'Regime change is no basis for war. Remember that in any statements'

The Attorney General's advice to Tony Blair - and the issues arising

THE DANGERS OF COURT ACTION IN RESPONSE TO WAR IN IRAQ

"In assessing the risks of acting on the basis of a reasonably arguable case, you will wish to take account of the ways in which the matter might be brought before a court. We cannot absolutely rule out that some state strongly opposed to military action might try to bring such a case. It is also possible that CND may try to bring further action to stop military action in the domestic courts. Two further possibilities are an attempted prosecution for murder on the grounds that the military action is unlawful and an attempted prosecution for the crime of aggression."

ANALYSIS

Lord Goldsmith warns explicitly of the dangers of launching a military strike without clear authorisation. He says Tony Blair could face prosecution under common law in the UK courts. The UK, and by implication British troops, could even find themselves tried for murder.

REGIME CHANGE AND A PROPORTIONATE RESPONSE

"I must stress that the lawfulness of military action depends not only on the existence of a legal basis, but also on the question of proportionality. That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign."

ANALYSIS

Lord Goldsmith is warning Tony Blair against using excessive force in achieving his aim. He says there are legal implications for Britain launching a full-scale invasion without curbing its fire power in the interests of "proportionality". The Attorney General was effectively saying that to flatten Saddam Hussein's palaces, or the homes of his supporters, or to bomb the whole country into submission, could be regarded as a disproportionate response. He then tells Mr Blair to watch what he says. A slip of the tongue suggesting that the use of military force was designed for anything more than ridding Iraq of WMD could land him in hot water legally. It seems Mr Blair did not take the Attorney General's advice on this point too literally. Asked about the advice yesterday, he said: "I took the view then, [and] I take the view now that it was better for this country's security and the security of the world to remove Saddam and put him in prison rather than have him in power."

SELF DEFENCE

"Force may be used in self-defence if there is an actual or imminent threat of an armed attack: the use of force must be necessary, ie the only means of averting an attack: and the force used must be a proportionate response. In my opinion there must be some degree of imminence. I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future."

ANALYSIS

This may go to the heart of the claim made by Tony Blair that Saddam could deploy weapons of mass destruction within 45 minutes of an order to do so. The claim was discredited after it was revealed that it was based on intelligence that was subsequently withdrawn. Lord Goldsmith raises caveats about claiming that invading Iraq is a form of self protection and effectively knocks it down as a legal justification for force. On the US doctrine of preemptive self defence, he says: "This is not a doctrine which, in my opinion, exists or is recognised in international law."

WHO JUDGES WHEN IRAQ IS IN 'MATERIAL BREACH' OF UN RESOLUTIONS?

"The UK has consistently taken the view that, as the ceasefire conditions were set by the Security Council in resolution 687, it is for the council to assess whether any such breach of those obligations has occurred. The US have a rather different view: they maintain that the fact of whether Iraq is in breach is a matter of objective fact which may therefore be assessed by individual member states. I am not aware of any other state which supports this view."

ANALYSIS

Lord Goldsmith is agreeing with Foreign Office lawyers who advised Jack Straw that the invasion of Iraq would be illegal without an additional ruling by the security council. Like the Foreign Office lawyers, including deputy legal adviser Elizabeth Wilmshurst, who resigned in protest at Goldsmith's final view that the war was legal, he observes that the US believes that any member of the Security Council can themselves make such an assessment - without agreement from their Security Council colleagues. But Lord Goldsmith says the United States is isolated in this view, and Britain does not agree with Washington.

It is somewhat ironic that, as the Butler report reveals, Lord Goldsmith soon afterwards asked the Prime Minister for his personal view of whether Saddam Hussein had breached the terms of the UN resolutions. In a letter dated 14 March 2003, to Tony Blair's private secretary, he asks for his personal confirmation that "it is unequivocally the Prime Minister's view that Iraq has committed further material breaches ". The reply was that it was "indeed the Prime Minister's unequivocal view that Iraq is in further material breach".

IS UN RESOLUTION 1441 ENOUGH TO JUSTIFY WAR?

"The key question is whether resolution 1441 has the effect of providing such authorisation. As you are aware, the argument that resolution 1441 itself provides the authorisation to use force depends on the revival of the express authorisation to use force given in 1990 by Security Council resolution 678. The revival argument is controversial. It is not widely accepted among academic commentators. I believe that the arguments in support of the revival argument are stronger following adoption of resolution 1441. The question is who makes the assessment of what constitutes a sufficiently serious breach. On the UK view of the revival argument (though not the US view) that can only be the Security Council, because only it can decide if a violation is sufficiently serious to revive the authorisation to use force."

ANALYSIS

Lord Goldsmith weighs up the pros and cons of reviving previous UN resolutions to justify force. He says the entire Security Council should decide whether Saddam Hussein's violations are so serious they revive preexisting authorisation for military action. On 17 March, after it became clear there would be no second UN resolution, Lord Goldsmith set out a fresh legal view which explains why he thought military action is lawful because of the revival of preexisting UN resolutions 678, 687 and 1441.

The Attorney General's legal view of 17 March came in response to a rather one-sided question. The Attorney General was asked by Baroness Ramsay of Cartvale, a Labour peer: "What is the Attorney General's view of the legal basis for the use of force against Iraq?" He was not asked for a balanced view or for what the pros or cons were, or the legal basis against. In lawyer's terms, the Attorney General answered the question directly. This may account for why it was only one page long.

GOLDSMITH MEETS THE BUSH ADMINISTRATION

"I have also had the opportunity to hear the views of the US administration ... They maintain that the fact of whether Iraq is in breach is a matter of objective fact which may therefore be assessed by individual member states."

ANALYSIS

This sheds some light on the mysterious visit by Lord Goldsmith to see the Bush administration in February 2003. It hints that Washington strongly tried to persuade a sceptical Attorney General that war without further UN backing would be legal.

TIMING

"You have asked me for advice on the legality of military action against Iraq without a further resolution on the Security Council. This is, of course, a matter we have discussed before."

ANALYSIS

This shows that Tony Blair and Lord Goldsmith held informal discussions about the legality of war before 17 March. The question is how far back did these discussions go? Did they go back to the summit between Blair and Bush in April 2002 in Crawford, Texas? We already know that Tony Blair did not ask Lord Goldsmith in writing to provide legal advice. So the request for a legal opinion must have been oral unless any letter from Tony Blair was subsequently destroyed. Downing Street told The Independent this month it had no instructions to the Attorney General about the legal basis for war in its files. The question that must be answered now is: when was the request made?

Comments