So said Lord Goldsmith, the UK’s former Attorney General, yesterday at the UK’s Iraq inquiry. In 2003, Goldsmith provided the legal okay for the UK to participate in the Iraq invasion. You can find notes on Goldsmith’s testimony at TimesOnline here. Before the invasion, Goldsmith originally believed UN resolution 1441 (downloadable here) did not provide legal justification for the invasion. However, he changed his mind after meeting with U.S. lawyers. Here’s the portion of Goldsmith’s testimony in which he explains his position shift:
For Goldsmith, one of the main issues of resolution 1441 was the use of the word “consider” versus “decide” in paragraph 12, which states that the Security Council:
Decides to convene immediately upon receipt of a report in accordance
with paragraphs 4 or 11 above, in order to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security;(emphasis mine)
Goldsmith ultimately concluded that since the Security Council hadn’t used the word “decide,” a second resolution was not required to legally justify military intervention. TimesOnline summarizes Goldsmith’s description of his Washington trip:
12.44pm Lord Goldsmith says during his trip to the US – the most important American he met was the legal advisor to the State Department, Will Taft IV. But on this point “they were speaking with one voice”.
“They were confident that they had not conceded a veto” – the red line for the Bush Administration was that the US had agreed to go to the UN but only if they did not concede a veto in the first resolution.
Taft (along with Todd Buchwald) battled out this legal issue with Thomas Franck in the pages of The American Journal of International Law in 2003, with Taft and Buchwald writing that though the word “decide” was included in earlier drafts of 1441″:
The fact [that the word “decide”] was not included in Resolution 1441 as ultimately adopted shows that the Council decided only that it would consider the matter, but not that it would be necessary for it, or even its purpose, to make a further decision.
Thomas Franck dismissed this analysis as “at best a creative interpretation,” writing of 1441:
While that instrument does deplore “that the Government of Iraq has failed to comply with its commitments pursuant to resolution 687,” it addresses that failure exclusively by deciding “to set up an enhanced inspection regime.”
It seems likely that 1441 was left intentionally ambiguous to allow both sides to legitimately argue their case. Regardless of legality, though, Goldsmith tried to distance himself from the Iraq invasion as policy, as his quote in this post’s title indicates. Goldsmith didn’t go as far as Sir Jeremy Greenstock, the UK’s ambassador to the UN during the Iraq invasion, who said at a November 2009 Iraq Inquiry session that the invasion was “legal but of questionable legitimacy” because “it did not have the democratically observable backing of a great majority of member states or even perhaps of a majority of people inside the UK.” However, Goldsmith did emphasize that his opinion of the war’s legality was not equivalent to support for the war as policy.
Perhaps the big take-away from Goldsmith’s Inquiry session is another issue he raised, that being, as TimesOnline reports, “Whether or not the structure of the UN really is as effective as it should be in dealing with these critical questions of international stability…” Perhaps Goldsmith might want to join the Iranian effort to undertake “Reform of the United Nations and the Security Council and raising their effectiveness on the basis of principles of democracy and justice,”a key issue Iran put on the table for discussion during Iran’s nuclear negotiations with the West – all evidence indicates this issue has been entirely ignored.
