May 02, 2005
The Politics Of Mass Murder
Lord Goldsmith's leaked March 7, 2003 advice to Tony "I have never told a lie" Blair regarding the legality of waging war upon Iraq, while interesting, is actually not so damning as the legal case put forth in the document made public one week later.
The leaked Goldsmith document summarily dispensed with arguments that the war could legally be waged based upon self-defense or "to avert overwhelming humanitarian catastrophe"; following which Goldsmith spent near-to thirteen pages of pained wrangling in attempting to give Blair what he so desparately wanted: a legal excuse to lay waste to Iraq.
To begin with, Goldsmith notes that:
Notwithstanding the determination of material breach in OP1 of resolution 1441, it is clear that the Council did not intend that the authorisation in resolution 678 should revive immediately following the adoption of resolution 1441, since OP2 of the resolution affords Iraq a "final opportunity" to comply with its disarmament obligations under previous resolutions by co-operating with the enhanced inspection regime described in OPs 3 and 5-9.
Goldsmith continues that it is up to UNMOVIC and the IAEA to report "any interference by Iraq with inspection activities, as well as any failure by Iraq to comply with its disarmament obligations, including the obligations regarding inspections under resolution 1441"; but that whether the Security Council must then re-convene to determine whether such interferences amounted to a breach of 1441, and if so, what to do next, had been left ambiguous (so that there were circulating two contrasting interpretations).
Goldsmith then, in "discussion" of the merits of these two competing interpretations, concedes that:
It is clear from a comparison of the wording of paragraphs 4 and 11 that any Iraqi conduct which would be sufficient to trigger a report from the inspectors under OP11 would also amount to a failure to comply with and cooperate fully in the implementation of the resolution and would thus also be covered by OP4.In addition, the reference to paragraph 11 in OP4 cannot be ignored. It is not entirely clear what this means, but the most convincing explanation seems to be that it is a recognition that an OP11 inspectors' report would also constitute a report of further material breach within the meaning of OP4 and would thus be assessed by the Council under OP12. [Emphases added.]
Moving right along, if the Security Council were to then "fail to act", "The clear U.S. view is that, whatever the reason for the Council's failure to act, the determination of material breach in OPs 1 and 4 would remain valid, thus authorising the use of force without a further decision."
Goldsmith's personal opinion was that "there would be good grounds for relying on the existing resolution as the legal basis for any subsequent military action," if the Council were more less unanimously in agreement that a serious breach had been committed, but that, "The more difficult scenario is if the views of Council members are divided and a further resolution is not adopted either because it fails to attract 9 votes or because it is vetoed."
After some more discussion Goldsmith concludes that "the language of resolution 1441 leaves the position unclear and the statements made on adoption of the resolution suggest that there were differences of view within the Council as to the legal effect of the resolution. Arguments can be made on both sides," and that, "In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorise the use of force."
Goldsmith further concedes, however, that a "reasonable case can be made" to the contrary, but 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. In other words, we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation. Given the structure of the resolution as a whole, the views of UNMOVIC and the IAEA will be highly significant in this respect. In the light of the latest reporting by UNMOVIC, you will need to consider extremely carefully whether the evidence of non-cooperation and non-compliance by Iraq is sufficiently compelling to justify the conclusion that Iraq has failed to take its final opportunity. [Emphasis added.]
Goldsmith adds that "there are no grounds for arguing that an 'unreasonable veto' would entitle us to proceed on the basis of a presumed Security Council authorisation. In any event, if the majority of world opinion remains opposed to military action, it is likely to be difficult on the facts to categorise a French veto as 'unreasonable'," before setting forth some possible consequences of undertaking the war illegally, and finally noting that:
Any force used pursuant to the authorisation in resolution 678 (whether or not there is a second resolution):· must have as its objective the enforcement the terms of the cease-fire contained in resolution 687 (1990) and subsequent relevant resolutions; · be limited to what is necessary to achieve that objective; and · must be a proportionate response to that objective, ie securing compliance with Iraq's disarmament obligations.
That is not to say that action may not be taken to remove Saddam Hussein from power if it can be demonstrated that such action is a necessary and proportionate measure to secure the disarmament of Iraq. But regime change cannot be the objective of military action. This should be borne in mind in considering the list of military targets and in making public statements about any campaign.
A week later, on the eve of war, came the public document, a condensation of the initial Goldsmith document's line of reasoning for the "good grounds" interpretation of going to war in the form of an easy-to-follow nine-step process. The new document, natch, left out not only Goldsmith's discussion of the counter-interpretation, but even mention that such a presentation existed. It also failed to notice Goldsmith's "proportionality" warning.
But here's the kicker, in Point 7:
It is plain that Iraq has failed so to comply and therefore Iraq was at the time of Resolution 1441 and continues to be in material breach.
Uh, "plain" to whom (or, perhaps better stated, "plain" upon whose authority)?
(Bush, in announcing, on the same day, his intention to let fly the missiles, was equally matter of fact: "Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised," and, "Today, no nation can possibly claim that Iraq has disarmed.")
Goldsmith, on three separate occasions, stressed that while the authority to hold Iraq in material breach was open for interpretation, that it could only be triggered pursuant to an IAEA or UNMOVIC report to the effect that Saddam was not cooperating with inspectors (or, of course, the turning up of a "smoking gun").
In fact (and as Goldsmith notes), the most recent reports from the inspectors had not only done nothing of the sort, they'd done completely the opposite. So not only was Iraq's "failure" to disarm not "plain" to the two bodies that had authority to rule on the matter, but no evidence demonstrating as much was ever offered by the Blair Administration (and the "evidence" offered by the Bush Administration, in the form of Colin Powell's "presentation" to the world's tee-vee viewing audience was roundly disputed, if not outright ridiculed). For those that may be interested, this blogger has taken up the matter of Iraq's supposed weapons programmes in a previous post -- arguing that Bush and Blair knew full-well that neither weapons nor programmes would be found.
So even on its own heavily skewed terms, Blair's March 17 document fails miserably -- which doesn't prevent it, in a final fuck-you to the World, from concluding in Point 9 that, "Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended."
All of which should have been entirely meaningless. There should never have been any legal wrangling. It was well-known that Saddam had long-sinced disarmed (and conceded by Goldsmith at the outset of his March 7 document that Saddam did not pose any sort of imminent threat).
This blogger has argued on many occasions that we don't need the UN Charter, or the Geneva Conventions, or the Nuremberg Principles, or a host of Security Council Resolutions to determine when it is appropriate to wage aggressive war. We know -- if we know right from wrong, and if we choose not to hold double-standards -- that it is never appropriate.
The war was undertaken with the full knowledge that it was expected to create a humanitarian catastrophe (and did in fact do so -- a catastrophe which persists to this day). Among others, Medact, UNICEF, Oxfam, CARE, and the International Rescue Agency issued dire warnings regarding potential casualties, refugee flows, and outbreaks of hunger and disease -- which would fall most onerously upon women, children, and the elderly.
Tony Blair knew this before he saw Goldsmith's document -- yet proceeded to lean on his team of lawyers to produce the miserable nine-point justification for war which was released to the public on March 17.
Not only did Tony "I have never told a lie" Blair repeatedly lie through his teeth, he did so in the service of undertaking a war which he had every reason to believe would result in many thousands of casualties to a population which had already suffered under a decade of history's most punitive economic sanctions, and that would cause irreperable environmental damage.
That's your fucking legacy, Tony. Whether it lands you in hot water with international judicial bodies, or proves a "damp squib" come election day, is beside the point.
Posted by Eddie Tews at May 2, 2005 03:32 PM
Comments