May 01, 2005
A brief history of the great war advice argument
What is the row about?
Before Britain went to war in Iraq two years ago, the attorney-general, Lord Goldsmith, published a brief statement declaring unequivocally that the action was legal. The prime minister refused to publish Goldsmith’s more detailed private advice received 10 days earlier. The published document was a “fair summary”, he said.
What happened last week?
Goldsmith’s private advice was leaked in part on Wednesday. On Thursday, Blair ordered that the 13-page document be published in full.
Does it show that Blair lied?
Better to say that he was economical with the truth. The private advice said that a “reasonable” case could be made for the legality of war — the same standard as was used when military action was taken in Iraq in 1998 and in Kosovo in 1999. It added, however, that a “reasonable” case could also be made against war.
Was the private advice unequivocal as Blair claimed?
Not entirely. It was unequivocal in the sense that Blair himself was covered: he had a reasonable case for war and that was all that precedent required, according to Goldsmith. On the other hand, the advice itself was equivocal, making it clear that the government’s case might not stand up in court.
Is a legal case ever certain?
No, not until it is tested in court.
Is the difference between the two documents important?
According to the Tories and the Liberal Democrats, yes it is. Only Blair, Jack Straw, the foreign secretary, and Geoff Hoon, the defence secretary, saw the full advice. It was not shown to the other cabinet ministers or to MPs. Critics say that they might not have voted for war if they had known that Britain’s legal case was only “reasonable”, rather than certain. On the other hand, senior ministers, from Gordon Brown downwards, insist that Goldsmith did take them through his analysis of the issue thoroughly.
How does Blair justify not showing Goldsmith’s private advice to parliament?
On several levels. First, he says that much changed in the 10 days between the private advice being received and the final advice being published. Second, he points out that Goldsmith was present at the final cabinet meeting before war to answer ministers’ questions. Third, he says that convention maintains that private legal advice should not be made public.
What changed in those 10 crucial days?
There were several developments. Hopes of getting a second United Nations resolution that would have explicitly allowed military action faded. UK military commanders, who had thousands of troops massed on the border of Kuwait, demanded of Blair a clear opinion of whether war would be legal or not. And Hans Blix, head of the UN weapons inspectors, delivered a new report showing that Iraq was in breach of UN resolutions.
Any other time bombs hidden in Goldsmith’s private advice?
Yes, he noted that “regime change” cannot be used as justification for war. He said that America’s policy of pre-emptive strike was illegal. The advice also warned that the use of force had to be “proportional”: ie, it should be no more than needed to secure Iraq’s disarmament.
Was the war legal or not?
Opinion is divided. The attorney-general maintains that it was legal, as do the Conservatives. However, the Liberal Democrats and many international lawyers believe that it was illegal.
Could action be taken in court?
At least one relative of a dead British soldier hopes to take court action. Lawyers for families of dead Iraqis are also planning to use the leaked attorney-general’s advice to promote their claims for independent inquiries.
Why has America not had the same problems?
America’s laws are different and it has not signed up to the International Criminal Court, which came into effect in 2002. Also, public support for the war was much stronger in America than in Britain; fewer people cared whether it was legal or not.
http://www.timesonline.co.uk/newspaper/0,,176-1593162,00.html