ON
THE ATTORNEY GENERAL'S ADVICE TO THE GOVERNMENT ON THE INVASION OF IRAQ
Updates down the page - latest March 23rd 2005
FEB 26TH 2005
Such has been
the abuse of logic in the current debate on whether or
not the Attorney General should publish his confidential advice to the
government that clarification is now required.
First of all it
is clear that up until now, those in favour of it being
published have been confined to those who were against the policy of
using military action to enforce the UN resolutions. They were 'against
the war'. They remain 'against the war' on principle. If they can show
that the opinion of the Attorney General was ambiguous, they believe
that this can justify their own position. They are desperate to justify
their own position because they are now in a very tight spot for the
following reasons:
- If Iraq becomes a stabilised democracy by any reasonable world
standard, with a free society where people can discuss policy in public
and have free and fair elections on a predictable timetable, they will
have to live with the fact that they would have denied this
possibility.The idea that freedom and democracy could have come about
without regime change, enforced from outside by the international
community, has become more obviously unlikely with every passing day.
This is independent of the level of understanding of the current
President of the United States of all or any of the risks, costs,
benefits or underlying realities or the merits or demerits of those
who opposed him then or oppose him now.
- If freedom and democratisation in Iraq fail, it can only be
because of
terrorism, intolerance and obscurantism and racial prejudice. It can
only be accompanied by a increase in international terrorism. It cannot
possibly be a desirable outcome even for those who opposed the military
action.
That does not
lead to a wide choice of happy futures for those who have
staked their reputation on opposing the removal of Saddam and his
regime, but if they can claim that the law actually forbade them voting
for the
war, they can salvage some personal self respect. That is why they are
desperate to show that the Attorney General's advice was conditional
on, for example, the actual discovery of significant WMD the existence
of which had been denied by Saddam. Their claim is that this condition
would make the war (a) illegal and (b) therefore wrong. They may well
be incorrect on both counts. Whether the Attorney General should now
break with precedent and publish his advice is not to be based on their
requirements anyhow.
First of all, we
need to understand that experts in law are not automatically experts
about the law and its role in human society. To understand the latter
requires a very wide knowledge of history, biology, sociology,
philosophy that some lawyers might possess but most probably do not,
even if they rise to positions of some eminence. It is quite distinct
from a detailed knowledge of particular branches of national or
international law.
There was no
existing international law to permit the removal of Saddam Hussein, so
the role of law in this instance was confined to enumerating the steps
that should be taken to make sure that Saddam was aware of the
international requirements and how to comply. There was no law
provision for regime change. When Saddam had attacked Kuwait it is
significant that the Security Council authorized the removal of
Saddam's forces from Kuwait, and this was what permitted the attack on
his resources within Iraq but not his removal. The decision to proceed
in March 2003 with enforcement of the conditions laid down in all the
UN resolutions was therefore an executive decision of the coalition
governments. The advice that was required from the Attorney General was
whether he considered that the requirements of the UN had been made
clear to Saddam. It would also be relevant that he had been given
sufficient time to comply with the requirements.
There is
therefore no question of the Attorney General 'authorizing' the war or
declaring it legal. His advice was confined to an opinion that the
mandatory and essential demands of the Security Council had been
ignored, and that those members of the security council who took the UN
seriously enough to enforce its will on a global issue of major
importance, as a last resort after 12 years of seeking a peaceful
method, could not realistically be accused of illegal activity by so
doing. His advice could be right, it could be wrong, as it is only
advice on the likely judgment of an international court on the subject
should such a court be called upon to make a judgment. Nobody can
decide on the legality of a war. It is a matter of judgment and the
values you estimate war is essential, at the time, to preserve for the
future.
There is
therefore no possibility that any revelation of the Attorney General's
opinion, or changes of mind, or conditions relating to the actual
existence of discoverable WMD can have any bearing on the correctness
of the decision to proceed. The law in this area can only deal with
certain things on the basis of past experience and offer guidance for
the future. Many generations have been taught from an early age that
the law is for the guidance of wise men and the obeyment of fools. This
saying is much misunderstood as denigrating the law. This is far from
the truth. It is to foster respect for the law by recognizing its
limitations. The law, like a computer program, has no intelligence. It
cannot protect the future. It can only provide a level playing field on
a temporarily acquired platform. It's fundamentals remain but its
applications and refinements evolve, because any law, once know to
those it regulates, can be manipulated to work against its own ends.
This is a fundamental property of biological systems and is true of
their epiphenomena.
However, the
prima donnas who are trying to restore their consciences or save their
reputations have made such a noise and so confused the public that even
those who understand the above, and those who agree with the decision
to
enforce the UN resolutions, may eventually come to the opinion that it
is now necessary to lance this artificial boil by publishing the A.G.'s
opinion. If so, we shall have sunk even further towards rule by the
media, which we mistake for democracy.
MARCH 23rd 2005
It is now more than likely that further details of the Attorney
General's advice will be revealed and the only point of any interest is
whether or not his advice was his geniune opinion, as that is what his
position as Attorney General demanded of him. He was appointed to that
position on the basis of his reputation and knowledge. There is no
internal contradiction if his advice was initially that a further
resolution should have been required, but later that it was right to
proceed without it. If an executive authority discovers that an
institution that should authorize action has become corrupted or
influenced to the extent that it cannot carry out its function, it has
to proceed according to the last sound, logical and uncorrupted
decision that has been arrived at.
As the moment for decision arrived, and it was established that Saddam
would not accept the offer to resign and go into exile, it was the
judgement of the UK government that President Chirac, regardless of the
actual words he cafefully used at the time, would never lift
France's veto on the military enforcement of resolution 1441, of which
one requirement was the release from Saddam's control of all those
responsible for WMD programmes and their dismantlement, so that they
could speak openly. This would have enabled Iraqis to rise up against
him, Chemical Ali etc, so he was never going to comply. It would also
have caused a civil war in Iraq. There is therefore no doubt that the
Attorney General, having first advised that a further resolution was
required (if he had not, how could they have tried to get one?),
changed his mind when it was obvious that this resolution would be
vetoed by France and voted against by others who would not face the
facts.
There is no doubt that the government's assessment of the above was
correct in every detail, even though their assessment of how to deal
with the Sunni majority and insurgents after the invasion, and what
would happen, was incorrect. That no WMD were found was irrelevant. The
Foreign Office legal advisor who resigned was not dealing with anything
other than the idealised, theoretical legal situation which did not
exist, so her resignation is not relevant to reality, which governments
have to deal with, either. The action of the government was honest and
responsible in proceeding with the removal of Saddam Hussein and his
regime. With the passage of time this has become increasingly obvious.