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Friday, April 29, 2005

I just read the legal advice of Lord Goldsmith to Tony Blair concerning invading Iraq

The leak then defensive release of this document must have been very painful for Blair. I doubt it will change the outcome of the election, but it shows that he has been lying. My reading of the advice is that lord Goldsmith concludes that, if George and Tony were on trial for military aggressiion, a smart lawyer *might* be able to get them off.

30. 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. However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree of public and Parliamentary scrutiny of the legal issue was nothing like as great as it is today.

Recall the advice was given before the war and implicitely assumes that Iraq had hidden WMD. There is no doubt that, knowing what he knows now, Lord Goldsmith would have to conclude that the invasion was illegal or eat his 13 pages of legal advice.

Very briefly the argument that the invasion was legal seems to be as follows
UN resolution 678 authorised the use of force to evict the Iraqi army from Kuwait. The ceasefire became UN resolution 687 which suspended that authorisation with conditions including WMD disarmament and inspections. The US and UK argue that violation of the terms of the ceasefire would revive the original authorisation to use force under 678. Lord Goldsmith acknowledges that this view is controversial and apparently not shared by most academic legal scholars. UN resolution 1441 asserted taht Iraq was in material breach of the cease fire (as it was since it had interfered with inspections and only invited inspectors back soon before 1441). This couldn not revive 678, since 1441 goes on to offer Iraq one last chance. The Bush administration claimed the authority to decide if Saddam Hussein had availed himself of that last chance. Of course the Bush administration force was authorised before 1441 passed.

1441 provided that, if Iraq were found to have lied about WMD and if the inspectors found violations of the cease fire including interference with them, then the Security council would meet "in order to consider the situation and the need for compliance with all of the relevant Council resolutions in order to secure international peace and security". It might seem obvious that this implies that a further decision had to be made on whether to authorise an invasion. However, the Bush administration argued that this is not true, that the authorisation is automatic . They seem to have argued that to "consider" means to talk (as the security council had) or maybe that the security council might consider a new resolution revoking the authorisation to invade in 678 and/or 1441.

Goldsmith notes that international law generally requires that responses be proportional to offenses and 1441 appeals to the mission of the security council "peace and security" and hence appeals to the judgement of the security council.

A key argument made by Bush administration officials to Goldsmith is that the US insisted on the word "consider" instead of "decide." Goldsmith notes that immediately after passage of 1441 "Many delegations welcomed the fact that there was "no automaticity" in the resolution with regard to the use of force."

He then abandons his effort to maintain the appearence of reasonable argument by claiming that the word "automaticity" does not mean automaticity but means "immediacy"

But it is not clear what they meant by this. It could indicate that they did not consider that the resolution authorised the use of force in any circumstances by means of the revival argument. On the other hand there is some evidence from the negotiating history that their main concern was that the resolution should not authorise force immediately following its adoption (last four words underlined) on the basis of "material breach" in OP1 plus "serious consequences" in OP13. The UK and US indicated that "no automaticity" meant that there would be a Council discussion before force was used.

It is painful to see an eminent English Jurist reduced to pretending that he does not understand the English language.

Aside from that, Goldsmith does not seem to endorse any of the arguments of the Bush administration. The most he says is that their claims are reasonable. More often he seems to consider them meerly arguable.

I don't know anything, but the Bush administration position seems to me to be completely absurd. It is possible that I am the first to think of the argument that "consideration" means consideration of a resolution which removed the authorisation. This argument is crazy, since it would have the Security Council considering whether to forbid an invasion of Iraq only if Iraq was found to have lied about WMD and/or obstructed inspections. The equally crazy argument that the council decided to have a pointless discussion of what to do with all options included invasion already open to all UN members is equally crazy.

All of this is based on the difference between "consider" and "decide". A dictionary suggest that, if 1441 had used "decide" then the UN Security Council would have committed to doing something, while, since it used "consider" the UN Security Council could perfectly well do nothing without backing down from 1441. Recall that Bush argued that the UN Security Council was backing down, since it didn't decide anything.

My general reading of the document, is that Lord Goldsmith is trying every way he can think to argue that the invasion would be legal and the most he can say is that many things are controversial and that it has been argued that it would be legal.

IIRC Lord Goldsmith revised his advice just before the invasion and, in the end, advised that the invasion was legal. IIRC that document was very brief. I imagine it was very painful to write and would be painful to read.

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