Britain's beleaguered Prime Minister Tony Blair received a much-needed boost at home Monday when his attorney general announced that war on Iraq would be legal, even if the United Nations Security Council did not pass a second resolution clearly authorizing an attack.
Blair's pro-war stance is widely unpopular among British voters and has prompted a brewing revolt within his own party. If he'd lost the legal support of his attorney general, experts say his prime minister position would have been in serious, if not immediate, jeopardy.
Indeed, when the war debate resumes in Parliament Tuesday, half the members of Blair's Labour Party -- approximately 160 backbenchers -- are expected to abandon the prime minister and vote against sending British troops into action. That's 40 more than voted against the war in February, which itself was the largest Parliamentary revolt in English history. On Monday, House of Commons leader Robin Cook became the first of Blair's cabinet ministers to resign over the war. More ministers, along with dozens of less senior government officials, could follow suit once the attack begins.
Yet politically, things could be worse for Blair. Speculation had been running rampant in British political circles that Attorney General Lord Peter Goldsmith, whom Blair appointed to be the country's top legal advisor, had warned the prime minister in private that war would be illegal under international law because without a second resolution, the U.N. had failed to OK a military attack. Up until Monday, Goldsmith had refused to say what advice he'd given Blair.
Normally bound by a code of cabinet confidentiality, the attorney general had been pressed by Blair's many war critics in Parliament to explain his stance on the crucial question. On Monday, Goldsmith, who worked with a team of 15 attorneys in coming to the decision, insisted war would be legal even without a second vote. Although appointed by the prime minister, the attorney general's office in Britain is seen as more independent and less political than its American counterpart.
In a sign of how politically sensitive the subject of an illegal war has become, Goldsmith's ruling was submitted to Parliament in writing, and he thereby avoided being cross-examined by war opponents. Some members of Parliament, as well as a growing body of British academics and attorneys, insist the U.N. charter is clear, and offers only two reasons to legally wage war: self-defense (Article 51), and to restore international peace (Article 42).
That view was supported last week by U.N. Secretary General Kofi Annan. "If the U.S. and others were to go outside the Security Council and take unilateral action they would not be in conformity with the (U.N.) charter," he said, with the result that "the legitimacy and support for any such action will be seriously impaired."
Goldsmith's ruling was good news for Blair, but it's unlikely to quell the debate.
Ultimately, the outcome of the war will stand as the final word on the debate over international law, says James Crawford, a professor at Cambridge University. "The government has the prerogative to breach international laws," he says. "If it goes ahead anyway and the war is a clear success, then the government will get away with it. If Blair uses force against substantial legal opinion that the war is illegal and something goes seriously wrong with the operation, he won't survive as prime minister."
While some Americans might dismiss the charge of "an illegal war" as a peace activist cliché, the charge carries real weight in Europe where the International Court of Justice sits. Though it has no direct jurisdiction over the matter, the charge of an illegal war gives Blair's many critics a powerful way to frame their opposition.
The debate centers around semantics, and the simple question: Has the U.N., through previous resolutions, already given the U.S. and Britain permission to wage war? In Resolution 1441, which the Security Council passed unanimously last November, it warned Iraq of "serious consequences" if Iraq did not fully comply with disarmament. The threat against Iraq is clear, but the specifics are not. In addition, the resolution noted the Security Council would reconvene if Iraq proved to be in material breach of the weapons inspectors, and then it would declare the U.N's intentions by passing another resolution.
Perhaps in hopes of avoiding just this type of confusion, the United States originally wanted 1441 to contain a stronger warning about using "all necessary means," which international lawyers agree means war. However, "all necessary means" was dropped in favor of "serious consequences" last fall after Security Council members France, China and Russia raised objections.
So, with a second resolution withdrawn today due to lack of support, and 1441 standing as the U.N.'s final public stance on Iraq, does it authorize war? "It depends on your interpretation," notes Marlies Glasius, at the London School of Economics' Center for the Study of Global Government. "A case for and against 'serious consequences' could be made by teams of international lawyers. But the most logical body to make that interpretation is the Security Council. And if a majority of members do not interpret that wording as authorizing war, then it's not legal."
Cambridge's Crawford, an international attorney, agrees: "'Serious consequences' is a threat, but the first resolution did not authorize force."
Attorney General Goldsmith and other loyal members of Blair's cabinet argue that Resolution 1441 does give authorization. And if that weren't enough, an earlier Iraq resolution, which still has legal standing, specifically authorized the U.N. to use "all necessary means" against Saddam Hussein if he did not comply. The resolution, 678, was passed by the Security Council 13 years ago, prior to the first Gulf War.
As for the U.N. charter's Article 51 regarding self-defense, Britain's foreign secretary Jack Straw last month explained: "It is well established in international law that the right to take necessary and proportionate military action in self-defense applies not only where an attack has occurred but also preemptively where an attack is imminent." Straw considers a strike from Iraq to be imminent, though that is much doubted by critics.
The debate represents yet another reason why the promised vetoes from Russia and particularly France, which seems intractable in its position, loomed so large for Blair. Not only did the prime minister need the second resolution to sway public opinion, but Blair until quite recently did not treat 1441 as authorization for war. In contrast to the White House, which made clear it considered 1441 reason enough for war, Blair's less hawkish public statements regularly pointed toward the need for a second resolution. With those diplomatic hopes now dashed, Blair and his team have changed their position.
Even if the U.S. and Britain managed to convince seven other countries to vote for the resolution, France could have still laid down an "unreasonable veto," as Blair put it. At that point London and Washington would argue they had authority for war because the will of the council had been expressed.
The problem, says Glasius at the London School of Economics, is that a veto would end the resolution. Despite Blair's spin, he said, "An 'unreasonable veto' is not part of international law."