Tuesday, 9 February 2010

Did Peter Goldsmith misdirect himself?

Misdirection is an interesting word.

It's used to refers to magicians creating an illusion.

And it's used to refer to judges getting something wrong in law.

I have a suspicion that Peter Goldsmith in the early days of March 2003 used or experienced misdirection in both meanings of the term.

By spending inordinate time and mental energy on the verbal and cerebral gymnastics needed to bend the "facts" of March 2003 to find a "justification" in international law for the use of force in Iraq, my suspicion is that Goldsmith the magician caused Goldsmith the lawyer to lose sight of important issues resulting in Goldsmith the lawyer (in a quasi-judicial capacity as Attorney General) misdirecting himself.

Understanding what I'm trying to express is a hugely important issue for Chilcot. I suspect that Chilcot completely missed the problem with Goldsmith's evidence. I had missed it until yesterday.

One of the issues that I think has been lost sight of is what a phrase like "the war is legal" (or one of its more formal variants) actually means.

What does "the war is legal" mean?

Phrases like "the war is legal" have been bandied around a lot.

Have you stopped carefully to consider what that means?

Stated more precisely, one might express it as "Is there any applicable prohibition in principle to indicate that the use of force would be unlawful?".

Goldsmith in his evidence to Chilcot said that the UK had an obligation to comply with both international law and national law. I agree.

If you've been following the Chilcot broadcasts or have read the transcripts you'll have endured endless cerebral gymnastics focussing on UN Security Council resolutions.

It's clear from testimony to Chilcot that Goldsmith was, for a period, heavily involved in those twistings and bendings of international law to produce the "legal position" that Tony Blair wanted. It's immaterial in this context whether Goldsmith knew his advice on international law was questionable or not (then or now).

One result of the huge emphasis on questions of international law was that the question of relevant UK law was (at least as far as I can gather) never seriously considered.

The one time when I'm aware that Goldsmith considered issues around domestic law was in paragraphs 33 and 34 of his minute of 7th March 2003 [check] to Blair.

But, here I think, we have the first evidence that Goldsmith was misdirecting himself. He confuses in those paragraphs issues of domestic judicial process with issues of domestic law.

The statements he made about the International Criminal Court were accurate (so far as I understand the position) but by focussing on legal process he missed an opportunity to identify a major issue of domestic law.

The issues relating to the International Criminal Court, to which Goldsmith referred in paragraphs 33 and 34 were contextualised by the the International Criminal Court Act 2001. Goldsmith failed to mention in those paragraphs that in Part 5 of that Act certain offences were entered into UK domestic law. In Section 51 of the International Criminal Court Act the domestic law offences of genocide, crime against humanity and war crimes are mentioned (with their definitions and defences mentioned elsewhere in the Act).

In other words, a new position had been introduced by the existence of Part 5 of the International Criminal Court Act 2001.

My reading of the effect of Section 51 of the International Criminal Court Act is that it doesn't prohibit war in principle but it does make offences acts which might occur during actual warfare.

It's at this point that, I suspect, Goldsmith misdirected himself again. He failed, so far as I can tell, to see the distinction between there being no prohibition in domestic law against going to war and the practical restraints on going to war imposed by Section 51 of the International Criminal Court Act 2001 (and its Scottish equivalent, the International Criminal Court (Scotland) Act 2001).

The gaps in the evidence that I've heard and read (Chilcot can fill the gaps) implies that Goldsmith also made an error by failing to identify and communicate the distinction between there being no prohibition in principle in domestic law and there being no practical impediment to starting a war. That is stated subject to the declassification of documents not yet in the public domain from the period in question.

The practical impediments to war imposed by Section 51 of the International Criminal Courts Act 2001 shouldn't pose a huge problem for the armed forces of a democracy. But neither are the constraints to be treated as capable of being ignored. War is possible. Participants just need to be aware of the relevance of the statutory meaning of Section 51 for what they're likely to do.

A more major mistake, in my view, was made because the same confusion arises in relation to The Terrorism Act 2000.

I'm going to put forward a bald assertion here.

The effect of the enactment of the Terrorism Act 2000, rightly interpreted, is that war was for all practical purposes outlawed as from 20th July 2000. War remained possible in principle but for all practical purposes impossible to conduct without committing multiple criminal offences.

[I'll do a step by step justification of that assertion in a later post.]

I'm not going to attempt to justify that here. But I believe that bald assertion is true and that Goldsmith and his team of lawyers just didn't realise it.

The evidence suggests that Goldsmith made a monumental mistake here, if I'm right.

So when Goldsmith claimed that the war would be lawful, my surmise is that he would have been correct but only if he had fully communicated the relevance of the International Criminal Court Act 2001, the International Criminal Court (Scotland) Act 2001 and, most importantly of all, of the Terrorism Act 2000.

If he'd appreciated the relevance of the Terrorism Act 2000, Goldsmith would have told the Ministry of Defence that there was no prohibition in principle to the use of armed force but that enactment of the Terrorism Act 2000 meant that war could not practically be carried out by UK armed forces without breaches (probably multiple breaches) of UK national law. And that, for those reasons, the United Kingdom had for all practical purposes abandoned the use of armed of force (in a legal way) on 20th July 2000.

Of course, once war began it was possible for criminal offences under international law or under national law (or both) to take place.

Viewed in the round Goldsmith needed to consider six tests, in my view:

1. Was the use of force prohibited in the prevailing circumstances by international law? He concluded it wasn't prohibited.

2. Was the use of force prohibited in national law? He concluded it wasn't.

3. Was the practical prosecution of any war lawful in international law?

4. Was the practical prosecution of any war lawful in UK law? It's here I think he went tragically wrong. As far as I can tell, Goldsmith totally overlooked the relevance of the Terrorism Act 2000 to the practical conduct of any law.

5. Once the war was begun, were crimes committed under national law?

6. Once the war was begun, were crimes committed under national law?

The import of tests 5 and 6 is that legal position relating to a war can be determined only after the war has finished.

The primary questions which can be resolved prior to the war starting is whether or not there is a prohibition in principle precluding the use of armed force and whether there are practical legal barriers to conducting war (the Terrorism Act 2000 in this instance)

Goldsmith's advice, so far as I've seen it, related largely or totally to whether in principle the background prohibition against the use of force had been removed under international law. And failed to identify the relevance of the Terrorism Act 2000 and its effect in making the participation in war by UK armed forces unlawful for practial purposes.

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