[News] British Knew War was Illegal
News at freedomarchives.org
News at freedomarchives.org
Mon Jun 13 18:49:29 EDT 2005
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
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
"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
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:
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
(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
posted by Juan @ 6/12/2005 12:53:00 PM
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