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CND in the News
CND in the News: 28 April-4 May 2005
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1 Summary: Attorney General's note to Blair
Thursday, 28 Apr 2005
http://www.politics.co.uk/foreign-policy/summary-attorney-generals-note-blair-$8378995.htm
The Government has published the full text of the letter sent by the Attorney
General to Tony Blair, after exerts of the letter were leaked to the press.The
letter is 13 pages long and concludes by warning the Prime Minister that
"regime change cannot be the objective of military action. This should
be borne in mind in considering the list of military targets and in making
public statements about any campaign."
Dated March 7, ten days before Lord Goldsmith's statement to the House
of Lords that the war would be legal, the letter states that if no second
resolution is adopted "we would need to consider urgently at that
stage the strength of our legal case in the light of circumstances at
that time."
The advice also warns that going to war without a second UN resolution
could leave the UK open to legal challenges in both internationally and
in the domestic courts.
It says that the "safest legal course" would be to secure a
second resolution authorising the use of force, but says "a reasonable
case can be made that resolution 1441 is capable in principle of reviving
the authorisation in 678 without a further resolution".
But Lord Goldsmith also warned that "a 'reasonable case' does not
mean that if the matter ever came before a court I would be confident
that the court would agree with this view."
And he argues that without a second resolution there must be "strong
factual grounds" for concluding that Iraq has failed to take the
final opportunity with "hard evidence of non-compliance and non-cooperation".
Lord Goldsmith's summary
Summary
26. To sum up, the language of resolution 1441 leaves the position unclear
and the statements made on adoption of the resolution suggest that there
were differences of view within the Council as to the legal effect of
the resolution. Arguments can be made on both sides. A key question is
whether there is in truth a need for an assessment of whether Iraq's conduct
constitutes a failure to take the final opportunity or has constituted
a failure fully to cooperate within the meaning of OP 4 such that the
basis of the cease-fire is destroyed. If an assessment is needed of that
sort, it would be for the Council to make it. A narrow textual reading
of the resolution suggests that sort of assessment is not needed, because
the Council has pre-determined the issue. Public statements, on the other
hand, say otherwise.
27. In these circumstances, I remain of the opinion that the safest legal
course would be to secure the adoption of a further resolution to authorise
the use of force. I have already advised that I do not believe that such
a resolution need be explicit in its terms. The key point is that it should
establish that the Council has concluded that Iraq has failed to take
the final opportunity offered by resolution 1441, as in the draft which
has already been tabled.
28. Nevertheless, having regard to the information on the negotiating
history which I have been given and to the arguments of the US Administration
which I heard in Washington, I accept that a reasonable case can be made
that resolution 1441 is capable in principle of reviving the authorisation
in 678 without a further resolution.
29. However, the argument that resolution 1441 alone has revived the
authorisation to use force in resolution 678 will only be sustainable
if there are strong factual grounds for concluding that Iraq has failed
to take the final opportunity. In other words, we would need to be able
to demonstrate hard evidence of non-compliance and non-cooperation. Given
the structure of the resolution as a whole, the views of UNMOVIC and the
IAEA will be highly significant in this respect. In the light of the latest
reporting by UNMOVIC, you will need to consider extremely carefully whether
the evidence of non-cooperation and non-compliance by Iraq is sufficiently
compelling to justify the conclusion that Iraq has failed to take its
final opportunity.
30. In reaching my conclusions, I have taken account of the fact that
on a number of previous occasions, including in relation to Operation
Desert Fox in December 1998 and Kosovo in 1999, UK forces have participated
in military action on the basis of advice from my predecessors that the
legality of the action under international law was no more than reasonably
arguable. But a "reasonable case" does not mean that if the
matter ever came before a court I would be confident that the court would
agree with this view. I judge that, having regard to the arguments on
both sides, and considering the resolution as a whole in the light of
the statements made on adoption and subsequently, a court might well conclude
that OPs 4 and12 do require a further Council decision in order to revive
the authorisation in resolution 678. But equally I consider that the counter
view can be reasonably maintained. However, it must be recognised that
on previous occasions when military action was taken on the basis of a
reasonably arguable case, the degree of public and Parliamentary scrutiny
of the legal issue was nothing like as great as it is today.
31. The analysis set out above applies whether a second resolution fails
to be adopted because of a lack of votes or because it is vetoed. As I
have said before, I do not believe that there is any basis in law for
arguing that there is an implied condition of reasonableness which can
be read into the power of veto conferred on the permanent members of the
Security Council by the UN Charter. So there are no grounds for arguing
that an "unreasonable veto" would entitle us to proceed on the
basis of a presumed Security Council authorisation. In any event, if the
majority of world opinion remains opposed to military action, it is likely
to be difficult on the facts to categorise a French veto as "unreasonable".
The legal analysis may, however, be affected by the course of events over
the next week or so, eg the discussions on the draft second resolution.
If we fail to achieve the adoption of a second resolution, we would need
to consider urgently at that stage the strength of our legal case in the
light of circumstances at that time.
Possible consequences of acting without a second resolution
32. In assessing the risks of acting on the basis of a reasonably arguable
case, you will wish to take account of the ways in which the matter might
be brought before a court. There are a number of possibilities. First,
the General Assembly could request an advisory opinion on the legality
of the military action from the International Court of Justice (ICJ).
A request for such an opinion could be made at the request of a simple
majority of the States within the GA, so the UK and US could not block
such action. Second, given that the United Kingdom has accepted the compulsory
jurisdiction of the ICJ, it is possible that another State which has also
accepted the Court's jurisdiction might seek to bring a case against us.
This, however, seems a less likely option since Iraq itself could not
bring a case and it is not easy to see on what basis any other State could
establish that it had a dispute with the UK. But we cannot absolutely
rule out that some State strongly opposed to military action might try
to bring such a case. If it did, an application for interim measures to
stop the campaign could be brought quite quickly (as it was in the case
of Kosovo).
33. The International Criminal Court at present has no jurisdiction over
the crime of aggression and could therefore not entertain a case concerning
the lawfulness of any military action. The ICC will however have jurisdiction
to examine whether any military campaign has been conducted in accordance
with international humanitarian law. Given the controversy surrounding
the legal basis for action, it is likely that the Court will scrutinise
any allegations of war crimes by UK forces very closely. The Government
has already been put on notice by CND that they intend to report to the
ICC Prosecutor any incidents which their lawyers assess to have contravened
the Geneva Conventions. The ICC would only be able to exercise jurisdiction
over UK personnel if it considered that the UK prosecuting authorities
were unable or unwilling to investigate and, if appropriate, prosecute
the suspects themselves.
34. It is also possible that CND may try to bring further
action to stop military action in the domestic courts, but I am confident
that the courts would decline jurisdiction as they did in the case brought
by CND last November. Two further, though probably more
remote possibilities, are an attempted prosecution for murder on the grounds
that the military action is unlawful and an attempted prosecution for
the crime of aggression. Aggression is a crime under customary international
law which automatically forms part of domestic law. It might therefore
be argued that international aggression is a crime recognised by the common
law which can be prosecuted in the UK courts.
35. In short, there are a number of ways in which the opponents of military
action might seek to bring a legal case, internationally or domestically,
against the UK, members of the Government or UK military personnel. Some
of these seem fairly remote possibilities, but given the strength of opposition
to military action against Iraq, it would not be surprising if some attempts
were made to get a case of some sort off the ground. We cannot be certain
that they would not succeed. The GA route may be the most likely, but
you are in a better position than me to judge whether there are likely
to be enough States in the GA who would be willing to vote for such a
course of action in present circumstances.
Proportionality
36. Finally, I must stress that the lawfulness of military action depends
not only on the existence of a legal basis, but also on the question of
proportionality. Any force used pursuant to the authorisation in resolution
678* (whether or not there is a second resolution): must have as its objective
the enforcement the terms of the cease-fire contained in resolution 687
(1990) and subsequent relevant resolutions; be limited to what is necessary
to achieve that objective; and must be a proportionate response to that
objective, ie securing compliance with Iraq's disarmament obligations.
That is not to say that action may not be taken to remove Saddam Hussein
from power if it can be demonstrated that such action is a necessary and
proportionate measure to secure the disarmament of Iraq. But regime change
cannot be the objective of military action. This should be borne in mind
in considering the list of military targets and in making public statements
about any campaign.
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2 ATTORNEY GENERAL DEFERRED TO US LAWYERS
28 April 2005
http://www.libdems.org.uk/story.html?id=8616&navPage=news.html
Commenting on the full legal advice of the Attorney General, Lord Thomas
of Gresford QC, Liberal Democrat Shadow Attorney General, said:
"The full text of Lord Goldsmith's advice to the Prime Minister reveals
that he deferred to the United States' lawyers. He was persuaded to abandon
the 'consistent view' of the UK, as expressed by a succession of previous
Law Officers 'that, as the cease-fire conditions were set by the Security
Council in resolution 687, it is for the Council to assess whether any
such breach of those obligations has occurred'.
"The Americans argued that whether Iraq was in material breach of
its obligations was a matter of objective fact which they themselves were
entitled to assess. Lord Goldsmith pointed out that he did not know of
any other member state of the United Nations which took that view, but
he said 'I was impressed by the strength and sincerity of the views of
the US Administration which I heard in Washington on this point'.
"Now we know why the Americans said: 'We had trouble with your Attorney
General, but in the end, we got him round to our point of view'. "Lord
Goldsmith advised the Prime Minister to follow the established UK view
of the law, when he said: 'The key point is that [the Second Resolution]
should establish that the [Security] Council has concluded that Iraq has
failed to take the final opportunity offered by resolution 1441, as in
the draft which has already been tabled'. Of course, that did not happen.
The Second Resolution was withdrawn.
"What did happen between the 7th and 17th March is that the Attorney
General bowed down to the legal opinions he had heard in Washington and
went along with the Americans. "The Attorney General believed the
legality of military action could be challenged in the Courts and envisaged
possible prosecutions for attempted murder, or for the war crime of aggression,
brought by organisations such as CND in our own British
courts.
"His Advice of the 7th March was: 'I judge that, having regard to
the arguments on both sides, and considering the resolution as a whole
in the light of the statements made on adoption and subsequently, a court
might well conclude that OPs 4 and 12 do require a further Council decision
in order to revive the authorisation in resolution 678'.
"An unequivocal view that the war was legal? Rubbish."
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3 Goldsmith Warned Blair of Threat of Legal Action
PA News, 28 Apr 05
http://news.scotsman.com/latest.cfm?id=4474749
The Attorney General warned Tony Blair that British ministers and troops
could face legal action over the war with Iraq, it was disclosed today.
In his full 13-page legal opinion released by Downing Street, Lord Goldsmith
said such attempts could range from action by the United Nations General
Assembly through the international courts to common law prosecutions in
the UK.
“Some of these seem fairly remote possibilities, but given the strength
of opposition to military action against Iraq, it would not be surprising
if some attempts were made to get a case off the ground,” he warned.
“We cannot be certain that they would not succeed.”
The Government took the unprecedented step of releasing Lord Goldsmith’s
advice after his key conclusions were leaked last night to Channel 4 News,
dramatically re-igniting the election debate over Iraq. The full document
confirmed that he accepted a “reasonable case” could be made
for military action although he cautioned that “the safest legal
course” would be to secure a new UN Security Council resolution
specifically stating that Iraq had failed to meet its obligations to disarm.
He added: “A ‘reasonable case’ does not mean that if
the matter ever came before a court I would be confident that the court
would agree with this view”.
In the full document, Lord Goldsmith goes on to outline the possible sources
of legal action if Britain went to war without a second Security Council
resolution. He said that the case could be brought by the General Assembly
of the UN or an individual member state through the International Court
of Justice seeking a ruling on the legality of military action.
The International Criminal Court (ICC) could scrutinise any allegations
of war crimes by British forces, with CND campaigners
warning that they intended to report any breaches of the Geneva Conventions
to the ICC prosecutor.
Finally there could be attempted prosecutions through the British courts
for murder, on the grounds that the war was illegal, or for the crime
of aggression.
Lord Goldsmith presented his full opinion to Mr Blair on March 7 2003.
It was never shown to the Cabinet which instead, ten days later on the
eve of war, was given a single-page document stating Lord Goldsmith’s
view that military action was lawful.
Ministers today strongly denied claims that he had changed his mind in
the intervening period.
They said the second document reflected the fact there was fresh evidence
of Iraq’s failure to comply with its UN obligations while attempts
to get a second resolution had broken down.
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4 Anti-war groups begin court challenge
http://politics.guardian.co.uk/election/story/0,15803,1473679,00.html
The Guardian , Saturday April 30, 2005
Anti-war groups yesterday launched a series of lawsuits against the government
in light of the publication of the attorney general's advice on the legality
of the invasion of Iraq.
Reg Keys, father of a military policeman killed in Iraq, who is standing
as an independent in Tony's Blair's Sedgefield constituency, has joined
forces with others in Military Families Against the War and the Stop the
War Coalition.
They include Rose Gentle, whose son, Gordon, 19, was killed by a roadside
bomb in Basra in June last year. She said she would fight "tooth
and nail" to take Mr Blair to court.
CND, the anti-nuclear and peace campaign whose case against
the war was thrown out by the courts before the invasion, said yesterday
it was vindicated by the attorney general's opinion. Anti-war groups have
been encouraged by the warnings given by Lord Goldsmith in his advice
to the prime minister on March 7 2003, less than two weeks before the
invasion.
Among what he called the possible consequences of invading without a fresh
UN resolution, he warned: "Given the strength of opposition to military
action against Iraq, it would not be surprising if some attempts were
made to get a case of some sort off the ground."
Phil Shiner, of Public Interest Lawyers, which is acting for the anti-war
groups, said three actions were being prepared against the government.
On Thursday, they will present a case before the international criminal
court in The Hague. The court is already considering what it describes
as a "most significant" application relating to war crimes charges
by anti-war groups.
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5 Brown refuses to back Blair's nuclear programme
The Independent, 03 May 2005
http://news.independent.co.uk/uk/politics/story.jsp?story=635187
Gordon Brown has refused to commit himself to supporting Tony Blair's
plans to renew Britain's Trident nuclear weapons system. Mr Brown appeared
to duck the issue on Channel Four News when he was challenged about yesterday's
report in The Independent that Mr Blair had agreed in principle to replace
the Trident system.
The Prime Minister confirmed yesterday that he wants Britain to retain
its independent nuclear deterrent when the Trident submarine fleet reaches
the end of its natural life. Asked whether it was right to replace it,
Mr Brown said: "Well, as Tony Blair says a decision has not been
made. We have to look at the facts and the figures first." His reply
will encourage some of his supporters, who want him to secure the leadership,
but seriously question the need for a replacement for Trident. Mr Brown
added: "The issue in the world is not whether the existing powers
cease to be nuclear - I don't think that is expected of us - I think the
issue is whether we can prevent proliferation."
The Independent learned the Crown Prosecution Service (CPS) would not
challenge claims in a court case that Mr Blair's plans to replace Trident
with a new nuclear deterrent would breach the nuclear non-proliferation
treaty (NPT). In documents relating to the prosecution of five anti-nuclear
protesters who broke into a defence establishment, the CPS also says it
will not contest expert views that the extension for 10 years of the mutual
co-operation deal between Britain and the US, known as the mutual defence
agreement, would breach the NPT.
The legal papers make it clear that the Crown does not accept the claims
are correct, but has agreed not to contest the fact that some experts
hold these view.
The Crown's acceptance that there is expert opinion against the Government
came in papers delivered to Joss Garman, 19, one of the five CND
protesters who in April, last year, broke into Northwood, the Ministry
of Defence headquarters in north-west London.
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