Yes, says Maurice Mendelson QC, the expert in international law
Finally, then, the Attorney General's opinion of 7 March 2003 has been extracted from a most reluctant Government. Does it amount to a "smoking gun", or is it just a damp squib, as Tony Blair claimed yesterday?
Attorneys general are not usually trained in international law. For this reason, the Foreign Office has lawyers who are experts in this, and at least one is seconded to the AG's office to advise him. We know (from the resignation letter of Elizabeth Wilmshurst, deputy legal adviser at the FO), and the opinion now confirms, that Lord Goldsmith originally shared the specialists' grave doubts about the legality of the war. We also know he had been pressed by US government lawyers to change his original view.
The opinion of 7 March looks much like that of a lawyer already straining to the utmost to support a course of action about which he entertains grave doubts, but on which his client is set. He canvasses the arguments on both sides; but the best he can say is that a "reasonable argument" can be made in favour of going to war.
But he is sitting on the fence. If he was strongly of the view that the war was legal, he would have said so. (In this context, it is relevant to note that most qualified international lawyers on both sides of the Atlantic were always clear that the war would be illegal without a further Security Council resolution.) There seems little doubt that if the Cabinet, let alone Parliament, had been shown this opinion, Mr Blair would have had far more difficulty in getting backing for war.
Knowing that, the Lord Chancellor, Lord Falconer of Thoroton, and Baroness Morgan of Huyton had a meeting with Lord Goldsmith. The Chief of Defence Staff was also dissatisfied without unequivocal advice that the war was legal. Mr Blair presented him with what, with hindsight, can be seen as largely false information about the threat, whether deliberately or innocently is a subject much debated. The most charitable interpretation is that Mr Blair believed what he wanted to believe. Finally, on 17 March, Lord Goldsmith came up with what he claimed was his "opinion", which stated unequivocally that war was lawful even without the further Security Council resolution. This was just a one-page set of conclusions, not an opinion. No self-respecting lawyer, even if he had persuaded himself of the legality of the war, could have written a proper opinion without canvassing the strong counter-arguments.
Yet the Government consistently sought to give the impression that the document was the only formal opinion, and that the AG had no doubts. He backed them in this. Whether the Prime Minister, the Foreign Secretary and the AG actually lied, the weasel words and economy with the truth was breathtaking, and sullied an already tarnished political process. Even damp squibs can sometimes sputter into life. Whether this one will remains to be seen.
No, says Geoffrey Bindman, the prominent human rights lawyer
Everyone agrees military action was only lawful if authorised by the Security Council. In November 1990, in resolution 678, it authorised action to liberate Kuwait. By April 1991, that job had been done and resolution 687 affirmed the ceasefire but Lord Goldsmith believes the authority for war did not come to an end there, but lay dormant pending the elimination by Iraq of its WMD and compliance with monitoring and reporting requirements.
By November 2002, resolution 1441 was designed to give the Iraqis a last chance to comply but did not itself authorise force. As Lord Goldsmith says "the argument that 1441 itself provides the authorisation depends on the revival of the express authorisation to use force given in 1990 by Security Council resolution 678".
This, says Lord Goldsmith, raises two questions. Is the revival argument sound? If so, can breach of 1441 revive the authorisation? He accepts the revival is controversial and not widely accepted but favours it.
But he also accepts 1441 required the matter to come back to the council for discussion before the revival could take effect. He thought it unclear whether that meant a further decision had to be made but he though it was for the council to assess whether Iraq was in material breach of 1441.
It was finely balanced, so he recommended a further resolution authorising force. He thought a case for revival of the old authorisation could be made without a further resolution but only if hard evidence of non-compliance and non-co-operation could be demonstrated.
On 17 March, Lord Goldsmith's answer was a brief and straight summary of the revival argument with the assertion that Iraq was in material breach of 1441 - but without any of the doubts in his full opinion.
In the Commons on 18 March, the Prime Minister said "the opinion of the Attorney General that, Iraq having failed to comply and Iraq having been at the time of resolution 1441 and continuing to be in material breach, the authority to use force under resolution 678 has revived and continues today".
That was not an unfair summary of what Lord Goldsmith said on 17 March. It falls lamentably short of a fair summary of the difficulties of the opinion of 7 March.
I am saddened his informative opinion was not available to assist deliberations of Cabinet and Parliament. It was entirely wrong, in my opinion, that Parliament and the public did not have the opportunity to debate the legal and moral issues arising from Mr Blair's reliance on a dubious legal argument.
There is no evidence Mr Blair set out to deliberately mislead Parliament or the country. The Prime Minister preferred to rely on authorisation given 12 years earlier.
I do not charge him with dishonesty but I believe the failure to disclose the full opinion was a serious mistake that could have influenced Parliament's decision to support the war.Reuse content