New questions in UK about war's legality

The Guardian/Observer reported Sunday that Britain's Army chiefs refused to go to war in Iraq amid fears over its legality just days before the British and American bombing campaign was launched. The Guardian and Independent newspapers both reported on Saturday that unpublished documents from the recently dismissed case of Katherine Gun (who was supposed to be tried under Britain's Official Secrets Act for passing classified documents to the Guardian), show that Lord Goldsmith, Britain's Attorney-General, at the last minute "hastily" redrafted his legal advice to UK Prime Minister Tony Blair in order to give assurance to the military forces that the war in Iraq was legal.

Senior Whitehall [British government] sources involved in putting together critical legal advice on the war told The Observer that Mr. Goldsmith was originally 'sitting on the fence' and that his initial advice was 'prevaricating'. This was 'tightened' up only days before the conflict began after concerns were raised by Sir Michael Boyce, the then Chief of Defence Staff, who told senior ministers of his worries. It is believed that Boyce demanded an unequivocal statement that the invasion of Iraq was lawful. It is understood that it was only after seeing Goldsmith's final legal advice, given days before the outbreak of war, that Boyce gave his approval.

Since Britain is a signatory to the International Court of Justice and the International Criminal Court (which the US opposes), British soliders can be tried for war crimes during a war and during an occupation if a war is declared illegal by either the UN or a British court. Blair had also told the British public, which was overwhelmingly opposed to war at the time, that he would not commit British troops to Iraq if it could not be backed up by UN resolutions that proved its legality.

The Sunday Herald reports that prominent lawyer and Labour Party peer Baroness Helena Kennedy claimed in a TV interview Sunday that Goldsmith initially told Mr. Blair an invasion of Iraq would be illegal without a new resolution from the United Nations, and only changed his mind when Washington ordered the British government to find legal advice that would justify the war. Ms. Kennedy also made the charges in her new book entitled "Just Law," where she wrote that the US told Blair in the run-up to the war early last year that he should "get [his government] some different lawyers".

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Baroness Kennedy points out that Lord Goldsmith [the Attorney General] was a commercial lawyer with no experience of international law and initially relied heavily on the advice of lawyers within the Foreign Office in the months before the war. It is widely believed that advice overwhelmingly warned against invading without a UN resolution. She claims that when Washington was told of this advice their response was succinct: find a new lawyer. Goldsmith then turned to Professor Christopher Greenwood of the London School of Economics, who was known to support the invasion. Greenwood was already on record as stating: "It would be highly desirable to have a second UN resolution because that puts the matter beyond serious question. But if that's not possible, I would support the use of force without the resolution."

"I left my job because I did not agree that the use of force against Iraq was lawful, and in all the circumstances I did not want to continue as a legal adviser," Ms Wilmshurst said.

But the London Sunday Times reports government prosecutors deny this was so, saying they dropped the case because of technical difficulties: Gun had not leaked the information directly to a newspaper. The paper also interviewed former British intelligence agents who said there has been a five man team in New York for years which spies only on UN members. They claim there is nothing "unusual" about this.

"Everybody spies on everybody," said Inocencio Arias, Spain's ambassador to the UN. "And when there's a big crisis, big countries spy a lot. If your mission is not bugged, then you're really worth nothing."

Short, who The Sun reports has been described by Blair supporters as a " traitor" was threatened with legal action Friday by Blair cabinet secretary Sir Andrew Turnbull. The Advertiser of Australia reports, however, that Short produced the letter from Turnbull on another TV program and said she would ignore the threat. Short then began to talk more about the advice that Goldsmith had given Blair about the legality of the war. And the Independent reports that for those opposed to the war in Blair's own party, this was the more important point.

"All of this is a massive distraction," said Alan Simpson, chairman of the left-wing Campaign Group. "I don't think we should be surprised at bugging operations. When you talked to UN officials, they presumed they were being bugged. The issue is not about Clare's loyalty or disloyalty. It's about this assumed, untrammelled right of the Bush administration to go to war. The obsession was not about whether Saddam posed a threat to the West, but about whether the UN posed a threat to America's determination to have a war."

And in another strange twist, the Guardian reports that doubts about the legality of the war could lead to a flood of compensation claims against the government from servicemen injured in Iraq, according to top international lawyers. If soldiers sued, the courts could be required to determine the legality of the war after all, and force the disclosure of the Attorney General's full opinion. And the government might not be covered by the law of battlefield immunity if the war was ruled unlawful.

The Telegraph reports that leading British politicians like former Conservative Prime Minister John Major have called on Blair to release the full opinion in order to clarify the matter. And Liberal Democrats charge that British troops morale is suffering over the question of the legality of military action. But Blair has said that he will not release the full written advice of the case for war on the ground that governments never make such documents public. But The Scotsman Monday reported that this is in fact not the case: "it happened in 1971, when the government published its legal advice on the arms embargo to South Africa. It happened in 1968 over a controversial clause in a customs bill."

The Scotsman also reports that if Mr. Blair had perhaps acted more like President Bush, he would not be still struggling with issues from the war.

The very idea of crafting a delicate, legal case for war designed to satisfy UN lawyers was scoffed at by the Americans. President George Bush summed up his administration's legal position in one sentence: "The United States has the sovereign authority to use force in assuring its own national security." That is to say, "We're going in to Iraq, and we don't care what the rest of you think". Had Mr Blair used the same blunt logic he would not be in the trouble he is now.

Also...
• Billions needed to restore security in Iraq - minister ( Gulf News)
• Syria restricts Islamic teaching ( BBC)
• For reporters in Iraq, security gets personal ( Washington Post)
• Motor City mess ( Washington Post)
• Australia launches Iraq intelligence inquiry ( Guardian)

• Feedback appreciated. E-mail Tom Regan .