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

Saturday, February 25, 2006

The Trail from Downing Street to Washington

Published in Peace Review, Volume 18 No.1

Previously in Peace Review, I described in “From Nuremberg to Fallujah” how the war in Iraq constitutes aggression as it is defined under international law. At the time I was writing that report, discussions of legality within and between the U.S. and British Governments were closely guarded secrets, and I had to take their public statements as indications of their legal position.

Now, nine leaked British documents have laid bare the British side of those discussions and revealed that British Law Officers explicitly and consistently advised their government and their American counterparts of the illegality of the U.S. war-plan. In response to their advice, the two governments hatched a plan to create a legal pretext for war, but the plan failed at the U.N. Security Council, leaving them with a stark choice between legitimacy and war.

The United States government then attempted to claim legitimacy for the war based on a unilateral interpretation of the principle of “revival”: that the “formal ceasefire” declared in resolution 687 (1991) was conditional on Iraq’s ongoing compliance with the other terms of that resolution; and that Iraq’s alleged “material breach” of certain articles of that resolution could result in an automatic “revival” of the authorization of military force contained in resolution 678 (1990). This interpretation ignored the fundamental difference between the purpose of resolution 678 (1990) - the liberation of Kuwait from Iraqi occupation in 1990 - and the U.S. goal of regime change in Iraq in 2003.

Revival had been introduced to justify the establishment of the southern no-fly zone in August 1992, and it was sufficiently controversial that a ruling was requested of the U.N. Legal Counsel, Carl-August Fleischauer. He ruled that it was legitimate in that situation, involving limited, proportionate and arguably humanitarian action soon after the end of major hostilities. The United States and United Kingdom also cited revival as justification for military action in December 1998, but this did not gain the approval of the Security Council and Russia withdrew its ambassadors from Washington and London to protest their attacks on Iraq.

The British legal advisors rejected the American interpretation of revival as a justification for regime change in 2003, but both governments had long ago chosen war over legitimacy. The British documents show that they were committed to regime change in Iraq by April 2002. Britain’s Ministry of Defence and two senior U.S. generals have confirmed that offensive military operations began in May 2002, without authorization from the U.S. Congress, the British Parliament or the Security Council.

March 2002 - the first six documents

The first batch of six British documents date from March 2002 and they were leaked to the Daily Telegraph in September 2004. They include the following:

- An “Options Paper” written for Blair by his Defense and Overseas Secretariat;
- A “Legal Background Paper”;
- A memo from foreign policy advisor Sir David Manning to Blair on meetings with Condoleeza Rice;
- A memo from British Ambassador Sir Christopher Meyer to Manning regarding a meeting with Deputy Secretary Wolfowitz;
- A letter to Foreign Secretary Jack Straw from his Political Director Peter Ricketts;
- And a memo from Straw to Blair.

The Options Paper and Legal Background Paper, dated March 8th 2002, were evidently drawn up in response to an initiative on Iraq from Washington. The Options Paper spelled out two choices: toughening the containment policy or regime change. It called the latter “a new departure which would require the construction of a coalition and a legal justification” and went on to say, “A full opinion should be sought from the Law Officers if the above options are developed further…Of itself, Regime Change has no basis in international law.” On the American position, it said, “The U.S. has lost faith in containment”, and also, “Washington believes the legal basis for an attack on Iraq already exists.”

The Legal Background Paper explained that the U.S. Government had argued for interpretations of Security Council resolutions on Iraq that were neither supported by the language of those resolutions nor shared by other Council members. The no-fly zones were set up to protect the civilian population, and the paper rejected a U.S. claim that they could be used for a different purpose, to “enforce” the disarmament provisions of resolutions 687 and 688. The United States had also argued that an individual member state could make an independent determination that Iraq was in breach of Security Council resolutions without the agreement of the Council. The paper rejects this claim too, adding “We are not aware of any other State which supports this view.” While rejecting these unilateral U.S. positions, the paper does not address any legal justification the Americans may have advanced for regime change, which of course had no basis in any of these resolutions.

The memo from Manning to Blair on March 14th 2002, marked “Secret – Strictly Personal”, shows that Blair was by then committed to the U.S. policy of regime change, and insisted only that it be “very carefully done”:

“I had dinner with Condi on Tuesday; and lunch with her and an NSC team on Wednesday (to which Christopher Meyer also came). These were good exchanges, and particularly frank when we were one-on-one at dinner. We spent a long time at dinner on Iraq. It is clear that Bush is grateful for your support and has registered that you are getting flak.
I said that you would not budge in your support for regime change but you had to manage a press, a Parliament and a public opinion that was very different than anything in the States. And you would not budge in your insistence that, if we pursued regime change, it must be very carefully done and produce the right result. Failure was not an option. Condi’s enthusiasm for regime change is undimmed. But there were some signs, since we last spoke, of greater awareness of the practical difficulties and political risks…
…I think there is a real risk that the Administration underestimates the difficulties. They may agree that failure is not an option, but this does not mean they will avoid it.”

Chilling words, showing that Blair agreed to support regime change before even beginning the failed effort to construct a legal basis for it.

On March 17th 2002, Ambassador Meyer told Wolfowitz, “We backed regime change, but the plan had to be clever and failure was not an option… I then went through the need to wrongfoot Saddam on the inspectors and the UN SCRs and the critical importance of MEPP [Middle East Peace Process] as an integral part of the anti-Saddam strategy.” He reported all this to Manning in a memo marked “Confidential and Personal” on March 18th.

The notes from Ricketts to Straw and then from Straw to Blair on March 25th 2002 detail some of the problems the Foreign Office had identified in the American plan. Straw told Blair that the British strategy had to be based on international law and therefore on Iraq’s “flagrant breach” of its obligations under the U.N.-mandated inspections regime. He wrote, “I believe that a demand for the unfettered readmission of weapons inspectors is essential, in terms of public explanation, and in terms of legal sanction for any military action.” He warned of two “potential elephant traps”, namely the illegality of regime change, and the question of an additional mandate from the Security Council. “The U.S. are likely to oppose any idea of a fresh mandate. On the other side, the weight of legal advice here is that a fresh mandate may well be required.”

Two weeks later, Bush hosted Blair at his ranch in Texas. At the joint news conference after the meeting, he announced, “I explained to the Prime Minister that the policy of my government is the removal of Saddam, and that all options are on the table . . . The world would be better off without him and so will the future.” Bush was committed to this policy, and Blair was now committed to supporting it through a “clever plan” to generate support and provide legal justification. On May 5th, Time reported an incident at the White House from March 2002 that made Bush’s position even clearer. Some Republican senators were meeting with Rice when Bush stopped by for a chat. Somebody mentioned Saddam Hussein, to which Bush responded “Fuck Saddam! We’re taking him out.”

The British documents make it clear that Blair’s more nuanced public statements during this period were not honest. After diplomatically endorsing regime change, he told the press conference at Crawford, “How we now proceed in this situation, how we make sure that this threat that is posed by weapons of mass destruction is dealt with, that is a matter that is open. And when the time comes for taking those decisions we will tell people about those decisions”.

The Downing Street memo and briefing paper

The “Downing Street Memo” is actually the minutes of a “Prime Minister’s Meeting” on Iraq, attended by Blair and his advisors on July 23rd 2002. The “Cabinet Office paper” is an incomplete transcript of the paper that was distributed to the participants in preparation for this meeting.

The opening summary of the Cabinet Office paper invites ministers to “agree that the objective of any military action should be a stable and law-abiding Iraq”, but the four paragraphs on “Justification” (11-14) describe the equally elusive quest for a law-abiding United Kingdom and United States. The fundamental illegitimacy of U.S. policy is still the central problem: “U.S. views of international law vary from that of the U.K. and the international community. Regime change, per se, is not a proper basis for military action under international law.” And yet, “U.S. military planning unambiguously takes as its objective the removal of Saddam Hussein’s regime”.

The paper presciently describes the train-wreck that in fact occurred when the timetable for the invasion collided with the time required for thorough inspections in March 2003. Iraqi obstruction was essential to the pretext for war, but it would probably not happen in the early stages of the inspection process. This section of the paper concludes, “…We would be most unlikely to achieve a legal base for military action by January 2003”.

John Scarlett, the Chairman of the Joint Intelligence Committee, stated at the outset of the meeting that only “massive military action” would be likely to accomplish regime change. Sir Richard Dearlove, the head of MI6, then told the meeting that there had been “a perceptible shift in attitude” in Washington and that “military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy.”

Defense Secretary Geoff Hoon spoke of “spikes of activity” that had already begun “to put pressure on the regime”. Most Americans can remember incidents from this period that were reported as Iraqi threats to allied aircraft patrolling the no-fly zones, with U.S. and British planes responding by targeting radar sites. Critics of U.S. policy suggested at the time that this was a cover for a low-grade bombing campaign to degrade Iraqi defenses in preparation for an invasion.

Britain’s Ministry of Defense has now published its figures for allied missions flown and tonnages of bombs dropped on Iraq between 2000 and 2002. The total tonnage of bombs dropped on Iraq in 2000 was 155 tons. This fell to 107 tons in 2001. By contrast, in six and a half months from May until the second week in November 2002, allied planes dropped 820 tons of bombs on Iraq (almost half the 1,700 tons dropped on Tokyo on March 9-10th 1945 that killed 100,000 people), including a massive air raid in September by a combined fleet of 100 planes.

On July 17th 2003, USAF General Michael Moseley, who commanded this bombing campaign, told an allied briefing at Nellis AFB in Nevada that it “laid the foundations” for the invasion, and General Tommy Franks has confirmed the nature and purpose of this campaign in his autobiography, “American Soldier”. The United States and Britain had already launched an undeclared air war.

Foreign Secretary Jack Straw said he understood that Bush was committed to war, but thought the timing was not yet decided. “But the case was thin. Saddam was not threatening his neighbors, and his WMD capability was less than that of Libya, North Korea or Iran. We should work up a plan for an ultimatum to Saddam to allow back in the U.N. weapons inspectors. This would also help with the legal justification for the use of force.”

Then it was Attorney General Lord Goldsmith’s turn. He said “that the desire for regime change was not a legal basis for military action. There were three possible legal bases: self-defense, humanitarian intervention, or UNSC authorization. The first and second could not be the base in this case.”

Then, “the Prime Minister said that it would make a big difference politically and legally if Saddam refused to allow in the U.N. inspectors. Regime change and WMD were linked in the sense that it was the regime that was producing the WMD…If the political context were right, people would support regime change. The two key issues were whether the military plan worked and whether we had the political strategy to give the military plan the space to work.” Ever the politician, Blair, like Bush, had a sense of what would work politically and saw legality as secondary to the military and political issues.

More reservations were expressed regarding the workability of the U.S. battle plan, and Straw urged discreetly exploring an ultimatum on the inspectors. He was confident that Hussein would play into their hands by “playing hardball with the U.N.” Hoon “cautioned that many in the U.S. did not think it worth going down the ultimatum route. It would be important for the Prime Minister to set out the political context to Bush.”

The minutes ended by concluding that "[w]e should work on the assumption that the U.K. would take part in any military action”, but that the extent of British participation was still in question. The Foreign Secretary would “discreetly work up the ultimatum to Saddam”, and “the Attorney-General would consider legal advice with FCO/MOD legal advisers”.

In the fall of 2002, Bush presented his ultimatum to the U.N.; he introduced his “doctrine of preemption” as part of the National Security Strategy of the U.S.A. (2002); and the U.S. Congress granted him almost unlimited power to make war.

Bush’s infamous State of the Union Speech was a litany of bogus claims. He referred to 81 mm. rocket casings as centrifuge parts although this had been ruled out by the IAEA, and to unaccounted-for 12-year-old chemical and biological agents as potent threats. Even if any of these items had remained, the only one with a shelf life of more than five years was mustard gas, which posed no strategic threat. Powell gave his equally disgraceful presentation to the Security Council, after reportedly throwing Lewis Libby’s first draft of it up in the air and saying “I’m not reading this. This is bullshit.” Proponents of peace debunked the lies, but Democrats and U.S. media organizations collaborated in the government’s efforts to marginalize serious questions and peaceful alternatives to war.

“Full advice from Attorney General on legality of Iraq war”

The last of the leaked British documents is the full legal advice given to Blair by Lord Goldsmith on March 7th 2003, twelve days before the war officially began. In this document, Goldsmith made it clear that U.S. officials had now adopted “revival” as their legal justification for 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 consistent with international law.

He identified the following flaws in the American position:

(1) He rejected Bush’s doctrine of preemption relating to “danger in the future” as opposed to the “right to respond proportionately to an imminent attack.” He wrote, “This is not a doctrine which, in my opinion, exists or is recognized in international law”.

(2) While accepting the basic principle of “revival”, he wrote, “the U.K. has consistently taken the view (as did the Fleischauer opinion) that . . . it is for the Council to assess whether any such breach of those obligations has occurred”, and “only the Council can decide if a violation is sufficiently serious to revive the authorization to use force.”

(3) He rejected the possibility that, because the U.S. interpreted resolution 1441 differently from Britain and other Council members, the resolution might not legally constrain the U.S. to the same extent as the U.K.

(4) The American interpretation “reduces the role of the Council discussion under OP12 (of resolution 1441) to a procedural formality… 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 would be under an obligation to participate in good faith, but even if an overwhelming majority of the Council were opposed to the use of force, military action could proceed regardless”.

(5) He insisted that any military action be limited to what was necessary to enforce the terms of the cease-fire. As he had said all along, “Regime change cannot be the objective of military action”.

There are a number of additional flaws in the principle of revival and in Goldsmith’s interpretation of these resolutions:

(1) The concept of “revival” has no basis in the language of resolutions 678 (1990) or 687 (1991). The “formal ceasefire” was neither temporary nor conditional on Iraq’s future behavior nor was there any provision for a “revival” of the authorization of military force.

(2) Revival, as proposed by the United States, is superfluous or even detrimental to any legitimate purpose since the Security Council already has all the power it needs to authorize military action whenever that is really what it means to do.

(3) Goldsmith writes that he relies on “the previous practice of the Council” for his interpretation that “serious consequences” in resolution 1441 (2002) is equivalent to “all necessary means” in resolution 678 (1990). This is not borne out by the record. The past practice of the Council has been to use “all necessary means” to authorize military force, and “serious consequences” to retain greater flexibility, and this was how other members interpreted these terms in this case.

While Goldsmith gave great deference to the strength and sincerity with which the Americans presented their arguments, he did not ultimately find their position defensible under international law, and he warned Blair of several legal avenues by which he and the British government could face prosecution for international aggression or murder. When the invasion proceeded in the face of the British legal officers’ consistent objections, Elizabeth Wilmshurst, Deputy Legal Advisor to the Foreign Office, resigned along with two of her colleagues. Her letter of resignation has since been made public. It referred to the invasion as a “crime of aggression”, and ended, “I joined the office in 1974. It has been a privilege to work here. I leave with very great sadness”.


The upshot of all this has been precisely what the U.N. Charter was designed to prevent: the invasion and occupation of a smaller country by two larger and more powerful ones, leading to an intractable war whose principal victims are the civilian population of Iraq. Researchers from the Johns Hopkins School of Public Health have estimated that at least 100,000 civilians have died, and have concluded that U.S. and British air strikes have been the leading cause of violent death among civilians in Iraq since March 2003. This latter conclusion is supported by Iraqi Health Ministry reports and dramatically contradicts the impression conveyed by the embedded media that anti-American forces have been responsible for most of the violence since the invasion.

Most American and British commentators regard the current crisis as a problem for the United States and Britain to solve, presuming a non-existent legitimacy in the powerful position these countries now occupy in Iraq. The British documents make it clear that the crisis would be more realistically viewed as an international crime in progress. Like any victim of aggression, Iraq is entitled to the full protections of international law, and should therefore now be the object not of some new American or British scheme, but of international diplomatic action to bring about the withdrawal of occupation forces and the restoration of its independence with the full assistance of the international community.

Recommended reading:


- Falk, Richard A. 1971. Crimes of War. New York: Random House.


- Smith, Michael. September 18th 2004. “Failure is not an option, but it doesn’t mean they will avoid it”. The Daily Telegraph.
- April 6th 2002, “Transcript of Bush-Blair news conference”.
- May 1st 2005, “The secret Downing Street memo”. The Sunday Times.
- June 12th 2005, “Cabinet Office paper: Conditions for military action”. The Sunday Times.
- April 28th 2005, “Full advice from Attorney General on legality of Iraq war”. The Times.
- March 24th 2005, “Wilmshurst resignation letter”.
- Les Roberts et al. 2004. “Mortality before and after the 2003 invasion of Iraq: cluster sample survey”. The Lancet (November): Volume 364.


- Cassese, Antonio. 2003. “Other International Crimes (Aggression, Torture, and Terrorism)” in Cassese, International Criminal Law. Oxford: Oxford University Press.


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