Bush and Blair Committed to War in April, 2002
Leaked Cabinet Briefing Shows British Knew War was Illegal
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 have 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.
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.]