The "legality" of the Bush-Blair invasion and occupation of Iraq hasn’t presented – so far – much of a problem for President Bush. However, it seems to be presenting quite a problem for Prime Minister Tony Blair.
In making the case for the Bush-Blair war against Iraq, Blair evidently failed to disclose to Parliament and to members of his own Cabinet the concerns of Lord Goldsmith – the chief legal advisor to the Government, itself – about the legality of the war.
In his secret written opinion to Blair of March 7, 2003, Goldsmith suggested that the Bush argument – that the Security Council’s authorization of force in Resolution 678 of 1991 could be "revived" if Iraq were found to be in material breach of the disarmament requirements contained in Resolution 687 and succeeding resolutions – might "hold up" in an international court of law.
However, in order to invoke Resolution 678 Bush-Blair "would need to demonstrate hard evidence of non-compliance and non-cooperation" with those resolutions. Goldsmith noted that the views of the UN weapons inspectors "will be highly significant in this respect.”
By then, of course, both Hans Blix (Chairman of the UN Monitoring, Verification and Inspection Commission) and Mohamed ElBaradei (Director General of the UN International Atomic Energy Agency) had reported to the UN Security Council that as a result of four months of intrusive inspections – in which the Iraqis "actively" cooperated – they could find "no indication" that any prohibited weapons remained in Iraq, nor that Iraq had made any attempts since 1991 to reconstitute prohibited programs.
In other words, a Bush-Blair invocation of "material breach" of Resolution 687 as a pretext for invading Iraq would not hold up in court.
Of course, the legality – under international law or the UN Charter – of invading Iraq or Iran or Syria has never been a concern of the Bush-Cheney-Bolton administration.
But, by law, the constitutional powers of the president to “introduce United States Armed Forces into hostilities” are limited, and can only be exercised “pursuant to; (a) a declaration of war, (b) specific statutory authorization, or (c) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”
When Bush went to Congress in September 2002, seeking “specific statutory authorization” to invade Iraq, he based his case on a just completed highly-classified National Intelligence Estimate, which supposedly contained "slam-dunk" evidence that Saddam was reconstructing his nuke and chem-bio programs, with the intention of supplying them to Islamic terrorists for use against us.
A thoroughly alarmed Congress quickly enacted the “Congressional Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq.”
However, the authority given by Congress was conditional.
Before resorting to force, Bush was required to satisfy Congress that “reliance on peaceful means alone will not adequately protect the national security of the United States.”
Hence, Bush’s authority was contingent upon first pursuing a diplomatic solution through the United Nations. If UN diplomacy failed, Bush was then supposed to seek a new Security Council resolution, which would authorize the use of “all necessary means" to disarm Saddam Hussein. If Bush got such a new Security Council resolution, then Congress had already given him specific authority to use our armed forces to enforce it.
By March – as a result of the totally intrusive inspections by Blix and ElBaradei – it was obvious to everyone that Saddam did not pose an immediate threat to us or to anyone else. Hence, no such new Security Council resolution would be forthcoming.
Nevertheless, on March 19 – the day Parliament authorized Blair to use force against Iraq – Bush notified Congress that no “further diplomatic or other peaceful means will adequately protect the national security of the United States from the continuing threat posed by Iraq.”
Bush reportedly believes his re-election constitutes a “ratification” of his “approach toward Iraq.”
Far from being “ratified” in the rest of the world, Bush’s “approach toward Iraq” has given rise to concern about the current state of international law in general and whether or not the prohibitions against the use of force on which the United Nations Charter is founded are still respected by the United States.
Last summer, 40 members of Parliament asked UN Secretary-General Kofi Annan to seek the opinion of the UN’s International Court of Justice – to which the Brits are subject – on the “legality” under the UN Charter of the Iraq invasion.
Now it transpires that Tony Blair has known it was illegal all along.