at the UN knew that the French and Russians were likely to rule against the war that had already been planned and steps were included to nullify these objections in advance.
23. I was impressed by the strength and sincerity of the views of the US Administration which I heard in Washington on this point. However, the difficulty is that we are reliant on their assertions for the view that the French (and others) knew and accepted that they were voting for a further discussion and no more. We have very little hard evidence of this beyond a couple of telegrams recording admissions by French negotiators that they knew the US would not accept a resolution which required a further Council decision. The possibility remains that the French and others accepted OP 12 because in their view it gave them a sufficient basis on which to argue that a second resolution was required (even if that was not made expressly clear).
So while the Minutes from the previous year show a clear intention of manipulating the UN, this new document provides evidence of how it was done.
By not showing the Cabinet this paper from Goldsmith as background to the final Opinion, Blair breached established written ministerial guidelines. He is the person who decides whether these have been violated so he acts as judge, jury and prosecuter against himself. His cover throughout the election was that “Goldsmith was at the Cabinet meeting and could have been asked”. Of course they did not know what to ask without the 7 March document.
Update [2005-5-14 16:8:48 by Londonbear]: The Messenger at DailyKos has properly converted the original Goldsmith advice to html format. This has been used with thanks to tidy up the original post.