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Free Saddam and jail Blair?
(Filed: 27/03/2005)
When the International Criminal Court was set up in 2002, the Americans refused to recognise its authority. They explained their reluctance on the basis that to give overarching authority to an international court would not ensure that decisions on vital international issues were made by judges independent of political control. It would simply hand those decisions to another set of politicians with their own political agendas - which might be flatly opposed to the fundamental interests of the United States.
Tony Blair passionately endorsed the creation of the International Criminal Court (ICC), arguing that Britain must be subordinated to its rules. In the run up to the invasion of Iraq in 2003, the Prime Minister was determined to join President Bush's coalition to invade Iraq. But he also repeatedly insisted that he would not go to war with Iraq unless it was in accord with international law. His own moral convictions may have led him to that position, but there was also the small matter of parliamentary approval for the invasion. Gaining that support would be impossible if the Prime Minister admitted that he was committed to supporting an "illegal" war.
"Illegal", however, is precisely what it seems to have been. Indeed, according to Elizabeth Wilmshurst, the deputy head of the Foreign Office legal department who resigned over the issue of the war, practically all the Government's lawyers believed it would be illegal to invade Iraq without a second UN Security Council resolution explicitly authorising that step. The Prime Minister did everything he could to achieve a second resolution. He failed so comprehensively that the issue was never even put to a Security Council vote.
Prior to the realisation that there was no chance of a second resolution, there was perhaps room for doubt on whether international law required one. But after it, there was none. The legitimacy of the war without a second vote was precisely the issue on which UN Security Council members were canvassed. It was also precisely the issue on which the majority of them were adamant: they would not vote for war. The majority also insisted that without such a vote, an invasion of Iraq would be illegitimate.
Yet it was only after it became clear that there could be no second resolution that Lord Goldsmith, the Attorney General, insisted that the invasion was unequivocally legal. On March 7, 2003, he had qualified his view that it was legal by noting that it would be open to serious challenges. Ten days later, on March 17 - by which time it had been irrevocably established that no second resolution was possible - Lord Goldsmith had changed to the view that the invasion would be "legal under international law" without any qualifications. He omitted to mention that the majority of international lawyers were certain that the war would be illegal. That change can only be explained by considerations that have nothing whatever to do with legal issues. After seeing the March 7 opinion, the Chief of the Defence Staff, Admiral Boyce, insisted that he was not willling to go to war if there was a chance he might end up in the dock of the ICC. He wanted an assurance that there was no possibility of that. The Attorney General's second opinion conveniently provided him with it. It also persuaded Labour MPs to vote for war.
An equivocal opinion on the legality of the war would, of course, have forced the Prime Minister to pull Britain's forces, then massing in the Gulf, back home. It would have shattered the Anglo-American alliance on which the Prime Minister had founded his credibility - and the consequences of that for his Government are not difficult to imagine.
Those pressures explain the Attorney General's change of view. The truth is that the war was probably not legal under international law. Those who believe that is a fact of cardinal moral importance have not yet had the courage to admit the inevitable conclusion of their position. It is that there now needs to be a "coalition of the willing" to restore the legal government of Saddam Hussein to its rightful position as the sovereign authority in Iraq. Tony Blair must be arrested and tried by the ICC, and Saddam should be the primary witness against him. That is the inescapable logic of the champions of international law. It should make every-one realise how unreal is the world in which they live.
