The encounter between Goldsmith and Lyne told us a very great deal – not least about Lyne’s spectacular tunnel vision. The argument between them turned, inevitably, on the core issue of whether 1441 did or did not require a further Security Council decision to furnish the legal authority for war. Initially Goldsmith, to whom Blair did not turn for advice on the matter until December 2002, thought this was probably the case but – with no background in international law -- needed to bone up on the issue; he raised the ‘no authority for war without a second resolution’ case with Blair in his preliminary advice to him in February 2003 in order to test out the counter arguments; he got those in spades from the then Ambassador to the UN Sir Jeremy Greenstock and the then Foreign Secretary Jack Straw, both of whose reasoning he found persuasive but not conclusive. The arguments Goldsmith heard from them finally coalesced into his conclusion that ‘a reasonable case could be made’ (a legal ‘green light’) that warwas legal on the basis of 1441 alone after he went to the US in February 2003 . The Americans told him they had been under the strictest instructions not to agree to 1441 if it required the Security Council to take a further decision before sanctioning war in Iraq. They assured the Attorney that the French (along with the Russians and Chinese) who had wanted to write into 1441 the need for a further Security Council decision on military action had accepted that they had lost the argument, and that the resulting wording was a sop which deliberately did not enjoin any such further decision. Given the seminal importance of this issue for America -- which didn‘t believe it needed any UN resolution to go to war – Goldsmith felt this was the clincher when it came to interpreting the ambiguous but precisely deployed language of 1441. It was that last point which helped provoke the sharpest and most telling exchanges between Goldsmith and Lyne. Lyne was outraged that Goldsmith had only talked to the Americans and had not asked the French what they had understood by the final wording of 1441. In vain did Goldsmith point out that, given the diplomatic rupture with France at that time over this issue, this could hardly have been a serious option. In vain Goldsmith observed that the French ambassador to the US had admitted after war had started that 1441 did notenjoin a further decision. ‘But you didn’t know that at the time’, Lyne expostulated absurdly. The point Goldsmith was making, that his conclusion had been conclusively vindicated, was it seemed irrelevant. The point apparently sticking in Lyne’s craw was that Britain had failed to write into 1441 a clear and unambiguous authority for war in language no-one could mistake or deny. In vain did Goldsmith make the crucial point that this undoubtedly lamentable fact was all but irrelevant, since through a number of other operational paragraphs (as I pointed out yesterday) Resolution 1441 in and of itself furnished the necessary legal authority for war. Again and again, however, Lyne kept banging on about this failure as if this was proof that a second resolution was needed. He also appeared to believe that, since 1441 provided ‘one last chance’ for Saddam to meet his disarmament obligations, it followed that the Security Council had to decide what to do on the basis of any subsequent breaches of that ‘last chance’. In vain did Goldsmith point out that this embodied a fundamental confusion between legality and policy. The ‘last chance for Saddam’ was designed to offer a breathing space before war was declared, to be sure – but the legal authority for war was already there. If they had wanted to, in legal terms alone the US and UK could have gone to war in Iraq the very night that 1441 was passed. But of course, the fact that war is legal does not mean it is necessarily wise or desirable – which is why Saddam was given one final chance. As Goldsmith said: Legality is a necessary condition for military action, but it’s not the only question: the bigger question is whether [such action] is right. It is surely hard for any fair-minded person to believe from this performance that Goldsmith’s change of mind was anything but sincere. All the lurid claims that he had been leant on or kept out of Cabinet or had his full advice suppressed were knocked down one by one. Far from being pressured by Lord Falconer and others at a meeting where he was reportedly leant upon, he had announced his change of mind before he met them. Far from having his advice kept from a Cabinet desperate to hear from the Attorney, he had presented it to Cabinet only to find that no-one asked him any questions about it. Every point the Chilcot committee put to him was answered reasonably, convincingly and consistently. His case was factual and rational. It will therefore almost certainly be presented as proof of his perfidy. But the impression he created was of having wrestled honourably (if, initially, from a position of considerable ignorance) with a finely balanced argument over a resolution that had been deliberately crafted to be ambiguous and opaque. And that perhaps is the most important point of all. The idea that issues of legality can be decided at all by UN resolutions is demonstrably absurd, since they are clearly overwhelmingly political exercises reached by horse-trading between nations. They owe virtually nothing to law and virtually everything to global power politics. In any event, the idea that any decision to enter into a ‘just war’ in defence of the free world lies in the hands of countries as corrupt, despotic or solipsistic as Russia, China or France is totally preposterous -- but that is another issue altogether. 
Goldsmith speaks at last -- but is anyone listening?
In a sure-footed day-long appearance at the Chilcot inquiry today, the former Attorney-General Lord Goldsmith finally let us see how he came to change his initial opinion of the legality of going to war in Iraq without a second UN resolution. Tested repeatedly by the hostile questioning of the ex-Foreign Office mandarin Sir Roderic Lyne – who was clearly wearing on his sleeve the hearts of the Foreign Office legal advisers who gave evidence yesterday that in their view the war was illegal – Goldsmith resolutely held his ground and didn’t let Lyne get away with a single throwaway reference (and there were many) which Goldsmith held to mis-state the true meaning of the key Security Council Resolution 1441.
Thursday, 28 January 2010
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