Secrets of the Attorney-General’s advice on Iraq unravel some more

Back in February I speculated, on the basis of the information then available, that in his advice on the legality or otherwise of going to war in Iraq without UN authority in a second resolution, delivered to Tony Blair in a 13-page written document on 7 March 2003, the Attorney-General had probably expressed his own view that going to war without another resolution could be defended as being legal, but at the same time warned that many legal authorities would not agree, and that if the matter were ever to be referred to an international court such as the International Court of Justice at the Hague, there could be no guarantee that Britain would win its case. The government has consistently refused to publish Lord Goldsmith’s written advice. If my guess about its contents was correct, this would be understandable, since the admission that there existed a tenable and probably widely-held view that a war would be illegal (even though the Attorney-General took the opposite view) would be damaging to the government, especially if the question did eventually come to be argued in an international judicial forum. I put a paper containing this analysis on my website last February, with a trailer for it on my blog.

Now at last the controversial document with the Attorney’s 13 pages of advice has leaked, and much (although not yet all) of it is in the public domain. An article in the Mail on Sunday on 24 April 2005 is clearly based either on the writer’s possession of the whole document, or parts of it, or else on a sight of it. It would be uncouth to boast that “I told you so,” but it’s unavoidably gratifying to find that – assuming the article to be accurate, as it appears to be – my speculation was extremely close to the mark. Lord Goldsmith is indeed quoted as saying, with a good deal of hesitation, that “Mr Blair could go to war without [a second UN resolution]”, but much of the document is taken up with spelling out six cogent reasons which others could and would put forward for taking the contrary view, i.e. that without a second resolution the war would be illegal. All six reasons are summarised in the Mail on Sunday’s story.

As I write, on the afternoon of the day of publication of the article, the media commentators don’t seem to have fully grasped the significance of this revelation, perhaps because of jealousy of the MoS’s undoubted scoop. Moreover, such comment as there has been, both within the article and in the electronic media, has been seriously inaccurate in at least two major respects (even the always judicious Sir Menzies Campbell has got it wrong).

First, the article does not confirm the widely-held belief that Lord Goldsmith “changed his mind” between delivering his written opinion on 7 March, and publishing a brief statement of his view on legality in reply to a written parliamentary question on 17 March, the first day of the House of Commons debate on Iraq which concluded with a vote in favour of the war. Both in the document of 7 March and the written parliamentary answer of the 17th, Lord Goldsmith apparently recorded his view that war without a second resolution would be legal. The difference was that on 7 March he wrote that there were many arguments pointing the other way, and that these might well be upheld if it came to the ICJ, whereas on the 17th he merely recorded his own view.

Secondly, the article itself and other commentators are mistaken in claiming that the written parliamentary answer of 17 March 2003 purported to be a ‘summary’ of the written opinion of the 7th. The statement by Lord Goldsmith’s spokesman quoted in the MoS article that “the Parliamentary statement of March 17, 2003 never purported to be a summary of the Attorney General’s advice" is perfectly true, and has been said more than once already in recent weeks. Any ‘summary’ of the advice would have had to include the reservations about the strong contrary arguments and the risk that Britain could well lose a case on the war’s legality if it ever came to an international judicial ruling. But Lord Goldsmith is entitled to argue that what he published in the Lords Hansard on 17 March summarised his own considered view on legality, not the opinion that he had given the prime minister ten days earlier. And there is still no evidence that his view had changed during those ten intervening days.

It’s important not to fall into the trap of accusing the Attorney-General of changing his mind about the legality of the war (and demanding to know why he did so, as Ming Campbell did today), or of making the equally inaccurate accusation that his published statement on 17 March was a culpably inaccurate summary of the opinion he had given the government on the 7th. He didn’t, on the evidence, change his mind; and his statement of the 17th never claimed to summarise his advice to the government. But this doesn’t mean that he, or the prime minister, is in the clear. Extremely important elements of the Attorney-General’s full advice to the government have been deliberately kept secret; and ministers have sought to give parliament and the public the wholly misleading impression that the Attorney had no reservations about his view that the war was legal, whereas he evidently had extremely serious reservations which he duly reported to Tony Blair several days before the decision to join the attack on Iraq was finally taken. We are entitled to question the prime minister’s judgement in committing his country to a war which the Crown’s senior Law Officer had warned would be widely and credibly held to be illegal under international law, and whose legality might well not be upheld if challenged in an international court. It puts a huge question mark over the assurance reportedly given by Mr Blair to the Chairman of the Joint Chiefs of Staff that there was no question of sending British servicemen to fight a possibly illegal war.

As a postscript, there is also a fascinating account in the MoS article of the way in which Jack Straw, as Foreign Secretary, dealt with the inconvenience of having not only his deputy Legal Adviser, Elizabeth Wilmshurst, but also, even more damaging, his own principal Legal Adviser, Michael Wood, formally declaring their expert and considered opinion that a war without explicit UN authority in a second resolution would be illegal, thus in Ms Wilmshurst’s view constituting an act of aggression, advice which Mr Blair in his interview with Jeremy Paxman recently thrice denied having seen (see my comments on this). The MoS relates that:

”The legal wrangle dates from 2002 when Foreign Office legal chief Michael Wood and his deputy Elizabeth Wilmshurst confronted Jack Straw over their belief the war was illegal without a second UN resolution. Mr Straw told them: "I am a lawyer, I have negotiated every dot and comma of this. Thank you for your advice but I am not going to take it." Ms Wilmshurst and Mr Wood appealed to Lord Goldsmith to overrule Straw. Goldsmith told them: "I am not permitted to give you any advice but you know what my view is." They knew he believed the war was illegal, but dare[d] not say so.”

And finally, the MoS article relates how it was the Americans who pressurised the Attorney-General, on his visit to Washington in February 2003, to discard his doubts and reservations about the legality of war without a second resolution:

“Goldsmith flew to the White House to meet US National Security Council legal chief, John Bellinger. … Mr Bellinger later boasted: "We had a problem with your Attorney General who was telling us it was legally doubtful under international law. We straightened him out."

The similarity to what happened in almost exactly the same circumstances over doubts about the legality of NATO’s attack on Yugoslavia in 1999 is really uncanny:

’’All our Nato allies were still reluctant. Initially, they insisted that the use of force only be considered if the UN security council would endorse it. … Even our staunchest ally, the British, became a big problem … What were they thinking? There was a series of strained telephone calls between [Madeleine] Albright [the US Secretary of State] and [Robin] Cook [British Foreign Secretary], in which he cited problems "with our lawyers" over using force in the absence of UN endorsement. "Get new lawyers," she suggested. But with a push from prime minister Tony Blair, the British finally agreed that UN security council approval was not legally required.’ — James Rubin, press spokesman for US Secretary of State Madeleine Albright at the time of the NATO attack, Financial Times, 29 Sep 2000 (quoted in https://barder.com/brian/Kosovo.htm).

So much for Mr Blair’s insistence that everything he has done has been in accordance with international law. His attitude to the law all too closely resembles that of Humpty Dumpty to the meaning of words:

‘ "When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean––neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master, that’s all." ‘

— Lewis Carroll, Through the Looking-Glass (1872) ch. 6

Brian Barder
24 April 2005
https://barder.com/brian/