A Gross Libel           by Richard Heller

Pay attention at the back there! I am about to defame Britain’s Attorney-General, Lord Goldsmith.

To defame somebody, you must publish a statement that would tend to lower the estimation of him or her in the minds of right-thinking people. With that in mind, I state that Lord Goldsmith is a political poltroon and a legal lummox. He is unfit to deal with a case of breaking-and-entering in Uxbridge Magistrates Court, let alone serve as a senior Law Officer of the Crown.

The Attorney-General originally advised that a second UN resolution would be required to make it lawful to go to war with Iraq. He altered his advice  from political expediency. The Butler report  (paragraph 383) shows that he abdicated his responsibility for scrutinizing the evidence for war. He preferred instead to rely on the bare word of his “client” (and friend and political boss) the Prime Minister. He then gave the advice that the Prime Minister wanted. That advice was rightly described as “scraping the bottom of the legal barrel” and ignored fundamental principles of international law.

Little wonder, therefore, that he has been afraid to reveal that advice either to Parliament or to the British people (who paid for it) or in open court. He has invoked attorney/client privilege to keep it secret. Such privilege is usually expected to protect the client: in this case it protects the attorney from having to demonstrate his weakness and failure.

The Attorney-General’s final advice was published in outline form, with a gloss by the Foreign and Commonwealth Office. On that evidence, it would have shamed a Cub Scout aiming for the first badge in International Law. Very significantly, the Attorney-General did not rely on a single claim in the infamous September dossier, published several months earlier. Instead, he cited a chain of UN resolutions, going back to the invasion of Kuwait, as authority for the war against Iraq.

The outline advice fails even to mention, let alone counter, five fundamental objections. These objections would be in the minds of any international lawyer and they must have been drawn to the Attorney’s attention. He clearly had no confidence in his ability to rebut them – and he therefore suppressed them. These objections are as follows:

1) It is up to the UN, not individual member states, to decide how its resolutions should be enforced. There are thousands of extant UN resolutions, and member states cannot choose resolutions to enforce as if they were helping themselves from a restaurant menu. The UN authorized force in 1990 to liberate Kuwait, but when that objective was achieved no subsequent resolution authorized any country to revive a state of war against Iraq. The last in that chain of resolutions was 1441 and in March 2003 the UN was clearly unwilling to authorize the immediate use of force to make it effective. The United States and the United Kingdom had no right to invoke the UN’s authority and (as the Attorney himself made clear) they had no other good reason to go to war themselves with Iraq.

2) All of the resolutions on which he relied – and any possible right of action under them – were based on the premise that Iraq was a menace to international peace and security. This fact was never established, and the Attorney himself never reviewed any evidence for this other than the bare assurance of his Prime Minister. In international law, the burden of proof is on a state to justify its right to go to war, not on that state’s potential victim to show that it should not  be attacked.

3) In international law ever since St Thomas Aquinas, war is justified only if it is a last resort, when all other means of action are exhausted. This was clearly not the position in March 2003: it was entirely open to the USA and the UK to allow the UN weapons inspectors more time in Iraq, and neither had any argument to suggest that such an extension would have endangered international peace and security.

4) It is also fundamental to international law that states should have no hidden or ulterior motive for going to war. They can fight a war only for lawful motives and the force they employ must be limited to achieving those motives. The Attorney knew very well that even if the allies had some lawful motives for war against Iraq (such as enforcing UN resolutions by disarming Iraq)  they had many other intentions which were unlawful (regime change, changing the balance of power in the Middle East, demonstrating US power for its own sake) – and that they planned to use force for those unlawful motives.

5) Finally, going to war is a decision with terrible consequences. Any state must have very good and certain justification. Its case for war must be unequivocal and unimpeachable. It is not enough for a state to concoct some sort of case for war and no reputable law officer of that state should assist  such an enterprise. If he or she has significant doubts about the case for war (and clearly the Attorney General did so) then he or she must declare them at every opportunity, not suppress them.

Only an ignoramus and a coward could have produced the final advice by the Attorney General.

All of the above is a prima facie libel of the Attorney General. In case it is not enough to libel someone on one’s own website I have taken the precaution of mailing this to a number of right-thinking people.

If the Attorney wishes to counter this outrageous slur on his competence and character he can sue me. I shall not defend the action other than demand production in open court of all the advice he gave on the legality of the Iraq war and all of the preparatory papers which led up to it. If these reveal that he considered and rebutted the five arguments listed above and that his final advice was well-founded and principled, I shall give him a public apology of Canossa-like proportions with an outsize donation to the Distressed Attorneys Benevolent Fund.

Alternatively, he can take his place in history as a biddable lawyer who let Britain slide into an illegal, immoral and irresponsible war, based on false assumptions falsely presented to the British Parliament and people.

Richard Heller

Address for service of writ supplied on request to website