February 27, 2005


For Tony Blair, the war in Iraq may never be over. As new questions are asked about whether the invasion was illegal, the advice of the attorney general – and his sudden change of mind – puts the Prime Minister back in the dock


The increase in the minimum wage was supposed to be top of the agenda at Tony Blair’s monthly press conference at Downing Street on Friday. The Prime Minister was anxious to engage in the debate, or indeed any debate on any subject – domestic or international – bar one.

But again it was Iraq that dominated proceedings. Two years after the invasion that put him under enough pressure to end most careers, the spectre of Iraq continues to haunt him in the days running up to an almost certain general election on May 5.

Blair has fought off opponents within his own party, faced down the one million-plus who marched in the streets to oppose the war and saw the BBC retreat as it reported – accurately – criticism within his own security services. But Iraq has not faded away quietly.

At the core of Blair’s problem is the issue he cannot avoid: the legality of his decision to unquestionably support the Bush administration in going to war in Iraq when virtually all international legal advice warned there was no justification for doing so.

Enemies looking for legal evidence that would brand Blair a potential war criminal have seized upon the publication next week of Lawless World, by University College London law professor and QC Philippe Sands. His book is a detailed account of how the attorney general, Peter Goldsmith, changed his mind on the legality of the war within a crucial 10-day period in March 2003. An added embarrassment for the government is that Sands is attached to Cherie Blair’s legal chambers, Matrix.

Goldsmith presented his first advice to Downing Street on March 7 in a 13-page document which laid out the argument that going to war without a new UN resolution sanctioning hostilities "could be found to be illegal".

"The March 7 memorandum is rather equivocal," says Sands. "It is as well-balanced a document as one would expect from a lawyer of that quality. It sets out pros and cons and reaches a conclusion, including a view that it would be safer to have a second resolution."

Yet 10 days later – on March 17 – Goldsmith published another report in which he felt able to state that the existing UN resolution 1441 would, by itself, provide a legal basis for invading Iraq.

What happened to change his mind – and indeed the exact basis on which he issued his original warning – have still not been revealed.

This much we do know: when Goldsmith first warned the war could be illegal, the government put together a team to defend itself against any legal challenge. The chief of the defence staff, Lord Boyce, requested an explicit statement from the attorney general on the legality of the proposed invasion.

According to eminent QC and Labour peer – and now Sunday Herald columnist – Helena Kennedy, Washington ordered Downing Street to find a legal opinion to justify the war. Certainly, the dominant view in legal circles and in the UK Foreign Office was that a US-led war, outwith the UN’s authority, was not justified. "The legal advisers at the Foreign Office had already taken the view that you needed a second resolution,’’ says Sands.

It has been suggested that on the same day Goldsmith delivered his summary report to parliament, a memo from the Foreign Office to the foreign affairs select committee made clear there was no "automaticity" in resolution 1441 to justify war.

Clare Short, who like the rest of her Cabinet colleagues did not oppose the content of the two-page document when it passed through Cabinet on March 17, now feels Number 10 leaned on Goldsmith to change his advice. She later resigned from government, but there were more immediate consequences.

On March 18 – the day of the Commons vote on the war – Elizabeth Wilmshurst, the Foreign Office’s deputy legal adviser, tendered her resignation. She could not go along with the attorney general’s advice and saw the invasion of Iraq, without a second UN resolution, as a "crime of aggression".

Goldsmith denies claims that the March 17 document was in fact drawn up by Downing Street officials. He insists it was the work of his own office by a team which included Harriet Harman, the solicitor general, three officials from the Foreign Office and Christopher Greenwood, a law professor at the London School of Economics.

Greenwood was regarded as one of only two leading academic lawyers in the UK who would give the government the opinion it needed, namely, that if a second resolution was not possible the use of force could still be justified. Goldsmith is adamant that Number 10 did not influence matters.

Attempts to discover the basis for Goldsmith’s original advice have proved fruitless. When the Freedom of Information Act came in last month, attempts were made to use it to unveil his full 13-page judgment, as opposed to the two-page summary given to parliament. The request was refused.

When Lord Butler last year published his report into the intelligence failures that had become clear since the conclusion of formal conflict in Iraq, Lord Goldsmith again offered his opinion on the legal position. He said attacking Iraq was legal, despite Butler’s conclusion that the intelligence used to justify the war was "seriously flawed". He said the case for war had not been altered by Butler’s findings, which finally prompted Blair to concede that Iraq had no weapons of mass destruction.

That conclusion has been repeatedly challenged. Last year the UN secretary-general, Kofi Annan, claimed the US-led invasion of Iraq was illegal and contravened the UN charter. Annan said the decision to take action should have been made by the Security Council, and not unilaterally, and he believed there should have been a second Security Council resolution following Iraq’s failure to comply with UN weapons inspections.

The head of the weapons inspections team, Hans Blix, was equally critical of the legal authority the British government still insists is valid. Blix, trained in international law, said the advice given by Goldsmith on the eve of war had no legal justification. Blix’s view is shared by other leading law experts: a second UN resolution which explicitly authorised the use of force had to be in place to make any invasion of Iraq lawful.

"I don’t buy the argument that the war was legalised by the Iraqi violation of earlier resolutions," said Blix.

He said that while it was possible to argue that Iraq had breached the ceasefire by violating many of the UN resolutions adopted since 1991, the "ownership" of the resolutions rested with the entire 15-member Security Council, not with individual states. "It’s the Security Council that is party to the ceasefire, not the UK and the US individually," Blix said.

The importance of Goldsmith’s backing for the legality of war was crucial to Blair in the run-up to the invasion. According to Plan Of Attack, written by the Watergate investigative reporter Bob Woodward, President Bush made it clear to Blair as long ago as September 2002 that he was going after Saddam. At a meeting at Camp David, Bush told Blair: ''We must work together to deal with this threat and the world will be better off without him.’’ Bush laid out the consequences: there would likely be a war; Blair might need to send troops. According to Woodward’s sources, Blair’s reply was unequivocal: ''I’m with you.’’

Bush told the UN on September 12, 2002: "We will work with the UN Security Council for the necessary resolutions." Blair remained convinced for months that is what Bush would do.

But by early 2003 the mood in Washington had changed. On January 20, Colin Powell, the US Secretary of State, went back to the Security Council. Donald Rumsfeld, the US defence secretary, and Vice-President Dick Cheney both told him he shouldn’t bother. But after the session, when the French foreign minister, Dominic de Villepin, told a press conference that "nothing, nothing" would justify war against Iraq, all hopes of a second UN resolution had gone. De Villepin had flagged France’s intention to use its veto – and in the custom and practice of the Security Council’s culture, no second resolution would be presented if it was known it would fail due to a veto.

The following day, January 21, Bush told some of his economic advisers he would lead a "coalition of the willing" to disarm Saddam. Ten days later, Blair was back in the US for more talks at the White House, and he told Bush he required, and politically needed, a second UN resolution.

Blair tried to convince the President not to abandon the UN route. Bush didn’t want to bother with more argument. Powell and Cheney thought the UN route all but closed, but to keep Blair on board, they sided with Bush, saying that if Blair needed it – because of the promises he’d made to his own party and beyond – then they’d try.

But the desired momentum inside the UN, and the impetus to get the French to pull back from vetoing anything that looked like an authority to go to war, never happened.

For the US the legality of the war was not a great issue. In a neo-conservative dominated political arena, in a country still reeling from 9/11, the idea that international law could stop military retaliation by the world’s strongest nation was a non-starter. Once Congress gave Bush the authority to use force the war against Iraq was on.

In the UK, the status of the war in international law was crucial, and not just to satisfy sceptical Cabinet members and Labour backbenchers who were dubious about supporting military action. Senior British military officials wanted assurances that the war, which like any conflict involved killing, would be within international law. Their main concern focused on the exposure to prosecution of British troops in international criminal courts if the war wasn’t legal. As the government’s senior legal adviser, Lord Goldsmith’s revised opinion was pivotal. It allowed Blair to go to a pre-war summit in the Azores with Bush and the Spanish prime minister, Jose Maria Aznar, with the legal backing to keep his promise to the US President.

The Azores summit – which effectively finalised when the war would start – fell between Goldsmith’s first detailed draft and his short parliamentary summary.

Philippe Sands’s conclusion is that the British government disregarded international law in the pursuit of an illegal war and he believes that is why the government has consistently refused to publish the attorney general’s advice.

"My interest is in ensuring that international law is complied with," says Sands. "If the British attorney general gives an opinion that is at odds with the general opinion among international lawyers it is in the public interest to know what that advice is".

He adds: "Lawyers do change their minds and do take second and third opinions. It is perfectly normal for them to take advice from other lawyers and from independent experts. If the story is as the Prime Minister and the attorney general are indicating, there would be nothing lost in putting these documents in the public domain."

It is, says Sands, not just a matter of legal interest. "Relying on bad legal arguments destroys the credibility of governments. And credibility is important right now. Undermining the rules of international law diminishes our response and when two countries have broken ranks with others it make it more difficult to act in unity when there is a real threat."