Thursday, April 28, 2005

A First Reaction to the Goldsmith Briefing

Tony Blair’s lengthy battle to keep secret the legal advice he received from the Attorney General, Lord Goldsmith, on the legality of any military action in Iraq failed yesterday, when significant sections of the briefing were leaked to Channel 4 News. The Government has since published the entire report, available in full here, or in summary here.

Naturally, the timing of the leak – with the general election only a week away – could not have been much worse from Blair’s point of view, particularly given that Michael Howard, the Conservative leader, had already taken the unusual step of publicly denouncing him as a “liar”. This, of course, ensures that Iraq will be at the very forefront of voters’ minds at the crucial time – the last thing that Blair would have wanted.

But what does the advice say? It covers some arguments in considerable detail, and leaves others basically unexamined. The most striking example of the latter is Lord Goldsmith’s failure to engage in any real way with the controversy over the “revival” argument: that is, that the authorisation for the use of force provided by Security Council Resolution 678 in 1990, after the Iraqi invasion of Kuwait, lay dormant after the ceasefire, but could be revived by a “material breach” of the ceasefire agreement. Lord Goldsmith notes that this argument had been used by his predecessors in order to justify subsequent military operations in Iraq, such as operation Desert Fox in 1998, and, despite acknowledging that it received little support in academic circles, states simply that he agrees with the advice of his predecessors. In effect, then, one of the major controversies over the legality of the action receives relatively little attention in the briefing.

Having thus “established” that the initial authorisation for the use of force ion 1990 could be revived, Lord Goldsmith then turns to the question of under what circumstances (and in particular the circumstances created by Resolution 1441) this could happen. The question, of course, was whether that resolution required another to be passed before the use of force could be viewed as authorised. Goldsmith traces both arguments (focusing more strongly, however, on the “no new resolution” approach) and finds (perhaps predictably) that both interpretations are reasonable and plausible. The crux of the matter seems to rest upon the significance given to operative paragraph 12 of the Resolution, in which it is stated that the Council must meet “to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.” Goldsmith notes that the difference between the terms “consider” and “decide” is highly significant – particularly given the fact that the Americans had rejected French and Russian proposals that would have expressly required a further decision, “precisely to avoid being tied to the need to obtain a second resolution”.

This argument, however, must be treated with caution. At first glance, it seems significant – dispositive, even – that the French were aware that the US would not agree to a resolution that required a second one before force could be used. However, this speaks more to the indeterminacy of these kinds of texts than to any convioncing argument: although Lord Goldsmith chooses not to do so, it seems equally clear that both the French and the Russians were deeply opposed to any resolution that would allow war without a second resolution. The issue, it seems, was simply fudged; and this argument therefore strikes me as something of a dead-end. Certainly, as Lord Goldsmith notes, any court would have difficulty in upholding his conclusions, as the background negotiations on which he relies were, for the most part, conducted in private, and no official record of them exists. In essence, he is forced into a reliance on the bona fides of the US officials when they insist that the French “knew what they were voting for” in resolution 1441, and that it didn’t involve a second resolution.

Another crucial point for Lord Goldsmith is, if there has to be a new determination of material breach by Iraq after its “final opportunity”, then consistent UK practice would imply that it should be the Security Council as a whole, not individual members, that should make that determination. He notes that the UK position on this was radically different from that of the US, who had always argued that a material breach was a matter of “objective fact”, that could be recognised by any member individually. It is therefore not entirely honest to argue, as one journalist in the Guardian has done today, that “the attorney told the PM that it was for the UN security council, not him, to decide whether Iraq was complying with UN resolutions on disarmament or not. Yet we know it was the PM who took that decision.” Indeed, this has been one of the sections seized upon by Blair’s critics in the press. The relevant section from the briefing is as follows:

A key question is whether there is in truth a need for an assessment of whether Iraq's conduct constitutes a failure to take the final opportunity or has constituted a failure fully to cooperate within the meaning of OP4 such that the basis of the cease-fire is destroyed. If an assessment is needed of that situation, it would be for the Council to make it. A narrow textual reading of the resolution suggests that sort of assessment is not needed, because the Council has predetermined the issue. Public statements, on the other hand, say otherwise.

This, of course, is not quite the same thing. Lord Goldsmith effectively states that both arguments can be reasonably and plausibly made; and, in an intriguing passage, he goes on to note that:

In reaching my conclusions, I have taken account of the fact that on a number of previous occasions, including in relation to Operation Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated in military action on the basis of advice from my predecessors that the legality of the action under international law was no more than reasonably arguable. But a "reasonable case" does not mean that if the matter ever came before a court I would be confident that the court would agree with this view.

I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that OPs 4 and 12 do require a further Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained.

This is interesting for a number of reasons. Firstly, it can really in no sensible way be taken as the clear and unequivocal advice that the war was legal that Blair claimed he had, and that formed the basis for the Cabinet decision to resort to military action. It is also, however, of importance to note that, as a matter of UK practice, even for something as fundamental as a decision to go to war, a finding that a legal case for the use of force is “reasonably arguable” is viewed as sufficient to discharge our international legal responsibilities, even though, as the last sentence quoted above seems to imply, a court would be more likely to reject that argument and find the action illegal.

Lord Goldsmith’s conclusion, then, is that it would be “safer” to seek a second resolution, in particular one that could make a definitive finding of new material breach of the previous resolutions:

In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force. I have already advised that I do not believe that such a resolution need be explicit in its terms. The key point is that it should establish that the Council has conduced that Iraq has failed to take the final opportunity offered by resolution 1441, as in the draft which has already been tabled.

Nevertheless, having regard to the information on the negotiating history which I have been given and to the arguments of the US Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable in principle of reviving the authorisation in 678 without a further resolution.

Given what was said about the need for the case to be merely “reasonably arguable”, quoted above, the advice received by Blair was that war in Iraq would be legal (or, at least, in keeping with consistent UK practice on the matter of international legality and the use of force). This, however, does not mean that Blair is in some sense “off the hook”. The memo itself adds little or nothing new to the debate over the whether or not the war was legal; and nor was it expected to. Instead, the real question, as with so much of the current debate in the UK over Iraq, centres on Blair’s presentation of it, both to the public and to his own cabinet. By the time the cabinet met to discuss the prospect of going to war, Lord Goldsmith had radically revised his opinion, and presented a “summary” of the secret briefing that had all of the uncertainties and angst removed. Furthermore, Lord Goldsmith’s insistence on the need for “hard evidence” of material breach will not play well with voters now, given the fact that even the Government has acknowledged that such evidence simply didn’t exist. The strength with which this point is made in the summary of the briefing is worth noting:

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. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity.

This will provide an uncomfortable reminder for Blair of the farce that was his Government’s “dossier” on Iraq’s WMD, which purported to provide us with just such evidence, but which in fact turned out to be little more than a cut-and-paste of a ten-year-old doctoral thesis, plagiarised, it is said, right down to the misplaced commas. It is not, therefore, in terms of the debate over the actual legality of the war that the publication of this advice has its significance, but rather with the possibility of public trust in a leader standing for re-election in just over a week’s time.

By way of conclusion, I’d just like to flag one or two other, miscellaneous points that struck me as interesting on the first, quick reading of the briefing. Firstly, Lord Goldsmith begins by acknowledging three grounds for the legitimate use of force: self-defence, Chapter VII Security Council Authorisation, and “exceptionally” (and “controversially”) action “to avert overwhelming humanitarian catastrophe”. More support for proponents of a right to “humanitarian intervention” – he goes so far as to note that this doctrine “was relied on by the UK in the Kosovo crisis and is the underlying justification for the No-Fly Zones.”

Secondly, complete rejection of the so-called “Bush doctrine” of pre-emptive war. The relevant passage is where he notes “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.”

Lastly, on regime change. Lord Goldsmith concludes his advice with a reminder of the requirement of proportionality, noting that, even if Resolution 1441 was alone sufficient to revive the authorisation in Resolution 678, any force used must be proportionate to the legitimate objectives in order to be legal. The force thus:

- must have as its objective the enforcement the terms of the cease-fire contained in resolution 687 (1990) and subsequent relevant resolutions;
- be limited to what is necessary to achieve that objective; and
- must be a proportionate response to that objective, i.e. securing compliance with Iraq's disarmament obligations.

He concludes by noting that regime change could be legal “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.” Again, given the now widely-acknowledged fact that Iraq had no WMD to disarm, it is this kind of statement that may come back to haunt Blair. At the very least, it allows us to track the shifting justifications used in terms of the war: initially WMD, then, when the truth about their absence began to emerge, a refocusing on humanitarian concerns and on regime change itself as a legitimate objective. It is also interesting to note that, in the same breath as acknowledging humanitarian intervention as a legitimate basis for the use of force, Lord Goldsmith adds that “know of no reason why it would be an appropriate basis for action in present circumstances.” Therefore, while the “reasonably arguable” condition for legality would seem to absolve Blair from any suggestion that he acted contrary to legal advice, or in full knowledge that the war was illegal, there is still more than enough in this briefing to deeply embarrass him; and rightly so. Certainly, his political opponents will ensure he is not allowed to ignore it in the next week or so.

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