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Barack Obama's presidency

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Brits, Dutch Confront Illegal Iraq War

By Peter Dyer
February 9, 2010

On March 18, 2003, on the eve of the invasion of Iraq, Elizabeth Wilmshurst resigned as Deputy Legal Adviser to the UK Foreign and Commonwealth Office (FCO), the British equivalent of the U.S. State Department.

“I regarded the invasion of Iraq as illegal, and I therefore did not feel able to continue in my post,” she said later. Ms. Wilmshurst discussed her resignation while appearing before the current British inquiry into the Iraq War — the Chilcot Inquiry.

In an office of 35 or so lawyers, she may have been the only one to resign. However, she testified that her perspective was shared unanimously among all the FCO Legal Advisers, including the head of the office, Sir Michael Wood.

Sir Michael himself told the Chilcot Inquiry: “I considered that the use of force against Iraq in March 2003 was contrary to international law. In my opinion, that use of force had not been authorized by the Security Council, and had no other legal basis in international law.”

In sum: every lawyer charged with advising the British government on the legality of the Iraq invasion believed it was illegal.

Although UK Attorney-General Lord Peter Goldsmith had been of a similar persuasion, in the final weeks before the invasion he changed his mind. Despite the FCO opinion, Lord Goldsmith advised Prime Minister Tony Blair that the upcoming invasion would “on balance” be lawful.

It was that advice, handing Blair the legal opinion that he wanted, which led to Ms Wilmshurt’s resignation.

But what is even more troubling than the readiness of Lord Goldsmith to mold his legal judgment to the political demands of his superiors, or the failure of other UK government attorneys to revolt, is the remarkable fact that no similar inquiry is being conducted – or even seriously considered – in the United States, where the war was initiated.

The Chilcot Inquiry was announced by Prime Minister Gordon Brown on June, 15, 2009. Work began in late July, and the first hearings were conducted on Nov. 24. A report is expected no sooner than this summer.

The mission of the inquiry is not to apportion blame, nor to consider issues of civil or criminal liability. Rather, as stated by Chairman Sir John Chilcot, the inquiry will consider “the UK's involvement in Iraq, including the way decisions were made and actions taken, to establish, as accurately as possible, what happened and to identify the lessons that can be learned.”

In a statement to Parliament, Prime Minister Brown said the inquiry’s scope would be “unprecedented” with “access to the fullest range of information, including secret information… No British document and no British witness will be beyond the scope of the inquiry.”

That scope was demonstrated convincingly on Jan. 29, when former Prime Minister Tony Blair testified for six hours.

And this ongoing British inquiry is not the only one — there was a Dutch inquiry as well. Established March 3, 2009, the Dutch Inquiry, like the British, was to be independent.

Unlike the British inquiry, however, the question of legality was specifically mentioned as part of Dutch inquiry’s mandate. One duty was “to investigate preparations and decision-making in the period from summer 2002 to summer 2003 with regard to the Netherlands’ political support for the invasion of Iraq in general, and with regard to matters pertinent to international law.”

On Jan. 12, 2010, the Commissie van Onderzoek Besluitvorming Irak (Commission of Inquiry into Iraq Decision-making) issued its report. Among the 49 conclusions is #20: “The military action had no sound mandate under international law.”

These official public inquiries in two European countries highlight by contrast the slim likelihood that there will ever be an American public inquiry of similar scope into the invasion of Iraq.

Nor are Americans likely to hear public testimony from the man who bears the chief responsibility for the war: former President George W. Bush.

The likelihood of any discussion by high-ranking American officials about the legality of the war in a public forum with official status seems low as well.
Even less likely is the prospect that any American who had any significant role in the decision to invade Iraq will ever be held responsible in any way for the carnage and suffering that followed.

Understandably, perhaps, this is not an issue that has interested a great many American decision-makers or for that matter senior editors of U.S. news organizations that promoted or tolerated the falsehoods that were used to justify the invasion.

Less understandably, neither does it seem to interest President Obama, a critic of the Iraq War who ran a presidential campaign that emphasized the need for Americans to take personal responsibility.

After his election and a few days before his Inauguration, he was asked about the possibility of a U.S. inquiry into some of the outrages, including torture and warrantless wiretapping, associated with the Iraq and Afghanistan wars.

“We need to look forward as opposed to looking backwards," Obama answered. "My orientation is going to be moving forward.”
Judging from the recent reluctance of the Obama administration to hold the authors of the 2002 “torture memos” legally responsible, it’s reasonable to assume that as far as the invasion of Iraq is concerned official U.S. policy is: no inquiry, no discussion of legality, no accountability.

Official Washington appears to have settled on a “don’t ask, don’t tell” response to a core Nuremberg principle, that aggressive war represents the “supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”

After World War II, serving as chief prosecutor of high-ranking Nazis at the Nuremberg tribunals, U.S. Supreme Court Justice Robert Jackson also made clear that the principles enunciated there were not just excuses for exacting revenge against a defeated enemy but rather would be universal standards that would apply to all future world leaders.

“The ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to the law,” Jackson said, adding: “while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment.”

Yet, the actions of the Bush administration – and the disinterest of the Obama administration in demanding any accountability – suggest a different de facto standard, one that places senior officials of the United States and allied governments above or outside international law.

In 1999 when complaints were filed in the International Criminal Tribunal against President Bill Clinton and Secretary of Defense William Cohen for war crimes in the bombing of Yugoslavia, John Bolton, who later became U.S. Ambassador to the United Nations, said: "It is a big mistake for us to grant any validity to international law.”
Like Bolton, President Bush possessed a strong disdain for international law. In December 2003, when asked about the applicability of international law to a decision on granting reconstruction contracts in Iraq, Bush mockingly replied: “International law? I better call my lawyer.”

The Bush administration’s contempt for international law was no secret inside allied governments. Recently Clare Short, who resigned as UK Secretary of International Development in May 2003 in protest of the Iraq invasion, said at the Chilcot Inquiry:

“It was suggested to [Lord Goldsmith] that he go to the United States to get advice about the legal position. Now we have got the Bush administration, with very low respect for international law. It seems the most extraordinary place in the world to go and get advice about international law.”

It remains to be seen whether the Obama campaign promise of “change we can believe in” will affect the legacy he inherited from George W. Bush of contempt for international law.

Indications from the first year are less than promising.

Peter Dyer is a freelance journalist who moved with his wife from California to New Zealand in 2004. He can be reached at [email protected] .

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