The full text of the letter of resignation by Elizabeth Wilmshurst from her job as deputy legal adviser to Britains foreign office over the decision of Tony Blairs government to go to war in Iraq in March 2003 has now been published. It has increased the pressure on the government to publish the whole of the attorney-general, Lord Goldsmiths closely guarded advice on the legality of the war.
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The information commissioner, Richard Thomas, has already launched an investigation which may lead to his ordering disclosure, but the government has indicated that it would refuse to comply on the grounds that disclosure would violate the privileged status of communications between lawyer and client. The Guardian newspaper is threatening to challenge this claim by seeking judicial review.
A conceptual leap
Yet this controversy is really a diversion. It would, of course, be interesting to see what Lord Goldsmith said in his thirteen-page advice of 7 March 2003. But we already know that he changed his mind, that he came to believe the attack on Iraq was lawful, and the reasons why he did so. Lord Goldsmith told the House of Lords on 1 March 2005 that his written answer in the House of Lords on 17 March 2003
set out my view of the legal basis of the use of force against Iraq. That was my own, genuinely held, independent view that military action was lawful.
The reasoning laid out in that view is straightforward but flawed. It is premised on the declaration in the charter of the United Nations that apart from self-defence (which Lord Goldsmith accepts does not apply) the use of force is prohibited unless authorised by the Security Council. To get from there to the vexed question of the legality of the force that was used, Lord Goldsmith reasons thus:
The (Security) Councils Resolution 678 in November 1990 authorised force to eject Iraq from Kuwait and restore peace and security in the area. Resolution 687 in April 1991 affirmed the ceasefire and laid down conditions, including the destruction of any weapons of mass destruction.
Resolution 1441 in November 2002 determined that Iraq had not complied with the conditions and gave it a final opportunity to do so.
So far none of this is controversial. The problem is that Lord Goldsmith then makes a conceptual leap that defies the overwhelming consensus of international lawyers. He infers that the limited authorisation to use force given by Resolution 678 in 1990 was automatically revived by Iraqs supposed continued failure to comply with the ceasefire terms and its breach of Resolution 1441.
His parliamentary answer concludes with the following:
all that Resolution 1441 requires is reporting to and discussion by the Security Council of Iraqs failures, but not an express further decision to authorise force.
This last sentence is the Achilles heel. The essence of Resolution 1441 was its instruction to the weapons inspectors to investigate further and report to the Security Council. Paragraph 12 of 1441 records the councils decision
to convene immediately upon receipt of (such) report in order to consider the situation and the need for full compliance with all the relevant Council resolutions in order to secure international peace and security.
Goldsmiths assertion that a fresh decision was unnecessary had to overcome this obstacle. His solution was to claim that considering the situation excluded considering authorising force because that was automatically triggered by the revival of the authorisation given twelve years earlier.
But common sense tells us that this question was the whole point of convening a fresh meeting: why bother to meet to discuss a report if the purpose of the discussion had already been pre-empted?
Worse still for Goldsmiths argument is that this very issue was raised by several members of the Security Council when 1441 was introduced. The British ambassador at the United Nations, Sir Jeremy Greenstock, told the council:
We heard loud and clear the concerns about automaticity and hidden triggers the concern that on a decision so crucial we should not rush into military action; that on a decision so crucial any Iraqi violations should be discussed by the Security Council.
Let me be equally clear in response, as a co-sponsor with the United States of the text we have just adopted. There is no automaticity in this resolution. If there is a further Iraqi breach of its disarmament obligations, the matter will return to the Council for discussion as required by paragraph 12.
In short, force could not be used without the council having another chance to consider it an assurance flatly contradicting the Goldsmith claim.
The path to war
None of this absolutely refutes the Goldsmith case as a matter of law. Only a court with the necessary authority can give a definitive ruling. But there is little prospect that this will happen. In 2002, the Campaign for Nuclear Disarmament asked the High Court to say whether the United Kingdom would be acting within international law were it to take military action on the basis of Iraqs non-compliance with resolution 1441. The court decided that it had no power to rule on the question both because it was a matter of foreign policy and defence which was outside the jurisdiction of the courts, and because at the time it was also a hypothetical question, which the courts do not normally entertain.
It is no longer hypothetical, but it is still highly unlikely, that any British court could be persuaded to rule on it. It is theoretically possible that a future Iraqi government could raise the issue before the International Court of Justice or even the International Criminal Court; but political pressures make a ruling from either of these bodies equally improbable.
It is extraordinary that the cabinet and indeed parliament were not warned of possible legal pitfalls before the fateful decision to go to war. The final opinion of the attorney-general is implausible and contrary to the manifest intention of the Security Council. But whether it stands up as a matter of law is not the key question.
More important is the integrity of the governments professed commitment to human rights and the rule of law. The legal justification presented by Lord Goldsmith for the war is at best defensible as a narrow technicality relying on the supposed failure of the Security Council to spell out clearly enough their obvious belief, encouraged by Britains government that force would not be used without a further authorisation. Lord Goldsmith was entitled and perhaps even obliged to express his view, but that does not mean the government was right to act on it.
It was perfectly clear at the time when resolution 1441 was discussed, and even more so when it became apparent to the British and American governments that they could not get their second resolution passed, that a majority of the Security Council did not intend force to be used without a further decision. It is not good enough for a Labour government to rest its case for war on the kind of slippery legal sophistry that gives lawyers a bad name.
