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The British Attorney General’s Legal Advice, Government Spin And The Iraq War


INTRODUCTION

Tony Blair thinks that the controversy over the Attorney General’s legal advice is a ‘damp squib’. His ministers struggle to put out the raging fire – which has torched their election campaign plans – by offering up distortions and lies.

The crucial point is that in his 7 March legal advice, Lord Goldsmith said that if there was no second UN resolution authorising war against Iraq, there had to be ‘hard evidence’ of Iraqi ‘non-compliance and non-cooperation’ with its disarmament obligations. (Legally, this is nonsense, but the issue is what the Government’s legal adviser told Tony Blair, and what Mr Blair did with that advice.)

Gordon Brown, Chancellor of the British Exchequer, and now Tony Blair’s heir apparent (after a decade of bitter rivalry) has sought to defend the decision to go to war (in which he participated), by referring to a range of documents brought before the British Cabinet on 17 March 2003.

None of these documents demonstrates that Iraq was failing to cooperate with inspectors, or that Iraq definitely possessed weapons of mass destruction. When examined, these documents actually demonstrate that Iraqi cooperation with the inspectors, and Iraqi disarmament, were increasing, not decreasing, on 17 March 2003. It is also clear from these documents that the judgement as to Iraq’s cooperation should not have been made by the British Cabinet, but by UN weapons inspectors and the UN Security Council.

1) THE CENTRALITY OF THE INSPECTORS

The Attorney General told Mr Blair:

‘the argument that resolution 1441 alone has revived the authorisation to use force in resolution 678 will *only be sustainable* if there are strong factual grounds for concluding that Iraq has failed to take the final opportunity.’ (emphasis added)

In the Guardian (28 April) Anthony Lester QC described the phrase ‘only be sustainable’ as ‘very strong words’ for a lawyer.

The Attorney General went on to say that it was necessary ‘to be able to demonstrate hard evidence of [Iraqi] non-compliance and non-cooperation’, and that, ‘Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect.’

In other words, the British Government’s senior legal adviser put forward a formal legal opinion to Tony Blair before the war which identified a central role for UN weapons inspectors. The inspectors had a ‘highly significant’ role in determining whether Iraq possessed weapons of mass destruction (non-compliance) or whether Iraq was refusing to cooperate with the disarmament effort. The views of the inspectors on these two issues would be crucial in judging whether there were the ‘strong factual grounds’ that Iraq had failed its final opportunity. Without these ‘strong factual grounds’, the Attorney General said, war without a second UN resolution would be illegal.

2) GORDON BROWN’S DEFENCE

According to the Financial Times (29 April, p. 2), Gordon Brown has defended Tony Blair by arguing that ‘at the March 17 cabinet meeting, ministers discussed extensively the two critical issues raised by the attorney general in his March 7 legal advice.’ The first issue being the desirability of a second UN resolution. ‘The second issue was that for the Iraq invasion to be legal, there must be clear proof of Iraq’s noncompliance with UN weapons inspectors’.

How was this established to the Cabinet’s satisfaction?

‘Mr Brown said this second issue was discussed thoroughly and a string of documents laid before cabinet made clear that Iraq was not complying with its obligations.’

‘These documents were a report by Hans Blix, then UN weapons inspector; a report by Mr Straw; and another that showed Iraq had failed six tests imposed by the UK to judge whether it was complying. Mr Brown said all these papers established clearly that Iraq had failed to comply with demands.’

The Chancellor said, ‘So all the issues we had to discuss and resolve were before us on that day.’ (FT, 29 April, p. 2)

2a) THE BLIX REPORT

We know from Jack Straw’s performance on the Today programme earlier in the day that the ‘report from Hans Blix’ is likely to have been the 173-page ‘clusters document’ drawn up by the UN weapons inspectors in order to identify unresolved disarmament issues.

Was this evidence that Iraq had failed to comply with demands?

The 173-page ‘cluster document’ (which can be obtained from the weapons inspectors’ site ) is an exhaustive study of the available documents and a summary of past investigations into Iraq’s suspected weapons.

For various categories of weapons and weapons systems, the document ‘identifies the questions that are deemed outstanding and unresolved’. A question could be unresolved ‘because of the lack of convincing evidence [that a weapon or component had been destroyed] or, in a few cases, because of evidence that conflicts with Iraq’s account.’ (page 3)

On 27 January 2003, Dr Blix had explained the issues clearly, saying of the documents used to compile the 173-page study: ‘These reports do not contend that weapons of mass destruction remain in Iraq, but nor do they exclude that possibility. They point to lack of evidence and inconsistencies, which raise question marks, which must be straightened out, if weapons dossiers are to be closed and confidence is to arise.’

Far from the 7 March cluster document being new and ‘mounting evidence’ of Iraq’s failure to comply with its clear obligations, it was a historical survey of areas where there was a ‘lack of evidence’ about Iraq’s compliance with its disarmament obligations, which had to be cleared up.

2b) THE STRAW DOCUMENTS

On 17 March 2003, Jack Straw, then as now Foreign Secretary, released three documents. One was the brief legal note put out in the name of the Attorney General, with some accompanying remarks from the Foreign Office. Clearly this cannot be ‘hard evidence’ of Iraqi noncompliance as it is entirely composed of legal argument.

The other two documents were entitled ‘Iraq: UN documents of early March 2003′. The second of these volumes was the inspectors’ ‘cluster document’, already discussed. As we have already seen, this could not qualify as evidence of Iraq’s noncompliance, as it was a list of areas requiring investigation.

So we turn to the first volume of the ‘UN documents of early March 2003′. This contains a speech by Jack Straw himself, which again cannot constitute evidence of Iraqi noncompliance, and three statements or reports by the weapons inspectors.

THE QUARTERLY REPORT

One of these is the UNMOVIC inspectors’ 12th Quarterly Report to the Security Council, submitted on 28 February 2003. This report states, in relation to Iraqi cooperation that ‘UNMOVIC has reported that, in general, Iraq has been helpful on “process”, meaning, first of all, that Iraq has from the outset satisfied the demand for prompt access to any site, whether or not it had been previously declared or inspected.’

In relation to cooperation on matters of substance, UNMOVIC reported several instances of cooperation, then went on to say,

‘During the period of time covered by the present report, Iraq could have made greater efforts to find any remaining proscribed items or provide credible evidence showing the absence of such items. The results in terms of disarmament have been very limited so far.’

UNMOVIC pointed out that the destruction of proscribed missiles (‘an important operation’) had not yet begun and that Iraq could have made ‘full use’ of its weapons declaration of 7 December.

‘It is hard to understand why a number of the measures, which are now being taken, could not have been initiated earlier’, said the inspectors: ‘It is only by the middle of January and thereafter that Iraq has taken a number of steps, which have the potential of resulting either in the presentation for destruction of stocks or items that are proscribed or the presentation of relevant evidence solving long-standing unresolved disarmament issues.’

In other words, from the middle of January 2003, Iraq began taking ‘a number of steps’ which had the potential to produce WMD-related items for destruction or to clear up what happened to WMD-related items which Iraq had once possessed.

‘Hard evidence’ that Iraq had failed to comply with its obligations? No. This was ‘hard evidence’ that Iraq was finally beginning whole-hearted cooperation with inspectors on matters of substance as well as matters of procedure.

THE 7 MARCH EL BARADEI STATEMENT

The second report in the UN Documents paper was a 7 March address to the Security Council by the head of the International Atomic Energy Agency, charged with verifying Iraq’s nuclear disarmament.

Mohammed El-Baradei said that ‘important progress’ had been made in this mission. After dismissing various Western allegations (discarded after painstaking investigation by the IAEA), Dr El-Baradei said,

‘in the past three weeks, possibly as a result of ever-increasing pressure by the international community, Iraq has been forthcoming in its co-operation, particularly with regard to the conduct of private interviews and in making available evidence that could contribute to the resolution of matters of IAEA concern.’

‘Hard evidence’ that Iraq had failed to comply with its obligations? Hardly.

THE 7 MARCH BLIX STATEMENT

Finally we turn to Dr Blix’s statement to the Security Council on 7 March 2003. Is there evidence here of Iraq’s failure to comply?

Referring to the voluntary destruction by Baghdad of al Samoud missiles (‘an important operation’, as the earlier report had stated), Dr Blix famously said: ‘The destruction undertaken constitutes a substantial measure of disarmament – indeed, the first since the middle of the 1990s. We are not watching the breaking of toothpicks. Lethal weapons are being destroyed.’

Referring to other forms of Iraqi cooperation, Dr Blix said, ‘What are we to make of these activities? One can hardly avoid the impression that, after a period of somewhat reluctant cooperation, there has been an acceleration of initiatives from the Iraqi side since the end of January.’

Dr Blix continued: ‘It is obvious that, while the numerous initiatives, which are now taken by the Iraqi side with a view to resolving some long-standing open disarmament issues, can be seen as *active*, or even *proactive*, these initiatives 3-4 months into the new resolution cannot be said to constitute *immediate* cooperation. Nor do they necessarily cover all areas of relevance. They are nevertheless welcome and UNMOVIC is responding to them in the hope of solving presently unresolved disarmament issues.’

In other words, far from ‘evidence of Iraq’s continuing further material breach, its failure to comply with its clear obligations’ ‘mounting’, as Jack Straw claims, the reverse was the case.

Iraq’s compliance with its obligations was increasing, not decreasing.

Iraq’s cooperation was increasing not decreasing.

KEY REMAINING DISARMAMENT TASKS

On the topic of Iraqi cooperation, Dr Blix made an important observation in his 7 March address:

‘While cooperation can and is to be immediate, disarmament and at any rate the verification of it cannot be instant. Even with a proactive Iraqi attitude, induced by continued outside pressure, it would still take some time to verify sites and items, analyse documents, interview relevant persons, and draw conclusions. It would not take years, nor weeks, but months.’

This was Dr Blix’s answer to his own question: ‘How much time would it take to resolve the key remaining disarmament tasks?’

What were these ‘key remaining disarmament tasks’? Dr Blix reminded the Security Council that his organisation UNMOVIC (the UN Monitoring, Verification and Inspection Commission) was set up by UN Security Council Resolution 1284 in December 1999.

He said: ‘Resolution 1284 (1999) instructs UNMOVIC to “address unresolved disarmament issues” and to identify “key remaining disarmament tasks” [in Iraq] and the latter are to be submitted for approval by the Council in the context of a work programme.’

The ‘key remaining disarmament tasks’ were those actions that Iraq would have to carry out (under UN supervision) in order to satisfy the outside world that Baghdad no longer possessed weapons of mass destruction. The ‘cluster document’ invoked by Jack Straw was actually drawn up in order to identify the priority areas which should go into the list of ‘key remaining disarmament tasks’ for Iraq.

Dr Blix told the Security Council that the list of tasks, and the inspectors’ work programme, would be finalized shortly and presented to the Security Council for approval. It was actually delivered on 17 March 2003, the day the inspectors were ordered out of Iraq by President Bush, and Dr Blix made an oral presentation regarding the key remaining disarmament tasks on 19 March, shortly before the bombs began to fall.

2c) THE SIX TESTS

Returning to Gordon Brown’s justification for the war, recall that the Chancellor referred to a final paper ‘that showed Iraq had failed six tests imposed by the UK to judge whether it was complying.’ This was one of the documents that Mr Brown said ‘established clearly that Iraq had failed to comply with demands.’

THE FIRST TEST

The ‘six tests’ are a motley affair (the full text is available from the BBC). The list includes the demand that Saddam Hussein appear on Iraqi television and make a statement in Arabic confessing that Iraq had been concealing its weapons of mass destruction, and making a dozen promises of cooperation. It is true that Iraq ‘failed’ this test. The problem is that this demand was never actually made by the United Nations, the United States or the United Kingdom. It is difficult to see how Iraq could have ‘failed’ a test which had not been set, but which was merely being mooted by the British Government.

FOUR MORE TESTS

Iraq would also have to: produce at least 30 scientists willing to leave Iraq with their families in order to be interviewed by UN weapons inspectors (the inspectors would have to cooperate ‘fully’ with their interviewers); surrender all anthrax stocks and anthrax-related materials and capabilities; account for all ‘unmanned aerial vehicle’ (UAV) programmes; and surrender all mobile biological and chemical weapons laboratories.

The problem with the anthrax, the WMD-bearing UAVs, and the mobile laboratories is that we now know that there was no anthrax, no WMD-bearing UAVs, and there were no mobile biological and chemical weapons laboratories. Iraq ‘failed’ to meet these demands (which again had not actually been made), and would always have ‘failed’ them, because these items simply did not exist.

On the scientists issue, Dr Blix said on 7 March that interviews outside Iraq might be helpful, and ‘It is our intention to request such interviews shortly.’ This is the one area where Iraq had been asked by the inspectors to fulfill one of the British ‘six tests’ and could have done more. On the other hand, Dr Blix said on 7 March that, ‘despite remaining shortcomings, interviews are useful. Since we started requesting interviews, 38 individuals were asked for private interviews, of which 10 accepted under our terms, 7 of these during the last week.’

Does Baghdad’s failure to force Iraqi scientists to leave the country and to cooperate ‘fully’ with foreign interviewers really ‘establish clearly that Iraq had failed to comply with demands’?

THE SIXTH TEST

The final ‘test’ drawn up by the British Government was the destruction of the al-Samoud 2 missile and its components.

On 7 March, Dr Blix reported that:

‘To date, 34 Al Samoud 2 missiles, including 4 training missiles, 2 combat warheads, 1 launcher and 5 engines have been destroyed under UNMOVIC supervision. Work is continuing to identify and inventory the parts and equipment associated with the Al Samoud 2 programme. Two ‘reconstituted’ casting chambers used in the production of solid propellant missiles have been destroyed and the remnants melted or encased in concrete.’

Iraq was not ‘failing’ this test. It was passing the test when the Cabinet met on 17 March to discuss the legality of the war. Note that this was the only one of the ‘six tests’ which involved an item banned under UN Security Council Resolution 687 that Iraq actually possessed.

The al-Samoud was the only weapon in the British ‘six tests’ that Iraq could have disarmed, and Iraq was indeed destroying these missiles when the Cabinet met.

Evidence that Iraq had failed to comply? Quite the reverse.

3) WHO’S TO JUDGE?

Gordon Brown apparently fails to acknowledge that the British six tests were never adopted by the United Nations Security Council.

He fails to acknowledge that the authoritative ‘tests’ by which Iraqi compliance should be judged – the ‘key remaining disarmament tasks’ – were being drawn up by the UN weapons inspectors, as they were instructed to do by UN Security Council Resolution 1284.

He fails, finally to acknowledge that this instruction, this inspection and disarmament process, was drawn up and proposed to the Security Council in December 1999 by a British Government of which he was then as now a key part.

It was New Labour’s Tony Blair who put forward UN Security Council Resolution 1284.

It was New Labour’s Peter Hain, then a Foreign Minister, who said of Resolution 1284 in November 2000 ‘ if we can get Saddam Hussein to comply with admitting the arms inspectors, we shall work tirelessly to implement the full Security Council resolution.’

According to the procedure laid down in Resolution 1284, the UN weapons inspectors were to return to Iraq, carry out preliminary inspections, then draw up a work programme for themselves and a list of ‘key remaining disarmament tasks’ for the Iraqi authorities to carry out.

If Baghdad cooperated in carrying out these tasks, then the inspectors would be able to rule definitively whether or not Iraq possessed weapons of mass destruction.

If Baghdad failed to cooperate, then the inspectors would be able to tell the world that they had been prevented from carrying out their work.

This was the real ‘test’ of Iraq’s WMD capacities, and its willingness to cooperate with the outside world in clearing up these matter. This ‘examination’ had not yet been set. The Security Council had not yet agreed the list of ‘key remaining disarmament tasks’. Iraq had not been told what it had to do, or told how long it had to complete these tasks. The results of the ‘test’ had not been evaluated by a competent outside observer (the weapons inspectors).

If someone has not yet been given an exam paper, has not been told how long the exam will last, has not had the results of their work marked by a competent authority, how can anyone say that they have ‘failed’?

To make the analogy more exact: if the exam paper has not yet been agreed by the exam board, how can someone be said to have ‘failed’ the exam?

The British ‘six tests’ were irrelevant to the real issues around Iraq’s WMD. They were a transparent attempt to pre-empt and divert the ‘key remaining disarmament task’ process. Gordon Brown colluded with this process, and his attempt to use the six tests as a justification for war is almost as ludicrous as it is shameful.

4) CONCLUSION

Gordon Brown has said he would have acted exactly as Tony Blair did in relation to the war on Iraq. He is proving the point by colluding enthusiastically in the re-writing of history about the disarmament effort in Iraq.

The Government must not get away with this re-writing of history.

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