A Figleaf of Legality

It has been rumored that the brief, antiseptic legal opinion -- citing that a legal basis for the Iraq war did exist -- that British Prime Minister Tony Blair received from his attorney general, Lord Goldsmith, did not actually reflect the advice of the top British government lawyer. That turns out to be true.

Last week, when portions of Lord Goldsmith’s original opinion began to leak, the prime minister’s office rushed to release the original document. Goldsmith’s advice, rendered in a baker’s dozen of pages of closely reasoned text on March 7, 2003, diverges significantly from his previously released single-page approval for war. But its greatest significance is that the Goldsmith opinion puts before the public legal reasoning that undermines the justification in international law Bush used to wage an aggressive war against Iraq. That, in turn, negates Bush’s Congressional authorization to use force.

Lord Goldsmith’s opinion strips the legal arguments down to their core and shows how flawed they were. These can be addressed in five areas, and a few further points on legality this side of the Atlantic will complete the story.

Foremost is the matter of the U.N. Security Council action (Resolution 1441) passed on Nov. 8, 2002. Debate has long raged over whether 1441 -- by itself or in combination with earlier Security Council resolutions enacted during and after the Gulf War -- authorized a resort to force against Iraq. Lord Goldsmith supplies an exhaustive analysis of the operative paragraphs of Resolution 1441 that shows how it required further U.N. action to approve force.

Preparing to draft his opinion, Goldsmith reveals, the Bush administration treated him to an extensive elaboration of its view, based on selective quotation and the negotiating history of 1441, that no further Security Council action was necessary. But the negotiating history can be read in different ways and the resolution’s provisions clearly required further U.N. deliberations. As Lord Goldsmith put it, “any other construction reduces the role of the Council discussion...to a procedural formality.” This for a war with President Bush insisted had the purpose of strengthening the United Nations.

The second core issue is what the British government’s official lawyer terms the “revival argument.” This embodies what Americans heard so many times when Bush, Cheney and other leaders referred to authorities arising from 13 years of U.N. resolutions. Did later action, specifically Resolution 1441, “revive” the authority for force contained in Resolution 678 (1990) under which the first Bush administration and a coalition of allies fought Saddam Hussein in the Gulf War? All the relevant resolutions, Lord Goldsmith notes, brought the United Nations charter into play by invoking “threats to international peace and security.” But it remained up to the Security Council to decide that such a threat existed. Resolution 1441 made the revival argument stronger, but it clearly suspended judgment on the existence of a threat by affording Iraq an opportunity to accede to U.N. weapons inspections. This again made necessary a final determination by the Security Council.

Third, there is the issue of “material breach” of Iraqi obligations under the U.N. resolutions. The U.N. weapons inspectors were moving into and out of Iraq, looking where they pleased, and it was up to them to report evasion or breach to the Council. This puts in high relief the pressures exerted on Hans Blix by Condoleezza Rice and other U.S. officials to induce the weapons inspectors to tell the Council that Iraq had failed to comply. In addition, Goldsmith notes, the United States took the position that the fact of whether Iraq had failed to comply was “a matter of objective fact” that could be assessed by nations independently of the United Nations. Goldsmith notes drily, “I am not aware of any other state which supports this view.” Once again, the necessity for the Security Council to make a determination of material breach (which it never did) -- and to prescribe whatever response it deemed necessary -- was required to give effect to the resolution.