The mainstreamers mentioned it in passing ... then (in)conveniently forgot it ...
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Egs
From Times Online November 18, 2008
Lord Bingham attacks Bush for 'cynical' disregard for international law
Frances Gibb, Legal Editor
One of Britain's most senior legal figures has castigated the Bush administration for its "cynical" disregard for the rule of international law and the UK's record as "an occupying power in Iraq".
Lord Bingham of Cornhill, who has just stepped down as senior law lord, cited the US-led invasion of Iraq, its "redefinition" of torture and the detention conditions of suspects in Guantanamo Bay.
"Particularly disturbing to proponents of the rule of law is the cynical lack of concern for international legality among some top officials in the Bush administration," he said in a lecture to mark the 50th anniversary of the British Institute of International and Comparative Law.
It was not clear, he added, what, if any, legal justification the US Government relied on for its invasion of Iraq, although prominent figures had made clear their ambition to remove Saddam Hussein.
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He was also scathing about the legal advice of the former Attorney-General, Lord Goldsmith, on Britain's invasion of Iraq which was "flawed" in stating that a second UN Security Council resolution was not needed.
If that was right, the invasion was a "serious violation of international law and of the rule of law," he said.
"The moment that a state treats the rulers of international law as binding on others but not on itself, the compact on which the law rests is broken."
Lord Goldsmith had however been consistent in saying that regime change was not a justification, Lord Bingham said.
But he added that the record of the British as an occupying power in Iraq had been "sullied by a number of incidents, most notably the shameful beating to death of Mr Baha Mousa in Basra".
However, he said: "But such breaches of the law were not as a result of deliberate government policy and the rights of the victims have been recognised."
"This contrasts with the unilteral decisions of the US Government that the Geneva Convention did not apply to the detention conditions in Guantanamo Bay, Cubna; or to trial of al-Qaida or Taliban prisoners by military commissions, or that al-Qaida suspects should be denied the rights of both prisoners of war and crimiman spects and that torture should be redefined, contrary to the Torture Convention."
Lord Bingham said that recent events highlighted two serious deficiencies with the rule of law in the international sphere.
The first was "the willingnesss of some states in some circumstances to rewrite the rules to meet the perceived exigencies of the political situation," he said. The UK did this in the Suez crisis of 1956.
The second was that only 65 of 192 member states of the United Nations had signed up to the compulsory jurisdiction of the International Court of Justice.
"It is a lamentable fact that, of the five permanent members of the Security Council, only one, the United Kingdom, now does so, Russia and China never having done so and France and the United States having withdrawn earlier acceptances."
That step had to be taken if the rule of law was to become truly effective, he said. Meanwhile, he predicted that states "chastened by their experience in Iraq" would be unlikely to repeat it.
Even though not hauled before any international court, they had been "arraigned at the bar of world opinon and judged unfavourably, with resulting damage to their standing and influence".
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http://www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/3471950/Lord-Goldsmiths-advice-on-Iraq-invasion-flawed-says-former-top-judge.htmlLord Goldsmith's advice on Iraq invasion 'flawed', says former top judge
Lord Bingham believes there was 'a serious violation of international law and the rule of law' by Britain. But the former Attorney General stands by his advice to Tony Blair in 2003 that military action against Iraq was lawful. And Jack Straw, the Lord Chancellor, also challenges Lord Bingham's view.
By Joshua Rozenberg
Last Updated: 4:53PM GMT 17 Nov 2008
Lord Goldsmith’s advice to ministers on Britain’s invasion of Iraq was “flawed in two fundamental respects”, Britain’s most respected former judge said tonight.
Lord Bingham KG, who retired in September as senior law lord, said that — if he was right in concluding that the 2003 invasion had been unauthorised — “there was, of course, a serious violation of international law and of the rule of law”.
It is thought to be the first time that Lord Bingham has expressed his views about the legal advice given to Tony Blair by the former Attorney General. The issue never came before Lord Bingham while he was sitting as a judge.
But Lord Goldsmith, who had been shown an advance text of Lord Bingham’s remarks, made it clear today that he stood by his advice. And the former Attorney General was supported this afternoon by the Lord Chancellor, Jack Straw.
Lord Bingham was delivering the annual Grotius Lecture, this year marking the 50th anniversary of the British Institute of International and Comparative Law. He was speaking as chairman of the institute, an independent research body that promotes the rule of law in international affairs.
In Lord Bingham's view, the effect of unilateral action by Britain, the US and some other countries had been to undermine the foundation on which the post-1945 consensus had been constructed. This was the prohibition of force — except in self-defence or, perhaps, to avert an impending humanitarian catastrophe — unless formally authorised by the UN Security Council.
Delivering a wide-ranging lecture on the importance of complying with international law, Lord Bingham summarised the former Attorney General’s reliance on three interrelated Security Council resolutions as authorising the Iraq invasion. In his full written advice to the Prime Minister of March 7, 2003 — not made public at the time — Lord Goldsmith QC considered that resolution 1441 could, in principle, revive the authority to use force contained in resolution 678 and suspended, but not revoked, by resolution 687. At that time, though, it was not clear to him whether the use of force required merely a discussion by the Security Council or a further resolution.
Summarising Lord Goldsmith’s reasoning, Lord Bingham said: “A reasonable case could be made that resolution 1441 was capable in principle of reviving the authorisation in resolution 678, but the argument could only be sustainable if there were ‘strong factual grounds’ for concluding that Iraq had failed to take the final opportunity. There would need to be ‘hard evidence’.”
Ten days later, in a Parliamentary written answer issued on March 17, 2003, Lord Goldsmith said it was “plain” that Iraq had failed to comply with its disarmament obligations and was therefore in material breach of resolution 687. Accordingly, the authority to use force under resolution 678 had revived.
The former judge then quoted the conclusion to Lord Goldsmith’s Parliamentary statement: “Resolution 1441 would, in terms, have provided that a further decision of the Security Council to sanction force was required if that had been intended. Thus, all that resolution 1441 requires is reporting to and discussion by the Security Council of Iraq’s failures, but not an express further decision to authorise force.”
Lord Bingham was not impressed. “This statement was, I think flawed in two fundamental respects,” he said.
“First, it was not plain that Iraq had failed to comply in a manner justifying resort to force and there were no strong factual grounds or hard evidence to show that it had: Hans Blix and his team of weapons inspectors had found no weapons of mass destruction, were making progress and expected to complete their task in a matter of months.
“Secondly, it passes belief that a determination whether Iraq had failed to avail itself of its final opportunity was intended to be taken otherwise than collectively by the Security Council.”
The former senior law lord noted that Lord Goldsmith’s “revival” argument had been ill-received. Lord Alexander QC described it as “unconvincing”. Prof Philippe Sands QC called it a “bad argument”. And Prof Vaughan Lowe QC described it as “fatuous”.
Commenting on this “serious violation of international law”, Lord Bingham said: “The moment that a state treats the rules of international law as binding on others but not on itself, the compact on which the law rests is broken. Quoting Prof Lowe again, he said it was “the difference between the role of world policeman and world vigilante”.
After reading a draft of Lord Bingham’s speech, Lord Goldsmith said he remained of the view that his conclusion was correct. “I would not have given that advice if it were not genuinely my view,” he told the telegraph.co.uk law page.
Why, though, did his views appear to harden between March 7 and March 17? “Having rightly expressed caution in my earlier advice, I had formed the view during the week before the 17th that it was my job to express a clear judgment one way or the other.”
Civil servants and military commanders had wanted a clear answer. “Either it was lawful or it was not,” Lord Goldsmith explained. “It could not be a little bit lawful.”
Having decided that military action was lawful, the Attorney General decided that he should express his view “shortly but clearly”.
Lord Bingham had said it was not plain that Iraq had failed to comply with resolution 678. But that was understood by Lord Goldsmith to have been Tony Blair’s view at the time, based on intelligence reports. Resolution 1441 was not about finding weapons of mass destruction.
And Lord Goldsmith also took issue with Lord Bingham’s view that a decision on whether Iraq had failed to take up its final opportunity was one to be reached collectively by the United Nations.
Having spoken to those who negotiated the terms of the resolution, Lord Goldsmith was sure that the need for a further determination had been deliberately omitted. US diplomats would not have agreed to resolution 1441 if they thought it allowed other members of the Security Council to block military action by requiring a second resolution that might be vetoed.
This afternoon, Lord Bingham amended the text of his speech to record — though not adopt — Lord Goldsmith’s concerns. He said: “I should make it plain that Mr Jack Straw, Foreign Secretary in March 2003, and Lord Goldsmith, Attorney General at the time, to whom my text was very recently copied, challenge the conclusion I have expressed. Lord Goldsmith emphasises that he believed the advice which he gave at the time to be correct — which I have not challenged — and remains of that view.”
After summarising the former Attorney General’s comments he continued: “Lord Goldsmith stresses that this was his genuine view which – I repeat – I have not challenged. Mr Straw agrees with what Lord Goldsmith says. The negotiating history and wording of Security Council resolution 1441 shows, he says, that it was not the intention of the Security Council, nor was it so expressed, that a decision on material breach had to be decided by the Security Council. This may be surprising, he comments, but it is true.”
Moving on to consider Britain’s role as an occupying power in Iraq, Lord Bingham said its record had been “sullied by a number of incidents, most notably the shameful beating to death of Mr Baha Mousa in Basra”. However, such breaches were not the result of deliberate government policy and the victims’ rights had been recognised.
“This contrasts with the unilateral decisions of the US government that the Geneva Conventions did not apply to the detention conditions in Guantanamo Bay, Cuba, or to trial of al-Qaeda or Taliban prisoners by military commissions, that al-Qaeda suspects should be denied the rights of both prisoners of war and criminal suspects and that torture should be redefined, contrary to the Torture Convention and the consensus of international opinion, to connote pain, where physical, ‘of an intensity akin to that which accompanies serious physical injury such as death or organ failure’.”
But despite criticising the “cynical lack of concern for international legality among some top officials in the Bush administration”, Lord Bingham managed an optimistic conclusion. Most transactions governed by international law proceeded smoothly on the strength of known and accepted rules, he stressed.
And although there had been little public interest in the legality of Britain’s earlier military interventions such as the Suez Crisis of 1956, the issue of whether the Iraq invasion was lawful had loomed larger than ever before — “perhaps because of widespread doubt in this country about the wisdom and necessity of going to war”.
Prophecy was always perilous, Lord Bingham admitted. But it was “perhaps unlikely that states chastened by their experience in Iraq will be eager to repeat it”.
While they had not been “hauled before the International Court of Justice or any other tribunal to answer for their actions, they have been arraigned at the bar of world opinion, and been judged unfavourably, with resulting damage to their standing and influence”.
He concluded: “If the daunting challenges now facing the world are to be overcome, it must be through the medium of rules, internationally agreed, internationally implemented and, if necessary, internationally enforced. That is what the rule of law requires in the international order.”
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http://news.bbc.co.uk/1/hi/uk/7734712.stmPage last updated at 07:53 GMT, Tuesday, 18 November 2008
Iraq war 'violated rule of law'
Former attorney general Lord Goldsmith defended his legal advice
Legal advice given to Tony Blair by the attorney general prior to the Iraq war was fundamentally "flawed," a former law lord has claimed.
Lord Bingham said Lord Goldsmith had given Mr Blair "no hard evidence" that Iraq had defied UN resolutions "in a manner justifying resort to force".
Therefore, the action by the UK and US was "a serious violation of international law," Lord Bingham added.
Lord Goldsmith said he stood by his advice to the then prime minister.
The Liberal Democrats say that Lord Bingham's comments made a full public inquiry "unavoidable" into the decision to invade Iraq.
Responding to Lord Bingham's criticism, Lord Goldsmith insisted the invasion of Iraq was legal.
"I would not have given that advice if it were not genuinely my view," he said.
Lord Bingham, a former Lord Chief Justice, made his comments in a speech on the rule of law at the British Institute of International and Comparative Law in London.
He referred to a written parliamentary statement made by Lord Goldsmith on 17 March 2003 in which he confirmed that war on Iraq would be legal on the grounds of existing UN resolutions.
Lord Bingham said: "This statement was flawed in two fundamental respects. Many nations other than ours took part in the action and did so believing that they were acting lawfully
"It was not plain that Iraq had failed to comply in a manner justifying resort to force and there were no strong factual grounds or hard evidence to show that it had.
"Hans Blix and his team of weapons inspectors had found no weapons of mass destruction, were making progress and expected to complete their task in a matter of months."
Lord Bingham also criticised Lord Goldsmith for failing to make clear that only the UN Security Council could judge whether there had been compliance and, if appropriate, authorise further action.
"If I am right that the invasion of Iraq by the US, the UK and some other states was unauthorised by the Security Council there was, of course, a serious violation of international law and of the rule of law," he said.
Lord Goldsmith said his critic was "entitled to his own legal perspective".
"But at the time and since then many nations other than ours took part in the action and did so believing that they were acting lawfully," he said.
He also said the UN resolution that Iraq was deemed to have defied - 1441 - did not need further determination by the Security Council.
Lord Chancellor Jack Straw backed Lord Goldsmith, arguing that his advice "was shared by many member states across the world".
"I do not accept Lord Bingham's conclusions, which do not, I am afraid, take proper account of the text of Security Council Resolution 1441 nor its negotiating history," Mr Straw said.
But Lib Dem leader Nick Clegg said Lord Bingham's claims made a full public inquiry into the government's decision to go to war "unavoidable".
"Lord Bingham's stature means that his devastating criticism cannot just be brushed under the carpet," Mr Clegg said.
"This is a damning condemnation of what was an unjustified invasion which we now know to have flouted international law."
Former lord chief justice Lord Bingham retired from the bench in July. Lord Goldsmith stepped down from his post as attorney general last year
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Time for a full inquiry
guardian.co.uk, Wednesday November 19 2008 00.01 GMT
The Guardian, Wednesday November 19 2008
More than five years after the event, how much does it matter that a retired law lord now believes the government's legal advice on the invasion of Iraq was unlawful? From one perspective the answer is: not very much. Seen from 2008, after all, the Iraq war is history. With the Iraqi government's backing this week, the troops will soon be on the way out. Chastened by the whole experience, no western leader is likely to go down the Bush-Blair route any time soon. Like it or not, the original advice was sincerely offered and sincerely acted on. And Lord Bingham is in any case no longer a lord of appeal. In short, his Grotius lecture this week may be a powerful piece of legal reasoning. But it is a footnote to a decision that cannot now be reversed.
Some of this scepticism is well-founded. But not all of it. In the first place, Lord Bingham is not just any old lawyer. He is the most senior judge of the modern era. He is regarded by many as its finest legal mind. Though Lord Bingham only retired a few weeks ago, he has been at the pinnacle of English law-making for a decade and a half and has clearly been pondering the war's legality for years. It may raise some eyebrows that he should be so quick to engage on this supremely divisive issue so soon after leaving the bench - but if the issue is so important, why not? The simple fact is that, when Lord Bingham speaks on the law, it is always a good idea to listen.
Just because it is now more than five years since the attorney general, Lord Goldsmith, advised that an invasion would be lawful, it does not follow that his advice or the decision are less controversial or momentous now than they were in 2003. It is hard to think of a more serious decision than one to go to war. Particularly in circumstances other than national self-defence, it is essential to know what is lawful and what is not. In a world increasingly and rightly regulated by international law, all nations need to be clear about the lawfulness of war and the obligation to obey that law.
Lord Bingham's conclusion that the Iraq invasion was "a serious violation of international law and the rule of law" - which ministers are required to uphold - has already been vigorously challenged by Lord Goldsmith and Jack Straw. Yet this is such a serious subject, with such immense implications for Britain's standing, that the argument cannot be allowed to rest there. When such senior figures of the legal establishment are at odds in this way, it enhances the case for a full public inquiry into the lessons of the Iraq war. That inquiry should have been established long ago. But when someone of Lord Bingham's stature says the war was unlawful, the case for such a scrutiny, already compelling, becomes irresistible.
