Rebutting
Brown
The Attorney
General's Legal Advice, Government Spin and the Iraq
War - Part II
29 April 2005
|
Download
a PDF
summary
Posted: 29 April
2005 |
[Back to the list of documents and comments
here]
Contents:
1) The centrality of the inspectors
2) Gordon Brown's defence
2a) The Blix Report
2b) The Straw Documents
>The Quarterly Report
>The 7 March El Baradei Statement
>The 7 March Blix Statement
>Key Remaining Disarmament Tasks
2c) The Six Tests
3) Who's To Judge
4) Conclusion
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.)
SUMMARY
Gordon Brown has sought to defend the decision to go to war
(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. The documents instead demonstrated that Iraqi
cooperation with the inspectors, and Iraqi disarmament, were
increasing, not decreasing, on 17 March 2003. It was also clear
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 (pdf).
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.
[Back to the list of documents and comments
here]
