A Place to Stand

Last night on TV I saw Lord Goldsmith, the Attorney General who first said going to war would only be legal if "we would need to be able to demonstrate hard evidence of non-compliance and non-cooperation" & then reversed himself after being flown to America. Frightening the effects of rendition, even when direct torture isn't involved. He justified it on the basis of "past precedent" which struck a chord.

Indeed looking at his testimony online we see the word "precedent" used 16 times, half directly in connection with Kosovo & then the final time as a joke so it has obviously been a point of issue. The questioners are keen to say Kosovo is not a precedent, indeed far to keen, but Goldsmith isn't. They have been generally considered suspiciously unwilling to ask the difficult questions.

I don't think there was any precedent for this, because I think that if there had been, I think it would have been drawn to my attention before, when people were saying, "You can say there is a reasonable case". I think there are sort of two elements. I think first of all, the International Criminal Court certainly focused the attention of the armed services on their personal responsibility. I think there is also another feature, which is a sort of growing interest, belief, in legality, and the individual responsibilities of people who are involved in action...

The other was the Kosovo precedent. If I may just explain. When action was taken in relation to Kosovo, there was essentially a new legal theory that was developed, which was that there could be military force used to avert a serious humanitarian crisis(1). In that -- on that occasion, there had been a veto by Russia I believe, in the Security Council. So United Nations authority was not present. Still the view was taken, by this country and by others, that military action was justified on this new basis and I think there was a sort of view in some places: well, we managed to, as it were, avoid the fact that there was a veto on that occasion. Does that mean that if there is an unreasonable veto by another country that that can be ignored? ...

On, I think, 27 February, I met in Downing Street with, again, the Prime Minister's advisers and I told them then that, in the light of the further enquiries I had made, following my visit to the United States, following discussions with Jeremy Greenstock, following my investigation of the negotiating history, I was of the view that a reasonable case could be made -- I'm sorry, there was a reasonable case (2)that a second resolution was not necessary, and that that was, on past precedent, sufficient to constitute a green light...

First of all, it is very clear that the precedent in the United Kingdom was that a reasonable case was a sufficient lawful basis for taking military action. That was the basis, as I said -- say in my note of 7 March -- and I checked this at the time, because this is what I had been told by my officials -- it was the basis for the action in Kosovo,(3) it was also the basis for the action in 1998...

BARONESS USHA PRASHAR: We said earlier, the Kosovo precedent was irrelevant. RT HON LORD GOLDSMITH QC: I think -- forgive me, I'm saying on the basis of what is the right test to use, I'm saying that as a matter of precedent it was standard practice to use the reasonable case basis for deciding on the lawfulness of military action...

I don't need to, because the precedent is simply it is enough to say there is a reasonable case and this is what had been, and so I said, "Well, there is a reasonable case"...

SIR LAWRENCE FREEDMAN: Were the precedents that helpful? You have already indicated that Kosovo was a completely different basis of law. Desert Fox is obviously relevant, but, again, you have indicated a difference there. How strong were these precedents, and isn't it a bit unnerving at this sort of stage to say that we are going into this with no more than a reasonable argument?
RT HON LORD GOLDSMITH QC: I don't think "reasonable case" quite means that, but, of course, I see, Sir Lawrence, the point that you are making. That is why, when the armed forces and the Civil Service said, "We need to know that you think it is right to do it", I saw that point of view. I had been doubtful originally. I had originally been not that instinctively in favour of this reasonable case, but these precedents were helpful, because, although Kosovo was a different legal basis, the point was that the British Government had committed itself to military action on the basis of legal advice (4)that there was a reasonable case. That was the precedent. It had been pressed upon me that that was the precedent in the past. I can see, and in a sense this is right, that, with hindsight, I was being overly cautious in expressing it in this way, but that was the precedent that had been used and I went along with it. Not, "I went along with it", I followed the same practice...

FREEDMAN You are giving the armed forces more but not on the basis of any more legal arguments.
RT HON LORD GOLDSMITH QC: Well, not on the basis of more legal argument, but on the basis of asking a different question. This is, in a sense, why I'm saying "with hindsight". I would have liked to have known before the following week that what the armed services and the Civil Service expect was not what had been by precedent given in the past, that they wanted more(5)...

I was following precedent in giving the green light again(6)...

So going through them:

1- "New legal theory" is an interesting phrase. It means a theory for which there is no legal precedent. Without some newly passed law it is a contradiction in terms - if its new it isn't legal & if it is legal it can't be new. I could claim to have a new legal theory that i was allowed to rob & kill people but it would be no more legal than it would if Tony Blair had such a theory - which is exactly what he did.

The other, even more important part of this is that the "new legal theory" depends on the action being taken to "avert a serious humanitarian crisis" - now on this we absolutely know , it is not like Iraq where we say Blair cannot have believed the WMD story was true because of the lack of evidence. Over Kosovo we know for an absolute fact that all of Parliament & the government knew that the claims of genocide by Yugoslavia was a deliberate lie because the Foreign Secretary told Parliament, on the record, that it was not the Yugoslavs committing genocide ("humanitarian crisis") but the NATO trained & armed KLA who were engaged in genocide |& whom we went to war to assist. If the genocide accusation against Milosevic was false & known to be the war was criminal.

2 - I think he meant it the first time - that a "reasonable" or at least apparently reasonable case could be made to appear not that it existed. Slips of the tongue tend to show the thought processes better than considered statements.

3 - "was the basis of action in Kosovo" strong evidence that Kosovo was. legally, the important change in what we may laughingly call the governments respect for the rule of law & that Iraq is merely the culmination.

4 - Confirmation that the government did actually seek legal advice on the Kosovo war, something which I was told was an official secret when I made my FoI inquiry into the legal advice on that war. Since it was based on the "new legal theory" that all previous legal theories about illegal war were wrong I can understand why what the justification actually said is still an official secret.

5 - Clear proof that it was only the outcry by the public & some politicians which changed the situation - the military & civil service wanted their asses covered by a piece of paper from some compliant government judicial officer to protect them - something they had not been significantly worried when the "new legal theory" was used to justify genocide in Kosovo. In fact, as the "I was only following orders" defence showed, such an opinion, if it is worthless is worthless as a defence.

6 - If the previous Attorney general had no problem lying why should he.

Since, provably, everybody in Parliament & government knew the Yugoslav war was being fought to assist in genocide not for the public reason there can be no question that, even under "new legal theories" it was a war crime & those involved [personally complicit in war crimes, genocide, ethnic cleansing, sexual enslavement of children & dissecting living people to steal their body organs. Moreover under the doctrine of "joint criminal conspiracy" adopted, with our government's approval (& funding) by the Yugoslav War Crimes Tribunal, every member of the Labour, Liberal Democrats & Conservative parties & indeed BBC, ITN & other lying journalists who have all been made aware of this are also personally part of such a Nazi supporting joint criminal conspiracy.

Labels: British politics, International politics, Yugoslavia