[News] British Knew War was Illegal

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Mon Jun 13 18:49:29 EDT 2005


Informed Comment

Thoughts on the Middle East, History, and Religion
Juan Cole is Professor of History at the University of Michigan

Sunday, June 12, 2005

Bush and Blair Committed to War in April, 2002
Leaked Cabinet Briefing Shows British Knew War was Illegal
The London Times has dropped another bombshell document concerning the 
planning of the Iraq war in Washington and London.

The leaked Cabinet office briefing paper for the July 23, 2002, meeting of 
principals in London, the minutes of which have become notorious as the 
Downing Street Memo, contains key context for that memo. The briefing paper 
warns the British cabinet in essence that they are facing jail time because 
Blair promised Bush at Crawford in April, 2002, that he would go to war 
against Iraq with the Americans.

As Michael Smith reports for the London Times, "regime change" is illegal 
in international law without a United Nations Security Council resolution 
or other recognized sanction (national self-defense, or rescuing a 
population from genocide, e.g.). Since the United Kingdom is signatory to 
the International Criminal Court, British officials could be brought up on 
charges for crimes like "Aggression."

Smith quotes the briefing and then remarks on how it shows Bush and Blair 
to be lying when they invoke their approach to the UN as proof that they 
sought a peaceful resolution of the Iraq crisis:

' "It is just possible that an ultimatum could be cast in terms which 
Saddam would reject," the document says. But if he accepted it and did not 
attack the allies, they would be "most unlikely" to obtain the legal 
justification they needed.

The suggestions that the allies use the UN to justify war contradicts 
claims by Blair and Bush, repeated during their Washington summit last 
week, that they turned to the UN in order to avoid having to go to war. The 
attack on Iraq finally began in March 2003. '


The Cabinet briefing makes crystal clear that Blair had cast his lot in 
with Bush on an elective war against Iraq already in April, 2002:

"2. When the Prime Minister discussed Iraq with President Bush at Crawford 
in April he said that the UK would support military action to bring about 
regime change, provided that certain conditions were met: efforts had been 
made to construct a coalition/shape public opinion, the Israel-Palestine 
Crisis was quiescent, and the options for action to eliminate Iraq's WMD 
through the UN weapons inspectors had been exhausted."
This passage is unambiguous and refutes the weird suggestion by Michael 
Kinsley that the Downing Street Memo did not establish that the Bush 
administration had committed to war by July, 2002.

British Attorney General Lord Goldsmith is quoted in the Downing Street Memo:
"The Attorney-General said that the desire for regime change was not a 
legal base for military action. There were three possible legal bases: 
self-defence, humanitarian intervention, or UNSC authorisation. The first 
and second could not be the base in this case. Relying on UNSCR 1205 of 
three years ago would be difficult. The situation might of course change."


The briefing paper discusses this issue further:

"11. US views of international law vary from that of the UK and the 
international community. Regime change per se is not a proper basis for 
military action under international law. But regime change could result 
from action that is otherwise lawful. We would regard the use of force 
against Iraq, or any other state, as lawful if exercised in the right of 
individual or collective self-defence, if carried out to avert an 
overwhelming humanitarian catastrophe, or authorised by the UN Security 
Council."


It makes me deeply ashamed as an American in the tradition of Madison, 
Jefferson, Franklin, Lincoln, and King, that in their private 
communications our international allies openly admit that the United States 
of America routinely disregards international law. The Geneva Conventions 
were enacted by the United Nations and adopted into national law in order 
to assure that Nazi-style violations of basic human rights never again 
occurred without the threat of punishment after the war. We have an 
administration that views the Geneva Conventions as "quaint." The US has 
vigorously opposed the International Criminal Court.

The cabinet briefing, like Lord Goldsmith, is skeptical that any of the 
three legal grounds for war existed with regard to Iraq. Iraq was not an 
imminent threat to the US or the UK. Saddam's regime was brutal, but its 
major killing sprees were in the past in 2002. And, the UNSC had not 
authorized a war against Iraq.

"The legal position would depend on the precise circumstances at the time. 
Legal bases for an invasion of Iraq are in principle conceivable in both 
the first two instances but would be difficult to establish because of, for 
example, the tests of immediacy and proportionality. Further legal advice 
would be needed on this point."


The tactic of presenting Saddam with an ultimatum that he should allow back 
in weapons inspectors, in hopes he would refuse, is again highlighted in 
this document:

"14. It is just possible that an ultimatum could be cast in terms which 
Saddam would reject (because he is unwilling to accept unfettered access) 
and which would not be regarded as unreasonable by the international 
community. However, failing that (or an Iraqi attack) we would be most 
unlikely to achieve a legal base for military action by January 2003. "


In his report about the Cabinet briefing, Walter Pincus focuses on the 
passages that worry about the apparent lack of planning by Bush for the day 
after the war ended.

The briefing says:


"19. Even with a legal base and a viable military plan, we would still need 
to ensure that the benefits of action outweigh the risks. . . A post-war 
occupation of Iraq could lead to a protracted and costly nation-building 
exercise. As already made clear, the US military plans are virtually silent 
on this point. Washington could look to us to share a disproportionate 
share of the burden. Further work is required to define more precisely the 
means by which the desired endstate would be created, in particular what 
form of Government might replace Saddam Hussein's regime and the timescale 
within which it would be possible to identify a successor. We must also 
consider in greater detail the impact of military action on other UK 
interests in the region."


The British were clearly afraid that the US would get them into Iraq 
without a plan, and then Bush might just prove fickle and decamp, leaving 
the poor British holding the bag.

The briefing is also prescient that the Middle East region would be hostile 
or at most neutral with regard to an Iraq war, and that less international 
participation would lessen the chances of success.

I found the passage on the information campaign chilling:

"20. Time will be required to prepare public opinion in the UK that it is 
necessary to take military action against Saddam Hussein. There would also 
need to be a substantial effort to secure the support of Parliament. An 
information campaign will be needed which has to be closely related to an 
overseas information campaign designed to influence Saddam Hussein, the 
Islamic World and the wider international community. This will need to give 
full coverage to the threat posed by Saddam Hussein, including his WMD, and 
the legal justification for action. "


The polite diplomatic language hides the implications that there would be a 
global black psy-ops campaign in favor of the war, conducted from London. 
Since the rest of the briefing already admits that there was no legal 
justification for action, the proposal of an information campaign that 
would maintain that such a justification existed must be seen as deeply 
dishonest.

One press report said that the British military had planted stories in the 
American press aimed at getting up the Iraq war. A shadowy group called the 
Rockingham cell was apparently behind it. Similar disinformation campaigns 
have been waged by Israeli military intelligence, aiming at influencing US 
public opinion. (Israeli intelligence has even planted false stories about 
its enemies in Arabic newspapers, in hopes that Israeli newspapers would 
translate them into Hebrew and English, and they would be picked up as 
credible from there in the West.

The International Criminal Court home page is here. We find in its 
authorizing legislation, the Rome Statute of the International Criminal 
Court, the Section on Jurisdiction, which reads as follows:


"Article 5
Crimes within the jurisdiction of the Court

1. The jurisdiction of the Court shall be limited to the most serious 
crimes of concern to the international community as a whole. The Court has 
jurisdiction in accordance with this Statute with respect to the following 
crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression."


It is not clear to me that the court is yet able to take up the crime of 
aggression, because legal work remained to be done in defining the crime 
precisely and in having that language adopted by the UNSC.

If it were able to do so, some groups in Europe may now feel that there is 
a basis for proceeding against the Blair government for knowingly 
committing an act of aggression. They might argue that when, in March, 
2003, it became clear that the United Nations Security Council would not 
authorize a war against Iraq; and when it was clear from the reports of the 
UN weapons inspectors that they were finding no chemical, biological or 
nuclear weapons programs; and when it was murky as to whether Saddam was 
actively killing any significant numbers of Iraqis in 2001-2003--that Blair 
should have pulled out and refused to cooperate in an Iraq invasion. The 
cabinet brief and the memo of the July 23 meeting demonstrate conclusively 
that members of the Blair government knew that they were involved in plans 
that were as of that moment illegal, and that no legal basis for them might 
be forthcoming. Ignorance is no excuse under the law, but here even 
ignorance could not be pleaded.

The US has not ratified the ICC--and in fact has been attempting to 
undermine it. The Bush administration became especially alarmed about its 
implications in 2002. It has attempted to put US officials beyond its reach 
by concluding a series of bilateral treaties with other nations such that 
they would hold US personnel harmless despite their being signatories to 
the ICC. It may therefore be difficult for anti-war groups to use it 
against Bush. [Thanks to the diarists at Atrios.com for this link and 
clarifications.]

posted by Juan @ 6/12/2005 12:53:00 PM

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