no teeth in international law…

Posted on Thursday 28 January 2010

Philippe SandsRookie that I am, I chose to question  Lord Goldsmith’s testimony that he decided to change his mind about the legality of the Iraq War by making an indirect analysis of the time line [impatience? imprudence? impudence?…]. Philippe Sand, author of Torture Team, had a better idea. Since Lord Goldsmith’s argument rested on his analysis on what the French thought [he didn’t ask them], Sands called up the French and did ask them [why didn’t I think of that?].
Goldsmith at Chilcot: line by Lyne

by Philippe Sands
27 January 2010

… for the most part, Lord Goldsmith was able to swat away the questions with consummate ease. Until, that is, Sir Roderick Lyne got going, after about an hour. With methodical detail and precision – word by word, paragraph by paragraph, interlocutor by interlocutor – Sir Roderick took his witness to the heart of the crucial question: what was it precisely that caused Lord Goldsmith to change his mind, from the "provisional draft advice" of January 2003 that war would be unlawful without a further security council resolution; to the "written advice" of 7 March 2003 that although a "reasonable case" could be made for war without another resolution, such an approach would be less safe; and then to the final "view" that war without a further resolution would be unambiguously lawful. The 180-degree about-turn, effected in little more than a month, requires some explanation.

Sir Rodrick LyneSir Roderick teased from Lord Goldsmith a clear confirmation that there was a change. This brings the former attorney general into direct contradiction with his boss, Tony Blair, who has said that any suggestion of change is "patently absurd". And the cause of the change? We now know that it was a series of meetings with Jack Straw, Sir Jeremy Greenstock and a group of Bush administration lawyers: together, they gave Lord Goldsmith a clearer understanding of the context of the negotiation of resolution 1441, on which everything turned…

Lord Peter GoldsmithSir Roderick quickly spotted that the problem with Lord Goldsmith’s approach was that he had only taken a partial view of the negotiating history, relying on private conversation and anecdotes provided by only one side of the debate. In view of this "one-sided conversation", had Lord Goldsmith looked in equal detail at the views of the other side? He had not. Had he tried to reach out and speak to the French, to find out their view on what 1441 allowed? He had not. Why not? Not possible, we were told, because we, the Brits, were so closely aligned with the Americans. At this point, it became rather clear that in circumstances such as these, the position of the attorney as independent legal adviser to the government and member of the government is wholly untenable…

So, during the lunch break, I called a senior French official, who had been close to the French president and who was deeply involved in all the negotiations surrounding 1441 dealing directly with the British and Americans. He strongly disputed Lord Goldsmith’s account – that the French had conceded that the adoption of resolution 1441 meant that no further security council resolution was necessary – telling me:

    "At no time was it the French position that any concession was made in the adoption of resolution 1441, which would allow one UN member to determine for itself that Iraq was in further material breach, so as to allow it to have recourse to the use force in the absence of a second resolution."
By the 13 March 2003, when the military said it would not go to war on the basis of the only full legal advice that Lord Goldsmith wrote, the attorney general had his finger on the trigger. If he had declined to provide a further view, Britain would not have gone to war. What emerged from the hearing was that Tony Blair treated the attorney general as an afterthought, a box to be ticked at the end of the process. For the most part, Lord Goldsmith was kept out of the loop, and only called on to give legal advice very late in the game, once the troops were already deployed.

The fact that Britain’s decision to go to war was based on a series of private conversations and anecdotes that gave only one side of the story is deeply disturbing. The fact that little, if any, of this material would be admissible or reliable as evidence in a court of law seems to have been completely ignored by Lord Goldsmith. Moreover, the growing public record now contains a number of inconsistent and contradictory statements from the former attorney general. He was polished, he was assured. Was he accurate? No. Was he persuasive on the reasons for his late change. Absolutely not.
So there we have it. Though I still like my argument [impatience? imprudence? impudence?…], I’ve got to hand it to Philippe Sands. If Lord Goldsmith goes to America to find out what the Americans think, it would seem that he might have consulted the French directly before thinking for them. Sands sure didn’t have any trouble getting them on the phone.

If you listened to his testimony, he kept talking about some compromise between the Americans and the French. In the end, he conclude that no one really required that there be a second resolution specifically authorizing the use of force. That is, of course, patently absurd, because when the US and UK introduced a resolution to specifically authorize the use of force, they quickly withdrew it because the French [and others] announced they would veto it.

Which, by the way, was the right thing to do. UNSCR 1441 worked. Iraq was cooperating. The threat of force worked and there was no reason to have a war. They hadn’t found Saddam Hussein’s Weapons of Mass Destruction because he didn’t have any. They didn’t find any mobile Biological Warfare labs because he didn’t have any. They found no ties with al Qaeda because Hussein wasn’t allied with al Qaeda.

England’s flawed process in deciding that the illegal invasion of Iraq was "legal" is, however, dwarfed by the American process. We didn’t have as hard a time as Lord Goldsmith who struggled with his conscience, and lost. We had Jay Bybee and John Yoo in the Office of Legal Counsel at our Department of Justice who apparently didn’t have consciences to struggle with. They just generated Memos invalidating Congress, the UN, and International Law [the whims of power…, the crime of aggression…]. Our process wasn’t flawed, it was absent.

Throughout the testimony of Sir Michael Wood, Elizabeth Wilmshurst, and Lord Peter Goldsmith, it was repeatedly pointed out that there is no court for International Law. So, then, as now, there’s a real question about how to deal with the issue that the invasion of Iraq was clearly illegal – no matter how it was decided. Now that this has been exposed by the Chilcot Inquiry and the Davids Commission in the Netherlands, maybe someone will figure out how to put some teeth into International Law…

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