The Attorney
General's Legal Advice, Government
Spin and the Iraq War
A
Note For The Media
28 April 2005
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Posted: 28 April
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SUMMARY
Jack Straw says that Iraqi cooperation
with UN weapons inspectors was decreasing in the first half
of March 2003, when it was actually increasing.
Jack Straw misrepresents the 173-page 'clusters document' drawn
up by UN weapons inspectors into 'evidence' of Iraqi noncompliance,
when it actually identified areas where there was a 'lack of
evidence' about Iraqi compliance.
Jack Straw erases 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 skates over the fact that the inspection effort in
Iraq was brought to a premature end by the United States and
Britain, just as it was about to enter a final, decisive phase.
These are desperate manoeuvres. Activists and journalists should
try to stop the Government getting away with this re-writing
of history.
INTRODUCTION
As the Government attempts to defend the
gap between the legal advice rendered by Lord Goldsmith on 7
March with the statement made in his name on 17 March, a crucial
part of the spin operation involves distorting the work of the
UN weapons inspectors in this period.
Journalists should be made aware of the facts about this period.
The Government is relying on the low profile of the inspectors
during this period to try to hoodwink media professionals.
Jack Straw and Tony Blair claimed today that the Attorney General's
change of mind between 7 and 17 March were brought about by
'changed circumstances'. They are re-writing the record.
Circumstances did indeed change: what changed between 7 and
17 March were weapons inspectors' statements of *increasing*
cooperation by Iraq; and *no* new evidence of lack of cooperation,
or failure to disarm.
The Attorney General's position on 7 March was that war would
only be legal if 'strong factual grounds' could be provided
by the UN weapons inspectors that 'Iraq had failed to take the
final opportunity [to disarm]'.
If such grounds were not evident on 7 March, the UN inspectors
gave the *opposite* evidence between 7 and 17 March. Lord Goldsmith's
insistence, and that of Tony Blair and Jack Straw today, that
changing circumstances in that time provided convincing grounds
for legality, is thus demonstrably untrue.
Instead, they have re-written the record of precisely the weapons
inspectors' statements that we now know were so central to the
Attorney General's legal opinion.
As the Government
attempts to defend the gap between the legal advice rendered
by Lord Goldsmith on 7 March with the statement made in his
name on 17 March, a crucial part of the spin operation involves
distorting the work of the UN weapons inspectors in this period.
Journalists should be made aware of the
facts about this period. The Government is relying on the low
profile of the inspectors during this period to try to hoodwink
media professionals.
On the Today programme this morning (28 April), Jack Straw said
that '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.'
The Foreign Secretary also rubbished the recent remarks by Hans
Blix, saying, '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.” '
Here are the facts on these matters:
1) MOUNTING EVIDENCE
'the evidence of Iraq's continuing further
material breach, its failure to comply with its clear obligations
mounted'
See the 7 March statement
by Dr Blix to the Security Council. (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
by Baghdad 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.'
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.
2) THE CLUSTERS DOCUMENT
'that 173-page document which was [presented]
by Dr Blix [the chief UN weapons inspector] to the Security
Council'
The 173-page 'cluster document' can be
obtained from the weapons inspectors' site.
It is an exhaustive study of the available
documents and past investigations into Iraq's suspected weapons.
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
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.
3) KEY REMAINING DISARMAMENT TASKS
'that 173-page document before the Security
Council, which did not say in 173 pages, “By the way,
Saddam is in compliance.” '
True, the 173-page cluster document did
not say 'Saddam is in compliance'. Nor did it say 'Saddam is
not in compliance.'
The cluster document identified issues which had to be investigated.
It was the basis for the drawing up of priorities for inspection:
'key remaining disarmament tasks' to be completed by Iraq.
The drawing up of 'key remaining disarmament
tasks' was required of the inspectors by UN
Security Council Resolution 1284.
This was a British Resolution.
The 173-page cluster document invoked by Mr Straw, and the key
remaining disarmament tasks were actually critical stages in
the drawing up of a programme of work for the Iraqi authorities
(and for the inspectors) 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 inspectors' draft work programme, containing the 'key remaining
disarmament tasks', was submitted in writing to the Security
Council on 17 March 2003.
Dr Blix made an oral
presentation of the draft work programme to the Security
Council on 19 March (Security Council members commented
with sadness and sometimes bitterness.
4) Torpedoing the inspectors
Jack Straw and the Government have consistently
obscured or denigrated the significance of the inspectors, and
their 'key disarmament tasks' and 'work programme', presented
to the Securing Council on 17 March.
Jack Straw and the Government have never acknowledged the fact
that the inspections were about to enter a final and decisive
phase on 17 March, a final and decisive phase that would last
only months, according to Hans Blix himself.
Blix said on 7 March:
'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.'
Jack Straw and the Government have never acknowledged the fact
that the inspectors were ordered out of Iraq by George W. Bush.
In his address to the nation on 17 March, President Bush said,
'Saddam Hussein and his sons must leave Iraq within 48 hours.
Their refusal to do so will result in military conflict, commenced
at a time of our choosing. For their own safety, all foreign
nationals -- including journalists **and inspectors** -- should
leave Iraq immediately.'
5) The significance of the inspectors for
the Attorney General's legal advice
In his 7 March advice, the Attorney General
pointed out that:
'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'.
This could only have been demonstrated
through the implementation of the UNMOVIC/IAEA work programme,
and the performance (or non-performance) of the 'key remaining
disarmament tasks'.
The Attorney General then warned 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 completion 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 before the war 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.
Thanks to Genny Bove, Ali Klevnas, Mike
Lewis and Jonathan Stevenson for advice.
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