War and the law: the inside story
Monday 8th March 2004

The Attorney General's legal case for invading Iraq last year looks ever more flimsy. Our political editor, John Kampfner, uncovers the truth about an issue that just won't go away

As with the intelligence, the legal foundations for Tony Blair's war with Iraq are being dismantled. Further investigations by the New Statesman - which last year revealed the Attorney General's concerns about the legality of the occupation of Iraq - show that at least twice, as the diplomatic process collapsed, he was forced to change his advice on the legal status of an invasion.

The problems began in July 2002, as Blair despatched David Manning, his foreign policy chief, to Washington on a secret mission to persuade George Bush to get a UN resolution for an attack on Iraq. The Prime Minister had already committed himself to war that April at Bush's ranch. He needed international approval for political reasons: to win over the party and public opinion. But he also needed it for legal reasons. It was the first of many times that Blair would turn to his old friend Lord Goldsmith.

That summer, the Attorney General provided him with the opinion he wanted. A new UN resolution was necessary, he judged. The two previous declarations - issued after the invasion of Kuwait in 1990 and in setting out the terms of the ceasefire in January 1991 - were, he said, too old to be enough on their own. Blair was satisfied, but subsequent events would undermine the position of the Prime Minister and his top legal officer.

After wrangling at the Security Council, the British government finally got what it wanted on 8 November 2002. The Americans were not particularly fussed - Congress had given Bush carte blanche for regime change - and for most of the time allowed the British to lead the negotiations. Unanimity was finally achieved; Resolution 1441 was finally secured, but only after the French had, as a price for their acquiescence, ensured that the all-important line giving the automatic go-ahead for war was removed. Instead of the vital trigger phrase, "all necessary means", the British had to settle for "serious consequences" and a promise to reconvene the Security Council.

This creative ambiguity, the settling for a lowest common denominator at the UN, has helped bring Blair to his parlous position one year on from the war. Downing Street advisers have all but given up on securing closure on Iraq. Lord Hutton's excessive desire to help has, they acknowledge, made matters worse. The Butler inquiry into pre-war intelligence on Iraq's weapons of mass destruction appears doomed now that Michael Howard has withdrawn Conservative Party support. The nugget of good news the government received with the Iraqi Governing Council's acceptance of an interim constitution was overshadowed on 2 March by the worst day of violence since the war ended. More than 200 were killed in bombings in Karbala and Baghdad.

The controversy over the legal advice on the war seems arcane when taken in isolation. If Blair is forced to publish the Goldsmith paper trail, the conclusions will be distressing but not surprising. The government's panic and diplomatic floundering in the months of November 2002 to March 2003 were just as evident at the time as they are now.

In his second opinion, shortly after Resolution 1441 was secured, Goldsmith told Blair that a further resolution would be advisable. It would, according to one official who discussed the opinion at the time, make the British legal position "absolutely watertight" in international law. "We were all looking for that added security," the official recalls. Goldsmith had left his options open, but for the Foreign Office's lawyers this was not good enough. Doubts were not confined to Elizabeth Wilmshurst, number two in the legal department, who quit on the eve of war. Her boss, Michael Wood, was also said to be sceptical about Goldsmith's conclusions.

As 2002 closed, Blair realised that he needed a second resolution, but throughout January and the start of February 2003 he had few doubts he would get it. He had convinced himself that Jacques Chirac was merely posturing and that, as he promised Bush earlier, he would be able to "turn" Gerhard Schroder.

While Blair was struggling to get his way, Goldsmith was instructed to cast around for reinforcements to help him revise his judgement. He knew he could not rely on the Foreign Office, where doubts about fighting a war based purely on Resolution 1441 rested not just with the legal department but with senior diplomats and right up to Jack Straw himself. The go-get types in Downing Street saw the Foreign Office as captives of an old-school mentality that put the niceties of international law and diplomacy over action. The FCO's law crowd was described as "unworldly". But they did not lack for expertise, and they did not appreciate seeing their advice ignored. "It is curious why we had to go outside when the Foreign Office contains the best centre of international law inside government," says one senior official.

New circumstances required a new judgement. Goldsmith had an impressive reputation as a commercial lawyer, but on foreign policy he was a complete novice. He was out of his depth. The man to whom he turned, Christopher Greenwood, professor of international law at the London School of Economics, was a powerful advocate of humanitarian intervention. Like others who had been appalled by international inaction over Bosnia and Rwanda, he argued that intervention in Kosovo was justified even without UN endorsement. He saw Iraq as falling within the criteria set out by Blair in 1999 in his Chicago speech for a just war.

However, people around Blair knew that the standard defence for Kosovo - "legitimate, if not technically legal" - would not be enough for Iraq. Greenwood's view, stated publicly and privately, was that the two original resolutions against Saddam Hussein, 678 and 687, did provide a basis for war. "The action in Iraq was a lawful measure to remove a serious threat to international peace that had festered since Iraq's invasion of Kuwait in 1990," he wrote last October in the Times. Resolution 678, he argued, "was not limited to the liberation of Kuwait, but it authorised the coalition states to use force for the broader goal of restoring 'peace and security in the area'". Stretching the argument further, Greenwood, added: "To achieve that broader goal, the [Security] Council decided that Iraq must rid itself not only of all weapons of mass destruction but of all raw materials and programmes for the development of such weapons." Conveniently, that argument could be used as cover for Blair in the subsequent absence of WMDs.

Greenwood's thinking represented a small minority of international legal opinion. It enabled the government, however, to assert - in terms Goldsmith did not use in November 2002 - that Resolution 1441, and its back-references to 678 and 687, were enough. It provided Goldsmith with his justification for war, as set out in the nine-point summary of his legal opinion published in parliament on 17 March 2003, glossing over the many contradictions in his position. Goldsmith cited the three resolutions' "combined effects" to tell the House of Lords: "Authority to use force against Iraq exists." Unlike Greenwood later, Goldsmith did not refer to weapons "programmes". His summary was explicit about weapons, speaking of the "continuing obligations on Iraq to eliminate its WMDs".


When Goldsmith presented his findings to the cabinet that day, he began to read out his statement, only to be interrupted by Blair, who insisted that ministers could read it for themselves later. When attempts were made to question Goldsmith, Blair declared there was no time for a discussion and that the legal opinion was "clear". He was as dismissive of others' concerns of the legal arguments as he was about intelligence.

Nine days later, as war raged, the Attorney General was invited to address the cabinet again. But his advice that day, on 26 March, was less helpful to the Prime Minister. It showed the extent of his doubts, doubts that he had allowed to be allayed on the eve of war.

That advice, on the legal status of any occupying forces, is so far the only legal opinion to be published in full - in the NS, to which it was leaked. In that document, Goldsmith warned that without a further UN mandate, all attempts at postwar reconstruction of Iraq would be unlawful. "As you know, any military action pursuant to the authorisation in Resolution 678 must be limited to what is necessary to achieve the objectives of that resolution, namely Iraqi disarmament, and must be a proportionate response to that objective," he wrote. "In the absence of a further resolution . . . it is likely to be difficult to justify the legality of the continued occupation of Iraq once the disarmament requirements of the relevant Security Council resolutions have been completed."

Now we know that those "requirements" were based on finding physical evidence of WMDs that have not been found, and may not have existed since 1991. In other words, the core legal justification for the war, and for the occupation, was based on a fiction.

The pieces of the Goldsmith jigsaw are falling into place. But they are still incomplete. Blair's people feel they contain the problem. There is a determination in Downing Street to tough this one out. They are confident that an attempt by Greenpeace to force publication of the legal advice, during the forthcoming trial of 14 of its activists, will be thrown out. For all his confident talk, however, events show that just as he was rarely in control of the actions that led to war, so Blair is at the mercy of its devastating repercussions.



This article first appeared in the New Statesman and may not be reproduced without permission.