Much ado about nothing
MINISTERS were warned in July 2002 that Britain was committed to taking part in an American-led invasion of Iraq and they had no choice but to find a way of making it legal.
The warning, in a leaked Cabinet Office briefing paper, said Tony Blair had already agreed to back military action to get rid of Saddam Hussein at a summit at the Texas ranch of President George W Bush three months earlier.
The briefing paper, for participants at a meeting of Blair’s inner circle on July 23, 2002, said that since regime change was illegal it was “necessary to create the conditions” which would make it legal.
Since The Times has not reproduced the actual text of the briefing paper, it is difficult for a reader to judge for himself, but I am skeptical about this report, which is based on a "leak". It is noteworthy, I think, that The Times chooses to use its own words to characterize the paper rather than quote directly from it. If the briefing actually said anything close to "since regime change is illegal", why wouldn't the Times simply use the briefing's words? And why does it stop directly quoting after the "necessary to create the conditions" clause and substitute its own words for whatever followed? Again, if the breifing said anything like "create the conditions necessary to make it legal", why wouldn't The Times simply let the paper speak for itself?This is just speculation, but perhaps it is because The Times does not actually have the briefing paper, and is simply characterizing it in the way that the leaker characterized it. Which would certainly raise the issue of the motivations, and therefore interpretion, of the leaker.
Or perhaps the actual text of the brief lends itself to a less damning interpretation than The Times wishes to put forward. Another reason to think that the briefing paper might not be as definitive as The Times leads us to believe is the Downing Street Memo itself, which is a summary of the meeting for which the briefing paper was apparently prepared. In it the the Attorney-General is said to have put forward 3 legal bases for military action; self-defence, humanitarian intervention, or UNSC authorisation. While the AG rejected the first two of these (why the second was rejected is beyond me) in the case of Iraq, he was less definitive with the third, only saying that relying on it would be "difficult". He did, of course, acknowledge that "the situation might change", which it did with the adoption of UN resolution 1441. So, while the AG might have argued that a desire for regime change in and of itself was not a sufficient legal basis for military action, he did not argue that no such legal basis existed. In this respect, the briefing paper, at least as portrayed by The Times, is not supported by the the arguments put forward by the AG.
If and when the paper is made public, perhaps we will find that it does say exactly what The Times says (or what the leaker told The Times it says). But for now I think there is sufficient reason to be skeptical.
Beyond this, however, it is not at all clear to me why we are fretting over the possibility that Washington and London were trying to manufacture a "legal" justification (to the extent that international law has any meaning anyway) to get rid of Saddam. There is a difference between a legal justification and a moral justification. If there is a moral justification to do something but no legal justification, then I don't see a problem with trying to create a legal justification which allows one to take a moral course of action. Do we fret over sting operations in which police essentially manufacture a crime in order to provide a legal basis to prosecute known criminals? No. Saddam was a known murderer and tyrant. If there was no internationally "legal" basis on which to destoy his regime, then that is a deficiency in international law, and I can't really get worked up over the fact that Bush and Blair tried to figure out a way to create such a justification.