British Prime Minister Tony Blair was told by the government’s most senior law officer in a confidential minute less than two weeks before the war that British participation in the American-led invasion of Iraq could be declared illegal.
In a legal opinion Blair has repeatedly refused to publish and never seen by the Cabinet, Lord Goldsmith, the attorney general, spelled out the dangers of going to war, including the prospect of Britain losing a case in an international court.
He warned that while he could argue a ”reasonable case” in favour of military action, he was not confident a court would agree. Indeed, a court ”might well conclude” that a new United Nations resolution was needed before military action could be undertaken.
The attorney general warned Blair that Britain might be able to argue it could go to war on the basis of past UN resolutions, but only if there were ”strong factual grounds” that Iraq was still in breach of its disarmament obligations.
Lord Goldsmith’s 13-page minute was sent to Blair on March 7 2003. On that day, Hans Blix, the chief UN weapons inspector, declared that Iraq had made ”substantial” progress in destroying its long-range missiles, and he had found no evidence of biological or chemical weapons.
The fact that Goldsmith’s legal opinion was not seen by the Cabinet is an apparent breach of the official code covering ministerial behaviour.
It is in contrast to the parliamentary answer issued by Goldsmith 10 days later, which was shown to the Cabinet. In his answer, which contained none of the earlier caveats, he said it was ”plain” that Iraq was in breach of its UN disarmament obligations.
Goldsmith on Wednesday night said he stood by his opinion that it was legal for Britain to go to war in Iraq. The document ”stood up” the government’s case that he had not changed his opinion between giving Blair private advice on March 7 and his statement to Parliament.
In a statement, he said the document showed how he had gone through the complex arguments over the legality of military action before concluding that it would be lawful. ”The document… so far from standing up the case of the government’s critics, stands up the case the government has been making all along.
”Contrary to the allegations that have persistently been made, it does not say the war was unlawful but confirms the conclusion I reached was that a sufficient basis for the use of force was established without a second resolution.”
In 2003, Goldsmith asked Downing Street for Blair’s view. Number 10 replied that it was ”indeed, the prime minister’s unequivocal view” that Iraq was still in breach.
But, according to extracts from his confidential minute of March 7, the attorney general warned Blair:
- ”The language of resolution 1441 [the last UN resolution on Iraq before the war] leaves the position unclear”;
- ”I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force”;
- ”We would need to be able to demonstrate hard evidence of [Iraqi] non-compliance and non-cooperation”;
- ”In the light of the latest reporting by Unmovic [UN weapons inspectors] you will need to consider very carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity”.
According to the Butler report on the use of intelligence in the run-up to war, ministers failed to ask Britain’s intelligence agencies to look again at their assessments of Iraq’s weapons programme despite the UN inspectors’ failure to find any.
In his minute, Goldsmith revealed that his predecessors had advised that the legality of British bombing of Iraq in Operation Desert Fox in 1998, and of Kosovo the following year, was ”no more than reasonably arguable”.
In a pointed warning to the prime minister, he added: ”But a ‘reasonable case’ does not mean that if the matter ever came before a court I would be confident that the court would agree with the view.”
A court ”might well conclude”, Goldsmith said, that the wording of resolution 1441 required a second resolution to trigger military action.
A ”counter view” could be reasonably maintained, Goldsmith said. ”However, it must be recognised that on previous occasions when military action was taken on the basis of a reasonably arguable case, the degree of public and parliamentary scrutiny of the legal issue was nothing as great as it is today.”
He also dismissed the government’s claim that by threatening to veto a new UN resolution France was behaving unreasonably, and this somehow negated the need for a new resolution: ”As I have said before, I do not believe that there is any basis in law for arguing that there is an implied condition of reason ableness which can be read into the power of veto conferred on the permanent members of the security council by the UN charter.”
”In any event,” he added, ”if the majority of world opinion remains opposed to military action, it is likely to be difficult on the facts to categorise a French veto as ‘unreasonable’.”
The disclosure of extracts was seized on Wednesday night by constitutional experts as well as opposition politicians. Anthony Lester QC, a Liberal Democrat peer, described it as a ”devastating blow to the government’s credibility”.
Philippe Sands QC, a professor of international law, said: ”The whole thing reeks. Even if the prime minister wins handsomely on polling day this will stain him and his premiership as long as people remember it, just as Anthony Eden’s name isforever associated with the Suez crisis.”
The Liberal Democrat leader, Charles Kennedy, said: ”What is abundantly clear is not only that the prime minister made the wrong political judgement but he went about justifying that judgement in a seriously misleading way.” – Guardian Unlimited Â