War and the Law: The Inside Story; the Attorney General's Legal Case for Invading Iraq Last Year Looks Ever More Flimsy. Our Political Editor, John Kampfner, Uncovers the Truth about an Issue That Just Won't Go Away

Article excerpt

As with the intelligence, the legal foundations for Tony Blair's war with Iraq are being dismantled. Further investigations by the New Statesman--which last year revealed the Attorney General's concerns about the legality of the occupation of Iraq--show that at least twice, as the diplomatic process collapsed, he was forced to change his advice on the legal status of an invasion.

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The problems began in July 2002, as Blair despatched David Manning, his foreign policy chief, to Washington on a secret mission to persuade George Bush to get a UN resolution for an attack on Iraq. The Prime Minister had already committed himself to war that April at Bush's ranch. He needed international approval for political reasons: to win over the party and public opinion. But he also needed it for legal reasons. It was the first of many times that Blair would turn to his old friend Lord Goldsmith.

That summer, the Attorney General provided him with the opinion he wanted. A new UN resolution was necessary, he judged. The two previous declarations--issued after the invasion of Kuwait in 1990 and in setting out the terms of the ceasefire in January 1991--were, he said, too old to be enough on their own. Blair was satisfied, but subsequent events would under mine the position of the Prime Minister and his top legal officer.

After wrangling at the Security Council, the British government finally got what it wanted on 8 November 2002. The Americans were not particularly fussed--Congress had given Bush carte blanche for regime change--and for most of the time allowed the British to lead the negotiations. Unanimity was finally achieved; Resolution 1441 was finally secured, but only after the French had, as a price for their acquiescence, ensured that the all-important line giving the automatic go-ahead for war was removed. Instead of the vital trigger phrase, "all necessary means", the British had to settle for "serious consequences" and a promise to reconvene the Security Council.

This creative ambiguity, the settling for a lowest common denominator at the UN, has helped bring Blair to his parlous position one year on from the war. Downing Street advisers have all but given up on securing closure on Iraq. Lord Hutton's excessive desire to help has, they acknowledge, made matters worse. The Butler inquiry into pre-war intelligence on Iraq's weapons of mass destruction appears doomed now that Michael Howard has withdrawn Conservative Party support. The nugget of good news the government received with the Iraqi Governing Council's acceptance of an interim constitution was overshadowed on 2 March by the worst day of violence since the war ended. More than 200 were killed in bombings in Karbala and Baghdad.

The controversy over the legal advice on the war seems arcane when taken in isolation. If Blair is forced to publish the Goldsmith paper trail, the conclusions will be distressing but not surprising. The government's panic and diplomatic floundering in the months of November 2002 to March 2003 were just as evident at the time as they are now.

In his second opinion, shortly after Resolution 1441 was secured, Goldsmith told Blair that a further resolution would be advisable. It would, according to one official who discussed the opinion at the time, make the British legal position "absolutely watertight" in international law. "We were all looking for that added security," the official recalls. Goldsmith had left his options open, but for the Foreign Office's lawyers this was not good enough. Doubts were not confined to Elizabeth Wilmshurst, number two in the legal department, who quit on the eve of war. Her boss, Michael Wood, was also said to be sceptical about Goldsmith's conclusions.

As 2002 closed, Blair realised that he needed a second resolution, but throughout January and the start of February 2003 he had few doubts he would get it. …