Nicolas J S Davies

A collection of published articles and letters to policymakers regarding the crisis in United States foreign policy by Nicolas J S Davies.

Location: North Miami, Florida, United States

Tuesday, May 24, 2005

More Blood for Less Oil?

Published by Online Journal

On Monday, April 11th 2005, the Financial Times printed a letter from Ian Rutledge, the author of “Addicted to Oil”, in which he explained that the United States Government and U.S. oil companies had counted on the invasion and occupation of Iraq to quickly boost Iraqi oil production by 2 million barrels per day, easing a projected shortfall in global oil supplies. Instead the war has had the opposite effect, reducing Iraqi exports by 1 million barrels per day, and the result is now evident at gas stations from Baghdad to Boston.

In his excellent book, “Resource Wars”, Michael Klare warned in 2000 that misguided efforts to secure the world’s diminishing supply of oil and other resources by military force could have precisely this effect. Turning one of the few parts of the world that still has abundant oil reserves into a war zone just when we really need the oil certainly seems like lunacy. What led the Bush administration to take such a risk? The short answer is that, from their point of view, they had to. It was a critical part of a larger strategy, and they have yet to seriously consider any alternative to this strategy.

As the world’s supply of oil declines in the coming years, the United States and Japan will be the countries whose advanced economies are the most dependent on imported oil. Russia is self-sufficient, China has other options, and Europeans use half as much oil as Americans. So how have American policymakers prepared for these difficult times? Alternative energy? Fuel-efficient vehicles? Public transportation? How about a $500 billion annual military budget to ensure military dominance, outspending the next 23 world military powers combined? (Or is it $800 billion? See “U.S. Military Budget” by Don Monkerud in the April edition of Z)

If the armed forces of the United States were committed only to our country’s legitimate defense interests, these vast expenditures could be attributed to some combination of realistic defense concerns, paranoia and vested interests, and we could debate how much of each as a political issue. However, the Bush administration has openly declared its intention to use these forces in ways that constitute crimes of aggression under international law, as it has already done in Iraq.

The 2002 National Security Strategy blatantly misstated the international legal principle of preemption when it said “legal scholars and international jurists often conditioned the legitimacy of preemption on the existence of an imminent threat”, pretending that one of the basic foundations of international law is neither current nor binding. If you remove the parts I have italicized, what remains is an accurate statement of long-standing international law. In his pre-war legal advice to Mr. Blair, Lord Goldsmith wrote “the USA has been arguing for a broad doctrine of a right to use force to preempt danger in the future…this is not a doctrine which, in my opinion, exists or is recognized in international law.” (See “The Crime of War: from Nuremberg to Fallujah” in the February edition of Z for a full description of how the Iraq war constitutes aggression under international law)

Ignoring the imminence of a threat as a precondition for military action has opened the Pandora’s box of unrestrained international violence. The new National Defense Strategy of the United States of America (2005) states that, in addition to legitimately countering “imminent” threats, the U.S. Government is now planning to use military force against “emerging challenges”, “gathering threats”, “to deny an opponent the strategic initiative”, to “defeat adversaries at the time, place, and in the manner of our choosing – setting the conditions for future security”, or to “strike targets that directly threaten the United States or U.S. friends or other interests”. In other words, once the United States Government has identified any country or group of people as an “adversary” or an “opponent” and decided that “future security” might (one can never be sure of this) be improved by military action, this vast war-machine will continue to be used in ways that violate international law.

Many Americans who are shocked by the war in Iraq take comfort in viewing it as a mistake, an aberration or a special case rather than as part of a larger strategy. I have to say that nothing in the official documents and policy statements of this administration supports this view. On the contrary, the National Defense Strategy begins “America is a nation at war” and describes the wars in Afghanistan, Iraq and against terrorism as components of a long-term offensive global war. The purpose of this war is alluded to only in terms of mystifications like “freedom, democracy and economic opportunity”, and analysis of root causes or actual goals is scrupulously avoided. There is no mention of the conflict between U.S. interests and the aspirations of other peoples that lies at the heart of the U.S. foreign policy crisis, nor of its economic or historical roots in past U.S. policy. And, even though one could easily mistake a map of U.S. military deployments and declared “threats” for a map of the world’s oil fields, the words “oil” and “petroleum” do not appear in these documents.

The past century of colonialism and neo-colonialism has ensured that most developing countries that are rich in oil and other raw materials are now ruled by regimes that can easily be construed as “threats” or “tyrants” once they commit the cardinal sin of disloyalty to their neo-colonial masters. Without the precondition of an imminent threat, any one of these countries can now become a target of U.S. aggression, and the kind of political process by which this can be engineered has been excruciatingly laid bare for the whole world to see in the case of Iraq.

The gamble this administration has taken in Iraq pales by comparison to the long-term one that they are taking by staking the future of our country on the illegitimate exercise of military power to secure the Earth’s dwindling resources in the 21st century. This policy requires not just waging and winning serial wars of aggression, but somehow doing so without triggering escalating disruptions in the supply and distribution of the commodities we are fighting over. This war-weary world is only too familiar with this type of international behavior and the United States has previously led efforts to establish a “permanent structure of peace”, as President Roosevelt called it, based on international treaties and institutions, collective security and a fundamental commitment to peace.

The current illegitimate policy is intertwined with our government’s huge investment in military power and its rejection of alternatives to the use of that power as the final arbiter of international problems. When the only tool you have is a hammer, every problem looks like a nail, and I would add that you and your hammer become a real danger to everyone, including ultimately yourself.

Iraq has quickly exposed the weakness of this policy. Two years in, the Iraqis are resisting as fiercely as ever against the full range of U.S. military power. Much of the country, including most of Baghdad, is effectively in the hands of resistance forces. Even the 10-mile road between the two centers of U.S. power, the Green Zone and Baghdad Airport, is hostile territory. Ramadi has been bombed for months in a block-by-block slow-motion replay of the destruction of Fallujah, and yet resistance forces are still hitting U.S. Marine bases there with accurate and lethal mortar fire. U.S. forces all over Iraq are hunkered down in fortified bases reminiscent of Dien Bien Phu or Khe Sanh, defended by armored sorties and air strikes against surrounding areas, and supplied by heavily armed convoys and airlifts.

The human cost of the war is staggering. The Center for International Emergency, Disaster and Refugee Studies at Johns Hopkins School of Public Health conducted a survey of Iraqi civilian casualties, and concluded, “Violent deaths were widespread…and were mainly attributed to coalition forces. Most individuals reportedly killed by coalition forces were women and children. Making conservative assumptions, we think that 100,000 excess deaths or more have happened since the 2003 invasion of Iraq. Violence accounted for most of the excess deaths and air strikes from coalition forces accounted for most violent deaths”. (The Lancet, November 20th 2004)

These conclusions are supported by Iraqi Health ministry reports released to Knight Ridder Newspapers and the BBC in September 2004 and January 2005 respectively, and there can be little doubt that this is an accurate picture as far as it goes. It dramatically contradicts the impression conveyed by the embedded media that most of the violence in Iraq has been committed by anti-American forces.

Mainstream resistance groups seem increasingly well disciplined, and highly-publicized terrorist attacks that have killed a lot of civilians appear to be mainly the work of fringe Islamist groups. “Iraqi Interior Ministry Special Forces” and other Kurdish and exile groups allied with the U.S. have been implicated in assassinations of academics, human rights activists and political opponents, and there is sophisticated debate amongst the Iraqi population about who is really behind each terrorist attack and murder. Many Iraqis question the existence of “terrorist mastermind Abu Musab al-Zarqawi”, the villain of Centcom press releases and the U.S. infotainment industry.

By continuing to resist, the Iraqis are calling the United States’ bluff, forcing the U.S. military to put its cards on the table and reveal its strengths and weaknesses to other potential adversaries, thus surrendering a critical edge in an age of asymmetric warfare. More importantly, the resistance is exposing both the futility and the brutality of U.S. policy. In spite of sophisticated “information management”, this naked view of U.S. aggression is generating popular opposition to U.S. interests all over the world, alienating both allies and trading partners, and the United States is losing the war on the very terms by which our leaders have sought to define it: non-proliferation; human rights; democracy…not to mention oil. As for counter-terrorism, the State Department has abruptly discontinued its annual report on global terrorism after the National Counterterrorism Center reported a 250% increase in worldwide terrorism, from the previous record high of 175 incidents in 2003 to 625 incidents in 2004.

While the United States persists in its aggression in Iraq, and has locked itself into hostile stand-offs with Iran, North Korea, Syria, Cuba and Venezuela (the list keeps growing), other countries are making deals, signing treaties and hammering out the tough choices that will be vital to a peaceful, sustainable future for the human race. As the U.S. puts its best resources into developing the next generation of killing machines, other countries will be developing the technologies and social structures to take human civilization beyond the age of petroleum.

Before the invasion of Iraq, the prospect of war was greeted by worldwide protests involving millions of people who knew only too well what this would be like, even as policymakers in Washington buried their heads in mystifications and wishful thinking. That our leaders were so wrong should lead all Americans to question their long-term strategy and the dangerous and naive assumptions about military power and international relations that underlie it. Michael Klare suggests that the formation of the International Energy Agency in 1974 to allocate scarce oil supplies in response to the Arab oil embargo provides a useful alternative model for dealing with the inevitable resource shortages of the 21st century. We can only hope that the counterproductive and horrific results of our country’s aggression in Iraq will lead the American people to reject militarism, to renew our commitment to international law, and to put this country’s enormous wealth and human potential back to work with the rest of the world to solve our common problems within a “permanent structure of peace”.

Monday, May 23, 2005

Reviving Legitimacy

A commentary on Lord Goldsmith’s legal advice on the eve of the Iraq War with emphasis on the legal position of the United States

Published by Online Journal


With an 8-10% lead in the polls and the Iraq War 14th out of 16 on a list of priorities to British voters, Prime Minister Tony Blair deftly chose his political moment at the end of April to publish the full 14-page, 36-point legal advice he received on March 7th 2003, 12 days before Britain and the United States invaded Iraq. This document dismisses most of the rationales for war that have been widely accepted by Americans, leaving only what Attorney General Lord Goldsmith calls the “revival” argument as a possible legal justification for war. This argument hinges on the notion that the authorization to use “all necessary means” against Iraq in Security Council resolution 678 (1990) was “revived” by Iraq’s alleged non-compliance with the terms of S.C. resolution 687 (1991) regarding illegal weapons, and that S.C. resolution 1441 (2002) was intended by the Security Council to trigger such a “revival” without passage of a further resolution.

The document is a thorough and detailed legal paper, and I suggest that you print out a copy of it if you do not have one, as my commentary addresses Lord Goldsmith’s advice paragraph by paragraph. You can find a copy of the document at:,,19809-1589275,00.html

Analysis of the text

(P1) “This is, of course, a matter we have discussed before.” This immediately brings up the most important unanswered question – “When and in what context did Blair and Goldsmith previously discuss this?” On June 17th, 2003, Claire Short, who resigned from Blair’s cabinet over the war, told a foreign affairs select committee that she had received an intelligence briefing that Blair and President Bush had made a “secret” agreement in the summer of 2002 to go to war in February 2003. Others have made similar claims, and a court reviewing this case would surely wish to investigate this question. If these claims could be proved, it could be argued that they reduce all the maneuvering in the U.N. Security Council to “window dressing” for a premeditated act of aggression. The “Downing Street memo” has revealed that such a plan was discussed on July 23rd 2002, and puts Lord Goldsmith on the record at that meeting saying that a Security Council authorization was the only basis for military action that would be legitimate. The preexistence of a definite plan for war would also explain why the U.S. and Britain dismissed out of hand all evidence that Iraq was in fact complying with resolution 1441.

(P2) Goldsmith summarizes the three bases for the use of military force that are recognized under international law: self-defense; humanitarian intervention; or an authorization by the Security Council under Chapter VII of the U.N. Charter.

(P3) Goldsmith explains the necessity of an imminent threat as a precondition for preemptive self-defense. He categorically rejects American claims that unilaterally reinterpret this principle. He writes “I am aware that the USA has been arguing for recognition of a broad doctrine of a right to use force to pre-empt danger in the future. If this means more than a right to respond proportionately to an imminent attack (and I understand that the doctrine is intended to carry that connotation) this is not a doctrine which, in my opinion, exists or is recognized in international law.”

(P4) “I know of no reason why (humanitarian intervention) would be an appropriate basis for action in present circumstances.”

(P5) “The key question is whether resolution 1441 has the effect of providing (U.N. Chapter VII) authorization.”

(P6) He breaks this key question into two parts: “(a) is the so-called “revival argument” a sound legal basis in principle?” and “(b) is resolution 1441 sufficient to revive the authorization in resolution 678?” Paragraphs 7 through 11 address the first question and paragraphs 12 through 25 address the second, and these together form the substantive paragraphs of this document.

(P7) Goldsmith traces the history of the authorization of military force in resolution 678 (1990) and the “formal cease-fire” that was declared in resolution 687 (1991). Resolution 678 authorized “all necessary means” to expel Iraq from Kuwait and “to restore international peace and security in the area”.

Then Goldsmith makes a statement that does not appear to be supported by the wording of these resolutions. He writes “Resolution 687 suspended, but did not terminate, the authority to use force in resolution 678. Nor has any subsequent resolution terminated the authorization to use force in resolution 678.” None of this language appears in resolution 687, which simply declares a “formal cease-fire” on condition of Iraqi “acceptance” of the terms it spells out, with no linkage to Iraq’s ongoing obligations under those terms. If the basis for “revival” is that the cease-fire was intended to be provisional or temporary, there is no indication of this in the resolution.

Of course, the Security Council doesn’t need to include “revival” clauses in its resolutions because it can authorize the use of force whenever its members agree that this is necessary. The only practical purpose of “revival” would be to enable individual members to use force without the express approval of the Council at some future point. Thus the whole concept of “revival” seems to be a mechanism to circumvent the exclusive authority vested in the Security Council by the U.N. Charter.

(P8) Goldsmith cites the precedent that the “revival” argument was used to justify previous limited military action against Iraq in 1993 and 1998. He cites resolution 1205 (1998), but this resolution did not mention the use of force nor its “revival”. Clearly, the U.N. has accepted “revival” in limited and proportionate circumstances, but Goldsmith must have realized that something quite different was being contemplated at this point. Resolution 1205 in fact reiterated “the commitment of all Member States to the sovereignty, territorial integrity and political independence of Kuwait and Iraq”.

(P9) I cannot find a copy of former UN Legal Counsel Carl-August Fleischauer’s 1992 opinion, but one could obviously make a stronger case for “revival” to justify limited military action a year after the end of hostilities than to launch a whole new war twelve years later.

In the second part of this paragraph, Goldsmith refers once again to the isolated legal position of the United States. He says that the U.K. “has consistently taken the view that… it is for the Council to assess whether any breach (of the cease-fire conditions) has occurred”, while the U.S. “maintains that the fact of whether Iraq is in breach is a matter of objective fact which may therefore be assessed by individual Member States”. Goldsmith adds, “I am not aware of any other state which supports this view. This is an issue of critical importance when considering the effect of resolution 1441”.

(P10) Goldsmith claims here that “the previous practice of the Council and statements made by Council members” indicate that “material breach” means a breach that is serious enough to trigger “revival”, and that “serious consequences is accepted as indicating the use of force”. This contradicts statements by diplomats of other countries, and the previous practice of the Council has in fact been to use the term “all necessary means” to authorize the use of force, not “serious consequences”, which has generally been used to keep more options open.

(P11) Goldsmith essentially concludes that the “revival argument” is a sound legal basis in principle. The possible flaws in his reasoning include the presumption that the cease-fire was temporary or conditional; his interpretation of the terms “material breach” and “serious consequences”; and the fundamental fallacy that “revival” could serve some legitimate purpose under the U.N. Charter when the Security Council already possesses the power to authorize any legal military action. He does not discuss proportionality at this point, but does so later in paragraph 36.

(P12) Now Goldsmith begins his analysis of the sufficiency of resolution 1441 to “revive” the authorization of military force. He presumes from this point on that the general basis for “revival” based on “material breach” of resolution 687 is legitimate, and his arguments don’t make sense without this presumption. However he states from the outset “Revival will not, however, take place, notwithstanding a violation, if the Security Council has made it clear that action short of the use of force should be taken to ensure compliance with the terms of the cease-fire, or that it intends to decide subsequently what action is required to ensure compliance.”

Then he writes, “OP2 also states that the Council has determined that compliance with resolution 1441 is Iraq’s last chance before the cease-fire resolution will be enforced”. Even if one accepts the whole principle of “revival”, this is simply not what the paragraph says. OP2 “acknowledges” OP1, which declares Iraq to be in “material breach” of its obligations, but what it “decides” in response to this is “to set up an enhanced inspection regime with the aim of bringing to full and verified completion the disarmament process established by resolution 687 (1991) and subsequent resolutions of the Council”.

Goldsmith ends this paragraph by posing a “narrow but key question”: “what has the Security Council decided will be the consequences of Iraq’s failure to comply with the enhanced regime” of inspections? Or, I would add, has it made any decision at all before the fact as to what the consequences will be? Apparently not.

(P13) Goldsmith accurately cites the provisions of OPs 4, 11 and 12 of resolution 1441. These paragraphs directed Hans Blix and Mohammed al-Baredei to report to the Security Council any interference with their work by the Iraqis or any failure by Iraq to comply with its disarmament obligations. Goldsmith then writes “The text is, however, ambiguous and unclear on what happens next.” The fact that the resolution does not predetermine “what happens next” is not necessarily ambiguous or unclear, but may in fact be a significant indication that the Council simply “decides to remain seized of the matter” as it says in OP14.

(P14) Here he summarizes the “two competing arguments” regarding the intent of resolution 1441: (i) that provided there is a Council discussion, if it does not reach a conclusion, there remains an authorization to use force (the U.S. view); and (ii) that nothing short of a further Council decision will be a legitimate basis for the use of force (the view of most other members).

(P15) Here he lays out what was actually the argument being made by U.S. Ambassador Negroponte and the U.S. Government: (a) He reviews the basic argument for the principle of “revival”; (b) He interprets “serious consequences” to mean “all necessary means”; (c) He notes that OP4 of resolution 1441 defined “false statements or omissions” and “failure to comply fully in the implementation of this resolution” as a “further material breach of Iraq’s obligations”; (d) He suggests that the failure of the Council to decide on further action leaves intact OP4’s predetermination that Iraq’s alleged non-cooperation constitutes further “material breach” and thus automatically triggers military action.

(P16) Laying out the other side of this argument, he notes the statement in OP4 that alleged Iraqi non-cooperation “will be reported to the Council for assessment in accordance with paragraphs 11 and 12 below”; that OP12 then calls for the Council to “consider the situation and the need for full compliance with all relevant Council resolutions in order to secure international peace and security”; and he draws the inference that “the issue should return to the council for a further decision on what action should be taken at that stage”.

(P17) The next nine paragraphs are described as a “discussion” of these arguments. This paragraph emphasizes that only a “serious” or “significant” Iraqi breach could be considered a “material breach”, and quotes British Foreign Secretary Jack Straw saying as much in Parliament. This leads to the question of “who makes the assessment of what constitutes a sufficiently serious breach. On the U.K. view of the revival argument (though not the U.S. view) that can only be the Council, because only the Council can decide if a violation is sufficiently serious to revive the authorization to use force.”

This is a crucial argument. Chapter VII of the U.N. Charter grants the Security Council the exclusive authority not just to authorize the use of force, but first to “determine the existence of any threat to the peace, breach of the peace, or act of aggression”. The Charter is clear that this whole decision-making process comes under the authority of the Security Council, and that the Council may then, under Article 42, “take such action by air, sea or land forces as may be necessary to maintain or restore international peace and security. Such action may include …operations by air, sea or land forces of Members of the United Nations”. Chapter VII contains no language that assigns an independent decision-making role to the governments of member nations, let alone the critical role of determining that a particular threat has risen to a level that requires the use of military force.

(P18) Here is the American counter-argument: the words “cooperate fully” were included in OP4 precisely so that the slightest instance of non-cooperation would automatically constitute a “further material breach”, and trigger the “revival” of the prior authorization of force. This seems like a strong argument if one has accepted a sweeping application of the “revival” principle, because these two devices appear to work together to create an automatic trigger for military action. However, this was clearly not how most members interpreted OP4 and Goldsmith notes (P25) that the other three permanent members publicly hailed the lack of “automaticity” in resolution 1441 at the time of its passage.

As with the principle of “revival” itself, there is a fundamental problem with interpreting a Security Council resolution in a way that limits or circumvents the power vested in the Council by the U.N. Charter. It is the undisputed intent of the Charter that the authorization of force under Chapter VII be made solely by the Security Council so that, at the end of the day, the Council will always have the authority and the freedom to initiate military action or not based upon its own legitimate procedures, which require consensus of the permanent members and a two-thirds majority. This is not really subject to interpretation.

(P19) This paragraph considers and rejects the notion, presumably advanced by the U.S. that OPs 11 and 12 can operate independently of OP4 and thus bypass the requirement in OP4 that alleged non-cooperation by Iraq be “reported to the Council for assessment”. In any case, OP12 also requires the Council to “consider the situation”, and, as Goldsmith points out, “the resolution must be read as a whole”.

(P20) Goldsmith notes that the finding of a “further material breach” under OP4 is not subject to the assessment of the Security Council, and details some of the negotiations regarding this wording.

(P21) This paragraph is a clear summary of the competing arguments. As Goldsmith notes, the critical question is what is to happen if the Council fails to agree on further action.

(P22) In this paragraph, Goldsmith explores the history of the negotiations that produced resolution 1441 and its different interpretations. In particular, he draws some distinctions between the British and American positions, but effectively concludes that both countries are subject to the same rules of international law. He writes “While the U.S. objective was to ensure that the resolution did not constrain the right of action which they believed they already had, our objective was to secure a sufficient authorization from the Council in the absence of which we would have had no right to act. I have considered whether this difference in the underlying legal view means that the effect of the resolution might be different for the U.S. than for the U.K., but I have concluded that it does not affect the position. If OP12 of the resolution, properly interpreted, were to mean that a further Council decision was required before force was authorized, this would constrain the U.S. as much as the U.K.” He ends by noting that the Americans were determined “that the resolution should not concede the need for a second resolution” and that “they are convinced that they succeeded.”

(P23) Goldsmith “was impressed by the strength and sincerity of the views of the U.S. administration”, but has reservations regarding American assertions that other Council members “knew and accepted that they were voting for a further discussion and no more”. He points to the lack of evidence to support this view and writes that “if the matter ever came before a court, it is very uncertain to what extent the court would accept evidence of the negotiating history to support a particular interpretation of the resolution”. The implication is that a court would likely place greater weight on fundamental principles of international law and on the actual terms of the U.N. Charter and the resolutions in question.

(P24) Now presenting the case against military action without a new authorization, Goldsmith presents three arguments:

(i) “When taken with the word “assessment” in OP4, the language of OP12 indicates that the Council will be assessing the seriousness of any Iraqi breach; this is especially powerful if in truth some assessment is necessary”; as was surely the case.

(ii) He cites Article 39 of the U.N. Charter and resolutions 678 (1990) and 687 (1991) with their emphasis on “securing international peace and security”, and concludes, “The clear inference, it will be argued, is that this shows the Council was to exercise a deliberative role on that issue, i.e. to determine what is necessary to secure international peace and security”;

(iii) “Any other construction reduces the role of the Council discussion under OP12 to a procedural formality. Others have jibbed at this categorization, but I remain of the opinion that this would be the effect in legal terms of the view that no further resolution is required. The Council would be required to meet, and all members of the Council would be under an obligation to participate in the discussion in good faith, but even if an overwhelming majority of the Council were opposed to the use of force, military action could proceed regardless”. Could this be what President Bush had in mind when he warned that the U.N. might become irrelevant?

(P25) This paragraph explores differing interpretations of resolution 1441 in statements by the U.S. on the one hand and by Mexico, Ireland, France, Russia, China and Syria on the other.

(P26) The next six paragraphs constitute a “summary” of the situation based upon the preceding arguments. This paragraph again cites the differing interpretations of resolution 1441 and mentions that public statements by other member states do not support the U.S. interpretation of the Council’s intent.

(P27) “In these circumstances, I remain of the opinion that the safest legal course would be to secure the adoption of a further resolution to authorize the use of force.” By March 7th 2003, Goldsmith must have understood that war was coming one way or the other, and this is straightforward advice from a lawyer to a client who is in danger of exposing himself to legal difficulties.

(P28) On the other hand, based on “the arguments of the U.S. Administration which I heard in Washington, I accept that a reasonable case can be made that resolution 1441 is capable of reviving the authorization in 678 without a further resolution”. He has made it clear throughout that this is strictly the U.S. position, not the original position of the British government, and that it is one that he could argue but that he would definitely prefer not to have to.

(P29) This paragraph expresses further cautions: “However, the argument that resolution 1441 alone has revived the authorization 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.”

(P30) Goldsmith notes that British military action in Iraq in 1998 and in Kosovo in 1999 was undertaken “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.”

And here’s the bottom line: “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 authorization in resolution 678.” He once again adds, “But equally I consider that the counter view can be reasonably maintained”, but he has delivered his warning.

(P31) He dismisses the notion that an “unreasonable veto” by a permanent member of the Security Council could open the door to a “presumed authorization” – one can guess that this was another American idea. He adds, “In any event, if the majority of world opinion remains opposed to military action, it is likely to be difficult on the facts to categorize a French veto as “unreasonable””. He then delivers a final warning, “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.”

(P32) Goldsmith spells out the possible judicial consequences of acting without a second resolution over the next four paragraphs. In this paragraph, he notes that the case could be referred to the International Court of Justice for an advisory opinion by the votes of a simple majority in the U.N. General Assembly; also that the U.K. has accepted the compulsory jurisdiction of the ICJ, so that another state that has also accepted its jurisdiction could bring a suit against the U.K. In such a case, the court might issue an interim injunction demanding a cessation of hostilities by British forces, but he notes that Iraq has not accepted the court’s compulsory jurisdiction and would therefore be unable to bring a case, so this would be up to some other country that was opposed to the war.

(P33) He notes that, “The International Criminal Court at present has no jurisdiction over the crime of aggression”. However, British troops could conceivably face prosecution for individual war crimes if British military courts are considered to be unable or unwilling to prosecute them. He mentions that the Campaign for Nuclear Disarmament has already put the government “on notice” that they would report any such cases to the ICC Prosecutor.

(P34) He also warns that, “Aggression is a crime under customary international law which automatically forms part of domestic law”, meaning that a suit for international aggression could be brought in a domestic court in the U.K.

(P35) Goldsmith summarizes the possible forms that legal action could take; he notes “the strength of opposition to military action against Iraq”; and warns, “We cannot be certain that they would not succeed.”

(P36) “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 authorization in resolution in 678 (whether or not there is a second resolution):
- must have as its objective the enforcement of the terms of the cease-fire contained in resolution 687 and subsequent resolutions;
- be limited to what is necessary to achieve that objective; and
- must be a proportionate response to that objective, i.e. securing compliance with Iraq’s disarmament obligations;

That is not to say that action may not be taken to remove Saddam Hussein 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.”

Summary and conclusion

This last paragraph on proportionality explicitly qualifies and limits Lord Goldsmith’s acceptance of the “revival” argument and reveals his concern with the underlying flaws and contradictions in the American position that the British were reluctantly being forced to embrace if they were going to take part in the war. He was clearly worried that unilateral interpretations of Security Council resolutions were being used as a lever to open the door to actions that were neither authorized by any of those resolutions nor otherwise permissible under international law.

Goldsmith makes the original British position clear, that it was up to the Security Council to determine whether a “material breach” of the cease-fire resolution had occurred (P9 & P22), and in other respects to adhere to a strict interpretation of the U.N. Charter and other principles of international law. In effect, the purpose of this entire memorandum is to assess the extraordinary position taken by the United States and the predicament in which it has placed the British Government. Ultimately, the question he attempts to answer is whether the American argument carries the minimum amount of legal weight that would be required to keep the Prime Minister out of prison, and, in the end, absent a second resolution, he cannot say that it does. He adds that this argument “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” (P29); which of course the Duelfer report and numerous other investigations have failed to produce.

Goldsmith identifies ten distinct flaws in the American position:

(1) He rejects the new American doctrine of preemption relating to “danger in the future”. “This is not a doctrine which, in my opinion, exists or is recognized in international law.” (P3)

(2) He challenges the idea that “revival” of the authorization of force can be triggered by the assessment of a “material breach” by an individual member state rather than by the Council. (P9)

(3) He states the British view that only the Council is in a legitimate position to assess the seriousness of any breach of a Security Council resolution. (P17)

(4) He rejects the argument that OPs 11 and 12 of resolution 1441 can operate independently of OP4 thus by-passing the “assessment” by the Security Council that is mandated by OP4. (P19)

(5) He rejects the possibility that, because the U.S. interprets resolution 1441 differently from Britain and the other members of the Council, the resolution might not legally constrain the United States to the same extent as the U.K. (P22)

(6) He rejects the American version of the negotiating history of resolution 1441 as evidence of the intent of the other members of the Council. (P23)

(7) He points out that the American interpretation reduces the assessment and consideration of the Council mandated in resolution 1441 to a meaningless “procedural formality” that would be powerless to prevent individual members from taking military action. (P24-iii) I would add that this was of course the intent of this interpretation.

(8) He points to statements by other members that conflict with the American interpretation of the intent of the Council in resolution 1441. (P25 and P26)

(9) He rejects the notion that a French veto could be dismissed as “unreasonable” to open the door to a “presumed authorization”. (P31)

(10) He insists that any military action must be limited to what is necessary to enforce the terms of the cease-fire. “Regime change cannot be the objective of military action.” (P36)

There are nine additional points that I would make regarding Lord Goldsmith’s arguments in favor of “revival” and other aspects of the American position:

(1) The language of resolution 687 (1991) does not support the principle of “revival”. The “formal cease-fire” is conditional only on Iraq’s acceptance of the terms of the resolution, not on its ongoing compliance with those terms.

(2) The fact that the Security Council and the U.N. Legal Counsel accepted the principle of “revival” in limited and proportionate circumstances does not imply unlimited acceptance of this principle, nor does it abrogate the sovereignty of Iraq, which is reaffirmed in the text of many of these resolutions, nor the consequent right of the Iraqi people to the protections of international law.

(3) The whole concept of “revival” is superfluous to any legitimate purpose, since the Security Council has all the power it needs to authorize military action whenever that is really what it means to do.

(4) Goldsmith writes that he relies on “the previous practice of the Council” for his interpretation of the terms “material breach” and “serious consequences”, but this is not borne out by the record and it is clear that other members interpret them differently. (P10)

(5) Goldsmith misstates the terms of OP2 of resolution 1441. (P12) OP2 does not link the phrase “final opportunity to comply with its disarmament obligations under relevant resolutions of the Council” to a threat of military action but only to the enhanced inspection regime.

(6) Goldsmith writes that resolution 1441 is “ambiguous and unclear on what happens next” after the inspectors make a report of non-compliance or non-cooperation. (P13) He presumes ambiguity where the Council more likely intended simply to retain flexibility.

(7) The American argument linking the concept of “revival” to the predetermination that any Iraqi failure to “cooperate fully” constitutes a “material breach” (P18) is designed to foreclose the options of the Security Council. This would be inconsistent with the purpose and position assigned to the Security Council by the U.N. Charter and could not therefore be a legitimate interpretation.

(8) Both the intent and the effect of the overall U.S. position run counter to the letter and spirit of Chapter VII of the U.N. Charter. The Charter grants an exclusive role to the Security Council to “determine the existence of any threat to the peace, breach of the peace or act of aggression” and to “decide what measures shall be taken”. Individual member states play a carefully defined legitimate role in this process, and the U.S. strategy was an attempt to neutralize the Security Council’s assigned role and to overstep its own. When the other members refused to accept this power play, the U.S. and U.K. went to war in Iraq over the clearly expressed collective will of the Council.

(9) While Goldsmith gives great deference to the “strength and sincerity” of the American view, he does not ultimately find it defensible under international law. His colleague, Elizabeth Wilmshurst, Deputy Legal Advisor to the Foreign Office, resigned over the war, calling it a “crime of aggression”.

The upshot of all this has been precisely what this “permanent structure of peace” was designed to prevent: the invasion and occupation of a smaller country by two larger and more powerful ones. Instead of a speedy victory followed by “international peace and security”, we are now witnessing an intractable war whose principal victims are the civilian population of Iraq. At least 100,000 people are dead who would otherwise be alive, according to researchers at the Johns Hopkins School of Public Health, including an estimated 46,000 children under the age of fifteen. Most of them have been killed in air strikes by U.S. and British forces, rather than by the more highly publicized actions of Iraqi resistance forces.

This document reveals that the governments of two powerful countries were unable to honestly and objectively distinguish between their own narrowly defined economic and strategic interests and their international responsibilities as permanent members of the Security Council to act in good faith in the interest of peace and security. As a result of this self-serving confusion of motives, they adopted positions and negotiating strategies that were deliberately designed to circumvent the letter and the spirit of the U.N. Charter. A number of legal proceedings have been initiated against British and American leaders for aggression against Iraq, and it remains to be seen whether these arguments will eventually be adjudicated. If anything positive emerges from this most serious breakdown of the international system, it will surely be a renewed recognition of the wisdom of its original design and the vital importance of adhering more strictly to it in the future. This will require an absolute and unconditional commitment to the rule of international law on the part of all five permanent members of the Security Council.

History has shown us that conceding an act of aggression only makes it harder to prevent further ones, so the revival of legitimacy should preferably begin at the point where it has broken down, in Iraq itself. After two years of inconclusive warfare, the governments of the United States and the United Kingdom must realize that their self-appointed mission to “restore international peace and security” has not just failed but has in fact accomplished the reverse. Now they must genuinely and meaningfully hand over the reins of the international management of this crisis to the collective jurisdiction of the Security Council, so that it can fulfill its responsibility under Chapter VII of the U.N. Charter. The U.N. must oversee the withdrawal of all occupation forces from Iraq, and then help to organize free and fair elections with candidates who represent all sectors of Iraqi society and are not just drawn from the select groups who have been collaborating with the U.S. and British occupation. With a revival of international legitimacy, a strengthened U.N. and its member nations can devote their collective energy to dealing with the common challenges we must face in the 21st century and the hopeful work of building an even stronger “permanent structure of peace".