The Attorney General's advice on the Iraq war
Do the fresh disclosures finally prove that Tony Blair took Britain to war knowing that the conflict could be in breach of international law? Raymond Whitaker reports
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The legal advice of the Attorney General, Lord Goldsmith, during the run-up to war in Iraq came under fresh scrutiny last night as it was claimed that he had listed six reasons why Britain could be in breach of international law.
These arguments were reported to be contained in a 13-page document dated 7 March 2003 which has never been made public. It was seen by only a relative handful of people at the highest levels of government - including Britain's military top brass, who found it unsatisfactory.
Lord Goldsmith's balanced reasoning was said to have dismayed Admiral Sir Michael Boyce, then chief of the defence staff. With British forces poised to attack Iraq, Sir Michael (now Lord) Boyce demanded an unequivocal answer on whether they could be accused of war crimes.
Within a few days he had it, in the form of a nine-paragraph, 337-word statement. Shorn of all caveats, it said Britain was entitled to go to war on the basis of past UN resolutions, some dating back to before the 1990-91 Gulf War, more than 12 years before. The statement was presented to the Cabinet on 17 March 2003, two days before the first bombs fell on Baghdad, and published as a parliamentary answer the same day.
The suspicion that Lord Goldsmith drastically changed his legal advice in the space of 10 days has grown to near-certainty in the aftermath of the war, not least because Elizabeth Wilmshurst, a senior Foreign Office lawyer who quit in protest, said so in her resignation letter. Jack Straw, the Foreign Secretary, even admitted as much in the House of Commons - arguing that the advice altered as the circumstances did.
Despite everything, however, the Government has consistently refused to publish the 13-page document. It has clung to the principle of legal confidentiality, even though some in official circles argued that the advice was far from explosive, and that any controversy resulting from its publication would soon fade away. But one legal authority disagreed, saying the Government could not afford to release it.
"The real reason for keeping it secret," he said, "is that it would show how the later document was 'sexed up', with all caveats removed - just like the row over the dossier on Iraq's weapons."
According to the leaked version of Lord Goldsmith's more detailed advice carried by the Mail on Sunday, this view may well be correct. The Attorney General almost certainly listed arguments both for and against Britain's case, but it would be highly embarrassing to admit, for example, that he had questioned whether Britain could rely on UN resolutions drawn up after Saddam Hussein invaded Kuwait more than a decade ago. In 1991 the allies had refrained from trying to topple the Iraqi dictator, believing the UN had not authorised them to do so; it would be difficult to use the same resolution - 678 - to claim the opposite 12 years later.
Lord Goldsmith is also reported to have said that there was a strong argument in law that it was up to the UN, not Britain, to decide whether Iraq had defied international calls to disarm. This was the view held at the time by every other member of the Security Council, apart from Britain and the US.
In his published advice the Attorney General claimed that Resolution 1441, passed by the Security Council in November 2002, gave sufficient authority for military action. This was despite assurances when it was debated that it would not be treated as a "green light" for war, and strenuous efforts by Britain to get a second resolution through.
In private, according to the leaked version of Lord Goldsmith's advice, he warned that the wording of Resolution 1441 fell short of permitting military action, because it omitted the words "all necessary means". And even though he said it could be used to authorise war, it would be much "safer" and desirable to secure a second resolution.
Many critics of the Government's claims on Iraq's alleged weapons of mass destruction and its legal basis for going to war have pointed to the fact that UN weapons inspectors, led by Hans Blix, were still operating.
They were reporting that Baghdad was being co-operative, and - despite several tip-offs by American and British intelligence - had found no evidence that Iraq was concealing WMD.
According to the account of Lord Goldsmith's advice, he drew attention to the activities of the weapons inspectors. This sheds a fresh light on his later advice, which relied on an assurance from Downing Street that Britain believed Saddam was still hiding WMD. Once this was given, military chiefs were told that there were no legal obstacles to war.
Lord Goldsmith is also reported to have said in his confidential advice that the US government's view that the war was legal had no bearing on Britain's position.
The Attorney General flew to Washington in February 2003 to consult his American counterparts, and met John Bellinger, legal adviser to the US National Security Council.
In his book Lawless World, Philippe Sands QC, an international lawyer deeply critical of Britain's stance, says he was told by a British official: "I met Mr Bellinger and he said, 'We had trouble with your Attorney, we got him there eventually.'"
The contrast between what Lord Goldsmith is reported to have said in private, and the bald statement he issued on the eve of war, reinforces the belief that he was under huge pressure from Downing Street to change his mind. Although he has always maintained that he reached his conclusions individually and independently, the latest revelations will heighten the many doubts still lingering over the affair.
THE CRUCIAL DATES
7 March 2003
Following a meeting with Jonathan Powell, Tony Blair's chief of staff, and Sir David Manning, his foreign policy adviser, Lord Goldsmith produces a 13-page document weighing legal arguments, complete with caveats.
13-17 March 2003
A nine-paragraph document is drawn up to persuade Sir Michael Boyce, the Army's chief of staff, that British troops would not be charged with war crimes in the event of an attack on Iraq.
17 March 2003
The Prime Minister presents the document 'on one side of an A4 page' to the Cabinet to convince waverers, including Clare Short, of the justification for an attack on Iraq. It is made public.
19 March 2003
Two days after the A4 document is produced in Cabinet and used by Mr Blair in the House of Commons, the shock and awe campaign begins with the bombing of Baghdad.
24 March 2005
The Government is challenged to publish the whole of Lord Goldsmith's 13-page legal advice amid claims he believed war was illegal less than two weeks before the invasion. The claims were based on the leaked resignation letter of Elizabeth Wilmshurst, The Foreign Office's deputy legal adviser.
24 April 2005
Fresh evidence emerges that ministers were told the war could be in breach of international law for at least six reasons. A detailed account of the document in the press suggests Lord Goldsmith did not believe the war was legal without a second UN resolution - despite the Government's claims.