How Goldsmith changed advice on legality of war.
There has never been any secret of the fact that Lord Goldsmith changed his mind in the lead up to the Iraq war concerning what would be legal and illegal regarding the invasion. However, the Chilcot Inquiry have now got hold of - and allowed to be made public - the advice Goldsmith was giving to Blair at the time.
What's startling about this is that the change in his advice is starkly different just before the invasion from what it was a year earlier. And, as none of the legal requirements which Goldsmith had insisted upon to guarantee legality had been met, one must consider seriously the fact that political pressure was probably brought to bear on the Attorney General.
For instance, on 30th July 2002, Goldsmith laid out what was needed to ensure legality:
So, he is making it quite clear that not only is a UN resolution needed, but that it must "explicitly authorise the use of force". And, when Bush and Blair manage to obtain UN Resolution 1441, Goldsmith makes it crystal clear that this resolution is not enough to justify war."The key issue here is whether an attack is imminent. The development of WMD is not in itself sufficient to indicate such imminence. On the basis of the material which I have been shown – and I appreciate that there may be other documentation which I have not seen – there would not be any grounds for regarding an Iraqi use of WMD as imminent.
"My view therefore is that in the absence of a fresh resolution by the Security Council which would at least involve a new determination of a material and flagrant breach, military action would be unlawful. Even if there were such a resolution, but one which did not explicitly authorise the use of force, it would remain highly debatable whether it legitimised military action – but without it the position is, in my view, clear."
So, the argument put forward by many hawks who supported the war - that 1441 revived Res 687 - was clearly not one which the British Attorney General accepted on 14th January 2003."It is clear that Resolution 1441 contains no express authorisation by the Security Council for the use of force.
"However, the authorisation to use force contained in Resolution 678 (1990) may revive where the Security Council has stated that there has been a breach of the ceasefire conditions imposed on Iraq by Resolution 687 (1991).
"But the revival argument will not be defensible if the Council has made it clear either that action short of the use of force should be taken to ensure compliance with the terms of the ceasefire. In conclusion therefore, my opinion is that Resolution 1441 does not revive the authorisation to use of force contained in Resolution 678 in the absence of a further decision of the Security Council."
Blair was clearly becoming impatient with Goldsmith as he send off a note stating, "I just do not understand this" and, after Goldsmith sent advice on 30th January 2003 - the day before Blair met with President Bush - an aide to Blair wrote on top of Goldsmith's advice, "Specifically said we did not need further advice this week." It really does seem as if Goldsmith's advice was starting to annoy Number Ten.
Goldsmith then famously changed his advice after consulting with Bush's lawyers in Washington, stating on the 12th January 2003:
"Since our meeting on 14 January I have had the benefit of discussions with the Foreign Secretary and Sir Jeremy Greenstock, who have given me valuable background information on the negotiating history of Resolution 1441. In addition, I have also had the opportunity to hear the views of the US Administration from their perspective as co-sponsors of the resolution.
"Having regard to the arguments of our co-sponsors which I heard in Washington, I am prepared to accept that a reasonable case can be made that Resolution 1441 revives the authorisation to use force in Resolution 678."
It is the change of tone which I find most startling. In his initial pieces of advice, Goldsmith states quite clearly what is legal and what is illegal. "If we do X, this would be illegal, unless we obtain Y".
But, after consulting with Bush lawyer's he stops talking about what is legal and what is illegal and starts to argue "that a reasonable case can be made".
That's very different from saying that something is legal or illegal, that's saying that one could make an argument to back one's case, but it falls way, way short of saying that your argument would be accepted if it ever went in front of a court of law.
The more that comes to light, the more we can be assured that Goldsmith stopped telling Blair what was legal and illegal, and started to argue reasonable cases which could be put forward to support an invasion.
And the clearer it becomes that Elizabeth Wilmshurst was telling the truth when she stated that Goldsmith was performing a U-turn and that many of the other lawyers at the office of the Attorney General did not share Goldsmith's reading of international law.
I find it hard to accept Goldsmith's insistence that no pressure was ever brought to bear on him politically. It is quite clear that there was a marked change in his advice the nearer the war became and the less likely it appeared that the US and the UK would obtain the kind of legal cover which Goldsmith initially insisted upon."People shouldn't be focusing on Elizabeth so much as the others who will be giving evidence on Tuesday – in particular, Sir Michael Wood," a source said last night. "He advised clearly that the war was unlawful.
"Elizabeth was one in a team – she wasn't a voice in the wilderness. They worked closely together and spoke about this a lot. The invasion ran counter to international law."
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