While the Attorney-General and the US Secretary of State say they recognise the importance of international law, Roger Smith finds this stance difficult to square with the war in Iraq



Lord Goldsmith must have written few words so widely read as those in his 13 pages for the prime minister headed ‘Iraq: resolution 1441’. Their place in the audit trial of the UK’s road to war has been comprehensibly explored.


However, the memo actually reinforces the importance of the international rule of law – even though it ultimately led to action that many felt to be its breach.


The Attorney-General’s reasoning, now finally revealed, is strikingly the same as those who have been tormenting him for so long. For example, his treatment of the various relevant UN resolutions, though more lengthy, is pretty much on a par with that given by Lord Alexander QC in his Justice 2004 annual lecture, one of the first analyses. Lord Alexander gave the attorney both barrels – his arguments, forensically demolished, were ‘scraping the bottom of the legal barrel’.


The belated release of the opinion reveals that there was little between the two men in their fundamental assessment of the legal arguments. Lord Alexander noted, even in the depths of his criticism, the fundamental positive that ‘our government apparently accept that they must act in accordance with international law’. Lord Goldsmith reveals this to be absolutely correct. Interestingly, the attorney has little time for any alleged humanitarian justification for the war: ‘I know of no reason why it would be an appropriate basis for action in present circumstances’ – thus revealing he placed no hope in Michael Howard’s repeated justification for why he supported the war and would do so again.


Lord Goldsmith and the prime minister accepted that they had to justify the war under international law and, in doing so, the power of the UN charter which includes the injunction in article 2(4) that ‘all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations charter’.


Lord Goldsmith made clear the difference with the US: ‘The UK has consistently taken the view… that, as the ceasefire conditions were set by the Security Council … it is for the council to assess whether any such breach of those obligations has occurred. The US have a rather different view: they maintain that the fact of whether Iraq is in breach is a matter of objective fact which may therefore be assessed by individual member states. I am not aware of any other state which supports this view.’


It is precisely because of this fundamental acceptance of the role of the Security Council that the UK’s position then degenerates into a tendentious argument that actually there was a council resolution (no less than the celebrated 1441) that bequeathed the authority on it to act in relation to a material breach of an earlier resolution.


The Iraq war has been devastating for the perception of the UK as an adherent to the international rule of law and the supremacy of the UN. Any positive comes from this acknow-ledgement of the supremacy of both, even though a degree of ingenuity is required to reconcile what the UK actually did with its theoretical framework.


The US tends to take a different view – though it may not be as monolithic as is sometimes presented. Neo-conservatives might well like the argument that they are men from Mars and Europeans wimps from Venus because we have no option, as weak nations, but to band together in pathetic huddles, developing common standards for our own protection.


And, there is considerable support in the US House of Representatives for the supremacy of all things American. It found expression in the ‘Reaffirmation of American Independence Resolution’, which last year found some support on Capitol Hill. It was backed by the constitution sub-committee, which banned the Supreme Court from relying on ‘any foreign laws, court decisions or pronouncements of foreign governments unless they are expressly approved by Congress’.


Such a mood is championed in the Supreme Court by Justice Scalia, who quotes with approval such isolationist sentiments as: ‘This court should not impose foreign moods, fads or fashions on Americans’.


In this context, it is interesting to see no less than Condoleezza Rice telling the American Society of International Law last month: ‘International law is vital and a powerful force in the search for freedom. The United States has been and will continue to be the world’s strongest voice for the development and defence of international legal norms.’ Whether such an assertion would withstand detailed examination might be open to doubt, but its expression gives hope.


There is no alternative to the international rule of law, based on common standards that include human rights and managed by the UN, however imperfect. It is good to see our Attorney-General never deviating from that as a principle and a US secretary of state asserting that she too believes much the same. Pity about the war.




Roger Smith is the director of the law reform and human rights organisation Justice