What we think
The renewed pressure on the government to publish in full the documentation that lay behind Lord Goldsmith’s advice to Tony Blair on the legality of British troops invading Iraq, alongside their United States allies in March 2003, is not an abstract or an isolated political affair. In the clamour for disclosure, especially in the heated tit-for-tat confrontational environment that marks the run-in to a general election, it is easy to lose sight of what is at stake in trying to establish the precise truth of whether Britain went to war in Iraq legally or under a fake cloak of legality. At stake is the foundation of our civil society: a respect not only for the laws of the United Kingdom, but respect for the relationships we have with other nation states that we conveniently sum up in the term “international law”. This, again, isn’t an abstract idea. The roots of international law have their origins in the Treaty of Westphalia which brought the 30 years war to an end in 1648, and in so doing settled important land issues in Europe and in the developing colonisation process during the following century that saw the rise of the new world nations.
But today the field of international law is intertwined with the work of the United Nations. The founding Charter of the UN set as its goal “to establish conditions under which justice and respect for the obligations arising from treatises and other sources of international law can be maintained”. Britain is a signatory to key elements of the UN’s courts and tribunals: the International Court of Justice, the International Tribunal for the Law of the Sea, the International Criminal Court, the UN Administrative Tribunal. We are part of the International Law Commission and the UN Commission on International Trade Law.
So when we ask to be shown the full legal arguments and advice that the government took before it went to war two years ago, it is not a casual demand. Because if we failed to adhere to the rules of international law, or we even fail to disclose or display whether we have respected such law, what message are we sending out to other nations, the countries run by dictators that flout and ignore international law? Was this not the precise reason the Prime Minister told us an invasion of Iraq was necessary and urgent; that UN rules had been broken by Saddam Hussein and therefore he had to face the consequences? The Foreign Secretary, Jack Straw, in the House of Commons last week, offered only the flimsiest reasoning as to why the government would not disclose Lord Goldsmith’s full legal advice. Effectively, Straw’s argument was that it was governmental custom and practice not to disclose such advice. Such advice, said Straw, had to be kept secret and discreet and regardless of convention, the advice from the attorney general on Iraq was – finally – clear and unequivocal.
Straw, a barrister like the Prime Minister, knew what he was saying fell far short of a valid explanation. War is not a routine matter. The decision to go to war, to send troops to their death in defence of a principle or national defence, to put at risk the likelihood of thousands of innocent civilian casualties, isn’t an everyday matter. These were unique circumstances and we now expect a unique response from the government to finally end what has been two years of uncertainty, two years of deceit and cover-ups and two years of obfuscation that the government cannot continue to run and hide from. The historian Lord Acton once noted that “everything secret degenerates, even the administration of justice: nothing is safe that does not show how it can bear discussion and publicity.” The government should heed such wisdom. And if it refuses, it should expect that the demand for disclosure will continue. Because if a government does indeed fear discussion and publicity because something it did might be unsafe, then what else does it fear? In a democracy, a government operating under such fear is a dangerous government. Yet the Blair government is on the verge of being elected for a third consecutive term and its members perhaps believe that such longevity puts them above conventional rules.
It doesn’t. Even if Blair wins the coming election with a third landslide the demand for disclosure of Goldsmith’s advice will continue because the principles of international law will not have altered simply because of another Blair triumph at the ballot box. The attorney general is not an expert in international law. He is primarily a commercial lawyer. Hence over the period from July 2002 to the start of the Iraq invasion in March 2003, Goldsmith would have been offered, and indeed he would have sought out, a barrage of legal opinion on what was necessary to ensure that the conflict was a legal one. Had the authority for war come direct from the UN Security Council in the form of a second explicit resolution (that added to the warnings to Iraq included in resolution 1441) none of this legal uncertainty would be happening. As signatories to the UN charter, Britain has a legal obligation to operate within the framework of international law set by the UN. But we know the administration of George Bush was set on destroying the authority of the UN, set on showing that its own self-referenced laws were enough. The US decided it did not need, or indeed want, a second UN resolution. But it gave its prime ally, the ally that gave its flouting of UN authority at least an air of international respectability, time to secure a second resolution.
The attorney general’s initial advice to Blair – based on advice he took from lawyers whose field was international law – is said to have contained a profusion of caveats. The bottom line? Goldsmith and Blair knew that a second UN resolution was crucial to legality. And when it didn’t come, the government’s choices had suddenly shrunk.
Since war in Iraq became first a possibility, then an inevitability, this newspaper has continuously claimed we have not been told the full truth. We helped expose the sham of the Ministry of Defence’s denial that there was increasing troop build-up; we exposed the claim that peace with Saddam could still be attained, when patently there was no hope of war being averted; we helped expose the evident pressure from the US to find legal opinion in Britain that would back war without a second security council resolution.
Throughout we have remained consistent in believing that the claims of legality for the war in Iraq under international law were unfounded and unsafe. Nothing the government has said or done in defending its right to keep the attorney general’s advice private, has made us shift our position. Today we still insist the nation has a right to know what choices were before its elected government when it took the decision to go to war. It is an arrogant position for the government to insist it is in the “nation’s interest” to keep such information from us. Blair and his administration have shown over the past four years that respect for domestic law, let alone international law, is not going to be part of their legacy. But ironically it may be one of the laws brought in during Blair’s second term that could help end this debacle.
Parliament has the authority to insist – through the office of the Information Commissioner – that it publishes Goldsmith’s advice in full. If the general election is on May 5, there is precious little parliamentary time for this to happen. The expectation must be that this will be a matter unresolved in this parliament. But the question should not be allowed to simply fade away. The very principles of international law remain exposed by our unanswered questions. Whether today, tomorrow or by another government, the truth will eventually come out. Blair can hope to escape the immediate consequences, but not a final verdict.
Copyright © 2005
smg sunday newspapers ltd. no.176088