Newsgroup: it.politica.internazionale
Titolo: Irakgate: L'ingannevole legalita' dell'intervento in Irak (The Transatlantic Assembly)

Riporto qui un blog di giuristi angloamericani che spiegano come Lord 
Goldsmith , l'Attorney General britannico venne convinto a dare un 
parere condizionatamente favorevole all'intervento in Irak, su base di 
premesse false.
Lo cito perche' e' un attenta analisi giuridica di com'era la 
situazione alla vigilia della guerra.
E mostra bene com'era necessario falsificare le prove di WMD per 
ottenere la sospirata legalita' dell'intervento.
Am.
http://transatlanticassembly.blogspot.com/2005/04/first-reaction-to-goldsmith-briefing.html
Constitutional 
Law (with an eye to the European Constitution), International Law, 
European Law, Law and Philosophy.
Thursday, April 28, 2005
 A First Reaction to the Goldsmith Briefing
Tony Blair’s lengthy battle to keep secret the legal advice he received 
from the Attorney General, Lord Goldsmith, on the legality of any 
military action in Iraq failed yesterday, when significant sections of 
the briefing were leaked to Channel 4 News. The Government has since 
published the entire report, available in full here, or in summary here.
Naturally, the timing of the leak – with the general election only a 
week away – could not have been much worse from Blair’s point of view, 
particularly given that Michael Howard, the Conservative leader, had 
already taken the unusual step of publicly denouncing him as a “liar”. 
This, of course, ensures that Iraq will be at the very forefront of 
voters’ minds at the crucial time – the last thing that Blair would 
have wanted.
But what does the advice say? It covers some arguments in considerable 
detail, and leaves others basically unexamined. The most striking 
example of the latter is Lord Goldsmith’s failure to engage in any real 
way with the controversy over the “revival” argument: that is, that the 
authorisation for the use of force provided by Security Council 
Resolution 678 in 1990, after the Iraqi invasion of Kuwait, lay dormant 
after the ceasefire, but could be revived by a “material breach” of the 
ceasefire agreement. Lord Goldsmith notes that this argument had been 
used by his predecessors in order to justify subsequent military 
operations in Iraq, such as operation Desert Fox in 1998, and, despite 
acknowledging that it received little support in academic circles, 
states simply that he agrees with the advice of his predecessors. In 
effect, then, one of the major controversies over the legality of the 
action receives relatively little attention in the briefing.
Having thus “established” that the initial authorisation for the use of 
force ion 1990 could be revived, Lord Goldsmith then turns to the 
question of under what circumstances (and in particular the 
circumstances created by Resolution 1441) this could happen. The 
question, of course, was whether that resolution required another to be 
passed before the use of force could be viewed as authorised. Goldsmith 
traces both arguments (focusing more strongly, however, on the “no new 
resolution” approach) and finds (perhaps predictably) that both 
interpretations are reasonable and plausible. The crux of the matter 
seems to rest upon the significance given to operative paragraph 12 of 
the Resolution, in which it is stated that the Council must meet “to 
consider the situation and the need for full compliance with all of the 
relevant Council resolutions in order to secure international peace and 
security.” Goldsmith notes that the difference between the terms 
“consider” and “decide” is highly significant – particularly given the 
fact that the Americans had rejected French and Russian proposals that 
would have expressly required a further decision, “precisely to avoid 
being tied to the need to obtain a second resolution”.
This argument, however, must be treated with caution. At first glance, 
it seems significant – dispositive, even – that the French were aware 
that the US would not agree to a resolution that required a second one 
before force could be used. However, this speaks more to the 
indeterminacy of these kinds of texts than to any convioncing argument: 
although Lord Goldsmith chooses not to do so, it seems equally clear 
that both the French and the Russians were deeply opposed to any 
resolution that would allow war without a second resolution. The issue, 
it seems, was simply fudged; and this argument therefore strikes me as 
something of a dead-end. Certainly, as Lord Goldsmith notes, any court 
would have difficulty in upholding his conclusions, as the background 
negotiations on which he relies were, for the most part, conducted in 
private, and no official record of them exists. In essence, he is 
forced into a reliance on the bona fides of the US officials when they 
insist that the French “knew what they were voting for” in resolution 
1441, and that it didn’t involve a second resolution.
Another crucial point for Lord Goldsmith is, if there has to be a new 
determination of material breach by Iraq after its “final opportunity”, 
then consistent UK practice would imply that it should be the Security 
Council as a whole, not individual members, that should make that 
determination. He notes that the UK position on this was radically 
different from that of the US, who had always argued that a material 
breach was a matter of “objective fact”, that could be recognised by 
any member individually. It is therefore not entirely honest to argue, 
as one journalist in the Guardian has done today, that “the attorney 
told the PM that it was for the UN security council, not him, to decide 
whether Iraq was complying with UN resolutions on disarmament or not. 
Yet we know it was the PM who took that decision.” Indeed, this has 
been one of the sections seized upon by Blair’s critics in the press. 
The relevant section from the briefing is as follows:
A key question is whether there is in truth a need for an assessment of 
whether Iraq's conduct constitutes a failure to take the final 
opportunity or has constituted a failure fully to cooperate within the 
meaning of OP4 such that the basis of the cease-fire is destroyed. If 
an assessment is needed of that situation, it would be for the Council 
to make it. A narrow textual reading of the resolution suggests that 
sort of assessment is not needed, because the Council has predetermined 
the issue. Public statements, on the other hand, say otherwise.
This, of course, is not quite the same thing. Lord Goldsmith 
effectively states that both arguments can be reasonably and plausibly 
made; and, in an intriguing passage, he goes on to note that:
In reaching my conclusions, I have taken account of the fact that on a 
number of previous occasions, including in relation to Operation Desert 
Fox in December 1998 and Kosovo in 1999, UK forces have participated in 
military action on the basis of advice from my predecessors that the 
legality of the action under international law was no more than 
reasonably arguable. But a "reasonable case" does not mean that if the 
matter ever came before a court I would be confident that the court 
would agree with this view.
I judge that, having regard to the arguments on both sides, and 
considering the resolution as a whole in the light of the statements 
made on adoption and subsequently, a court might well conclude that OPs 
4 and 12 do require a further Council decision in order to revive the 
authorisation in resolution 678. But equally I consider that the 
counter view can be reasonably maintained.
This is interesting for a number of reasons. Firstly, it can really in 
no sensible way be taken as the clear and unequivocal advice that the 
war was legal that Blair claimed he had, and that formed the basis for 
the Cabinet decision to resort to military action. It is also, however, 
of importance to note that, as a matter of UK practice, even for 
something as fundamental as a decision to go to war, a finding that a 
legal case for the use of force is “reasonably arguable” is viewed as 
sufficient to discharge our international legal responsibilities, even 
though, as the last sentence quoted above seems to imply, a court would 
be more likely to reject that argument and find the action illegal.
Lord Goldsmith’s conclusion, then, is that it would be “safer” to seek 
a second resolution, in particular one that could make a definitive 
finding of new material breach of the previous resolutions:
In these circumstances, I remain of the opinion that the safest legal 
course would be to secure the adoption of a further resolution to 
authorise the use of force. I have already advised that I do not 
believe that such a resolution need be explicit in its terms. The key 
point is that it should establish that the Council has conduced that 
Iraq has failed to take the final opportunity offered by resolution 
1441, as in the draft which has already been tabled.
Nevertheless, having regard to the information on the negotiating 
history which I have been given and to the arguments of the US 
Administration which I heard in Washington, I accept that a reasonable 
case can be made that resolution 1441 is capable in principle of 
reviving the authorisation in 678 without a further resolution.
Given what was said about the need for the case to be merely 
“reasonably arguable”, quoted above, the advice received by Blair was 
that war in Iraq would be legal (or, at least, in keeping with 
consistent UK practice on the matter of international legality and the 
use of force). This, however, does not mean that Blair is in some sense 
“off the hook”. The memo itself adds little or nothing new to the 
debate over the whether or not the war was legal; and nor was it 
expected to. Instead, the real question, as with so much of the current 
debate in the UK over Iraq, centres on Blair’s presentation of it, both 
to the public and to his own cabinet. By the time the cabinet met to 
discuss the prospect of going to war, Lord Goldsmith had radically 
revised his opinion, and presented a “summary” of the secret briefing 
that had all of the uncertainties and angst removed. Furthermore, Lord 
Goldsmith’s insistence on the need for “hard evidence” of material 
breach will not play well with voters now, given the fact that even the 
Government has acknowledged that such evidence simply didn’t exist. The 
strength with which this point is made in the summary of the briefing 
is worth noting:
However, the argument that resolution 1441 alone has revived the 
authorisation to use force in resolution 678 will only be sustainable 
if there are strong factual grounds for concluding that Iraq has failed 
to take the final opportunity. In other words, we would need to be able 
to demonstrate hard evidence of non-compliance and non-cooperation. 
Given the structure of the resolution as a whole, the views of UNMOVIC 
and the IAEA will be highly significant in this respect. In the light 
of the latest reporting by UNMOVIC, you will need to consider extremely 
carefully whether the evidence of non-cooperation and non-compliance by 
Iraq is sufficiently compelling to justify the conclusion that Iraq has 
failed to take its final opportunity.
This will provide an uncomfortable reminder for Blair of the farce that 
was his Government’s “dossier” on Iraq’s WMD, which purported to 
provide us with just such evidence, but which in fact turned out to be 
little more than a cut-and-paste of a ten-year-old doctoral thesis, 
plagiarised, it is said, right down to the misplaced commas. It is not, 
therefore, in terms of the debate over the actual legality of the war 
that the publication of this advice has its significance, but rather 
with the possibility of public trust in a leader standing for 
re-election in just over a week’s time.
By way of conclusion, I’d just like to flag one or two other, 
miscellaneous points that struck me as interesting on the first, quick 
reading of the briefing. Firstly, Lord Goldsmith begins by 
acknowledging three grounds for the legitimate use of force: 
self-defence, Chapter VII Security Council Authorisation, and 
“exceptionally” (and “controversially”) action “to avert overwhelming 
humanitarian catastrophe”. More support for proponents of a right to 
“humanitarian intervention” – he goes so far as to note that this 
doctrine “was relied on by the UK in the Kosovo crisis and is the 
underlying justification for the No-Fly Zones.”
Secondly, complete rejection of the so-called “Bush doctrine” of 
pre-emptive war. The relevant passage is where he notes “I am aware 
that the USA has been arguing for recognition of a broad doctrine of a 
right to use force to pre-empt danger in the future. If this means more 
than a right to respond proportionately to an imminent attack (and I 
understand that the doctrine is intended to carry that connotation) 
this is not a doctrine which, in my opinion, exists or is recognised in 
international law.”
Lastly, on regime change. Lord Goldsmith concludes his advice with a 
reminder of the requirement of proportionality, noting that, even if 
Resolution 1441 was alone sufficient to revive the authorisation in 
Resolution 678, any force used must be proportionate to the legitimate 
objectives in order to be legal. The force thus:
- must have as its objective the enforcement the terms of the 
cease-fire contained in resolution 687 (1990) and subsequent relevant 
resolutions;
- be limited to what is necessary to achieve that objective; and
- must be a proportionate response to that objective, i.e. securing 
compliance with Iraq's disarmament obligations.
He concludes by noting that regime change could be legal “if it can be 
demonstrated that such action is a necessary and proportionate measure 
to secure the disarmament of Iraq. But regime change cannot be the 
objective of military action.” Again, given the now widely-acknowledged 
fact that Iraq had no WMD to disarm, it is this kind of statement that 
may come back to haunt Blair. At the very least, it allows us to track 
the shifting justifications used in terms of the war: initially WMD, 
then, when the truth about their absence began to emerge, a refocusing 
on humanitarian concerns and on regime change itself as a legitimate 
objective. It is also interesting to note that, in the same breath as 
acknowledging humanitarian intervention as a legitimate basis for the 
use of force, Lord Goldsmith adds that “know of no reason why it would 
be an appropriate basis for action in present circumstances.” 
Therefore, while the “reasonably arguable” condition for legality would 
seem to absolve Blair from any suggestion that he acted contrary to 
legal advice, or in full knowledge that the war was illegal, there is 
still more than enough in this briefing to deeply embarrass him; and 
rightly so...

to the need to obtain a second resolution.
Allora, caro fessacchiotto, come mai *PRIMA DELLA RISOLUZIONE 1441* sia
USA che UK non volevano essere legati alla necessita' di ottenere una
seconda risoluzione? :)
-Stefano

 -Stefano
Perche' gli faceva comodo, avendo gia' deciso che sarebbero entrati in 
guerra comunque...
Noto comunque con piacere che ora accetti l'intenzione di chiedere una 
seconda risoluzione malgrado "non ce ne fosse bisogno".
Grazie per la risatella.
Am.

 Grazie per la risatella.
Grazie a te per la grassa risata invece :)
-Stefano

 "seconda risoluzione"?
Hai presente  la differenza tra posizione ufficiale e effettiva?
Ti faccio io un esempio: tu ufficialmente ti presenti come una persona  
seria, ma effettivamente la tua posizione e' quella di uno stronzo.
Il noto stronzo De Cesari.
Capish?
Am.

seria, ma effettivamente la tua posizione e' quella di uno stronzo.
...disse lo *STRONZO MONONEURONE*... :)
-Stefano

 E come mai alla fine le due posizioni stranamente coincidono? :)
Sei tutto scemo, De Ce'.  La posizione effettiva e' che 
l'amministrazione Bush stavano pianificando la guerra da molto tempo, 
avendo affidato la propaganda al WHIG (come sta uscendo fuori con 
l'Irak Gate)  eppoi ottenuto l'autorizzazione dal Congresso alla guerra 
contro l'Irak mesi prima delle ultime ispezioni.
Mentre Blix is affannava con le sue ispezioni finali aerei UKUSA gia' 
bombardavano segretamente le postazioni di Saddam per 'ammorbidirle'  
in previsione dell'attacco, come dichiarato da un alto ufficiale 
inglese coinvolto nell'operazione.
Stop ensando di chiederti un obolo per queste informazioni 
personalizzate. Che ne dici? A Google per le ricerche su commissionesi 
fanno pagare... Io invece ricevo solo insulti.
Mah...
Am.

personalizzate.
Hai ragione: "informazioni personalizzate" :)  Infatti sono tutte
stronzate partorite dalla tua mente malata :)
-Stefano

 E questo ca**o c'entra con la tua fantasiosa "seconda risoluzione",
Te l'ho gia' spiegato a piu' riprese. Se vuoi dei corsi di recupero in 
PI, paga.
Altrimenti datti al Bel Canto.
Nella Tosca dovresti aver fortuna, se impari a buttarti di sotto al 
momento giusto.
Se non ci riesci, chiamami.
Am.

momento giusto.
...disse il bue all'asino... :)
-Stefano