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The Legality of the War on Iraq by the United Kingdom of Great Britain and N. Ireland – Giovanni Di Stefano

Since 2003 Giovanni Di Stefano had an insight on what actually led to the invasion of Iraq and for many years has felt that he should have published what he knew then, and over the last 16 years. Although, late in giving his opinion GDS strongly feels he should publish the legality of the war on Iraq by the United Kingdom of Great Britain and N. Ireland in the interest of all.

Parere Pro Veritate

  1. War and armed conflicts exist since time began. Peace, however, is of a recent modern invention. So, stated Sir Henry Maine in 1888.
  2. The Hague Conference eleven years later and the further conference in 1907, recognised the use of force to resolve disputes as an available option. The intention was thought to use such as a very last resort. That factor is important for the purpose of this opinion.
  3. Subsequently, The League of Nations and its Covenant sought to discourage armed conflicts but did not extend to prohibiting such.
  4. The Kellogg-Briand Pact of 1928 which was ratified by Germany, the United States, Belgium, France, and Great Britain, Italy, Japan, Poland, and Czechoslovakia, as well as Ireland’ created the legal position of States renouncing war as an instrument of political policy. Italy, for example, renounces war and such is embodied into the Constitution.
  5. That, however, did not stop Japan from invading Manchuria and Italy from occupying Abyssinia and, ultimately, Germany from invading almost every country in Europe.
  6. The ideology of President Woodrow Wilson in the concept of the League of Nations had failed and something further was required.
  7. It was not until 1945, after the Second World War, that the United Nations adopted policies that would, it was hoped, prevent armed conflicts.
  8. 192 Nations joined and immediately they had to accede and accept that the resolution of disputes was to be by peaceful means.
  9. Further, Article 2(4) stated that member countries had: ‘…to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State.’
  10. The Security Council, the enforcement branch of the United Nations, was given the responsibility for taking prompt and effective action for maintaining international peace.
  11. Security was also conferred on the Security Council which was authorised to act on behalf of member states.
  12. Chapter VII of the United Nations Charter covers threats to breaches of peace provides in Art.39 that: ‘The Security Council shall determine the existence of any threat to peace, breach of the peace, or act of aggression, and shall make recommendations, or decide what measures shall be taken in accordance with Art. 41 and 42, to maintain and restore international peace and security.’
  13. Art. 51 recognised the right of a State to defend itself: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations until the Security Council has taken measures necessary to maintain international peace and security.’
  14. Art. 51 has caused considerable difficulties to both politicians and jurists. It seems very similar to the common law right of personal self-defence. There must, however, be an armed attack or the threat of an immediate attack and of course, the force must be proportional and strictly limited to the defence against the attack.
  15. The Members of the Security Council or the Judges of fact and situation and who decide all are: *The United States of America *The United Kingdom of Great Britain and N. Ireland *France *China *Russian Federation (previously the USSR)
  16. In essence, the known victors of the Second World War notwithstanding that without Australia, New Zealand, India, Canada to cite but a few the Second World War may have produced a much different outcome.
  17. Nonetheless, no other country was invited to sit at the High Table of the United Nations.
  18. In the past 40 years, the United States of America alone has been involved in some forty military actions.
  19. Wars involving the United States of America include. *Grenada *Panama *Haiti *Angola *El Salvador *Nicaragua * Libya *Lebanon *Yemen *Sudan *Yugoslavia*Afghanistan and, of course…Iraq
  20. There were and remain no legal justification the United States of America can rely upon for the actions it took in Iraq.
  21. Top officials in the White House made it crystal clear that it was their intention to remove H.E. Saddam Hussein as President to change the government.
  22. British Government Official assured the United States of America of its unconditional support and wholehearted support for regime change.
  23. Lord Goldsmith, the then-Attorney General, in his ‘Advice to the Prime Minister ‘Iraq Resolution 1441’ dated 7 March 2003 made it clear and was consistent in his advice that while regime change might be as a result of disarming Saddam Hussein: ‘It could not per se be a lawful objective of military action.’
  24. That was the position of the Attorney General Lord Goldsmith on the 7 March 2003.
  25. The author was privileged to see the full opinion of the Attorney General on the 9 March 2003.
  26. It was the view of the Government, led by Antony Lynton Blair, not necessarily shared by Lord Goldsmith, that the legality of the use of force in March 2003 rested solely on whether or not the Security Council de jure had the legal capacity to authorise the use of force and if at what level.
  27. The question for Lord Goldsmith and other selected jurists was whether the Security Council had actually authorised the use of force. If it had the next question was whether it had acted ultra vires.
  28. As ever it would be a question of interpretation rather than the application of the Resolutions.
  29. That was the legal dilemma facing Lord Goldsmith and an ever insistent Prime Minister Tony Blair who was forcing Lord Goldsmith to deliver a legal opinion with a view to war.
  30. In a letter to the Prime Minister dated 15 March 2003, the author suggested that for any ‘joint-adventure’ with the United States of America, at the very least, the opinion of the Attorney General should be published in the House of Commons and, the House of Lords and, a copy to the Lord Chief Justice, the Chancellor and Master of the Rolls, together with the President of the Law Society, and Chairman of the Bar Council, with the usual undertaking not to reveal to any third parties or media without authorisation.
  31. Alistair Campbell the de-facto deputy Prime Minister (without ever having been elected to office, of any kind) was concerned about ‘leaks’ and as a result, the Attorney General published on the 17 March 2003 a summary statement with much redacted vital information.
  32. The opinion of Lord Goldsmith dated 7 March 2003 went into considerable detail concerning the crossed relations between three United Nations Security Council Resolution: *Resolution 678 *Resolution 687 *Resolution 1441
  33. Resolution 678 was passed way back in 1991 and it was founded on much earlier resolutions, for example, requesting Iraq to leave the territory of Kuwait. It authorised the use of force to ‘eject Iraq from Kuwait and to restore peace and security in the region.’ This was Operation Desert Storm which achieved the goal set out by the Security Council.
  34. The unanswered question as to why President Bush refused to order troops to Baghdad was crystal clear to the author, in that, President Bush accepted that the mandate did not include regime change and/or overthrowing the Iraqi Government.
  35. Whilst President Bush Snr. was respectful of the ‘law’ and mandate of the United Nations Security Council, President Bush Jnr. took a different approach aided and abetted and, much incited by Antony Lynton Blair.
  36. Resolution 687 (1991) brought military actions and active operations to an end. What it did though, however, was to impose upon Iraq the conditions with regard to weapons of mass destruction and in inspectorate regime to ensure that all weapons be destroyed.
  37. Antony Lynton Blair between 7 March 2003 and the 17 March 2003 adopting his, what he termed, ‘legal hat’ (notwithstanding the fact that he was a failed barrister in awe of his wife Cherrie Booth QC the true legal luminary of the family but who refused to participate in any meetings) interpreted Resolution 697 to mean that Iraq did have weapons of mass destruction.
  38. In fairness to Lord Goldsmith that was not his position but by that time his opinion had been diluted to suit the whims and fancies of the Prime Minister and his compact with President Bush Jnr.
  39. Resolution 1441 which was adopted unanimously in November 2003, ‘recorded’ that Iraq had been, and continued so to be, in breach of its obligations under the relevant resolution and that included resolution 687. It made an offer to the Iraqi Regime to comply with its disarmament obligations. It imposed a much stricter inspection regime and provided that further violations would be referred to the Security Council for it: ‘…to consider the situation and the need for full compliance with all of the relevant Council resolutions in order to secure international peace and security.’
  40. It did not authorise the use of force.
  41. In honour to Lord Goldsmith his opinion dated 7 march 2003 and viewed by the author two days later, considered that Resolution 1441 could ‘in principle’ revive the authority to use force, but: ‘…only if the Security Council determine that there was a violation of the conditions of the ceasefire sufficiently serious to destroy the basis of it.’
  42. In short, Lord Goldsmith reviewed all arguments and put the case that there was authority to use force if the Security Council reviewed the matter even if it did not reach a conclusion but it could also be argued heavily that nothing short of a new Security Council Resolution would: ‘…provide a legitimate basis for using force.’
  43. Lord Goldsmith was more versed to caution than going to war without lawful cause. He concluded that Resolution 1441 left the position unclear but that the safest legal course would be to: ‘…secure the adoption of a further resolution to authorise the use of force.
  44. In a private meeting between the Prime Minister and Lord Goldsmith on the 16 March 2003 in the late evening the Attorney General pressed upon the Prime Minister that a good case could be made that Resolution 1441 had the capacity in principle of reviving authorisation in Resolution 678, but the case could only be put if there were ‘strong factual grounds’ for categorically saying Iraq had failed to take the final opportunity. The Attorney General emphasized the need for ‘hard evidence.’
  45. That conversation was intrusively recorded by GCHQ and passed to SIS in the usual manner and ultimately coverted, by the Director-General and without reference to the Secretary of State for Foreign Affairs to which SIS are directly accountable.
  46. Lord Goldsmith was intellectually coerced into re-writing the 17 March 2003 summary statement to say that the Attorney General stated that a material breach of Resolution 687 revived the authority to use force under Resolution 678 and that in Resolution 1441 the Security Council had determined that Iraq had been and was in material breach of Resolution 687 and that Resolution 1441 had in fact given Iraq a final opportunity to comply with its disarmament requirements and had warned it of serious consequences if it did not comply and that the Security Council had also decided in Resolution 1441 that any failure to co-operate in implementing resolution 1441 would be a further breach and that it was clear and plain Iraq had failed to comply and accordingly the use of force under Resolution 678 had revived and continued to that date.
  47. The Summary concluded: ‘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 Resolution 1441 requires is reporting to and discussions by the Security Council of Iraq’s failure, but not an express further decision to authorise force.’
  48. This was in complete contrast to the opinion of 7 March 2003.
  49. The key to the complete contrast lays in the meeting between the Prime Minister and Lord Goldsmith on the 16 March 2003 recorded by GCHQ but to which the author is aware 7 minutes of conversation were deleted from the transcript.
  50. The Summary Statement of 17 March 2003 was, and remains, seriously misconceived and coming from the High Office of an Attorney General surprised many jurists.
  51. The author of this opinion defended in Iraq: *H.E. President Saddam Hussein *H.E. Tariq Aziz *Barzan al-Tikriti * Awad al-Bandar *Taha Yassin Ramadan *Humad Humadi (Acquitted of all charges) *Al Baghdad (later to be leader of Islamic State) and other ex-members of the Iraqi Regime.
  52. The formation and Rules of the Iraqi High Tribunal later to be known as the Central Court of Baghdad and its Statute this author participated together with Salem Chalabi the first Registrar of the Court until he was removed because ‘he was being too fair to the defendants.’
  53. The author was given totally unhindered access to all documentation Arabic and in Translation from the records kept of the Iraqi Government and unhindered access to all peripheral records of the USA and UK by the CIA and SIS and was authorised by the HM Treasury via Barclays Bank PLC to receive payment for services relating to Iraq.
  54. It was amongst myriads of documents and requests that the transcript for the meeting between Lord Goldsmith and the Prime Minister came to light and the deletion of 7 minutes of the transcript.
  55. As stated, there were and remain two serious anomalies and flaws to the misconceived Summary Statement issued by the Attorney General that leave Lord Goldsmith and the then Prime Minister open to civil and penal challenges.
  56. First, how was it easy to see that Iraq had failed to comply in a manner justifying the last resort to the use of force?
  57. Further, what were the strong factual grounds or more importantly hard evidence (as Mr Jaggers in Great Expectations refers to) to show that Iraq had failed to comply?
  58. Second, there is no way or manner that any such final determination whether Iraq had failed to aver to itself of its final opportunity was intended to be taken otherwise than by the Security Council and a vote called?
  59. Lord Alexander of Weeden QC in a lecture delivered on the 14 October 2003 (the author recalls the date as it is the birthday of the author’s eldest son) called the Summary Statement and legal arguments as ‘totally unconvincing.’
  60. Professor Sands QC referred to the argument as ‘a bad argument.’
  61. Professor Lowe called it ‘fatuous.’
  62. The author in a note to the Rt Hon Mr Jack Straw on the 30 March 2003, made it clear that the whole point of the United Nations is that when the Security Council is seized of a problem it is the sole problem of the Security Council.
  63. No individual Member country, even those on the Security Council has the right to take matters in their own hands.
  64. The author said clearly that if the Security Council had intended that the United States of America and the United Kingdom and, in fact, other countries should invade Iraq in 2003 with its blessing and full mandate, it would without hesitation and with plenty of fanfare duly said so.
  65. It did not do so.
  66. As a consequence the invasion and occupation of Iraq by the United States of America and more importantly the United Kingdom of Great Britain and N. Ireland (the Parliament of which received deliberate and knowingly erroneous legal advice by the Attorney General for reasons that are contained in the deletion of 7 minutes from transcript of the meeting with the Prime Minister on 16 March 2003 and in fact, other countries also was, remains unlawful and actionable both at Government level and directed at private individual participants who are subject to the jurisdiction of the Courts of England and Wales.
  67. The invasion of Iraq by the USA/UK was totally without the authority of the Security Council which would generate de facto the most serious violation of international law.
  68. Making a unilateral determination undermines the whole foundation on which the United Nations was founded and as explained in the opening paragraphs of this opinion.
  69. For too long now have certain members of the Security Council treated the rules of International Law as binding on others but never themselves a habit that has affected the others but never themselves a habit that has affected the Court of Appeal, Criminal Division in London.
  70. One of the last phrases that can be deciphered from the transcript of the meeting between Lord Goldsmith and the Prime Minister are the statements of Lord Goldsmith saying: ‘’Please be sure what you are doing. Be 100% sure. I urge you to be really sure you know what you are doing.” 
  71. Solely, on the insistence of the Rt Hon. Jack Straw the then Secretary of State for Foreign Affairs and responsible for the SIS, he forced the Prime Minister to try and obtain a clear Security Council Resolution specifically to authorise the use of force.
  72. When that failed as it was opposed on the face of international opposition the United Kingdom of Great Britain and N. Ireland, were unlawfully taken to war by attacking Iraq without specific authority.
  73. The author, was requested by the US Military in Iraq, in 2007, to defend and represent a certain Al Baghdadi and after two meetings in Camp Cropper and Camp Victory, where the ‘Al-Qaeda boys’ had different colour jumpsuits, the author suggested to the liaison officer for the US Military and US Marshalls that Al-Baghdadi reminded the US Military he was no ‘past threat to the security of the USA.’
  74. To the author, this seemed a strange comment that he was no past threat and the author posted a note of the conversation to Captain W (name redacted) saying: ‘Al-Baghdadi says he posed no past threat. Made a point of accentuating past. Can’t say though about present or future. Give this defence to Al-Bander who can perhaps deal with him better or Gazzawi but he is in Jordan and may not like to come back to Iraq. If Al-Bander can’t do it then revert to me.’
  75. The next the author heard was the release from custody of Al-Baghdadi who went on to become the leader of Islamic State.
  76. The so-called ‘war on terror has raised an extremely serious legal problem for all jurists and one which the author has vented time and time again.
  77. Since no one can declare a war on drugs, cancer, poverty, and the like the war on terror raised a vital issue:- once terrorism is viewed as an ‘enemy’ rather than a criminal suspect it must follow that the status of an accused is one that is governed by military law not criminal law and issues then arise regarding how and what aspect of the Geneva Convention 1949 apply.
  78. This United States of America in part has and remains parasitic, and has infected the application of the criminal law in the United Kingdom of Great Britain and N. Ireland.
  79. It has diluted and continues so to do the what were thought to be unalienable rights, of an accused under the criminal law solely on the basis of the confusion that exists as to what offences are ‘terror’ related and what are simply criminal.
  80. All of these developments emerge from the unlawfulness of the attack on Iraq which, despite that authors’ best efforts in the case of Tariq Aziz – v – Antony Blair, not a single person involved in the knowingly flawed changed legal opinion, no one has been made accountable.
  81. As of yet.

 

 

 

 

Giovanni Di Stefano

12 July 2019

 

 

 

 

 

 

 

 

 

NB: Some images retrieved from Google, will remove at owner’s request.

 

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