In dubious battle

The legality or non-legality of the Iraq war was not a decisive issue for me in choosing to support it, for reasons I've explained more than once, beginning here ('The War in Iraq', old site, July 29 2003). It was, though, decisive for many others, including the editor of the Guardian, and today that newspaper returns to the issue. It splashes it across the top half of its front page; it also devotes the lead editorial to it. Where the Guardian goes, I have sometimes been known to follow: in order to pose a question, offer a view, engage in a bit of friendly banter, or merely help to take forward some of the great discussions of our time. So I shall again today.

Note, first, the way in which that lead editorial opens:

With an imperfect Iraqi election now over and a difficult British one... looming, Labour is more anxious than ever to "move on" from the divisions of the war. Yet, try as it may, the Blair government cannot get the arguments about Iraq to disappear.

I've commented once before on the Guardian editor's lack of enthusiasm for the Iraqi election, and here it is again: the significance of the election was that it was... imperfect. Perfect, of course, would have been better.

Then, also, Labour just can't get to move on from the divisisons of the war - says the Guardian, not moving on from them. The Blair government can't get those arguments to disappear - writes the Guardian, trying to ensure that the arguments don't disappear.

But all this is merely preliminary, and so to business. Here's the thing. The Guardian does rather obscure a certain point. It states:

[I]f the attorney general had said that the use of force was legally dubious, Britain could not have attacked Iraq.

But, according to Mr Sands [Philippe Sands, in his book Lawless World], this is precisely what the attorney general did say. In his full 13-page advice to the prime minister, dated March 7... Lord Goldsmith apparently said that the use of force on the basis of resolution 1441 "could be found to be illegal". It would therefore be much safer to get a second UN resolution to authorise force, he advised. [Italics on 'did' from the paper version.]

So, according to that, the attorney general 'precisely' said that the use of force was legally dubious, although the same leader has earlier recorded that...

In Lord Goldsmith's opinion, Iraq's continuing failure to eliminate its weapons of mass destruction created the legal basis for war.

In Richard Norton-Taylor's report on the front page of the newspaper, the fact that this was the attorney general's own judgement - that there was a legal basis for war - is not merely obscured, it is altogether elided. For Norton-Taylor says first:

It appears that Lord Goldsmith never wrote an unequivocal formal legal opinion that the invasion was lawful...

And then somewhat further on, he says:

Lord Goldsmith warned Tony Blair in a document on March 7 2003 that the use of force against Iraq could be illegal. It would be safer to have a second UN resolution explicitly sanctioning military action.

Both of these presentations are based on the same thing, namely Philippe Sands's book, from which the Guardian itself today carries an excerpt. Here is the key passage:

This was the context in which the attorney general finally gave his formal advice to the prime minister, set out in a minute dated March 7 2003. It was sent only to the prime minister, but was seen more widely, by the foreign secretary and defence secretary among others.

It is a 13-page document which states the various arguments on the need for a further resolution. It concludes that no further resolution is needed. It was sufficient for the prime minister - not the security council - to decide that Iraq had failed to comply with its disarmament obligations and that there was hard evidence of non-compliance and non-cooperation with resolution 1441.

But the advice was not clear-cut. It recognised that if the argument were to come before a court of law it might well be unsuccessful, so that the use of force against Iraq could be found to be illegal. It would be safer to have a second resolution.

From Sands's book, then, which is the Guardian's source for what it is telling us today, what appears is that the attorney general concluded that there was a legal basis for war, in Iraqi non-compliance, and no further security council resolution was needed, although it would be safer to get one. In the Guardian, this becomes that the attorney general thought the use of force was legally dubious, or that it could be illegal, period.

As everyone knows perfectly well, legal opinion on this question - as opinion about most things to do with the Iraq war - was divided. Himself concluding that there was a legal basis for the use of force in Iraq, the attorney general could not have done other than to allow for the possibility that a court might take a different view, since other international law experts were doing so. But for the Guardian to present the matter as if the attorney general's own view was 'dubious legality' or downright 'illegality' goes beyond what is given by its source - by Philippe Sands, who says no more than 'not clear-cut'.

There's an implication in the Guardian's presentation that is more worrying still. It is that the attorney general, or indeed any legal expert, should not advise in situations where there are divisions of legal opinion. Only where there are no such divisions could advice be completely certain as to how the courts would decide. And how often are matters of legality ambiguous or disputed in the domain of international law? [Often - Ed.]

If you didn't take our view, you should apologise. Unless you agree with our side about what's legal, it must be illegal. Gotta love that kind of liberalism.