Dead Men Left

Wednesday, February 23, 2005

Iraq: legal questions brushed over

There's nothing truly surprising in any of this. Not after the last three years.

The attorney general, Lord Goldsmith, warned less than two weeks before the invasion of Iraq that military action could be ruled illegal.

The government was so concerned that it might be prosecuted it set up a team of lawyers to prepare for legal action in an international court...

It appears that Lord Goldsmith never wrote an unequivocal formal legal opinion that the invasion was lawful, as demanded by Lord Boyce, chief of defence staff at the time.

The army's great fear was that it would face serious consequences, possibly in the Hague, if it acted without a solid legal opinion behind it.

Unfortunately, the overwhelming opinion of the international legal community was that an invasion of Iraq would be unlawful without at least a further UN resolution. In the absence of such a resolution, a credible legal opinon was hard to come by.

A lone voice against this consensus was Prof Christopher Greenwood at LSE, who constructed this neat piece of work for a rather threadbare case. The differences between his argument and that eventually presented by the government are minimal, to the point of non-existence.

If you read through it, you'll see Greenwood's case for the legality of invasion divides into first, a dubious assesment of the possible threat from non-existent WMDs; and second, a more substantial argument that the UN's resolution 678 was still in force. This was the resolution passed to authorise the 1991 Gulf War; Greenwood held that it still applied, twelve years later. He concludes that no second UN resolution was necessary to authorise war.

This advice was submitted to the Foreign Affairs Select Committee in October 2002. A favourable opinion was widely known for a good length of time prior to the war, but it was only very shortly before the war that this case was eventually the one the government apparently relied on. From the Guardian report, as late as March 7, Lord Goldsmith was claiming another UN resolution would be required; on March 13, he appears to have slightly changed his mind; on March 19, the invasion was launched. This sequence should make us suspicious: there was a clear problem with the government presenting a legal opinion favourable to the invasion,

The "problem" is not hard to guess: Greenwood's opinion can be shot to pieces. Perhaps the most succinct attack was by Rabinder Singh QC, of Matrix Chambers, who was commissioned by the Campaign for Nuclear Disarmament to investigate the legality of the government's decision.

Of course, we do not know the exact details of the government's opinion, since the government - for some reason or another - has refused to release the entire text. The most persuasive argument for this reticence is that the Attorney General still did not wish to sign his name to a legal argument he held to be fundamentally flawed, merely claiming that a possible case could be made along Greenwood's lines, rather than that this case should be made.