RAF Officer Faces Jail - Refuses to Go To Iraq

[ORAC]

Since the matter has not been placed before a suitably qualified tribunal for a definitive judgement, and is highly unlikely too, it remains a matter of conjecture and opinion, and is also irrelevant to the case at hand.

[FormerFlake]

It'sfunny how people are happy to question the US, UK motivation/legality for the war. Yet no one ever questions why the other 3 UN Security Council memebers VETO'd. Was it becuase they thought the war was wrong etc. Or becuse of another reason? It just like all the claims of the US/UK selling arms to Iraq. Of course forgettting the French Mirage, Russian Migs, Russian SAMs, Chinese made AK47 etc.

In short you never get to see a balanced debate. Maybe, in the is day and age, it is just more PC to be anti-Gulf War 2?

[JessTheDog]

In 1991 a ceasefire, subject to certain conditions, was agreed, those conditions were never met and were deliberately ignored or evaded whilst wilful obstruction to the lawful force charged with the task of ensuring compliance was the order of the day. In 2003 hostilities resumed, there was no new war, GF2 doesn't actually exist.
I don't propose to enter the Hamster Wheel and repeat everything I have said but I stand by it, nevertheless.

Completely untrue. The authority for determining whether or not Iraq had failed to disarm was the UN Security Council. It had made no such determination, although it had ruled that Iraq was in breach of 16 UN resolutions (see my previous post regarding the significance of this). If, for the sake of argument, the breach of the 1991 ceasefire was legitimate, then the extent of military action permitted would not have extended to regime change. Richard Perle admitted as much in late 2003. So, Kendall-Smith's actions were wrong but not his views - he should have resigned his commission.

From the horse's mouth: Perle admits war was not legal:

http://www.guardian.co.uk/Iraq/Story...089158,00.html

International lawyers and anti-war campaigners reacted with astonishment yesterday after the influential Pentagon hawk Richard Perle conceded that the invasion of Iraq had been illegal.
In a startling break with the official White House and Downing Street lines, Mr Perle told an audience in London: "I think in this case international law stood in the way of doing the right thing."

President George Bush has consistently argued that the war was legal either because of existing UN security council resolutions on Iraq - also the British government's publicly stated view - or as an act of self-defence permitted by international law.

But Mr Perle, a key member of the defence policy board, which advises the US defence secretary, Donald Rumsfeld, said that "international law ... would have required us to leave Saddam Hussein alone", and this would have been morally unacceptable.

Legal opinion by Matrix lawyers

http://www.lcnp.org/global/IraqOpinion10.9.02.pdf

1. We are instructed by Peacerights to give an opinion on the legality of the use of force by the United Kingdom against Iraq. In particular, we are asked to consider whether:

(1) the right of self-defence would justify the use of force against Iraq by the United Kingdom;

(2) Iraq’s alleged failure to comply with all or any of the existing 23 UN Security Council resolutions would justify the use of force by the United Kingdom; and

(3) a further UN Security Council resolution would be
required.

2. In summary, our opinion is that:

(1) The use of force against Iraq would not be justified
under international law unless:

(a) Iraq mounted a direct attack on the United Kingdom or one of its allies and that ally requested the United Kingdom’s assistance;

or

(b) an attack by Iraq on the United Kingdom or one of its allies was imminent and could be averted in no way other than by the use of force; or

(c) the United Nations Security Council authorised the use of force in clear terms.

(2) Iraq has not attacked the United Kingdom, and no evidence is currently available to the public that any attack is imminent.

(3) Our view is that current Security Council resolutions do not authorise the use of force against Iraq. Such force would require further authorisation from the Security Council.

(4) At present the United Kingdom is therefore not entitled, in international law, to use force against Iraq.

Extracts from internal Downing Street memo

http://www.lcnp.org/global/IraqOpinion10.9.02.pdf

The Secret Downing Street Memo
July 23, 2002

SECRET AND STRICTLY PERSONAL - UK EYES ONLY

DAVID MANNING
From: Matthew Rycroft
Date: 23 July 2002
S 195 /02

cc: Defence Secretary, Foreign Secretary, Attorney-General, Sir Richard Wilson, John Scarlett, Francis Richards, CDS, C, Jonathan Powell, Sally Morgan, Alastair Campbell

IRAQ: PRIME MINISTER'S MEETING, 23 JULY

Copy addressees and you met the Prime Minister on 23 July to discuss Iraq.

This record is extremely sensitive. No further copies should be made. It should be shown only to those with a genuine need to know its contents.
...
C reported on his recent talks in Washington. There was a perceptible shift in attitude. Military action was now seen as inevitable. Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy. The NSC had no patience with the UN route, and no enthusiasm for publishing material on the Iraqi regime's record. There was little discussion in Washington of the aftermath after military action.
...
The US saw the UK (and Kuwait) as essential, with basing in Diego Garcia and Cyprus critical for either option. Turkey and other Gulf states were also important, but less vital. The three main options for UK involvement were:
...
The Defence Secretary said that the US had already begun "spikes of activity" to put pressure on the regime. No decisions had been taken, but he thought the most likely timing in US minds for military action to begin was January, with the timeline beginning 30 days before the US Congressional elections.

The Foreign Secretary said he would discuss this with Colin Powell this week. It seemed clear that Bush had made up his mind to take military action, even if the timing was not yet decided. But the case was thin. Saddam was not threatening his neighbours, and his WMD capability was less than that of Libya, North Korea or Iran. We should work up a plan for an ultimatum to Saddam to allow back in the UN weapons inspectors. This would also help with the legal justification for the use of force.

The Attorney-General said that the desire for regime change was not a legal base for military action. There were three possible legal bases: self-defence, humanitarian intervention, or UNSC authorisation. The first and second could not be the base in this case. Relying on UNSCR 1205 of three years ago would be difficult. The situation might of course change.
...
The Defence Secretary said that if the Prime Minister wanted UK military involvement, he would need to decide this early. He cautioned that many in the US did not think it worth going down the ultimatum route. It would be important for the Prime Minister to set out the political context to Bush.

Conclusions:

(a) We should work on the assumption that the UK would take part in any military action. But we needed a fuller picture of US planning before we could take any firm decisions. CDS should tell the US military that we were considering a range of options.
...
(f) We must not ignore the legal issues: the Attorney-General would consider legal advice with FCO/MOD legal advisers.

Letter from FCO legal adviser Elisabeth Wilmhurst, announcing her resignation.

http://www.globalpolicy.org/security...wilmshurst.htm

“A minute dated 18 March 2003 from Elizabeth Wilmshurst (Deputy Legal Adviser) to Michael Wood (The Legal Adviser), copied to the Private Secretary, the Private Secretary to the Permanent Under-Secretary, Alan Charlton (Director Personnel) and Andrew Patrick (Press Office):

1. I regret that I cannot agree that it is lawful to use force against Iraq without a second Security Council resolution to revive the authorisation given in SCR 678. I do not need to set out my reasoning; you are aware of it.

[The following italicised section was removed by the Foreign Office but later obtained by Channel 4 News]

My views accord with the advice that has been given consistently in this office before and after the adoption of UN security council resolution 1441 and with what the attorney general gave us to understand was his view prior to his letter of 7 March. (The view expressed in that letter has of course changed again into what is now the official line.)

I cannot in conscience go along with advice - within the Office or to the public or Parliament - which asserts the legitimacy of military action without such a resolution, particularly since an unlawful use of force on such a scale amounts to the crime of aggression; nor can I agree with such action in circumstances which are so detrimental to the international order and the rule of law.

2. I therefore need to leave the Office: my views on the legitimacy of the action in Iraq would not make it possible for me to continue my role as a Deputy Legal Adviser or my work more generally. For example in the context of the International Criminal Court, negotiations on the crime of aggression begin again this year. I am therefore discussing with Alan Charlton whether I may take approved early retirement. In case that is not possible this letter should be taken as constituting notice of my resignation.

3. I joined the Office in 1974. It has been a privilege to work here. I leave with very great sadness.”

Sunday Times article, October 17 2004 - resignation of another FCO official

http://www.globalpolicy.org/security.../1017quits.htm

A senior official who helped draw up Tony Blair’s dossier on weapons of mass destruction has quit in disgust over what he regards as the illegal war in Iraq. Carne Ross, who was Britain’s Iraq expert at the United Nations before the war, said he has resigned in “total disillusionment” with the government’s behaviour over the conflict. Ross, first secretary in Britain’s delegation to the United Nations, was responsible for negotiating policy and drawing up resolutions as Blair and George W Bush began to prepare the case for war. He was involved in the initial preparation of Blair’s dossier on weapons.

The resignation is likely to prompt new demands for Lord Goldsmith, the attorney-general, to reveal his advice to Blair over the legality of the conflict. Ross is understood to believe the evidence was “unambiguous” that Iraq posed little or no threat so the legal case for war was flawed. He and other officials are believed to have raised their concerns with ministers. Ross said yesterday: “I am happy to confirm that I resigned because of the war, but I cannot comment further.”

[HEDP]

A fine protracted series of excerpts however;

When the good doctor refused to go to Iraq we were not at war with Iraq. We were invited there by the democratically elected government of Iraq with the blessing of a UN resolution.

Therefore;

The good doctors arguments would never stand up for refusing to obey a legal order on that basis.

Would Jess care to invest as much time in making a case that the current assistance being given to the Iraqi governement is legal and endorsed by the UN?

This topic has given rise to a significant platform for anti war sentiment and just maybe the doctor is achieving his undeclared rational by doing just so..........

IMHO

HEDP

[Squirrel 41]

And breath....

Ladies and Gentlemen, please....

You're actually almost all agreeing. JTD is absolutely right about the legality of Op TELIC I, and the short answer is that it wasn't.

However, the good Doctor was (as we predicted earlier in this thread) convicted of not following a series of legal orders which were legal because the UN Security Council legitimated the Multi National Force - Iraq (MNF-I) presence in the country in the summer of 2003. Therefore he disobeyed a legal order and was duly convicted.

There are two question that need to be answered:

(a) Would he have been able to run this defence in 2003 before the UN legalised MNF-I's presence?

and

(b) What exactly does the JAG mean when he implies that not following orders you believe to be illegal is no defence, even if they are.

Which is a pity, as the answers to these questions should be:

(a) Yes, and he would have been acquitted.

and

(b) JAG has it entirely wrong, and that the military are obligated to check the legality of their orders before implementing them.

S41

[JessTheDog]

Would Jess care to invest as much time in making a case that the current assistance being given to the Iraqi governement is legal and endorsed by the UN?

Quite right and Kendall-Smith would not have had a leg to stand on if he had been allowed to present his argument.