The Blair Era

By David Peterson

Friday, February 13, 2009

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One of the more deliciously ironic passages in Lord Peter Goldsmith's formerly "secret" findings on the "Possible legal bases for the use of force" (March 7, 2003) occurs right off the bat, in paragraphs 2 and 3:

2. As I have previously advised, there are generally three possible bases for the use of force: (a) self-defence (which may include collective self-defence); (b) exceptionally, to avert overwhelming humanitarian catastrophe; and (c) authorisation by the Security Council acting under Chapter VII of the UN Charter.

"Force may be used in self-defence if there is an actual or imminent threat of an armed attack," the British Attorney General's assessment continued; "the use of force must be necessary, ie the only means of averting an attack; and the force used must be a proportionate response. It is now widely accepted that an imminent armed attack will justify the use of force if the other conditions are met. The concept of what is imminent may depend on the circumstances. Different considerations may apply, for example, where the risk is of attack from terrorists sponsored or harboured by a particular State, or where there is a threat of an attack by nuclear weapons. However, in my opinion there must be some degree of imminence." (Para. 3.)

True enough: Irony isn't the best word to describe the actual place this passage occupies in the modern world. But I am not sure what word would be better. Because here we have a case in which the British Government had for an extended period of time been pre-positioning its military alongside the American military in an unambiguous threat of force against the Government of Iraq, with the reasonable expectation in every corner of the world that, sooner rather than later, these two states were going to launch a war over Iraqi territory; and yet, in assessing the "legal bases for the use of force" against Iraq, at least two of the three legal criteria that the British Attorney General cited and ultimately rejected for their failure to withstand scrutiny in the case at hand would have withstood scrutiny, had the question turned on the possible legal bases for the Iraqi Government's use of force against the British and American states then threatening it.

Especially (a). Think about it. No one possibly could have argued that, as of March 7, 2003, the official date of Lord Goldsmith's findings, an actual or imminent threat of an armed attack against Iraq did not exist.

(On the contrary, no one -- short of lying outright, that is -- did argue at the time that Iraq posed an actual or imminent threat to any state. Much less to "international peace and security.")

Nor could anyone have argued that Iraq's use of force against the U.S. and U.K. was anything but the only means of averting an attack that Iraq had at its command. (Against this, many would argue that it always was within Iraq's command to avert an attack simply by complying with the requirements of UN Security Council Resolution 1441 (Nov. 8, 2002). But the American and British forces in question were not barracked back in the States and Britain, their high-tech weaponry collecting dust in the depot, awaiting call-up. Rather, they already had been deployed so as to encircle Iraqi national territory, some of them for the previous 12 years. This is the textbook definition of a threat of an imminent armed attack. If ever there were one.)

Last, no one could honestly argue that a conventional Iraqi strike against American and British forces -- all that the Iraqis in fact were capable of executing, let us not forget, Iraq possessing zero non-conventional capabilities -- would not have been proportionate. How could it have been otherwise?

Indeed. As of March 7, 2003, when Lord Goldsmith raised serious doubts about the legality of his Government's participation in a war over Iraq, unless it secured an additional Security Council resolution explicitly authorizing the use of force (Para. 27-31), the only arguable questions around the rest of the world should have been whether the Iraqis were justified in striking targets within U.S. and U.K. territories? (And if so, which targets?) How many other states and non-state actors would have been justified in participating in a coalition to defend Iraq against the then-imminent U.S.-U.K. attack? (Russia? China? France? Japan? Germany? India? Brazil? Venezuela? Cuba? Iran? Syria? Zimbabwe? The Non-Aligned States collectively?) And whether this defense of Iraq merited authorization by the UN Security Council, acting under Chapter VII of the Charter of the United Nations?

(Quick aside. As Chapter VII, Article 51, states: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security." Of course, when not just one, but two of the Permanent Five, veto-wielding members of the Security Council are the states threatening to disrupt international peace and security, the Security Council becomes the last place on earth to which the defenders of international peace and security can turn. Under such circumstances,....)

Given the three possible bases for the use of force that Lord Goldsmith's March 7, 2003 document examined, it is worth noting that if these reasons do indeed possess the weight in international law that he attributed to them, they would have provided a legal basis for Iraq's (as well as for Iraq's coalition partners') use of force against the British and the Americans. But not for the use of force by the British and the Americans against the Iraqis. Just as Lord Goldsmith himself concluded at the time. And even if the Americans had a rather different view: That whether a war over Iraq was legally justified would follow from whether the Americans in fact launched a war. If the Americans launched one, it was legally justified.