3. Iraq and the UN Security Council: Cheney and Goldsmith…

Posted on Sunday 31 January 2010

The contrast between the process by which the United States and Great Britain approached the "legality" of the Iraq Invasion was both striking and discouraging. Here, it really seemed to be a non issue. The Bush Administration held the UN in contempt and did everything possible to ignore our UN Charter. Congress insisted on the centrality of the UN, as did the UK, so they went that route for a while – reluctantly.

I’ve documented the time-line below [the whims of power…] and won’t repeat it except to note the Cheney/Addington/Yoo strategy. Whenever either Congress or the UN acted, there was an immediate invalidation of those actions through two avenues which were off the radar – signing statements or Office of Legal Counsel Opinions from John Yoo. If you read the OLC Opinions, even when Bush got what he wanted, Yoo went out of his way to say Bush already had the power without Congressional help. They even did it with the UN Resolution. It was a sham – psychopathic lawyering. I’m completely sure all three men [Cheney/Addington/Yoo] were involved in the game. No rational or independent entity ever really ruled on the legality of our position. I’m not even sure they cared about that.

The British followed the Law. Early on, both the Foreign Secretary and Lord Goldsmith were adamant – "Regime Change" was not a valid case for war. Maybe that’s what was wanted, but it did not justify invasion under international law. There were two very impressive legal advisors in the Foreign Secretary’s Office – Sir Michael Wood and Elizabeth Wilmshurst. Both advised the same thing: The only condition that would make the invasion of Iraq legal would be a specific resolution by the UN Security Council authorizing the use of force. UNSCR 1441 was written in strong terms [Saddam’s Last Chance], but it did not authorize the use of force. The ultimate opinion would come from Lord Goldsmith, the Attorney General. Neither Woods nor Wilmshurst thought that the "revival argument," using old UN Resolutions was legally valid.

Lord Goldsmith wasn’t asked for his opinion until it became apparent that the UN was not going to pass a second resolution authorizing the use of force.  The logic that he gave for deciding that the war was legal has also been summarized below [“regime change”…, impatience? imprudence? impudence?…]. I don’t want to even bother going through it again. It’s too tortured and flawed. But the Cabinet accepted it and pressed ahead. Sir Michael Wood never agreed, but he stayed in his job and carried on. Elizabeth Wilmshurt resigned with this letter:

1. I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678. I do not need to set out my reasoning; you are aware of it. My views accord with the advice that has been given consistently in this office before and after the adoption of UN security council resolution 1441 and with what the attorney general gave us to understand was his view prior to his letter of 7 March. [The view expressed in that letter has of course changed again into what is now the official line.] I cannot in conscience go along with advice – within the Office or to the public or Parliament – which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law.
2. I therefore need to leave the Office: my views on the legitimacy of the action in Iraq would not make it possible for me to continue my role as a Deputy Legal Adviser or my work more generally. For example in the context of the International Criminal Court, negotiations on the crime of aggression begin again this year. I am therefore discussing with Alan Charlton whether I may take approved early retirement. In case that is not possible this letter should be taken as constituting notice of my resignation.
3. I joined the Office in 1974. It has been a privilege to work here. I leave with very great sadness.

The British did not spit in the face of the Law, even though the ultimate decision left a lot to be desired. Everyone that testified in the Chilcot Inquiry pointed out that there is no court to resolve questions of international law. In other words, Lord Goldsmith’s opinion was an interpretation that will never be independently reviewed. While the process in the UK was not ignored as in the US, it may be equally flawed.

There were several points in Elizabeth Wilmshurst’s testimony that bear repeating here:
MS ELIZABETH WILMSHURST: Of course, international law is defective in not having a system of courts which can try the legality of certain issues, or at least not always available. So it is uncertain in that respect. But I think that, simply because there aren’t courts, it ought to make one more cautious about trying to keep within the law, not less…
Elizabeth WilmshurstTHE CHAIRMAN: You mentioned earlier that there is no comprehensive system of courts to determine issues of legality in international law terms, and we heard just a bit this morning regarding the crime of aggression, not, we were told, I think by Michael Wood, deemed to be part of English law following a House of Lords’, as it then was, judgment but there are courts with some jurisdiction, clearly the ICC. Can you say how far the ICC may come into relevance in the context of a crime of aggression?
MS ELIZABETH WILMSHURST: Yes. The ICC does have jurisdiction over the crime of aggression, but it can’t exercise that jurisdiction until the states’ parties to the ICC statute have agreed on a definition of the crime and the conditions for its exercise. They have been negotiating for years and they are going to have a review conference in May and June at which they will either decide on this or not.
THE CHAIRMAN: If they were to decide, is it possible to speculate whether it would have retrospective application?
MS ELIZABETH WILMSHURST: It wouldn’t have retrospective application.
THE CHAIRMAN: It would not?
I would personally conclude that the Invasion of Iraq was clearly illegal [along with ill advised in the way it came about]. But I already thought that. However, one of the most important things I learned from listening to the Chilcot Inquiry came from this last testimony of Ms. Wilmshurst.
    What is the ICC?
    The Crime of Aggression?
Coming next…
    March 26, 2010 | 1:10 AM

    I got to your site by way of meandering – or, like browsing – thru the Iraq illega invasion – again – have many sites saved on the subject.

    Every time that I have meandered this topic I have found more sites with more details – I have barely read some sites like yours.

    Because I got to this site, and I need to shift to work on other stuff, I am just going to say thanks[!] and your work above looks very helpful – congratulations!

    Paul, N. E. Ohio, U. S.

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