The Attorney
General, Dr Blix and Jack Straw's Big Lie
How
The Government Is Trying To Rewrite History
- LONG VERSION
28 April 2005 |
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Posted: 28 April
2005 |
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The publication of the Attorney General's
legal advice, presented to Tony Blair on 7 March 2003, before
the invasion of Iraq, but not published until today (28 April
2005), marks a significant defeat for the Government, and an
important opportunity for the anti-war movement to educate the
general public about some crucial realities – particularly
about the role and function of the UN weapons inspectors. Jack
Straw is piloting a new Big Lie for the Government to cover
up its dishonesty.
What does the legal advice mean? As long
rumoured, Lord Goldsmith's advice is finely balanced and equivocal
– the very opposite of the black-and-white legal certainty
that military chiefs wanted and Tony Blair announced to the
world.
A DISTRACTION?
Does the advice change the world's view
of the legality of the war on Iraq? Hardly. The Attorney General
strained to find some way to stitch together a semblance of
legality for the war on Iraq. The ragged garment he put together
did not satisfy Mr Blair, and the short 9-paragraph statement
supposedly written by Lord Goldsmith and published on 17 March
was the result.
The legal advice is significant not so
much in itself, in terms of its determination of the legality
of the war, but in terms of the integrity and honesty of British
decision makers, and chief among them, the Attorney General
himself. How did the nine pages of careful, qualified and balanced
arguments of 7 March become the short, snappy declaration of
war published on 17 March?
How important is this issue to the anti-war
movement?
Here the Government has a point, this is
an argument about 'process' not about 'substance'. The debate
rages about honesty and integrity, rather than about legality
and aggression.
If the war was illegal, then it was a war
crime, and Tony Blair, Lord Goldsmith and other political and
military leaders could be charged, prosecuted and found guilty
of the crime of aggression.
In his advice,
Lord Goldsmith refers to CND's legal challenge to the war on
Iraq, and acknowledges that there might be other attempts of
this nature. He wrote:
'Aggression is a crime under customary
international law which automatically forms part of domestic
law. It might therefore be argued that international aggression
is a crime recognised by the common law which can be prosecuted
in the UK courts... there are a number of ways in which the
opponents of military action might seek to bring a legal case,
internationally or domestically, against the UK, members of
the Government or UK military personnel. Some of these seem
fairly remote possibilities, but given the strength of opposition
to military action against Iraq, it would not be surprising
if some attempts were made to get a case of some sort off the
ground.'
He added, 'We cannot be certain that they
would not succeed.'
These are the issues about legality which
ought to be at the heart of the debate, and which are of primary
importance to the anti-war movement.
Nevertheless, the publication of the legal
advice is extremely useful in focusing public attention once
more on the crucial fortnight immediately before the invasion
began on 19 March 2003.
JACK STRAW'S BIG LIE
The Government is defending itself by arguing
that circumstances changed between 7 March (when the Attorney
General failed to find an overwhelming case for war) and 17
March (when he confidently declared its legality). Circumstances
changed.
The line the Government is likely to take
surfaced in an
extended interview on the Today programme the morning after
the full legal advice was published, when Jack Straw (after
a drubbing on this issue only a few days earlier at the hands
of John Humphries) came to bat for the Government once again
(though this time at the kinder hands of Jim Naughtie). <>
Now the biggest problem for the Government
in the Attorney General's legal advice lies in the following
section:
'In other words, we would need to be able
to demonstrate hard evidence of non-compliance and non-cooperation.
Given the structure of the resolution as a whole, the views
of UNMOVIC and the IAEA will be highly significant in this respect.
In the light of the latest reporting by UNMOVIC, you will need
to consider extremely 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.'
The first key phrase is 'hard evidence
of non-compliance and non-cooperation'. Was there any 'hard
evidence'? The second key element is the 'highly significant'
role of the UN weapons inspection agencies UNMOVIC (chemical
and biological weapons and long-range missiles) and the IAEA
(nuclear weapons). Next, turn to the opinion that 'In the light
of the latest reporting by UNMOVIC, you will need to consider
extremely 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.'
Anthony Lester QC, a senior British lawyer, comments in the
Guardian (pdf)
that 'lawyers don't normally give quite such strong and clear
advice' as this.
The Foreign Secretary said that two key
changes took place between 7 and 17 March. Firstly, it became
clear that no second UN Security Council resolution could be
obtained. (How this made war *more* legal he did not explain.)
'Secondly,' he said, 'the evidence of Iraq's
continuing further material breach, its failure to comply with
its clear obligations mounted, not least in that 173-page document
which was [presented] by Dr Blix [the chief UN weapons inspector]
to the Security Council in the very late evening UK time of
the 7th of March.'
Jack Straw knows perfectly well that the
173-page document presented by the weapons inspectors to the
Security Council on 7 March was not 'evidence of Iraq's continuing
further material breach, its failure to comply with its clear
obligations'.
Jack Straw knows perfectly well that the
173-page document was actually a major obstacle to immediate
war.
Jack Straw, Tony Blair and the Government
are counting on the ignorance and timidity of the media to let
them get away with another Big Lie about the war.
THE INSPECTORS
Jim Naughtie said to the Foreign Secretary,
'You talk about what changed and you cite Dr Blix in your support.
Let me tell you what Dr Blix said last night on the question
of whether there was hard evidence of noncompliance of the sort
that the Attorney General said would be necessary to make the
case conclusive.' He quoted Hans Blix as saying 'what we reported
to the Council were minor breaches, and we also cast a lot of
doubts about some of the evidence presented by the United States
and the United Kingdom.'
Mr Straw responded, 'Dr Blix is now saying
this, but the whole burden of what Dr Blix was saying before
the Security Council in January-February and March the 7th of
2003 was frankly different. He didn't have to put that 173-page
document before the Security Council, which did not say in 173
pages, “By the way, Saddam is in compliance.” What
he did say is, “Here are 29 separate chapters of unresolved
disarmament questions dealing with the disarmament obligations
in respect of the Iraqi government.” '
The 'whole burden' of what Dr Blix was
saying between January and 17 March 2003 was mixed, to be sure,
but Mr Straw is trying to explain what changed between 7 and
17 March. The most pertinent piece of evidence regarding the
'burden' of what Dr Blix was saying must then be the 7 March
statement by Dr Blix to the Security Council, delivered, probably,
after the Attorney General finalized his legal advice. (Dr Blix
did not make another statement to the Security Council until
19 March, hours before the bombing began.)
In his 7
March statement, referring to the voluntary destruction
of al Samoud missiles, 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... 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. This is a significant element in Jack Straw's
Big Lie.
Furthermore, Dr Blix said that, 'The Iraqi
side has tried on occasion to attach conditions [to inspections],
as it did regarding helicopters and U-2 planes. It has not,
however, so far persisted in these or other conditions for the
exercise of any of our inspection rights. If it did, we would
report it.' In other words, *at the time*, Dr Blix reported
what could be called 'minor breaches' to the Security Council.
Dr Blix also referred to allegations by
'intelligence authorities' that 'weapons of mass destruction
are moved around Iraq by trucks and, in particular, that there
are mobile production units for biological weapons'; suggestions
that Iraq possessed 'Remotely Piloted Vehicles'; and that Baghdad
was using 'underground structures' for the production or storage
of weapons of mass destruction. He reported that after extensive
investigation, 'No evidence of proscribed activities has so
far been found' in these areas. In other words, *at the time*,
Dr Blix cast doubt on US and British intelligence when appearing
before the Security Council.
So, even on these side-issues, Jack Straw
cannot help distorting the record to try to denigrate an impartial
and unbiased investigator who has emerged from the Iraq tragedy
without a stain on his character.
UNRESOLVED DISARMAMENT QUESTIONS
The Foreign Secretary lays emphasis on
the documentation Dr Blix and his team of inspectors had compiled
regarding 'unresolved disarmament questions' in Iraq. He claims
that the 173-page document on these 'unresolved disarmament
questions' presented to the Security Council was yet more 'evidence
of Iraq's continuing further material breach, its failure to
comply with its clear obligations'.
Nothing could be further from the truth.
The 'cluster document' can be obtained
from the weapons inspectors' site.
UNMOVIC had carried out an exhaustive study of the available
documents and past investigations into Iraq's suspected weapons,
and drawn up a document which, for various categories of weapons
and weapons systems, 'identifies the questions that are deemed
outstanding and unresolved'. The cluster document said that
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.'
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
'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.
KEY REMAINING DISARMAMENT TASKS
The 173-page cluster document invoked by
Mr Straw was actually one stage in the drawing up of a programme
of work for the Iraqi authorities and for the inspectors, a
programme of work which could clarify for once and for all (a)
whether Iraq possessed weapons of mass destruction and/or (b)
whether Iraq was prepared to fully cooperate with the UN weapons
inspectors.
The next stage in the process was the identification
of 'key remaining disarmament tasks' which Baghdad would have
to complete, under the vigilant gaze of the inspectors. Finally,
the inspectors were supposed to draw up a 'draft work programme',
as required by UN Security Council Resolution 1284, which set
up the UNMOVIC weapons inspectors' agency. This work programme,
containing the 'key remaining disarmament tasks' was submitted
to the Security Council on 17 March 2003, the day that the inspectors
were ordered out of Iraq by George W. Bush, as a prelude to
war.
Recall that the Attorney General argued
on 7 March that it was necessary 'to be able to demonstrate
hard evidence of [Iraqi] non-compliance and non-cooperation'.
This could have been demonstrated through the implementation
of the UNMOVIC/IAEA work programme, and the performance (or
non-performance) of the 'key remaining disarmament tasks'.
Recall also the Attorney General's warning
that 'Given the structure of the resolution as a whole, the
views of UNMOVIC and the IAEA will be highly significant in
this respect.' UNMOVIC and the IAEA were clear that they could
not come to a final view on Iraq's weapons programmes, or of
Iraq's cooperation with them, until they had completed the 'key
remaining disarmament tasks' in the draft work programme. Therefore,
'hard evidence' backed up by the inspectors would probably be
obtainable only at the end of this programme.
In other words, the British Government's
senior legal adviser, the Attorney General, put forward a formal
legal opinion to Tony Blair which identified a central role
for UN weapons inspectors and, by extension, the 'key remaining
disarmament tasks' programme of work, in determining the legality
of military action against Iraq.
If there were no second UN resolution,
Mr Blair would need incontrovertible evidence that Iraq had
weapons of mass destruction, evidence which could only be provided
by the UN weapons inspectors, who were about to embark on a
final, decisive round of inspection. This is how the Attorney
General put it:
'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.'
Anthony Lester QC describes the phrase
'only be sustainable' as 'very strong words' for a lawyer. (pdf)
The Government's argument that it was legal
to go to war without a second UN resolution could only be sustained
with 'hard evidence' of Iraqi noncompliance (either weapons
or noncooperation with inspectors). It was clear that this 'hard
evidence' could only be obtained through the inspectors attempting
to implement the 'key remaining disarmament tasks'.
This effort was destroyed, not by Saddam
Hussein, but by George W. Bush and Tony Blair, by their 17 March
ultimatum to Saddam Hussein and his sons (which also ejected
the inspectors from Iraq).
MONTHS NOT YEARS
On 7 March 2003, Hans Blix answered
a crucial question before the Security Council:
'How much time would it take to resolve
the key remaining disarmament tasks? 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.'
THE BIG LIE
Jack Straw's Big Lie involves saying that
Iraqi cooperation with UN weapons inspectors was decreasing
in the first half of March 2003, when it was actually increasing.
Jack Straw's Big Lie involves twisting
the 173-page clusters document into 'evidence' of Iraqi noncompliance
with the inspectors, when it actually identified unresolved
issues which could only be clarified by a few more months of
Iraqi compliance with the inspectors
Jack Straw's Big Lie involves erasing the
inspectors' 'key remaining disarmament tasks' and their 'draft
work programme' from history, despite their central importance
in the legality of war, according to the Attorney General
Jack Straw's Big Lie involves denying that
the inspectors' work programme was the only way to determine
if Iraq truly would cooperate with the outside world in clearing
up unanswered questions about its weapons, covering up the fact
that inspections were about to enter a new and decisive phase.
Tony Blair sent Jack Straw out to
lie. He shouldn't be allowed to get away with it.
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