Concerned with decisiveness

I’d hate to disappoint Ros Taylor, so here are some thoughts about Peter Goldsmith and Iraq.

Following Brian Barder, I think we should drop the idea that Goldsmith changed his mind between the 7th and the 17th of March 2003. What Blair wanted from Goldsmith was never his own opinion about the legality of the invasion, but an authoritative judgment of the soundness of the case that could be made for its legality. The 7th March judgment was, essentially, “there is a legal argument in favour of an invasion without a second UN resolution, albeit with strictly defined and limited objectives; this argument is strong enough for the government to act on if it chooses, but may not be strong enough to protect it from every foreseeable legal challenge”. Take the first fifteen words of that summary and delete the other 35, and you’ve essentially got the 17th March opinion. I wouldn’t be surprised if Goldsmith was leant on in the mean time (the dialogue writes itself – “So you’re saying it is legal? Yes or no?”) but what resulted wasn’t a U-turn or a cave-in; you could even call it a clarification.

Thus far I’m with Paul Anderson, slightly to my surprise –

“Government lawyer points out possible problems with war then backs it when push comes to shove” is a lousy headline – except insofar as it’s a completely accurate summary of the story.

But there’s a bit more to it than that. For one thing, obviously, the government’s refusal to publicise Goldsmith’s caveats is a story in itself, and a highly discreditable story at that. More importantly, Goldsmith’s 7th March opinion doesn’t just “point out possible problems”. The opinion repeatedly stresses the differences in interpretation between the US and other governments, particularly on the question of whether UN member states could take action against Iraq without waiting for a Security Council resolution (or even a Security Council discussion). It also notes:

Force may be used in self-defence if there is an actual or imminent threat of an armed attack; the use of force must be necessary, ie the only means of averting an attack; and the force used must be a proportionate response. […] in my opinion there must be some degree of imminence. I 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 I 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.

If it were recognised as legal, the doctrine of ‘pre-emptive self-defence’ – essentially a dolled-up version of the Clausewitzian dictum “the best form of defence is attack” – would enable states to take action in their own right, bypassing the whole rigmarole of collective security. It would also bypass the UN and render most of the international law of war moot. Goldsmith duly notes that the doctrine has no standing in international law – but he also notes that the US has been pushing for it.

The significance of this is, of course, that the British government didn’t launch the Iraq invasion, even if it sometimes appears that Blair thinks it did (“I took the decision to remove him”, indeed). Thanks to another well-timed leak, we now know that, as early as July 2002, the British government – Blair, Straw, Goldsmith and all – recognised that Bush intended to depose Saddam Hussein by military means, and intended to “work on the assumption that the UK would take part in any military action”. In this light, Goldsmith’s March 2003 legal opinion takes on the character of a face-saving (or hand-washing) operation, designed to enable the British government to commit itself to the invasion while dissociating itself from some of the underlying lunacy.

Firstly, the weird and implausible compromise position which the Security Council eventually endorsed is explored at length, in some of the most impenetrable passages of the document. (The US government held, predictably enough, that the Security Council didn’t need to rule on whether Iraq had breached its ceasefire obligations; Goldsmith points out that UN resolutions required the Security Council to consider the issue, but argues that this doesn’t necessarily involve actually reaching an agreed position, let alone passing a second resolution.) The effect is to present the British government as at least a half-hearted friend of the UN, dissociating it from the increasingly unapologetic unilateralism of the Bush government.

Secondly – and, I think, crucially – Goldsmith emphatically rules out military action against Iraq except to enforce UN resolutions: “regime change cannot be the objective of military action”. However, in doing so he tosses Blair a legal figleaf. The relevant paragraph – the last one in the advice – reads, in full:

Finally, I must stress that the lawfulness of military action depends not only on the existence of a legal basis, but also on the question of proportionality. Any force used pursuant to the authorisation in resolution 678 (whether or not there is a second resolution):

— must have as its objective the enforcement the terms of the cease-fire contained in resolution 687 (1990) and subsequent relevant resolutions;

— [must] be limited to what is necessary to achieve that objective; and

— must be a proportionate response to that objective, ie 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 regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign.

The really important sentence here is the last but two. Goldsmith is advising Blair that a military campaign to depose Saddam Hussein – which both Blair and Goldsmith already know to be the objective under consideration – could, given certain tightly-defined circumstances and some ingenious legal arguments, be construed as legal. But this advantage would be forfeited if the true objective of the war – and its genesis in the ‘pre-emptive self-defence’ of the War on Terror – was openly acknowledged.

What’s really interesting about this word to the wise is the use that Blair made of it: none. In the July 2002 minutes, Goldsmith sets out the arguments he would develop at greater length eight months later. War could only be waged under three conditions: in self-defence; to stave off a humanitarian disaster; or in compliance with UN resolutions. The last of these was the only condition which could be taken to apply, and even that was highly debatable. Blair’s response was:

The Prime Minister said that it would make a big difference politically and legally if Saddam refused to allow in the UN inspectors. Regime change and WMD were linked in the sense that it was the regime that was producing the WMD. […] If the political context were right, people would support regime change.

Blair slides immediately from using WMD as a pretext for regime change to using WMD to justify regime change – even though Goldsmith has just ruled this out. You almost feel sorry for the guy. (If I can feel sorry for a Dalek…) Goldsmithian weaselling is genuinely repugnant to Blair: he never wanted to present the fall of Saddam Hussein as an unexpected by-product of an operation to enforce international law, knowing as he did that it was the object of the exercise (international law or no international law). But the neo-conservative unilateralism which appeals to him isn’t quite available either, if only because it’s a supremely unrewarding doctrine for anyone but the US (there can be only one Top Nation). So we’re left with a government constitutionally committed to saying one thing and doing another, and with a Prime Minister whose response to criticism is to repeat endlessly that we can disagree with him if we like, but that in his job he has to make decisions (with the implication that he had to make those specific decisions).

And we’re left with an illegal war.


  1. Anonymous
    Posted 2 May 2005 at 20:01 | Permalink | Reply

    A good article but a tad weak on the understanding of international law. a soverign country does not need to justify a war, wars cannot be illegal because no where does it say that war is legal, only justified. the problem is that the common man assumes that a country follows laws like it’s citizens but thats not true at all. You can agree to follow treaties and such but you are not bound by it, after all the UN is not going to say that you didn’t pay your dues and come invade you. Modern international law tries to bind countries in agreements and promises and we have built a rather impressive trade enviroment from it, but it isn’t law. Strangely enough I agreed with Cheney on this one, avoid the UN and go straight to war, It was Blair that needed the resolution not Bush, but Bush took the beating for blair than and now Blair is facing the music of international agreement. Blair was never Bush’s poodle, he just wanted to go to war as well and felt he needed justification for the voters back home. Personally I didn’t care about their reasons I just wanted Saddam out and wanted to repay the blood debt america owed the shia in southern Iraq.

  2. Anonymous
    Posted 4 May 2005 at 13:21 | Permalink | Reply

    Personally, I never went for this argument about the war being illegal. All sorts of legal stuff is wrong; all sorts of illegal stuff is right. I bust a gut trying to stop the war not cos it was illegal but because it was wrong. Another SC resolution wouldn’t have stopped me.

    The reason to vote against Blair on the war isn’t that it was illegal, it’s that he lied to our faces on a matter as important as war, and thinks he can get away with it. Whatever else I think about the way society is organised, I certainly don’t want someone like that exercising state power over me and mine for the next four years.

    Chris W

  3. Tony Hatfield
    Posted 14 May 2005 at 19:47 | Permalink | Reply

    So Saddam’s invasion of Kuwait or Argenina’s of the Falklands were lawful?
    Of course it’s meaningless to say you follow a treaty. You can no more follow a treaty than you can follow domestic law; you either comply or not.
    Anyway, as I understand it, the UN Charter, as a ratified US treaty, forms pary of it’s law.

  4. Phil
    Posted 14 May 2005 at 21:24 | Permalink | Reply

    Ciao Tony – nice to see another Italophile (italofilo?) around here.

    Chris – hmm. I agree with you 100% but still think you’re wrong(!) I’ll post something about this when I get round to it. Terrors of the earth, I’m telling you.

  5. Posted 11 March 2008 at 23:38 | Permalink | Reply

    Ciao !
    Questo è il mio Blog ; potreste farmi il piacere di vederlo e perché non lasciare un commento su quello che vedrete ?!
    Arrivederci !

  6. Posted 11 March 2008 at 23:41 | Permalink | Reply

  7. Jussi Jalonen
    Posted 15 March 2008 at 12:44 | Permalink | Reply

    There are rulings. When one gets to strict terms, the NATO intervention in Kosovo was also exactly that, illegal; committed without any official sanction from the UNSC, in an open violation of the UN Charter and the international view.

    Of course, according to the retroactive decision, it was “illegal, but legitimate”. Which may have been a fair compromise in a situation where all three participants of the conflict had been regularly violating the international law, some of them more than the others.

    So, on balance, Chris would seem to be advancing the “right” argument.

    (I suppose that his decision to prefer _voting_ against Blair instead of going for a political assassination or an armed rebellion – in spite of his conviction that “all sorts of illegal stuff is right” – is merely dictated by pragmatism, and not by any actual commitment to the practices of the British parliamentary democracy in its present form.)


    J. J.

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