The least interesting of these is that the Attorney General, Lord Goldsmith, changed his mind about the legality of the war without a second UN resolution, a fact which was long suspected. This is widely supposed to mean that he was leaned on to mis-state the case for war. On the contrary – it is clear that the ‘illegal war ‘Goldsmith mark one was wrong, while the ‘legal war’ Goldsmith mark two was correct. More of that anon. The second, more interesting, fact is that the then Foreign Secretary Jack Straw played an absolutely central role in arguing with both Lord Goldsmith and his own Foreign Office legal adviser that they were totally wrong to conclude that Security Council Resolution 1441, passed in November 2002, did not in itself furnish legal authority for war. Indeed, he tore to shreds Goldsmith’s interpretation of 1441 and the politics of the Security Council that it represented. So much for the idea put out in the earlier misleading media reports of Straw’s own testimony to Chilcot that he had gone along with the war against his better judgment that the war was illegal. On the contrary – behind the scenes he made a passionate case to Goldsmith that it was indeed legal. The third is that the disagreement over the legality of the war between Sir Michael Wood on the one hand and Straw and Goldsmith mark two on the other was very much narrower than might have been expected -- especially after the histrionic resignation of Wood’s deputy, Elizabeth Wilmshurst. In fact, Wood said he actually had no disagreement with the fundamental case that UN Resolution 1441 could in principle have reactivated the authority for war contained in the combination of UN Resolutions 687 and 678 passed by the Security Council after the First Gulf War in 1991. The sole reason for his disagreement, it seems, was the arcane question of whether it was individual governments or the Security Council which had the authority to decide whether Saddam’s failure to comply with his disarmament obligations to the UN was sufficient to reactivate that authority for war. But this was the most startling thing of all about his testimony. For it seems to me from the text of Resolution 1441 that Wood has quite simply misunderstood this most crucial element. Wood states that 1441 explicitly required the Security Council once again to convene and decide what to do about Iraq’s breaches of its undertakings to the UN before any military action against it could be sanctioned. The fact that it did not do so and war was accordingly waged on the basis of 1441 alone, says Wood, meant that this war was illegal. Contrary to the arguments put by Straw and Goldsmith mark two, says Wood, 1441 alone did not furnish the legal authority for war. Wood said in his written statement: My reading was that the Council had decided in paragraph 12 to convene upon a certain event (the submission of a report) for the purpose of considering certain matters (the situation and the need for full compliance with all relevant SCRs). Paragraph 4 spoke of a material breach being referred to the Council ‘for assessment’. In my view, the ordinary meaning to be given to the terms of these provisions in their context was that the Council would consider the situation, and assess the nature of any breach. But Wood has surely made a mistake. The sections of Resolution 1441 that he cites to support his argument are 4, 11 and 12. In section 4, the Resolution states: ...false statements or omissions in Iraq’s declarations and failure by Iraq at any time to comply with, and cooperate fully in the implementation of, this resolution shall constitute a further material breach of Iraq’s obligations and will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below [my emphasis]. Sections 11 and 12 state that the Security Council: 11. Directs the Executive Chairman of UNMOVIC and the Director-General of the IAEA to report immediately to the Council any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations, including its obligations regarding inspections under this resolution; 12. Decides to convene immediately upon receipt of a report in accordance with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security; But this refers only to any further breaches by Saddam of this Resolution 1441. That is because the Resolution also gives Saddam ‘one last chance’ to comply (hence the phrase ‘no automaticity’ to 1441) – and thus further opportunity also for yet more obstruction. It is specifically his potential failure to comply with 1441 which would need to be brought back to the Security Council for it to decide what to do about these further breaches. The crucial fact, however, which Wood unaccountably fails to acknowledge (and which Goldsmith mark one similarly failed to acknowledge, as late as February 2003 (paragraph 9) is that in the very first section the Resolution states: ...that Iraq has been and remains in material breach of its obligations under relevant resolutions, including resolution 687 (1991), in particular through Iraq's failure to cooperate with United Nations inspectors and the IAEA, and to complete the actions required under paragraphs 8 to 13 of resolution 687 (1991) [my emphasis]. And the fact that Iraq was already in breach, as declared by 1441, meant that the authority to reactivate the authority for war supplied by Resolutions 687 and 678 – a potential for reactivation with which, remember, Wood himself did not disagree (hard indeed to see how he could have done so, since this reactivation was the basis of the military action taken against Iraq in 1993 and 1998) – was indeed contained within 1441 itself. In other words, whether or not Saddam would commit any further breaches of the UN resolutions in this period of grace he was being given and what would be done about such further breaches was totally irrelevant. Even though he was being given one last chance, the legal authority for war was embodied within 1441 itself on account of the breaches that it stated he had already committed. Strangely enough Straw, in his argument with Goldsmith mark one, did not choose to make this conclusive point. Instead he argued that the requirement for the Security Council to ‘consider’ any ‘further’ breaches did not mean that it was required actually to decide what to do about them – thus provoking Wood to point out the inherent unlikeliness of this interpretation. A fair enough point in itself – but the entire premise was wrong. The issue of any further breaches of Resolution 1441 and whether the Security Council was enjoined merely to consider them or decide what to do about them was utterly irrelevant to the legality of the case for war. That clearly lay within the terms of Resolution 1441 itself, a legal authority which was not affected by the ‘last chance’ being afforded Saddam to comply. The case for war rested not on breaches of 1441, but within 1441 itself. The former legal adviser to the Foreign Office would therefore seem to have mis-stated the law. Did the Foreign Office legal adviser mis-state the law?
A number of remarkable facts leap out from today’s testimony at the Chilcot inquiry of the former Foreign Office legal adviser, Sir Michael Wood.
Wednesday, 27 January 2010
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